author: GRIMES, Acting Chief Judge.

text:
    STATE of Florida ex rel. Wayne P. DEAN, Jr., Relator, v. The Honorable John W. BOOTH, Judge Circuit Court, Fifth Judicial Circuit of Florida, Respondent.
    No. 77-1209.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1977.
    Rehearing Denied Oct. 6, 1977.
    Kirk N. Kirkconnell of Muller & Kirkcon-nell, P. A., Winter Park, for relator.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for respondent.
   ON SUGGESTION FOR PROHIBITION

GRIMES, Acting Chief Judge.

On January 6, 1977, the police responded to a report of a burglary and a shooting. At the scene, the police found a victim who was lying on the ground with a leg wound, a witness who told the police that the relator had shot the victim, and the relator who had a gun stuck in his belt. Relator lived at the scene of the shooting, and the victim was suspected of having committed the burglary.

The police placed the relator in the patrol car. The officer first locked him in but later locked the car so it could not be entered from outside because relator expressed fear for his safety at the hands of several onlookers. The relator was driven to the police station for questioning. At the station, the police advised the relator of his Miranda rights and obtained a statement from him. He was not placed in a cell, nor was he fingerprinted. The relator was then allowed to leave without being placed under arrest.

On March 14,1977, the relator was indicted for aggravated battery in violation of Section 784.045(l)(b), Florida Statutes (1975). Immediately after being indicted, the relator was arrested.

On July 6, 1977, the relator moved for discharge pursuant to Fla.R.Crim.P. 3.191 on the ground that more than 180 days had passed since January 6,1977, when the relator had been taken into custody for the criminal episode giving rise to the crime charged. The motion was denied.

The relator has now filed in this court a suggestion for writ of prohibition seeking to prevent, his trial on the aggravated battery charge. If the speedy trial time has run, prohibition is a proper remedy. Sibert v. Hare, 276 So.2d 523 (Fla. 4th DCA 1973).

When the police initially questioned the relator at the station, he was “in custody” for purposes of being entitled to Miranda warnings. However, we do not believe he was “in custody” within the meaning of Fla.R.Crim.P. 3.191(a)(1). A short protective dr investigative custody is often advisable where, as in the instant case, a person is a suspect but the police do not believe they have enough evidence to arrest him. Here, there was some evidence that the relator had acted in self-defense; After questioning, the relator was permitted to leave the station without restraint. To construe the speedy trial- rule to mean that the time starts running every time the police take a suspect to the station for questioning could have a deleterious effect because the police might then feel compelled to make an arrest on less than sufficient evidence in order to activate the wheels of the prosecuto-rial process before the time runs out.

Our case is somewhat like Snead v. State, 346 So.2d 546 (Fla. 1st DCA 1976), in which the court said:

“. . . [A]ppellant was taken to the jail and held for a short period for investigation with no charge for the murder being on file. He was then released without a charge being filed. His subsequent arrest on March 26 was on an unrelated charge upon which he was held until an indictment was returned against him on September 16 for murder. Under these circumstances, the time within which he, could be tried under the speedy trial rule began to run on. September 16, 1975.”

The relator’s reliance on Deloach v. State, 338 So.2d 1141 (Fla. 1st DCA 1976), is misplaced because there the defendant was formally placed under arrest on the date the speedy trial time was deemed to have commenced running.

The suggestion for writ of prohibition is denied.

SCHEB and OTT, JJ., concur.


source: Caselaw Access Project

author: ERVIN, Judge. MILLS, Acting Chief Judge,

license: Public Domain

text:
    Lavine V. SKIPPER, Appellant, v. Finley L. McMILLAN and Jean B. McMillan, his wife, Appellees.
    No. DD-128.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1977.
    Edgar M. Moore of Smith & Moore, Tallahassee, for appellant.
    M. Howard Williams, Tallahassee, for ap-pellees.
   ERVIN, Judge.

Ms. Skipper appeals a judgment of damages in a direct action filed by her against her covenantors for breach of an encumbrance entered in her favor, arguing that the damages awarded were inadequate and that the court erred in failing to award her a reasonable attorney’s fee for successfully prosecuting the suit to remove the encumbrance. We affirm.

As to the damages involved for the cost of removing the encumbrance, her house, which was partially on her lot line, we find that the court’s award of $3,575.00 damages was supported by competent substantial evidence.

In its final judgment, relating to the award of attorney’s fees, the court stated: “6. The element of attorney’s fees as a recoverable item of damages is denied. Such fees are considered when litigation with third parties is necessary to remove the encumbrance.”

There is a division of authority as to whether a plaintiff is allowed to recover costs and attorney fees as part of his damages for breach of covenant. Some cases allow him to recover only the amount of purchase money and expenses. Others allow him to be awarded also the amount he is compelled to pay as costs and expenses in defense of the title, including attorney fees. See Annot., 61 A.L.R. 154-166 (1929); supplemented at 100 A.L.R. 1203-1204 (1936). Those cases cited in the annotations which do allow recovery of attorney fees, however, appear to limit a covenantee to recover his fees from the covenantor only after the covenantee has become legally obligated in a separate action either to maintain or defend title to the premises conveyed. 61 A.L.R. at 161-162.

The general rule relating to expenses of litigation caused by a breach of contract is stated in 5 Corbin Contracts Section 1037, pages 225-226 (1964), as follows:

“Among the losses suffered by a plaintiff because of the defendant’s breach of contract may be the expenses of litigation. Such expenses are losses suffered by reason of the defendant’s breach; and they differ, therefore, from the expenditures by the plaintiff in part performance of his contract before the defendant’s breach. They are affirmatively subtracted from the plaintiff’s wealth, and are not expected gains from performance of the contract that have been prevented. If the plaintiff can show that the defendant’s breach of contract has caused litigation involving the plaintiff in the payment of counsel fees, court costs, and the amount of a judgment, and shows further that such expenditure is reasonable in amount and could not have been avoided by him by reasonable and prudent effort, he can recover damages against the defendant measured by the amount of these expenditures. The rale just stated does not deal with the cost of litigation with the defendant himself1” (Emphasis supplied.)

Florida cases on the subject allow the recovery of attorney fees by the covenantee expended by him in a separate action. Thus a covenantee has been allowed to bring an action against his covenantor for attorney fees and costs expended necessary to quiet title in a separate action necessary to remove an inchoate right of dower in real estate conveyed to the covenantee. In another case the Supreme Court held that a covenantee could maintain an action against a covenantor seeking the taxable costs and reasonable attorney’s fees paid by the covenantee in bringing a quiet title action against third parties who were in adverse possession of the property at the time the property was conveyed to the cov-enantees. More recently the Third District Court of Appeal held that covenantees, sued by attorneys who had represented them in a quiet title action brought by them against a third party who held an interest in property conveyed to the covenantees, could file a third party complaint against their cove-nantors for attorney fees owed by them in the quiet title suit which was caused by the covenantors’ breach of the covenant of sei-sin.

We have been unable to find any cases which allow the assessment of costs and attorney’s fees in a primary action brought by the covenantee against the cov-enantor for breach of covenants. While it may seem unreasonable to allow a party to recover his costs after a separate action has been maintained but preclude him from doing so in the direct action against the party responsible for the breach, we must bow to the wisdom of the great weight of authority so holding.

AFFIRMED.

SMITH, J., concurs.

MILLS, Acting C. J., concurring in part, dissenting in part.

MILLS, Acting Chief Judge,

concurring in part, dissenting in part:

I dissent in part. Although I would affirm the amount of damages awarded Ms. Skipper, I would reverse the refusal to award her an attorney’s fee. Neither logic nor reason supports the purported great weight of authority. The time for change is now. Justice and fair play demand that in a breach of covenant suit by a covenan-tee against the covenantor, the covenantee should be permitted to recover costs and attorney’s fees from covenantor if covenan-tee prevails in the suit.

I would affirm in part and reverse in part.

      . Gore v. General Properties Corp., 149 Fla. 690, 6 So.2d 837 (1942).

      . Williams v. Azar, 47 So.2d 624 (Fla. 1950).

      . B. W. B. Corporation v. Muscare, 349 So.2d 183 (Fla. 3rd DCA 1977).


author: PER CURIAM.

text:
    HENRY HARTWELL HESTER ARCHITECT A. I. A. a/k/a Architect Henry Hartwell Hester A. I. A. & Associates, Appellant, v. G. A. VAN HEUSDEN and Harold T. Beck et al., Appellees.
    No. DD-307.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1977.
    Stephen G. Salley and Gordon H. Harris of Gray, Adams, Harris & Robinson, Orlando, for appellant.
    Curtis R. Mosley and Joe T. Caruso of Wolfe, Kirschenbaum, Caruso & Mosley, Cocoa Beach, for appellees.
   PER CURIAM.

Having considered the issues under point one of appellant’s brief and having determined that we do not have jurisdiction to consider those issues, Eristavitchitcherine v. Miami Beach Federal Savings & Loan Ass’n, 154 Fla. 100, 16 So.2d 730 (1944) and Hollywood Inc. v. Clark, 153 Fla. 501, 15 So.2d 175 (1943), that portion of appellant’s appeal incorporated under point one is dismissed.

Having determined from the record and the briefs of the parties there is substantial competent evidence to support the deficiency judgment, the deficiency judgment is affirmed.

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


author: ERVIN, Judge.

text:
    The BAY NATIONAL BANK AND TRUST COMPANY, Appellant, v. James R. MASON and Mary S. Johnson, Administratrix of the Estate of H. L. Johnson, Deceased, Appellees.
    No. DD-343.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1977.
    C. Richard Watson of Isler, Higby, Brown & Smoak, Panama City, for appellant.

      J. Ernest Collins of Collins & Thompson, Panama City, for appellees.
   ERVIN, Judge.

Bay National Bank appeals final judgment entered in favor of Mary S. Johnson, Administratrix of the Estate of H. L. Johnson, deceased, which discharged the estate from liability on two notes which the late H. L. Johnson had signed as an accommodation party. The notes were executed by James R. Mason as maker, against whom final judgment was entered in this proceeding and from which he has not appealed. Both notes were for six months duration. Both notes were renewed twice for two succeeding six month periods following agreement between the Bank and Mason. The notes, when originally executed, contained the following language:

“And all endorsers and sureties agree that this note may in whole or in part be extended or renewed after maturity from time to time without notice to them and without release of their liability hereon.”

The court concluded that in the absence of evidence of consent by Johnson for renewal of the original notes, Johnson was discharged from his obligation on each of the notes. We reverse.

Section 673.118(6), Florida Statutes (1975), provides as follows:

Unless otherwise specified consent to extension authorizes a single extension for not longer than the original period. A consent to extension, expressed in the instrument, is binding on secondary parties and accommodation makers. A holder may not exercise his option to extend an instrument over the objection of a maker or acceptor or other party who in accordance with s. 673.604 tenders full payment when the instrument is due.” (Emphasis supplied.)

The administratrix relies upon Section 673.606, Florida Statutes (1975) as supporting the judgment of discharge. Section 673.606(1) provides:

“(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder:
(a) Without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in effecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary; . . . .”

Appellee cites Fort Pierce Bank and Trust Company v. Sewall, 113 Fla. 811, 152 So. 617 (1934) and Card v. Commercial Bank at Daytona Beach, 119 So.2d 404 (Fla. 1st DCA 1960) for the principle that one who is secondarily liable on a negotiable instrument is discharged when the holder grants to the one primarily liable a valid and binding extension without the consent of the party secondarily liable. Appellee however overlooks the language contained in the two notes at the time Johnson endorsed them permitting the notes to be extended “from time to time without notice. . . . ” Johnson must be held to have consented in advance to additional extensions of the notes without further notice. The parties thus otherwise specified to more than one extension. The additional extensions were therefore authorized by Section 673.118(6).

Recently in Taines v. Capital City First National Bank, 344 So.2d 273 (Fla. 1st DCA 1977), we held that certain accommodation parties were not discharged because at the time they executed their endorsements they consented to any extensions or renewals of this note. More recently in Vanguard Construction Company, Inc. v. Lewis State Bank, 348 So.2d 72 (Fla. 1st DCA 1977), we held that three accommodation parties who endorsed a corporate note and consented to “any extensions or renewals without further notice” were not discharged because they did not later individually execute an extension agreement between Vanguard and the bank. Although our opinion in Vanguard turned upon issues other than whether the endorsers had consented in advance to further extensions and renewals, we noted, “the absence of their physical endorsements of the extension agreement is not conclusive on the issue of their consent, which may be established by other evidence.” (At page 74.)

The sole issue for our consideration here, and unlike the situation which confronted the Third District Court of Appeal in Miami National Bank v. Fink, 174 So.2d 38 (Fla. 3rd DCA 1965), cert. den., 180 So.2d 658 (Fla.1965), in which the accommodation parties raised defenses such as material alterations in the notes caused by the extensions, is only whether an accommodation party is discharged by the notes’ extensions for two successive periods, but whose terms were not otherwise altered. On the limited issue before us we hold that the estate was not discharged. The judgment is reversed.

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


text:
    Edward E. BETTIS, Jr., Karen Fandal, Robert Bettis and Rita Tregre, Appellants, v. ESTATE of Edward E. BETTIS, Deceased, Appellee.
    No. DD-379.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1977.
    Nathaniel Dedmond, Pensacola, for appellants.
    W. A. Swann, Jr., Pensacola, for appellee.
   PER CURIAM.

Appellants seek review of an order granting final summary judgment on behalf of Malcolm Garrett. Appellants have filed an action contesting the validity of a will executed by one Edward E. Bettis, now deceased, on the ground that at the time of the will’s execution Mr. Bettis was of unsound mind and subject to undue influence on behalf of Garrett. The testimony relied upon by the court in granting the motion for summary judgment was conflicting as to both issues. We cannot agree with the court on the basis of the record before us that there were no disputed issues of any material facts. The testimony is clearly conflicting as to the material issues presented. The final summary judgment is reversed and the cause is remanded for further proceedings.

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


author: McCORD, Chief Judge.

text:
    Myrtle LOCKE, Appellant, v. Boncyle PYLE, Appellee.
    No. DD-117.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1977.
    Ferrin C. Campbell, Sr., Crestview, for appellant.
    J. LaDon Dewrell of Dewrell & Kessler, Fort Walton Beach, C. Thomas Holland, Crestview, for appellee.
   McCORD, Chief Judge.

This is an appeal from final judgment after jury verdict in a suit brought by ap-pellee Boncyle Pyle, a daughter of Joseph E. Campbell, against his estate in which suit appellant Myrtle Locke, an heir of the deceased was permitted to intervene as a party defendant without limitation or restriction. The original complaint, among other things, alleged that prior to decedent’s death, he and appellee had entered into a partnership agreement for conducting an on-going business consisting of a farming operation on real estate listed as an asset of decedent’s estate; that the parties to the partnership agreed that, as compensation for the labor of appellee for the benefit of the partnership, she would be entitled to ownership of 40 acres of property on which the decedent resided and on which his home was located. Appellant filed an answer with an affirmative defense contending that an agreement, if any, between appellee and the deceased to give plaintiff ownership of 40 acres of property on which the decedent resided and on which the decedent’s home was located violates the Statute of Frauds and is therefore unenforceable. Appellant also filed a motion for partial summary judgment making the same contention as that contained in the affirmative defense. The court denied the motion by treating it as a motion to dismiss and allowing appellee to amend her complaint. Appellee then filed an amended complaint, the primary claim of which was contained in Count III as follows:

“That the Decedent in 1965 did transfer the forty (40) acres of real property upon which Plaintiff resides to the Plaintiff by deed; said deed was subsequently misplaced or destroyed; or in the alternative, Decedent did make an inter vivos gift of said forty acres of real property to the Plaintiff, conditioned upon the Plaintiff’s taking possession of said forty acres, which said Plaintiff did in that she made said forty acres her homeplace; and further conditioned upon the Plaintiff’s looking after, maintaining and careing (sic) for said Decedent, which said Plaintiff did; and further Plaintiff did improve said property in reliance upon the inter vivos gift of same to her.
WHEREFORE, Plaintiff demands judgment establishing her ownership of said real property.” (emphasis supplied.)

The effect of this amendment was to abandon the claim to 40 acres of property on which the decedent’s home was located and claim 40 acres located across the road from decedent’s home on which appellee and her family were living in a mobile home. Appellant filed an answer with an affirmative defense contending that appellee’s claim to 40 acres on which she may have had her trailer home violates the Statute of Frauds and the Statute of Wills and is therefore unenforceable. Appellant also filed a motion for partial judgment on the pleadings and the trial court, in its pretrial order, ruled as follows as to Count III:

“Defendants’ motions for Partial Summary Judgment against Plaintiff as to Count III are denied and Plaintiff is allowed to amend her Statement of Claim to claim the forty (40) acres of land on which is located her trailer instead of the forty (40) acres on which decedent resided as originally claimed in her Statement of Claim.”

Following jury trial, the court entered final judgment as follows as to Count III:

“Pursuant to the verdict rendered in this action:
IT IS ADJUDGED that the Plaintiff, BONCYLE PYLE, recover from the Defendant, ESTATE OF JOSEPH E. CAMPBELL, the following described real property, located in Okaloosa County, Florida:
Southeast Vi of the Northwest Vi of Section 30, Township 5 North, Range 22 West, Okaloosa County, Florida,
which said property and the title thereof is by this instrument vested in Plaintiff, BONCYLE PYLE.
The personal representative of the ESTATE of JOSEPH E. CAMPBELL is hereby directed to execute an Administrator’s Deed conveying from the ESTATE OF JOSEPH E. CAMPBELL to BONCYLE PYLE the aforesaid described property, all for which let execution issue.”

Appellant contends, among other things, that the trial court erred in not granting her motion for directed verdict and the motion of the personal representative for directed verdict made at the close of the evidence. We agree and reverse.

To sustain her claim to the 40 acres in question by reason of a lost or destroyed deed, it was encumbent upon ap-pellee to prove the contents or the substance of the contents of the operative parts of the deed clearly. As stated by the Supreme Court in Fries v. Griffin, 35 Fla. 212, 17 So. 66 (1895), “a due regard to individual rights, as well as sound public policy, requires that in cases for the establishment of lost instruments, the proof as to the contents, or the substance of the contents, of the operative parts of such instruments, should be clear and satisfactory.” On the same point, the Supreme Court in Edwards v. Rives, 35 Fla. 89, 17 So. 416 (1895) said:

“In Taylor v. Riggs, 1 Pet. 591, Chief Justice Marshall stated ‘that.the proof of the contents of a lost paper ought to be clear and satisfactory as to .the substantial parts of the paper’ and we concur in this statement of the law on the subject.”

The proof presented by appellee in support of the re-establishment of the alleged lost deed is far from clear and satisfactory as to its contents or the substance of the contents of its operative parts. There is no evidence to show that the purported deed contained a specific description of the property in controversy, and none to show that it was properly executed by the deceased or was properly witnessed. The substance of the testimony presented by appellee was simply that there was a deed to the 40 acres upon which the trailer is now located and that she at one time had it in her possession but left it with her father when she moved from South Florida to Atlanta, Georgia. The evidence was insufficient to support a verdict in her favor on restoration of the alleged lost or destroyed deed.

We turn now to appellee’s’ alternative claim that the decedent made an inter vivos gift to her of the 40 acres on which she placed her trailer. From the evidence, it appears that in June 1966 she and her family moved from South Florida to Atlanta, Georgia, where they lived in a furnished apartment. In 1968 she and her family moved from Atlanta to the disputed 40 acres where they now live in a house trailer. With this move, she and her father were going into the cattle business together on a partnership arrangement raising cattle on the 40 acres. She contends as aforesaid that her father gave her a deed to this 40 acres and prior to moving their mobile home onto the property, they removed an old house which was there; that in order to make the place livable, they installed a septic tank and fixed the pump. Also, they had to make improvements on the fence. Her claim to this 40 acres is, of course, inconsistent with the claim of her original complaint to 40 acres across the road where her father lived in the homeplace. There is considerable conflict in the total evidence as to whether or not decedent gave or intended to give appellant either of the 40 acre parcels. We consider here, however, the evidence most favorable to appellee on the question of whether or not there was an inter vivos gift of the 40 acres on which her house trailer is located. Since there was no deed, the alleged gift can only be considered as a possible parol inter vivos gift.

A court of equity will not enforce a parol gift of land in the face of the Statute of Frauds [§ 725.01, Florida Statutes (1975)] without conclusive proof of words showing an intent to give the land, that possession was taken in reliance upon the gift, and that the donee made permanent and valuable improvements in anticipation of the gift with the donor’s acquiescence. Green v. Price, 63 So.2d 337 (Fla. 1953). Also, evidence necessary to justify a court of equity in upholding an oral gift of land must be clear and convincing and referable exclusively to the gift. Todd v. Hyzer, 154 Fla. 702,18 So.2d 888 (1944). In Purvis v. Malloy, 129 Fla. 191, 176 So. 71 (1937), the Supreme Court approved the law as stated by the Supreme Court of Pennsylvania in Erie & W. Va. Ry. Co. v. Knowles, 117 Pa. 17, 11 A. 250, which it quoted as follows:

“To establish a parol gift or sale of land between parent and child, the evidence must be direct, positive, express, and unambiguous; the terms of the sale or gift must be clearly defined, and all the acts necessary to its validity must have special reference to it, and to nothing else.
“To take such a contract out of the statute of frauds, the evidence as to the terms of the contract, its performance, and the change of possession must be, not only credible, but of such weight and directness as to make out the facts alleged beyond a doubt.
“The declarations and admissions of the grantor are admissible in evidence to prove such a sale or gift, but should have but little weight attached to them as against any act of such grantor inconsistent therewith.”

Appellee contends that pursuant to the purported inter vivos gift, she took possession of the property and made permanent improvements on it. She stated that the gift was conditioned upon her maintaining and caring for the decedent, which she did. As to the requirement that one seeking to enforce an inter vivos gift of real property in the face of the Statute of Frauds must take possession thereof, the evidence reflects that appellee, her husband and children moved their mobile home onto the property, but there is nothing to indicate that she took possession of the entire 40 acre tract. The testimony of appellee’s husband was to the effect that the deceased could farm the property the way that he had been doing until he died. Appellee testified that in 1968 and 1969, soy beans were planted in the fields and her father let the pastures lay out. Appellee’s son testified that the deceased rented the cultivatable land to other farmers — approximately 32 acres out of the 40 acres upon which appellee’s mobile home was located. Also, their moving on the property is not inconsistent with their doing so in order to carry on the partnership cattle business.

As to improvements made by appellee, in order to remove a parol contract from the Statute of Frauds, improvements must be both valuable and permanent. Green v. Price, supra. The only improvements relating to the entire 40 acre tract were some improvements made by appellee on the fence. This improvement was necessary in order to raise cattle on the land pursuant to appellee’s and decedent’s cattle-raising partnership. There was no specific testimony regarding the cost of any improvements. The mobile home placed on the property could have been removed at any time. A septic tank was installed and repairs were made on the pump, both of which were necessary in order for appellee and her family to live on the property. These improvements were minimal and of a nonperman-ent nature. As to appellee taking care of the decedent, the testimony does reflect that she helped him clean up his house; that she washed his and her family’s clothes in a washing machine at his house and she usually cooked two meals a day for him.

The evidence presented does not meet the strict legal requirements necessary to remove this alleged inter vivos gift from the Statute of Fráuds.

A suit to re-establish a lost or destroyed instrument and a suit to establish and enforce an inter vivos gift of real property are suits formerly cognizable in equity and therefore are not normally tried by jury. This cause, however, was submitted to a jury and no point has been raised here regarding such procedure. In the trial below, appellant requested, but the trial court refused, certain jury instructions as to ap-pellee’s burden of proof to establish a parol inter vivos gift. Appellant contends that the failure to give such instructions was error. In view of our ruling that the proof was insufficient, it is unnecessary to rule specifically upon each of these requested instructions. We find, however, that the instructions which were given were not adequate to apprise the jury of the necessary elements of proof in this suit alleging a lost deed or in the alternative an inter vivos gift. We have considered the other questions raised by appellant and find them to be without merit.

Affirmed in part and reversed in part and remanded with directions to vacate the final judgment for appellee on Count III of the amended complaint and enter judgment for appellant thereon.

RAWLS and SMITH, JJ., concur.


author: ERVIN, Judge. BOYER, Acting Chief Judge,

text:
    H. C. EDWARDS, Chairman, George E. Fletcher, Vice-Chairman, C. T. Ayers, Sec.-Treas., Celia Hendrickson, Billy Brashear, M.D., Charles Pinkoson, M.D., and Glenna Carr as and constituting Board of Trustees of Alachua General Hospital, Gainesville, Florida, Appellant, v. Kenneth LINDSLEY and Margaret Lindsley, his wife, Appellees.
    No. DD-186.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1977.
    James G. Feiber, Jr., of Salter, West, Doughtie & Feiber, Gainesville, for appellant.
    Milton H. Baxley, II, of Baxley, Price & Lodge, Gainesville, for appellees.
   ERVIN, Judge.

Trustees of the Alachua General Hospital appeal a final summary judgment entered in favor of Mr. and Mrs. Lindsley on the basis of the running of the statute of limitations. The trustees filed suit on behalf of Alachua General Hospital on December 31, 1975, alleging that Margaret Lindsley was admitted for treatment at the hospital on November 20, 1966, and that defendants had incurred charges for treatment in the amount of $3,938.38, together with accrued interest. We reverse.

Both parties agree that if the state or a county were not involved, the action, founded upon a written contract, was required to be commenced within five years. Section 95.11(2)(b), Florida Statutes (1975). The trustees answer that since the action was brought on behalf of a county maintained hospital, it is not barred from bringing suit, citing Section 95.02, Florida Statutes (1973), which provided:

“This chapter shall not apply to any action by the state ... or any county or municipal corporation . . . “The board of county commissioners, at any legal meeting, may elect one of their member chairman, and make such orders concerning the care of and the improvement of the corporate property of the county as may be deemed expedient, and also:

Section 95.02 was repealed, effective January 1,1975, by Ch. 74-382, Laws of Florida. However Ch. 74-382, § 36, contained a savings clause providing that any action which would be barred when the act became effective could be commenced before January 1, 1976 and still be maintained. The Board therefore argues that since its action was brought on December 31, 1975, there is no bar. The Lindsleys respond that Section 125.15, Florida Statutes (1975), which states that “The county commissioners shall sue and be sued in the name of the county of which they are commissioners . . provides the exclusive means by which a county can maintain an action and since no action was brought directly in the name of Alachua County, it cannot be brought by the trustees on the county’s behalf. They rely specifically upon Panama Inv. Co., et al. v. Ricker, 70 Fla. 614, 70 So. 596 (1916) and Erickson v. Board of County Commissioners of Sarasota County, 212 So.2d 340 (Fla. 2nd DCA 1968) in support of their position.

Both cases are easily distinguishable from the one now on review. Both cases represented situations where the commissioners sought to maintain an action in their representative capacity as commissioners directly on behalf of the county without naming the county. In Ricker the Duval County Board of Commissioners brought an action to remove an obstruction from a public road. In Erickson the Board of Commissioners of Sarasota County filed suit on a personal service contract. In neither case had a specially created board — as here — been delegated specific powers over a county maintained institution.

The Lindsleys also rely upon Chapter 155 of the Florida Statutes, pertaining to the establishment and operation of county hospitals. They state there is nothing in either Chapter 155 of the Florida Statutes or the special act delegating authority to the Board to bring a legal action on behalf either of Alachua General Hospital or Ala-chua County. Alachua General Hospital was created by a special act of the legislature in 1925, Ch. 10311, Special Acts (1925). In 1959, Chapter 59-1046, Special Acts (1959), authorized the Alachua Board of County Commissioners to appoint trustees for the Alachua General Hospital. The trustees in turn were given certain powers by the act necessary to operate and maintain “a county public hospital.”

Section 155.12, Florida Statutes (1975), moreover, grants to hospital trustees the power to “carry out the spirit and intent of this law in establishing and maintaining a county hospital.” We note that Chapter 59-1046 also empowers the trustees to “carry out the spirit and intent of this law in operating and maintaining a county public hospital.” Among the powers granted to the trustees by Chapter 59-1046 includes the power authorizing them to “assume complete authority for the operation and maintenance of Alachua General Hospital, thereupon relieving any and all other persons and boards from such authority, and replacing them in such capacity.” Statutory powers expressly conferred carry with them all consistent powers which are necessary to the effectual execution of the powers so conferred. McNeill v. Pace, 69 Fla. 349, 68 So. 177 (1915); Re: Advisory Opinion to the Governor, 60 So.2d 285 (Fla. 1952). Cf. Alsop v. Pierce, 155 Fla. 185, 19 So.2d 799 (1944). Obviously if the Board is given authority to operate and maintain a county public hospital, it necessarily must also have the requisite authority to bring suit on behalf of the county when necessary in order to carry on the effective operation of the hospital.

Another distinction should be mentioned. Section 125.15 should be read in pari materia with Section 125.01(1)(b), Florida Statutes (1975). Section 125.01(3), Florida Statutes (1969), provided as follows:

‡ jfc S{! $ ¡ft
(3) To represent the county in the prosecution and defense' of all legal causes.”

After the decisions in Ricker and Erickson were decided, the legislature in 1971, enacted Ch. 71-14, § 1, Laws of Florida, resulting in an amendment to Section 125.01(2), which is almost identical to Section 125.-01(l)(b), Florida Statutes (1975), providing in part:

“Powers and Duties — The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power shall include but shall not be restricted to, the power to:
Ht * H> % sfs
(2) [to] provide for the prosecution and defense of legal causes in behalf of the county or state and retain and set the compensation of counsel; . . . .” (Emphasis supplied.)

The delegation of power from the legislature to the county commissioners thus authorized the commissioners to maintain an action on behalf of the county in a manner not inconsistent with general or special law. As previously observed, Chapter 59-1046, by grant of general power, authorized the Board to bring actions on behalf of Alachua General Hospital.

The Lindsleys argue that the allegations in the trustees’ complaint, when considered together with the exhibits attached, do not allege ultimate facts sufficient to invoke the jurisdiction of the circuit court. We previously denied the Lindsleys’ motion to dismiss the appeal based upon lack of jurisdiction. As we stated in the order on rehearing, the jurisdictional question was not presented to the trial court and such issue was “a question of fact to be resolved by the trial court whether the agreement of appellees to accept financial responsibility for all charges incurred applies only to those charges incurred subsequent to November 20, 1966, or applies to all charges, both past and present, incurred by appel-lees.” Our order did not foreclose to the appellees the right to determine by appropriate discovery whether the jurisdictional amount alleged had been established.

The final summary judgment is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

MILLS, J., concurs.

BOYER, Acting C. J., concurs specially.

BOYER, Acting Chief Judge,

concurs specially.

As recited in the majority opinion, both parties agree “that if the state or a county were not involved” the action was barred by the Statute of Limitations. Were it not for the holding of our Supreme Court in Heidt v. Caldwell, 41 So.2d 303 (Fla.1949), I would not equate the Trustees of the Ala-chua General Hospital, created by a special act, with either the state or the county. However, in the Heidt case, the Supreme Court of Florida, considering a factually similar situation involving the Board of Commissioners of Institutions, held that “the State of Florida was the real plaintiff in interest”, concluding that the Statute of Limitations was inapplicable. Therefore, in reliance upon that case and the authorities therein cited, I agree to reversal.


text:
    James Eugene SMITH, Appellant, v. STATE of Florida, Appellee.
    No. FF-444.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1977.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Pursuant to the opinion of the Supreme Court of Florida in Dorfman v. State, Case No. 50,026, Opinion filed July 28, 1977, not yet reported, the general sentence imposed by the trial court is hereby set aside with directions that the trial judge enter an appropriate sentence in accordance with said opinion. Further, pursuant to this court’s opinion in Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974), the trial court is directed to give specific credit for the exact number of days that appellant spent in jail prior to imposition of sentence. It will not be necessary for appellant to be present for re-sentencing.

IT IS SO ORDERED.

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


author: HENDRY, Chief Judge.

text:
    George CAREY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-731.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony Musto, Asst. Atty. Gen. for appellee.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   HENDRY, Chief Judge.

Appellant, defendant below, appeals his conviction and sentence for the “Sale or Delivery, or Possession With Intent to Sell, a Controlled Substance” in violation of Section 893.13, Florida Statutes (1975).

Appellant was charged by information filed October 6, 1975, with violations of the above statute. That same day, an executive order of the Governor of the State of Florida was filed in the Office of the Clerk of the Sixteenth Judicial Circuit in and for Monroe County, Florida. The order, number 75-52, assigned the State Attorney of the Eleventh Judicial Circuit to prosecute certain specified criminal cases in the Sixteenth Judicial Circuit. Appellant was among the named defendants in the order.

A second information was thereupon filed on October 29, 1976, charging appellant with two counts of sale, delivery, or possession with intent to sell or deliver a controlled substance. That second information is set forth as follows:

“IN THE NAME AND BY AUTHORITY OF THE STATE OF FLORIDA:
“EDWARD CARHART, Assistant State Attorney for the Sixteenth Judicial Circuit, prosecuting for the State of Florida in the said Judicial Circuit, under oath, information makes that GEORGE KENNETH CAREY in the County of Monroe and State of Florida, on the 4th day of August. 1975. in the County and State aforesaid, did unlawfully and feloniously sell, deliver, or possess with intent to sell or deliver to LARRY DOLLAR, a controlled substance, to-wit: HEROIN, in violation of 898.13 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
“And the said EDWARD CARHART, Assistant State Attorney for the Sixteenth Judicial Circuit, prosecuting for the State of Florida in the said Judicial Circuit, under oath, further information makes that GEORGE KENNETH CAREY in the County of Monroe and State of Florida on the 4th day of AUGUST. 1925, in the County and State afore-

The state entered a nolle prosequi as to the first information on December 16, 1975. Appellant filed a motion to dismiss. the second information which was subsequently denied by the court.

The case proceeded to trial whereupon, at its conclusion, the jury returned a verdict of guilty. Adjudication was withheld. Post-verdict motions for judgment , of acquittal and for new trial were denied, and appellant was adjudicated guilty and sentenced to fifteen (15) years imprisonment. This appeal follows.

Appellant raises two points on appeal. The first point alleges error on the part of the trial court in denying appellant’s motion to dismiss the information. The second point claims that the trial court erroneously admitted into evidence the controlled substance allegedly sold by appellant. We now examine these points.

In alleging error on the part of the court in denying his motion to dismiss the information, appellant contends that (1) the information was signed by an individual without the legal authority to do so and (2) the information failed to allege the essential facts, in violation of Fla.R.Crim.P. 3.140(d)(1).

Initially, we note that the information was signed and sworn to by Edward Car-hart, as “Assistant State Attorney, Sixteenth Judicial Circuit of Florida.” As such, appellant argues, Mr. Carhart derived his authority only from the State Attorney for the Sixteenth Judicial Circuit, who had been disqualified by virtue of the aforementioned executive order of the Governor. Appellant contends that the executive order only empowered the State Attorney for the Eleventh Judicial Circuit, Mr. Gerstein, to sign informations for these particular prosecutions in the Sixteenth Judicial Circuit. Appellant concludes by stating that because Mr. Carhart derived his authority from the disqualified State Attorney for the Sixteenth Judicial Circuit, the information as signed was invalid.

For the following reason, we shall refrain from ruling on the above contention. The law is clear in this state that when the power and authority of an assigned state attorney is tested, it should be done in direct proceedings by quo warranto, and not by appeal. Austin v. State ex rel. Christian, 310 So.2d 289 (Fla.1975); Hart v. State, 144 Fla. 409, 198 So. 120 (1940); State v. Viscito, 349 So.2d 196 (Fla.3d DCA 1977), opinion filed July 19, 1977. We see no reason, and none has been offered by counsel, why the above proceeding should not be utilized when challenging the power and authority of an assistant state attorney, who allegedly derives his authority from the assigned state attorney. Therefore, it is our opinion that appellant has waived his right of review on the above contention.

Addressing ourselves to the question of whether the information was defective for failure to allege the essential facts we turn to Fla.R.Crim.P. 3.140(o), which provides:

“Defects and Variances: No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.”

After reviewing the information which was filed against appellant, it is our opinion that it fully apprised appellant of the offense with which he was charged and was written in substantial compliance with the language of the statute appellant had allegedly violated. Machin v. State, 270 So.2d 464 (Fla.3d DCA 1972); State v. Bruno, 107 So.2d 9 (Fla.1958). We therefore find no error on the part of the trial court in denying the motion to dismiss said indictment.

Appellant’s final point concerns the introduction into evidence of the controlled substance (heroin) allegedly sold by appellant to the undercover agent named in the indictment. Appellant claims error on the part of the trial court in admitting the substance into evidence over his objection on the ground that the state did not prove a proper chain of custody of the heroin from the time the agent received it to the time of trial. Appellant contends that there was sufficient evidence of tampering with the contraband so as to successfully raise an objection on the basis of chain of custody, i.e., the amount of heroin introduced into evidence at time of trial was allegedly less than had been purchased by the agent.

In that the record does not support any evidence of tampering with the heroin, we cannot say that it was error for the trial court to admit same into evidence. We therefore must reject any challenge to the introduction of the heroin on the basis of chain of custody. Stevens v. State, 245 So.2d 92 (Fla.1st DCA 1971); Stunson v. State, 228 So.2d- 294 (Fla.3d DCA 1969).

Accordingly, after reviewing the record, briefs and arguments of counsel, it is our opinion that appellant has failed to demonstrate reversible error. As such, appellant’s conviction and sentence are hereby affirmed.

Affirmed.

      . The executive order provided, in part, as follows:
      “WHEREAS, the persons indicted for crimes include public officials and the Governor has received allegations of official misconduct on the part of public officials in said circuit, and “WHEREAS, the Honorable J. Edward Worton, State Attorney of the Sixteenth Judicial Circuit, who has investigated these crimes has advised that he previously represented Artemio Crespo as a private attorney, and
      “WHEREAS, the Honorable J. Edward Worton, in view of his close connection with Artemio Crespo, and the appearance of what might be a conflict of interest, has requested that all these cases, which are interrelated, be promptly and thoroughly investigated, and prosecuted by a State Attorney specifically assigned from another circuit . . [Emphasis added.]

      . Mr. Carhart, who is an Acting State Attorney for the Eleventh Judicial Circuit, had been sworn in as an Assistant State Attorney for the Sixteenth Judicial Circuit to aid the State Attorney for Eleventh Judicial Circuit in the prosecution of the various defendants named in the executive order.


author: HUBBART, Judge.

text:
    Melvin B. FRUMKES, Appellant, v. Natalie FRUMKES, Appellee.
    Nos. 76-1150 and 76-1151.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Rehearing Denied Sept. 29, 1977.

      Norman K. Schwarz, Abbott, Prumkes & Alhadeff, Miami Beach, for appellant.
    Juan P. Loumiet, Coral Gables, for appel-lee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This is an appeal from a trial court order denying a petition for modification of child support filed by a husband in a divorce action. The husband [Melvyn Prumkes, the appellant] has custody and sole support of the parties’ minor children by virtue of a 1966 divorce decree which he now seeks to modify by requiring the wife [Natalie Frumkes, the appellee] to contribute some support for their children.

To be entitled to a modification of child support established by a divorce or marriage dissolution decree, it is incumbent upon the moving party to establish a change in financial circumstances occurring subsequent to the final judgment in the ability of either party to provide support, or in the children’s needs. The rule obtains as to any divorce or marriage dissolution decree whether entered before or after the 1971 no-fault divorce act [Chapter 61, Florida Statutes (1975)]. Sections 61.13, 61.14, Florida Statutes (1975); Birge v. Simpson, 280 So.2d 482 (Fla. 1st DCA 1973); Cheves v. Cheves, 269 So.2d 414 (Fla. 2d DCA 1972); Mazzula v. Mazzula, 256 So.2d 62 (Fla. 4th DCA 1971); Willis v. Willis, 254 So.2d 59 (Fla. 2d DCA 1971); Bullard v. Bullard, 195 So.2d 876 (Fla. 2d DCA 1967).

In the instant case, the trial court found no substantial change in circumstances and denied the petition for modification. We cannot say that the trial court abused its discretion in so ruling. The financial situation of the husband has considerably improved, not deteriorated since the date of the divorce decree. The needs of the children have not substantially increased; indeed, one of the parties’ three minor children has reached majority and is no longer being supported by the husband. Finally, there has been no substantial change in the wife’s financial circumstances although she has remarried and with her new husband is operating a very marginal business. In sum, we cannot say that the trial court abused its discretion in this matter as it is vested, and properly so, with a broad discretion to set child support payments and modify same in a divorce or marriage dissolution action.

Affirmed.


text:
    Leo HENZEL, Appellant, v. Edwin GOLSTEIN and S.W.F.P. Company, a Florida Corporation, Appellees.
    No. 76-1165.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.

      E. C. Watkins, Jr., Tampa, for appellant.
    Hugh F. Quinn, South Miami, for appel-lees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

By this appeal we are asked to review a trial court order dismissing an action for lack of prosecution. The appellant contends that he was given inadequate notice for the hearing on the appellee’s motion to dismiss the action for lack of prosecution. We agree and reverse.

Fla.R.Civ.P. 1.420(e) contemplates that a party should have sufficient notice for a hearing on an adverse motion to dismiss for lack of prosecution to allow him to file a written pleading no later than five working days before such hearing showing good cause why the action should remain pending. In the instant case, the appellant had only one working day’s notice prior to the hearing on the motion to dismiss, which notice was clearly inadequate. We, accordingly, reverse the order of dismissal and remand the cause to the trial court for further proceedings.

Reversed and remanded.

      . “All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.” Fla.R. Civ.P. 1.420(e).

      . “In computing any period of time prescribed or allowed by these rules, by order of court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.” Fla.R.Civ.P. 1.090(a).


author: PEARSON, Judge.

text:
    JERRY LAMPERT REAL ESTATE, INC., a Florida Corporation and Leonard Davidson d/b/a Security Real Estate, Appellants, v. Jerome D. FRANKLIN, trustee, and Anne Drecksler, Appellees.
    No. 76-1440.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.

      Turner, Shapiro & Levy, Miami, for appellants.
    Smith, Mandler, Smith, Werner & Jaco-bowitz and Patricia M. Silver, Miami Beach, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

The appellants are real estate brokers who seek to recover a claimed brokerage commission. The brokers sued the seller and the purchasers claiming that they (the appellants) were the procuring cause of a sale from which they were precluded by way of a conspiracy to defraud them of their commission. See Moylan v. Estes, 102 So.2d 855 (Fla.3d DCA 1958). The trial court entered a summary judgment for defendant-purchaser Jerome D. Franklin, trustee, and for defendant Anne Drecksler, who was a prospective purchaser and subsequent participant in the trust which purchased the real property involved. The summary judgment left pending the case against the defendant-seller.

The only reason apparent on this record for the entry of a summary judgment for the purchasers, as a summary judgment was not entered in the entire case, is that there was no genuine issue of material fact concerning the alleged conspiracy to defraud. An examination of the depositions before the trial judge makes it clear that the defendants-appellees did not carry the burden on summary judgment of showing, as the moving party, that in giving the plaintiff the benefit of all inferences, there was no issue as to conspiracy. We do not mean to state that a prima facie case of conspiracy was established, but simply that it was not demonstrated that there was no issue on that allegation. We, therefore, hold, under the authority of Stringfellow v. State Farm Fire & Casualty Co., 295 So.2d 686 (Fla.2d DCA 1974); and Megdell v. Wieder, 327 So.2d 781 (Fla.3d DCA 1976), that the summary judgment was improperly entered for the defendant-purchasers, and we return the cause to the trial court for further proceedings.

Reversed and remanded.


text:
    Jose Amado PEREZ, M.D., P.A., Appellant, v. Sergio Max RODRIGUEZ, M.D., Appellee.
    No. 76-1864.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.

      Robinson & Greenberg, Miami, for appellant.
    Wayne, Genden & Bach and James W. Jarvis, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

The plaintiff (Jose Perez) appeals from a final judgment entered in favor of the defendant (Sergio Rodriguez) upon granting the defendant’s motion for summary judgment as to counts I and IV of the plaintiff’s complaint. The motion for summary judgment was based on res judicata grounds. The plaintiff contends on appeal that a prior default judgment entered against him in an action brought by the defendant Rodriguez on two promissory notes was not res judicata as to the present breach of contract actions notwithstanding that the prior notes arose out of obligations contained in the contract now sued upon. We agree and reverse.

The law is clear that a default judgment conclusively establishes between the parties, so far as subsequent proceedings on a different cause of action are concerned, the truth of all material allegations contained in the complaint in the first action and every fact necessary to uphold the default judgment, but such judgment is not conclusive as to any defense or issue which was not raised and is not necessary to uphold the default judgment. Baum v. Pines Realty, Inc., 164 So.2d 517, 522 (Fla. 2d DCA 1964). The complaint in the prior action on the promissory notes alleged that the plaintiff Perez executed two promissory notes in favor of the defendant Rodriguez which the plaintiff Perez defaulted on and for which judgment should be entered in the amount due and owing. The default judgment entered upon this complaint conclusively establishes that the plaintiff Perez is liable to the defendant Rodriguez on the two promissory notes in the total amount adjudged.

The default judgment, however, is not conclusive on the breach of contract actions presently brought since these actions raise issues which were not involved in the prior actions and which are not necessary to uphold the prior default judgment. Indeed, the complaint in the prior action does not even mention the contract upon which the present suit is brought. Moreover, the present suit alleges facts and theories of liability under the contract which are in no way inconsistent with the established liability of the plaintiff Perez on the prior promissory notes. Counts I and IV of the present complaint are, accordingly, not barred by res judicata.

The judgment appealed from is reversed and the cause remanded for further proceedings.


text:
    CROW, POPE & CARTER, INC., and Housing Investment Corporation, Appellants, v. James J. JAMES, Appellee.
    Nos. 77-520 and 77-521.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.

      Mahoney, Hadlow & Adams and Donald W. Wallis, Jacksonville and William D. Hyatt, Brown, Malman & Salmon, Miami, for appellants.
    Pallot, Stern, Proby & Adkins, Miami, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   HUBBART, Judge.

By this interlocutory appeal, we are called upon to review the propriety of a temporary injunction. We reverse the order granting the temporary injunction because same failed to provide for the posting of a bond. The law is clear that “[wjhen a temporary injunction is granted, the court shall require the party obtaining it to give bond conditioned for the payment of such costs and damages as may be incurred or suffered by any party who is wrongfully enjoined unless the court, after taking evidence from all the parties of the truth of the complaint and the fact that the party seeking the temporary injunction is unable to give bond, finds such to be true, in which event a temporary injunction without bond may be granted.” Fla.R.Civ.P. 1.610(b).

In the instant case, the trial court reserved ruling on the request for the posting of a bond should a temporary injunction issue. Thereafter, the trial court issued a temporary injunction without requiring the posting of a bond. No testimony was ever taken on the granting of a bond nor was any finding made that the party seeking the temporary injunction was unable to post bond. It is, therefore, clear that the entry of the temporary injunction without requiring the posting of a bond was reversible error which the appellants in no way waived. Hart v. Kapnias, 157 Fla. 846, 27 So.2d 145 (1946); Ginsberg v. City of Daytona Beach, 103 Fla. 168,137 So. 253 (1931); La Gran Familia, Inc., v. Cuba Pharmacy, Inc., 349 So.2d 769 (Fla. 3d DCA 1977); Leopold v. Richard Bertram & Co., 265 So.2d 710 (Fla. 3d DCA 1972); Hoffman v. White, 235 So.2d 43 (Fla. 4th DCA 1970). See also Metropolitan Dade County v. Polk Pools, Inc., 124 So.2d 737, 740-41 (Fla. 3d DCA 1960).

In view of our conclusion herein, it is unnecessary for us to reach any other issue raised by this appeal. The order granting the temporary injunction is reversed and the cause is remanded with directions to the trial court to vacate the said order and to conduct such proceedings as may be deemed appropriate to hear and determine whether a temporary injunction should be issued with or without a bond in keeping with the views herein expressed. Hoffman v. White, 235 So.2d 43 (Fla. 4th DCA 1970).

Reversed and remanded.


text:
    Elaine Marie RIGEL, Appellant, v. Charles Edward RIGEL, Appellee.
    No. 77-607.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Tendrich & Todd, Miami, for appellant.
    Charles Edward Rigel, in pro. per.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed on authority of the principle of law stated in Cherney v. Cherney, 146 So.2d 914 (Fla.3d DCA 1962); and Boyle v. Boyle, 164 So.2d 566 (Fla. 3d DCA 1964). See also Castor v. Castor, 316 So.2d 588 (Fla. 1st DCA 1975).


author: BARKDULL, Judge.

text:
    NATIONAL CAR RENTAL and Travelers Insurance Company, Appellants, v. Gloria SANCHEZ, Appellee.
    No. 77-983.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Greene & Cooper, Miami, Joel R. Teague, Coral Gables, for appellants.
    Miguel A. Suarez, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   BARKDULL, Judge.

The appellee, Sanchez, was injured in an automobile accident on December 3, 1976. The other vehicle involved was an automobile owned by National Car Rental and insured by Travelers Insurance Company.

On February 15,1977, National and Travelers filed a complaint in the nature of a pure bill for discovery, seeking to obtain an independent medical examination of Sanchez to ascertain her present medical condition, because Sanchez was allegedly contemplating filing a complaint for injuries sustained in the December 3, 1976 accident. A motion to dismiss was filed by Sanchez. The trial court granted same without stating the grounds therefor and this appeal ensued.

The Legislature amended the no fault insurance law in 1976 to include Section 627.737(2)(e), Florida Statutes, which reads as follows:

“(e) A serious, nonpermanent injury which has a material degree of bearing on the injured person’s ability to resume his normal activity and lifestyle during all or substantially all of the 90 day period after the occurrence of the injury, and the effects of which are medically or scientifically demonstrable at the end of such period.”

The appellants contend that it then became necessary, in order to protect their possible defenses, to obtain an independent medical examination of Sanchez either during the 90-day period or shortly thereafter.

We affirm the trial court for several reasons. First, to permit what the plaintiffs sought in the trial court would place an additional burden on the trial courts of this State in automobile accident personal injury cases, because in those instances where an injured party ultimately filed a complaint seeking damages for alleged injuries it would not only be possible but, in all probability, a fact that insurance carriers would already have filed an independent action seeking the same relief sought by the action filed in the trial court in the instant matter. One of the reasons for the adoption of the no fault insurance provisions in this State was to eliminate certain matters being presented to the trial courts for consideration. Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla. 1974). If the trial court were to be required to entertain a pure bill of discovery (which we find to still be viable in Florida) to determine whether a potential plaintiff could meet the threshold requirements of the no fault act, this would obviously burden the trial courts with trying matters which could just as well be determined in an ordinary common law action filed by the injured party.

We further note that the Legislature amended the statute to provide for just such a physical medical examination, as requested of the injured party in the trial court in this matter, when it related to PIP benefits. See: Section 627.736(7)(a), Florida Statutes (1976). Applying principles of statutory construction that where the Legislature includes in one section of a chapter the right for an independent medical examination and excludes it in another, the courts ordinarily construe this to be a deliberate omission and we so hold in the instant matter. In this connection, see: Florida Industrial Commission v. National Trucking Company, 107 So.2d 397 (Fla. 1st DCA 1958); Peterman v. Floriland Farms, Inc., 131 So.2d 479 (Fla.1961).

Therefore, for the reasons above stated, the order of the trial judge here under review be and the same is hereby affirmed.

Affirmed.

      . Poling v. Petroleum Corporation, 194 So.2d 925 (Fla. 1st DCA 1967); Camer v. Ratner, 207 So.2d 310 (Fla. 3d DCA 1968).


author: SMITH, Judge.

text:
    Debra MACKEY, a minor, by and through Charles Mackey, her father and next friend, Appellants, v. RESERVE INSURANCE COMPANY and Rosann Wheeler, Appellees.
    No. EE-255.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1977.

      Sylvan A. Wells of Stern, LaRue & Wells, P.A., Daytona Beach, for appellants.
    Sutton G. Hilyard, Jr. of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellees.
   SMITH, Judge.

Debra Mackey, a minor, and her father appeal from a judgment in this personal injury case awarding each $2,500 on their claims against Wheeler and her insurer. By a special verdict the jury found each claimant damaged to the extent of $5,000, but reduced the amount of their recovery by half due to Debra’s own negligence. The Mackeys complain principally of the trial court’s exclusion from evidence, when offered by the Mackeys, of Wheeler’s admission of guilt of a traffic infraction in the incident.

Because the traffic incident caused personal injury to Debra, Wheeler was required by Section 318.19, Florida Statutes (1975) to attend a mandatory hearing on her traffic citation. She there pleaded guilty to or admitted the truth of the traffic charge. The trial court, excluding evidence of her admission, gave her the benefit of Section 318.14, which provides that a person not required to attend a mandatory hearing may respond to a traffic citation by paying the civil penalty by mail or in person within 10 days or by forfeiting any bond posted to secure appearance. Section 318.-14 further provides:

“If the person cited follows either of the above procedures, he shall be deemed to have admitted the infraction and to have waived his right to a hearing on the issue of commission of the infraction. Such admission shall not be used as evidence in any other proceedings.”

The trial court erred in excluding Wheeler’s admission. Section 318.19, prescribing procedures for the disposition of traffic citations requiring a mandatory hearing, states:

“Any person cited for the infractions listed in this section shall not have the provisions of § 318.14(2) and (4) available to him but must appear . . .”

The legislature evidently considered different treatment of more serious traffic offenses is appropriate. We need not speculate on whether the policy of excluding admissions of guilt under the provisions of Section 318.14(2) and (4) should reasonably be applied also in the case of more serious offenses handled under Section 318.19, for the legislature has clearly stated that the policy should not be so applied.

While we consider the trial court erred, the error was harmless in this case. The proffered admission went simply to the question of whether Wheeler was negligent, which the jury’s verdict found favorably to appellants. The admission did not, as contended by the Mackeys, bear on the question of Wheeler’s degree of fault contributing to the injury. Conceding that Florida’s comparative negligence doctrine makes the question more difficult, we conceive that, to warrant reversal, a successful plaintiff must show a clear relationship between the evidence erroneously excluded and the amount of plaintiff’s verdict. In this case that showing was not made. The favorable verdict rendered the error harmless to appellants. See Kuharske v. Lake County Citrus Sales, Inc., 61 So.2d 495 (Fla.1952); Evans v. Kloeppel, 72 Fla. 267, 73 So. 180 (1916).

AFFIRMED.

RAWLS, Acting C. J., and ERVIN, J., concur.


text:
    Theressa JOHNSON, Petitioner, v. The SUPERINTENDENT AND SCHOOL BOARD OF HERNANDO COUNTY, Florida and State Board of Education, State of Florida, Respondents.
    No. GG-161.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1977.
    John J. Chamblee, Jr., of Law Offices of Richard H. Frank, P. A., Tampa, for petitioner.
    Joseph E. Johnston, Jr., Brooksville, for Hernando County School Board.
    Winifred L. Wentworth and Gene T. Sellers, Tallahassee, for State Board of Education.
   ON PETITIONER’S MOTION TO TRANSFER

SMITH, Judge.

Johnson, having petitioned this court to review an order of the Hernando County School Board dismissing her as an instructor, now moves to transfer the petition to the District Court of Appeal, Second District. After unsuccessfully seeking administrative relief from the School Board order by the State Board of Education, Johnson filed her petition for review here conceiving that the Board of Education, headquartered in Tallahassee, is “the agency” referred to in Section 120.68(2), Florida Statutes (Supp. 1976):

“Except in matters for which judicial review by the supreme court is provided by law, all proceedings for review shall be instituted by filing a petition in the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides.” (Emphasis added).

After Johnson’s petition was filed, we decided School Board of Collier County v. Steele, 348 So.2d 1166 (Fla. 1st DCA 1977), holding that district school boards are responsible for final agency action in teacher dismissal proceedings, notwithstanding that the Board of Education affords an aggrieved teacher administrative review which must be exhausted before judicial review is appropriate. Section 231.36(6), Florida Statutes (1975). Johnson’s motion to transfer correctly urges that, as a result of our Collier County decision, the Hernando County School Board rather than the Board of Education is “the agency” whose headquarters location is pertinent in the choice of reviewing courts.

Although Johnson’s petition for review might have been filed in the District Court of Appeal, Second District, within the district where the Hernando County School Board maintains its headquarters and presumably where Johnson resides, it was also appropriate to file the petition for review here. The Board of Education is not “the agency” in a teacher dismissal case, but it is necessarily a party to any teacher’s petition for judicial review of a district school board order which has been reviewed by the State Board of Education. Despite the State Board’s repeated disclaimers of interest in review proceedings litigated by teachers and district school boards, experience has taught us these cases frequently involve policies affecting the school system as a whole. The Board of Education, which by Constitution and statutes has considerable responsibility for formulating and implementing such policies, does so in part by administrative review of teacher dismissals. The State Board must therefore be in a position to establish or defend its policies before the reviewing district court of appeal and, in cases involving conflicts between district courts, before the Supreme Court. The State Board can effectively do that only if it has party status in these cases before the district courts of appeal. Though necessarily a party, the State Board may limit its participation appropriately.

The State Board of Education effectively “resides” at Tallahassee, in Leon County and within this judicial district. Cf. McCarty v. Lichtenberg, 67 So.2d 655 (Fla.1953). It was therefore appropriate for Johnson to petition this court for judicial review. The respondent State Board of Education, though a reluctant party here, objects to the requested transfer to the District Court of Appeal, Second District. Over such an objection, we will not on petitioner’s motion transfer a properly filed case. The motion for transfer is

DENIED.

McCORD, C. J., and RAWLS, J., concur.


author: RAWLS, Judge. McCORD, Chief Judge,

text:
    Frank M. WRIGHT, Jr., and Jakie D. Wright, Appellants, v. J. Miller CADE, Appellee.
    No. CC-481.
    District Court of Appeal of Florida, First District.
    Sept. 16, 1977.
    Rehearing Denied Oct. 4, 1977.

      Dale K. Bohner of Coble, McKinnon, Reynolds & Rothert, Daytona Beach, for appellants.
    Joseph D. Krol of Ossinsky & Krol, Day-tona Beach, for appellee.
   RAWLS, Judge.

This appeal is from a summary final judgment granting a mandatory injunction directing appellants Wright to file an application with the State of Florida Department of Business Regulation, Division of Beverage, to transfer Alcoholic Beverage License No. 74-507 to appellee Cade.

The legal confusion as to who owns the beverage license today arises out of “statutory” transfers of the license pursuant to Section 561.32(1), Florida Statutes, and “property right” transfers of same arising from its sale, lease or assignment.

In the year 1953, the Grants owned and operated a bar upon real property that they owned. At this point in time, the Grants owned the beverage license that is the subject matter of this suit.

On December 1, 1953, the Grants conveyed the real property upon which the beverage license was utilized in operating a bar known as the Hollywood Bar & Grill to Halifax Finance Company and retained title to the beverage license. Subsequently, the license was transferred by the Grants to one Grace Gelman on September 16, 1955, who in turn statutorily transferred the license to Mrs. Willie Carden on October 26, 1955. On December 9, 1955, Halifax leased the real property to Mrs. Carden (the record holder of the license for 44 days) for a term of five years. A second five-year lease of the real property was entered into between Mrs. Carden and Halifax, and during this term, it appears that Mrs. Carden held the license in her name and operated the bar under lease from Halifax until December 26, 1963.

On May 15,1962, while Mrs. Carden was operating the bar, the Grants sold the beverage license to Halifax, although Mrs. Carden was reflected as the owner, pursuant to the statute, with the Beverage Department. On December 26, 1963, it appears that Mrs. Carden terminated her second five-year lease with Halifax, because on this date Halifax executed a ten-year lease with Hollywood Bar Incorporation (HBI). This is a critical transaction in determining the rightful owner of the license. The lease agreement between HBI and Halifax not only included the real property but also provided:

“22. The Lessee thoroughly understands and agrees that the Liquor and Beverage Licenses under which the premises are being operated are the sole and exclusive property of the Lessor and that beyond giving the Lessee the right to operate under the same, Lessor does not give, transfer or assign the Lessee any right, title or interest in such licenses. Should it ever become necessary to transfer such licenses to the name of the Lessee, then Lessee agrees to hold such Licenses In Trust for Lessor and at least 30 days before the termination of this Lease will assign back such licenses to Lessor. That Lessor, in case of refusal so to do by Lessee, shall have the right to a mandatory injunction without notice to Lessee from a Court of competent jurisdiction as well as all other legal and equitable remedies . . . Lessee, if required, will sign all necessary applications . During the term of this Lease or any renewal hereof, the Lessor shall not sell or dispose of the aforesaid licenses.”

So, on December 26, 1963, the subject beverage license was acknowledged to be owned by Halifax and HBI’s sole interest in same was derived from Halifax. The statutory transfer of the license by Mrs. Carden (who apparently claimed no title in the license) on January 9, 1964, to HBI did not vest any title in HBI which had, some 14 days prior thereto by its lease of the property, acknowledged Halifax’s ownership of the license.

The next critical transaction occurred on April 30, 1965, when HBI assigned its lease for the real property and beverage license to the Wrights. By this assignment, with Halifax’s approval, the Wrights agreed to be bound by the terms of the lease which, as stated above, acknowledged Halifax’s ownership of the license. The Wrights’ sole basis of any proprietary interest in the license is that of a bill of sale from HBI dated May 15, 1965, which purported to sell the business, goodwill and beverage license. Of course, HBI could not convey any more than it owned, that being only the right to use the license during the term of its lease. And the Wrights, having agreed to abide by the terms of their lease with Halifax, acquired no greater interest in the license than as granted to them by Halifax. So, as of December, 1973, Halifax owned the subject license which it subsequently transferred to appellee Cade.

It cannot be disputed that a property right exists as to a beverage license. House v. Cotton, 52 So.2d 340 (Fla.1951). On all fours is the case of Rosamond v. Mann, 80 So.2d 317 (Fla.1955). Rosamond owned a package store and secured a license from the Beverage Department to operate same. He then leased the premises and license (with a covenant to reassign the license) to Proctor, who obtained a transfer of the license from the Beverage Department to his name. Proctor assigned his leasehold interest to Ogilvie, who later executed a new lease with Rosamond. Ogilvie, who had transferred the license to his name, assigned, with Rosamond’s approval, the lease to Mann. At the termination of the lease, Mann held over on Rosamond’s premises for five months. Prior to vacating Rosamond’s premises, Mann procured from the Beverage Department a transfer of the license to a new location. Rosamond demanded the return of the license, but Mann refused on the basis that the terms of the lease relating to the reassignment of the license were no longer binding since the terms of the lease had expired. The Supreme Court held that a covenant to reassign the license was specifically enforceable.

Section 561.32(1), Florida Statutes, does not, as a matter of law, vest title of a beverage license to the purchaser of a business. Rather, the purpose of the statute is to apprise the Beverage Department of the ownership and management of the business in order that same may be regulated pursuant to the beverage laws of Florida. A covenant to reassign a beverage license is valid, may be specifically enforced, and is not contrary to the public policy of this state. Harnish v. Carbonell, 328 So.2d 489 (Fla. 3rd DCA 1976).

The judgment appealed is AFFIRMED.

SMITH, J., concurs.

McCORD, C. J., dissents.

McCORD, Chief Judge,

dissents.

This action concerns the disputed claim of ownership of a 4-COP beverage license issued by the Division of Beverage. Both appellants and appellee trace their “chain of title” in the subject license to Mr. and Mrs. H. V. Grant, who held the license prior to 1953. The undisputed evidence on the motions for summary judgment shows that appellants hold the license through a chain in which each transfer was approved by the Division of Beverage and that none of the purported transfers in the chain claimed by appellee were so approved. § 561.32(1), Florida Statutes (1975), which with its predecessor statutes has been in effect in all material respects since 1953, states as follows:

“(1) Licenses issued under the provisions of the Beverage Law shall not be transferable except as follows: When a licensee shall have made a bona fide sale of the business which he is so licensed to conduct he may obtain a transfer of such license to the purchaser of said business, provided the application of the purchaser shall be approved by the division in accord with the same procedure provided for in ss. 561.17, 561.18 and 561.19, in the case of issuance of new licenses. However, no one shall be entitled as a matter of right to a transfer of a license when revocation or suspension proceedings have been instituted against a licensee, and transfer of license in any such case shall be within the discretion of the division. Before the issuance of any transfer of license herein provided, the transferee shall pay a transfer fee of 10 percent of the annual license tax to the division.”

On September 16, 1955, the Grants transferred to one Gelman; on October 26, 1955, Gelman transferred to one Carden; on January 9, 1964, Carden transferred to Hollywood Bar, Incorporated; and on May 28, 1965, Hollywood Bar, Incorporated, transferred to appellants.

The chain under which appellee claims an interest in the license (none of the transfers of which had been approved by the Division of Beverage) is as follows: On May 15, 1962, the Grants sold the license to Halifax Finance Company (after having previously transferred the license as aforesaid on September 16, 1955, to Gelman), and on September 11, 1975,- Halifax sold the license to appellee. During the course of the above transactions, there were also leases of the license and of the realty on which the business was located. In 1953, prior to the Grants’ sale of the license to Gelman in 1955, they sold the real property to Halifax. In the 1955 transfer of the license to Gel-man, H. V. Grant filed the following sworn statement with the State Beverage Department:

“I hereby consent to the above transfer and represent to the State Beverage Department that the above license is in my name and a sale in good faith has been made to the within applicant of the business for which the foregoing transfer of license is sought, and that I have furnished to the within named purchaser a list of all creditors as required by Sections 726.02 and 726.03, Florida Statutes, 1951, as amended.”

Halifax in December, 1955, and December, 1960, respectively, leased the real property and the use of the license to Carden for two successive five-year terms (which license Carden already owned as aforesaid). Then in 1963 Halifax leased the real property and the use of the license for a 10-year term to Hollywood Bar, Incorporated. Subsequently on January 9, 1964, Hollywood Bar purchased the license with the approval of the Division from Carden, the true owner, as aforesaid. Subsequent to the 1963 10-year lease from Halifax to Hollywood Bar, a foreclosure suit was brought against Halifax and the real property was sold on foreclosure sale to one Ragan, and Ragan then sold the real property to appellee. Also later in that same year, Halifax, which as aforesaid did not own either the real property or the license at that time, executed an assignment of lease and the license to ap-pellee. Then in 1975 Halifax sold the license, which it did not own, to appellee.

It is apparent that appellants have a much stronger claim of ownership to the license than does appellee. Since all of the transfers in appellants’ chain were approved by the Division of Beverage and the sale of the license from the Grants to Halifax occurred after the Grants had already transferred the license to Gelman (appellant’s predecessor in the chain of title to the license), the subsequent assignments of lease and license and sale of the license to appellee were of no effect.

The majority opinion rests upon an acknowledgment by lessee Hollywood Bar in a December 26, 1963, purported lease of the license and the real property from Halifax. As above pointed out, Halifax, the lessor, did not own the license, it having previously been transferred by Grant to Gelman. As above stated, Gelman transferred to Carden and Carden to Hollywood Bar (after the purported lease from Halifax to Hollywood Bar). Hollywood Bar then transferred to the Wrights (appellants). Thus the Wrights are the true owners of the license. I would, therefore, reverse.


author: RAWLS, Judge. BOYER, Chief Judge

text:
    STATE of Florida, Appellant, v. Martha Lee ANSLEY, Appellee.
    No. FF-224.
    District Court of Appeal of Florida, First District.
    Sept. 16, 1977.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellant.
    Leo A. Thomas of Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, Pensacola, for appellee.
   RAWLS, Judge.

By this interlocutory appeal, the state seeks review of the trial court’s order granting appellee Ansley’s motion to dismiss Count III of an amended information by which she was charged with petit larceny, a misdemeanor offense.

Ansley’s motion to dismiss and the trial court’s order treating same as a motion to discharge pursuant to Fla.R.Crim.P. 3.191(d)(1) were premised on the running of the “speedy trial” time pursuant to Fla.R. Crim.P. 3.191(a)(1) which provides, in part:

. . Except as otherwise provided by this Rule, every person charged with a crime by indictment or information shall without demand be brought to trial within 90 days if the crime charged be a misdemeanor . . . and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion shall ascertain that such person has been continuously available for trial during such period of time for trial.”

At the hearing below, and here, the state urges that Ansley waived her right to speedy trial by standing silent when the trial court set a trial date beyond the 90-day period required by the speedy trial rule. We cannot agree.

Ansley was taken into custody on November 4, 1976, as the result of the conduct giving rise to two felony counts and one misdemeanor count charged in the amended information. On an unspecified date the case was set for trial, and the trial court announced a trial date which was beyond the 90-day speedy trial period for the misdemeanor count. On February 8, 1977, Ansley filed a motion to dismiss the misdemeanor count for failure to have been accorded a speedy trial.

The trial court’s order of discharge states, in pertinent part:

“The sole question presented is whether the defendant or her attorney waived her rights under the statute by remaining silent on the date the case was set for trial. On the date the case was set for trial the Court announced a trial date which was beyond the time limited for affording defendant a speedy trial.
“The Court finds that there was no waiver in this case by the Court merely announcing in open court a trial date beyond the ninety day time period.
“A defendant has no duty to bring himself to trial. The State and for that matter the trial court has that duty as well as the duty of insuring that the trial is within the speedy trial rule.
“The record does not affirmatively show that the defendant or her attorney agreed to the date in question. For this reason, the motion for discharge is granted as to count three of the information.”

Gue v. State, 297 So.2d 135 (Fla. 2nd DCA 1974), is on point. There, Gue had originally been charged with a misdemeanor for possession of marijuana. Subsequently, the state nolle prossed the original charge and filed a felony charge for possession of narcotic paraphernalia. However, the state failed to bring Gue to trial within 180 days of the date when she was taken into custody as a result of the conduct or criminal episode giving rise to the crime charged. Gue’s motion for discharge pursuant to the speedy trial rule was denied by the trial court. In reversing, the Second District Court of Appeal stated:

“We find nothing in this record to constitute an exception to the speedy trial rule. While it is true, as the trial judge pointed out, that at arraignment the defendant might have called to the state’s attention that the case was set for trial beyond the 180 days, we find nothing in the rule which places the burden of compliance elsewhere than on the state. There being no waiver or other circumstances justifying extension, denial of the motion to discharge was error.”

See also Smith v. State, 345 So.2d 1117 (Fla. 2nd DCA 1977); Flournory v. State, 322 So.2d 652 (Fla. 2nd DCA 1975); and Harris v. Tyson, 267 So.2d 390 (Fla. 4th DCA 1972).

The requirements of Fla.R.Crim.P. 3.191(d)(2)(i), requiring that an extension or waiver of the speedy trial time be in writing and be signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, have been modified considerably by judicial interpretation. Waiver has been found without the required writing where defense counsel orally stipulated to the delay in open court and where same was preserved for the record by certified transcript of the proceedings; or where there was either a passive or active acknowledgment on the part of the defense that a stipulation (in court or out, oral or written) had been entered into by which the parties agreed that the trial would be set beyond the speedy trial period; or where there was an acknowledgment by the court or one of the parties of a speedy trial issue followed by the defense’s acquiescence in a trial date set beyond the speedy trial period. State v. Kelley, 322 So.2d 581 (Fla. 1st DCA 1975); Stuart v. State, 339 So.2d 659 (Fla. 3rd DCA 1976); State v. Earnest, 265 So.2d 397 (Fla. 1st DCA 1972); and Eastwood v. Hall, 258 So.2d 269 (Fla. 2nd DCA 1972). However, none of these circumstances has occurred in the instant case.

We hold that mere silence alone on the part of the defendant or his counsel at a proceeding in which the defendant’s trial date is set beyond the speedy trial period is not a waiver pursuant to Fla.R.Crim.P. 3.191(d)(2)(i).

AFFIRMED.

McCORD, C. J., concurs.

BOYER, C. J., specially concurs.

BOYER, Chief Judge

concurs, specially.

I do not agree with the rule. (Fla.R. Crim.P. 3.191) I think it to be bad law. The philosophy behind “speedy trial” is to assure that an accused be not required to languish in jail or under threat thereof while on bail, awaiting a delayed trial. The constitutional right to be protected is the right of speedy trial not a speedy discharge without trial. In my view, an accused should not be allowed to escape prosecution, perhaps to the detriment of society, without expressing some desire to “get it over with”. However, it is not the prerogative of this Court (as it is the Supreme Court) to question the wisdom of the rule. We have but one choice, to follow. I therefore most reluctantly, with full knowledge that justice is not achieved but is thwarted, concur in the opinion authored by my brother Judge Rawls.


text:
    Marvin Gerald CARSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-737.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1977.
    Marvin Gerald Carson, pro se, Jack 0. Johnson, Public Defender, Bartow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed.

The record indicates appellant was sentenced to prison “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for imprisonment at hard labor as a sentence for any offense. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed. Appellant need not be present for this purpose.

BOARDMAN, C. J., and HOBSON and OTT, JJ., concur.


author: BOARDMAN, Chief Judge.

text:
    Lonnie WHITLEY, Appellant, v. STATE of Florida, Appellee.
    No. 76-444.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1977.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

An information charging appellant with possession of marijuana, heroin, and paraphernalia and carrying a concealed weapon was filed in the circuit court on January 16, 1976. .Appellant filed a motion to suppress certain evidence on March 4, 1976. After a hearing the motion was denied, and appellant then entered a plea of nolo contendere to all four counts of the information. He was adjudicated guilty by the trial court and sentenced to a term of imprisonment. He reserved the, right to appeal the denial of the motion to suppress.

Appellant contends on appeal that since the circumstances did not meet the standards of Section 901.151, Florida Statutes, the detention was invalid and thereby the evidence seized was inadmissible at trial.

The first time Police Sergeant Troy Hitchcox saw appellant was when appellant entered a vehicle which Hitchcox had under surveillance. The vehicle had been used in a drug transaction two weeks earlier. As the automobile was driven away Hitchcox and his partner, Detective Bonnie Lewis, followed. Hitchcox radioed for a uniformed officer to stop the vehicle.

After the automobile was stopped Hitch-cox observed what appeared to be a marijuana cigarette in the ashtray. Detective Lewis then arrested appellant and the driver of the car for possession of marijuana. An inventory search revealed a gun concealed under the seat, heroin, and a heroin blending kit. These items became the basis of the charges against appellant.

Hitchcox and Lewis testified that the only basis for the stop was to continue a narcotics investigation. They did not see a traffic violation being committed. They were not making a license check. They did not have a warrant or consent to stop and search the vehicle. Neither police officer testified that appellant was connected with the previous drug transaction which had involved the same automobile.

A valid detention under Section 901.151, Florida Statutes, requires that the officer be aware of circumstances which reasonably indicate that the person detained for investigation has committed, is committing, or is about to commit a criminal violation. If the stop is not valid any evidence resulting from the stop is inadmissible. Lewis v. State, 337 So.2d 1031 (Fla.2d DCA 1976).

We hold that under the circumstances of this case a reasonable or founded suspicion is not established by occupancy of the vehicle known to have been used in commission of a crime.

At the hearing objections to several questions propounded to Hitchcox concerning what certain confidential informants had told him were sustained on the basis of hearsay. Since this was a hearing on a motion to suppress and the issue was whether the police had a well-founded suspicion of criminal activity the questions were proper and Hitchcox should have been permitted to answer. See Treverrow v. State, 194 So.2d 250 (Fla.1967); Johnson v. State, 339 So.2d 667 (Fla.2d DCA 1976). Nevertheless, the state failed to make a proffer of what he would have said, and there is no indication that Hitchcox had been told of any specifics concerning a drug transaction scheduled to take place in the vehicle.

In view of the disposition of this appeal we need not address the issue of imposition of a general sentence.

Accordingly, the order denying the motion to suppress, the judgment, and the sentence are reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED and REMANDED.

McNULTY and GRIMES, JJ., concur.