author: ENGLAND, Justice. BOYD, Justice, ROBERTS (Retired), Justice,

text:
    Murray SPOONER, etc., et al., Appellants, v. Reubin O’D. ASKEW, etc., et al., Appellees. Reubin O’D. ASKEW, etc., et al., Appellants, v. Ermine M. OWENBY, etc., et al., Appellees.
    Nos. 47189, 47190, 47368 and 47305.
    Supreme Court of Florida.
    Dec. 22, 1976.
    Rehearing Denied June 9, 1977.

      Alton M. Towles, Gregory, Towles, Beatty & Hood, Tallahassee, for Murray Spoon-er, et al., appellants.
    Robert L. Shevin, Atty. Gen., and Winifred L. Wentworth and Larry Levy, Asst. Attys. Gen., for Reubin O’D. Askew, et al.
    Thomas G. Pelham, Brown, Smith, Young, Blue, Pelham & McDonnell, and John Shaw Curry, Harnett & Curry, Quincy, for Ermine M. Owenby, et al., appellees.
   ENGLAND, Justice.

This cause is before us on direct appeal to review a final summary judgment entered by the Leon County Circuit Court in a class action affecting the 1973 real property tax roll of Gadsden County. By virtue of the action taken in that court we have jurisdiction for review under Article V, Section 3(b)(1) of the Florida Constitution.

In February 1973, the Tax Assessor of Gadsden County received a letter from the Department of Revenue informing him that unless assessments of property in Gadsden County were substantially increased to achieve full valuation, the 1973 tax roll would be disapproved. The 1973 assessment roll later prepared by the Assessor produced a total assessment value on nonexempt real property of approximately 107 million dollars, more than an 85% increase over the 1972 assessment roll. The 1973 roll was then submitted to the executive director of the Department, who, pursuant to Sections 193.114(5) and (6), Florida Statutes (1973), approved it on October 19,1973.

On October 30, 1973, pursuant to Section 194.032, Florida Statutes (1973), the Gadsden County Board of Tax Adjustment conducted a hearing at which it adopted resolutions which had the effect of reducing by 30% across-the-board all valuations placed on county properties by the Assessor. The basis for the Board’s action was its conclusion that lands classified on the county’s tax roll in all the various categories were assessed considerably higher than the lands of like classification and value on the tax rolls of certain neighboring counties. The Department refused to follow the Board’s recommendation, contending that the Board does not have authority to make a blanket reduction in the county’s assessment roll, but rather is limited to making recommendations for reductions on an individual basis.

A class action for declaratory, injunctive, and other relief relating to the 1973 tax assessment roll was filed by appellant Spooner and others on behalf of all of the ad valorem real property taxpayers of Gadsden County. The complaint alleged numerous things, but in providing appellants with partial relief (a 12% reduction in assessed values) the trial court limited its reliance to the equal protection clauses of the federal and Florida Constitutions. As a part of its decision the trial court also upheld the Board’s right to make blanket adjustments to all assessments in a county on the basis of comparative data from outside the county. We confine our review to these two issues, since they are dispositive of the controversy.

Article VII, Section 4 of the Florida Constitution commands that general law “shall secure a just valuation of all property for ad valorem taxation . . . The predecessor of this provision has been held to mean that property must be valued at 100% of fair market value. This Court has never declared as invalid an entire tax roll which assesses property at 100% of full fair market value, as in this case, and it has never required a reevaluation of assessed real property values in one county based on comparative inequalities with assessed values in another county. In only two instances have we even held that an assessment level under 100% is constitutionally infirm, and in both the controversy involved an individual assessment of property in one county found to be wholly inconsistent with the general level of property assessments in the same county.

The Constitution creates a class of public officials called tax assessors (now known as property appraisers) whose duty it is to determine the fair value of all properties within county boundaries. There is an obvious tension between the exercise by these county officials of their constitutional responsibilities, on the one hand, and the development of statewide uniformity by state level officials on the other. The Legislature’s 1973 decision to expand the tools made available to the Department for it to “ride herd” on county officials sharpened pre-existing conflicts, and undoubtedly the zeal of the Department in 1973 exacerbated these conditions. It is in the context of the Department’s beginning implementation of its new statutory duties that the trial court below found Gadsden County taxpayers as a class had been denied equal protection of the laws.

As regards the trial court’s holding that county boards of tax adjustment may validly adjust assessments across-the-board, we find no statutory basis to support that conclusion. Before 1970 the authority of these boards in the assessment process was limited to a review of individual petitions presented by taxpayers aggrieved by their individual assessments. All traces of statutory language arguably suggesting that the boards had authority to act without individual petitions were repealed in 1970. When in 1973 the Legislature repealed Section 194.015(2), Florida Statutes (1971) (relating to the Board’s powers) but neglected to identify that action in the title of the repealer bill, it neither expanded nor contracted the board’s authority to respond to individual petitions. It simply cleansed the statutes of surplus language. Under these circumstances, there was no title defect of the type proscribed by Article III, Section 6 of the Florida Constitution. In finding to the contrary and ruling for the Board the trial court erred.

The trial court fashioned partial relief for Gadsden County taxpayers after finding that they were denied equal protection of the laws by having to pay 1973 real property taxes on the basis of assessments made at or near full fair market value, while for the same year the Department had approved tax rolls for other Florida counties which contain assessments below the constitutionally required “just valuation”. We hold that equal protection of the laws was not abrogated in this case, and that the trial court erred in using as an evidentiary basis for that conclusion the data in this record which purports to reflect statewide or region-wide assessment levels. That data was incomplete, unreliable and in any event formulated after the Department’s and the Board’s actions in this case.

There is no evidence in this record that the Gadsden County Tax Assessor failed to act on reliable information when he brought the 1972 tax roll up to 1973 level, and there is no reliable in-county evidence to support the Board’s decision to slash all assessments by 30%. These eviden-tiary omissions are sufficient to conclude the controversy. The Board’s concerns for regional assessment parity are wholly irrelevant to its intra-county function in the scheme of the tax assessment process. A taxpayer in Florida who is taxed at or under 100% of fair market value has never had standing to complain of an allegedly lower assessment level applied to taxpayers in another taxing unit. Neither Salter nor Southern Bell suggest otherwise. The problem in those cases, which the Court found both cognizable and remediable, came about “because the sworn official has not performed the duty requiring him to assess all property at its full cash value.” The taxpayers in this case complain because their sworn official performed his responsibility too well.

The mandate of “just valuation” derives from the Constitution. The requirement of statewide uniformity derives from statute. The latter is more a goal than a compellable right, and it would be naive to have expected instant statewide uniformity (assuming it can ever be achieved) merely because that goal had been announced by law. The Legislature commendably desired to create uniformity of assessments in Florida, but its ability to do so must remain conditioned by the Constitution’s directive that a class of county officers are assigned the primary responsibility to perform assessment functions. At best the legislative goal can be achieved only incrementally through cooperative efforts of the assessors and the Department, and by the development of procedures which will accommodate the responsibilities of both. That these procedures had not evolved to the point of flawless harmony in 1973 was not a basis to conclude that Gadsden County taxpayers were denied equal protection of the law under either the Florida or federal Constitutions.

The judgment of the trial court is reversed with directions to reinstate the 1973 tax roll as submitted by the Gadsden County Tax Assessor and approved by the Department.

OVERTON, C. J., and SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., concurs specially with an opinion.

ROBERTS (Retired), J., dissents with an opinion with which ADKINS, J., concurs.

BOYD, Justice,

concurring specially.

The trial court determined that the tax assessor of Gadsden County, in response to direction from the Florida Department of Revenue, attempted to assess Gadsden County property at full market value and actually made assessments equal to 99% of the actual value of said property. In performing that service, the assessor was complying with the law of Florida as stated in McNayr v. State ex rel. DuPont Plaza Center Inc., 166 So.2d 142 (Fla.1964). In McNayr the trial court found that the property in Dade County was being assessed at a rate of 50% of its full and just market value which resulted in a favored tax status for parcels enjoying homestead exemptions thereby requiring non-homestead property to bear a disproportionate tax burden. This Court agreed with the trial court that the discrimination could be remedied only by full valuation. Since that time the statutory and case law in compliance with constitutional standards of equality have attempted to require assessment of all property in Florida at full and just value. Many other definitions or formulas for assessment have been used by experts, but it boils down to the simple fact that under the law in this State all property is to be assessed at its true worth.

In this case the court found that the average assessment of property in the State for 1973 was 82% of full and just value, with the property in many counties assessed at values far below the 82% average. Rather than disapproving and modifying the 99% assessment attempted by the assessor in Gadsden County, the attention of the learned Circuit Judge should be directed toward acquiring full valuation in the other 66 counties of this State. This Court has jurisdiction of the parties to this litigation, including the Department of Revenue. It is my opinion that the Court should remand this cause to the trial court with directions to approve the work product of the Gadsden County tax assessor for the year 1973, inasmuch as it was done in direct compliance with standards announced in McNayr by this Court and direct the Director of the Department of Revenue to require similar compliance with the law by property appraisers in the other 66 counties. Jurisdiction should be retained until full compliance with requirements of law are met.

Property appraisal is not an exact science. Even among experts different criteria and different standards are used and rarely do they reach exactly the same conclusions on the same property. Nevertheless, it is obvious from the trial court’s conclusion that the appraisers in many Florida counties have simply failed to comply with the law as interpreted by this Court, and it is my opinion that this Court holds the constitutional responsibility to require uniform assessment of all Florida property at full and just value.

ROBERTS (Retired), Justice,

dissenting.

On February 18, 1975, setting out cogent reasoning in depth and detail, the trial court entered final judgment refunding to the taxpayers of Gadsden County 12% of the real property ad valorem taxes for the tax year 1973.

The historical background is set forth in the majority opinion. It appears to me to be a typical case for a court to balance the equities on equitable principles. The learned chancellor had before him mixed questions of law and fact. He took extensive testimony, heard extensive argument, and entered his decree. I have carefully perused the record and am unable to say he is in error, so, I, therefore, respectfully dissent.

ADKINS, J., concurs.

      . The trial.court’s order reads in relevant part:' “It is not necessary to consider the constitutionality of Section 195.096(4), Florida Statutes, 19,73. It is not the constitutional requirement of Section 4, Article VII that general law regulations shall be prescribed to secure a just valuation of all property for ad valorem taxation that is the issue here. The problem is equal protection of the law. The claim of violation of due process of law requirements is not the critical issue and no ruling on that question need be explored. A finding of violation of the equality before the law and equal protection of the law provisions suffices to give the relief to which the court deems the evidence warrants. . . . The assessments of non-exempt real property of all classes in 1973 as made by the Assessor of Gadsden County and as approved by the Department are clearly shown to have been not less than 12% in excess of the levels of other comparable counties and of the state as a whole and to that extent have deprived the plaintiffs of equal protection of the law in violation of the 14th Amendment to the U.S. Constitution and of Section 2, Article I, Florida Constitution, 1968 [sic].”

      .The Board compared select assessments in Washington, Holmes, Jackson, Wakulla, Madi-r son and Taylor Counties. Within the same geographical distance from Gadsden County, but omitted from the Board’s consideration, were Calhoun, Leon, Liberty, Bay, Gulf, Franklin and Jefferson Counties.

      .The Board had submitted on appropriate Department forms its recommendation for 30% reductions to each of about 100 individual assessments. These were denied by the Department, however, on the ground that the Board had failed to make necessary, detailed investigations.

      . As required by Section 194.181(2), Florida Statutes (1973), the Board and the Assessor were made defendants in the suit.

      . Burns v. Butscher, 187 So.2d 594 (Fla.1966); Walter v. Schuler, 176 So.2d 81 (Fla.1965).

      . Southern Bell Tel. & Tel. Co. v. Dade County, 275 So.2d 4 (Fla.1973); Dade County v. Salter, 194 So.2d 587 (Fla.1966). We recently explained the limitations of these cases in Deltona Corp. v. Bailey, 336 So.2d 1163, 1167-1168 (Fla.1976).

      . Art. VIII, § 1(d), Fla.Const. (1974).

      . Burns v. Butscher, 187 So.2d 594, 595 (Fla.1966).

      . See District School Board of Lee County v. Askew, 278 So.2d 272 (Fla.1973).

      . The evidence in this case shows, as the trial court recited, that many but not all counties were contacted, with varying degrees of persistence, after the 1972 rolls were shown to be generally low and widely disparate. The consequences of this effort varied, but the Department’s prodding produced a general increase in assessment levels in some counties greater than in Gadsden. Walton.County increased its roll from 1972 to 1973 by 254%, and eleven other counties reflected increases greater than Gadsden’s 85%.

      . Ch. 70-243, Laws of Florida; Stiles v. Brown, 182 So.2d 612 (Fla.1966).

      . Ch. 70-243, Laws of Florida.

      . See Ch. 73-172, § 22, Laws of Florida.

      . The Legislature, of course, periodically passes non-substantive “reviser” bills which do not require title notice comparable to substantive law-making. While this bill was not in that category it has certain parallels in its repealing provisions. The trial court ruled, in effect, that an enumeration of statutes by section reference in the title of a bill automatically results in the invalidity (under Article III, Section 6) of a section or sections found in the body of the bill but not referenced in the title. We reject this interpretation. The issue in all title-defect cases is fair notice, not an accurate indexing. King Kole, Inc. v. Bryant, 178 So.2d 2 (Fla.1965).

      . The trial court itself described the studies in evidence as “highly controversial and like most superficial ratio studies are vastly unreliable.” The court appeared to be influenced by the pressures put on the Assessor by the Department to get the tax roll up to a higher level. On this point, however, we find in the record only one sentence in one letter which can be said to be forceful. On February 12, 1973, the Department wrote to the tax assessor of Gadsden County stating that it “will not be in a position to recommend approval of your 1973 tax roll unless there is improvement toward full, just value.” Identical “coercion” was applied to Taylor and Suwanee Counties by letters of even date, and like admonishments as to future action were communicated to at least another 17 counties during the same year. A conference between the Department and the assessor, at which additional pressure was said to have been applied, is not transcribed. We find nothing hostile or coercive in the action of the Department.

      . District School Board of Lee County v. Askew, 278 So.2d 272 (Fla.1973).

      . It was improper for either the Board or the trial court to attempt a selective regional analysis for the county tax assessment function. Acknowledging that significant state tax revenues flow to the state’s counties on the basis of county-wide assessment levels and tax receipts, it does not follow that counties with like characteristics of geography, climate, productivity or urbanization levels can be compared for these purposes. Variations between and among counties are inevitable.
      “[A] mere showing that the two assessments are different does not make one of them necessarily invalid; especially in view of the fact that these two tax rolls were prepared by different assessors.” Keith Investments, Inc. v. James, 220 So.2d 695, 697 (Fla. 4th DCA 1969), cited with approval in District School Board of Lee County v. Askew, n. 16 above at 276.

      . Dade County v. Salter, 194 So.2d 587, 591 (Fla.1966).

      . Section 195.0012, Fla.Stat. (1973).


source: Caselaw Access Project

author: BY THE COURT:

license: Public Domain

text:
    Marvin Leroy CUMBIE, Petitioner, v. STATE of Florida, Respondent.
    No. 49134.
    Supreme Court of Florida.
    March 17, 1977.
    Rehearing Denied May 31, 1977.
    Donald G. Nichols of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for petitioner.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for respondent.
   BY THE COURT:

We have before us for review upon a writ of certiorari a decision of the First District Court of Appeal reported at 327 So.2d 67 which on its face directly conflicts with this Court’s decision in Richardson v. State, 246 So.2d 771 (Fla.1971). We have jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution.

The sole issue before us is whether the trial judge committed reversible error when he allowed into evidence the surprise testimony of two law enforcement officers concerning statements made by the petitioner. We hold that he did.

The defense had requested discovery under Fla.R.Crim.P. 3.220(a)(l)(iii) of any oral statements made by the defendant which were known to the prosecution. The state responded that no statements had been made and did not amend its answer at any time before the trial. This response was either false at the time it was made, or became false in violation of the state’s continuing duty to disclose under Fla.R.Crim.P. 3.220(f). The state did inform the defense that the two officers would be called as witnesses but the existence of the statements was not disclosed during depositions taken by the defense. When one of the officers was deposed he stated that the petitioner had not made any statements. The other officer was not questioned in regard to possible statements, defense counsel having no reason to suspect any had been made. The trial judge allowed the officers to testify as to petitioner's statement and found those statements voluntary. The judge stated, however, that the state’s violation of our rules would have caused him to prohibit the testimony except for the fact that the petitioner was the one who made the statements. Obviously the trial judge misconceived the effect of our rules and the significance of Richardson.

In Richardson we held that a violation of the Rules of Criminal Procedure by the state would require an appellate court to reverse a conviction unless the trial court made an inquiry into all the circumstances surrounding the breach, with the state having the burden of showing to the trial court that there was no prejudice to the defendant. In affirming the petitioner’s convictions, the district court reviewed the record anew and found that “although the state violated two discovery rules, and the trial court did not make the inquiry into the surrounding circumstances as suggested by the Richardson case, nevertheless, the error was harmless.”

It is clear that the trial court’s investigation of the question of prejudice was not the full inquiry Richardson requires. No appellate court can be certain that errors of this type are harmless. A review of the cold record is not an adequate substitute for a trial judge’s determined inquiry into all aspects of the state’s breach of the rules, as Richardson indicates. Especially is this so in cases such as this, where a false response is given to a request for discovery. The mere fact that alleged statements are attributed to the petitioner cannot relieve the state of its duty to disclose; that is precisely the situation contemplated by Rule 3.220(a)(l)(iii).

The trial court erred in admitting into evidence the testimony concerning the alleged statement of the petitioner without conducting an inquiry into the question of prejudice, and this error is reversible as a matter of law. The decision of the district court is quashed and the case remanded with instructions to order a new trial.

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

       It seems appropriate to reiterate here the partial text of Ethical Consideration 7-13 under Canon 7 of our Code of Professional Responsibility:
      “The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. . With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.”


author: BOYD, Justice. DREW, Justice

text:
    J. Ed STRAUGHN, etc., Petitioner, v. SUN OIL COMPANY (DELAWARE) et al., Respondents. F. M. "Bubba” FISHER et al., Petitioners, v. SUN OIL COMPANY et al., Respondents. AMOCO PRODUCTION COMPANY, etc., Petitioner, v. J. Ed STRAUGHN, etc., et al., Respondents.
    Nos. 49387-49391, 49397 and 47274.
    Supreme Court of Florida.
    March 17, 1977.
    Rehearing Denied June 7, 1977.

      Robert L. Shevin, Atty. Gen., and Larry Levy and Joseph C. Mellichamp, III, Asst. Attys. Gen., Gerald L. Brown, of Wells, Brown, Catón & Brady, Pensacola, and A. L. Johnson, of Johnson, Johnson & Green, Milton, for petitioners, J. Ed. Straughn and F. M. “Bubba” Fisher.
    Peter J. Winders, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, and W. Spencer Mitchem, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for respondents, Sun Oil Co.
    Wofford H. Stidham, of Holland & Knight, Bartow, for petitioner, Amoco Prod. Co.
    Robert L. Shevin, Atty. Gen., and Larry Levy and Joseph C. Mellichamp, III, Asst. Attys. Gen., for respondents, J. Ed. Straughn.
   BOYD, Justice.

Owners in fee of real property in Santa Rosa County and Hardee County have entered lease agreement with various oil companies. Generally, the leases give to the companies the exclusive rights to explore for, drill and extract oil, gas and minerals on the property and reserve to the fee owners a fraction in value or in kind of the oil, gas and minerals so produced. Local county tax assessors assessed the value of the oil companies’ interests in the leases for the purpose of levying against them county ad valorem taxes for 1973. The counties acted under Section 193.481(1), Florida Statutes (1973), which provides:

“193.481 Assessment of oil, mineral, and other subsurface rights. — (1) Whenever the mineral, oil, gas, and other subsurface rights in or to real property in this state shall have been sold or otherwise transferred by the owner of such real property, or retained or acquired through reservation or otherwise, such subsurface rights shall be taken and treated as an interest in real property subject to taxation separate and apart from the fee or ownership of the fee or other interest in the fee. Such mineral, oil, gas, and other subsurface rights, when separated from the fee or other interest in the fee, shall be subject to separate taxation. Such taxation shall be against such subsurface interest and not against the owner or owners thereof or against separate interests or rights in or to such subsurface rights.”

After exhaustion of administrative remedies, five suits by five oil companies in the Circuit Court for Santa Rosa County and one suit by Amoco Production Company in the Circuit Court for Hardee County seeking declarative and injunctive relief from the taxation were brought against J. Ed Straughn, Executive Director of the Department of Revenue, local tax assessors and local tax collectors.

The Circuit Court for Hardee County concluded that a legislative intent to tax Amoco Production’s leasehold interest could not be discerned from the statute and furthermore that under Miller v. Carr the interest created in Amoco, rather than being a pos-sessory interest in real property, was no more than a contractual license to explore and produce. Since the leasehold interest was not one in property, it could not be subjected to real property taxes. Accordingly, final judgment was granted in favor of Amoco, the defendants were enjoined from collection of the taxes, and the assessment was declared illegal. Based on substantially the same reasoning, the Circuit Court for Santa Rosa County declared nontaxable the leasehold interests of the oil companies and granted a consolidated summary final judgment in their favor.

The judgment of the Circuit Court for Hardee County was appealed to the District Court of Appeal, Second District. In its opinion the court distinguished Miller v. Carr, held that the Legislature may tax leasehold interests in realty, found in the statute legislative intent to tax the leasehold interests of Amoco and reversed the judgment. Amoco filed a petition for a writ of certiorari in this Court.

While the Amoco case was pending here, the District Court of Appeal, First District, rendered its decision on the appeal of the other judgment. The court found the wording of the statute to be ambiguous, so that legislative intent to subject the leasehold interests to taxation could not be clearly determined. Following the rule that the terms of a statute imposing taxes must be clear and specific and that tax statutes should be construed liberally in favor of the taxpayer, the court affirmed the judgment. The decision was certified to be one which passes upon a question of great public interest.

The Director of the Department of Revenue petitioned this Court for five writs of certiorari to the District Court of Appeal, First District. Santa Rosa County tax officials brought a separate petition for a like writ. We granted certiorari. The six cases were consolidated with the Amoco Production case for purposes of argument and decision. We have jurisdiction of all the cases because of conflict between the two decisions. Article V, Section 3(b)(3), Florida Constitution.

Preliminarily we agree with the Second District Court that Miller v. Carr has no influence here. At the time of that decision Section 193.481(1) had not been enacted. Furthermore, the issue before the Miller court is completely distinct from the issue here. As the Second District Court said:

“. . . Clearly, the court was there concerned only with the alienability by the lessor of a reserved interest in the unsevered oil. Here, we are concerned with the taxability of the total interest in the lessee, i.e., of his right to occupy, explore and probe the land together with his inchoate interest in the unsevered oil. ...” 309 So.2d at 41.

The issue before us then is whether under the statute the leasehold interests are interests in real property which the Legislature intended should be subject to taxation. We hold that they are taxable interests in real property. It has long been held that the Legislature may classify leasehold interests as real property for tax purposes. For example, in Williams v. Jones, 326 So.2d 425 (Fla.1975), we held that the Legislature has the power constitutionally to treat leasehold interests in public land as real property for ad valorem tax purposes. Indeed, the oil companies concede that the Legislature has the inherent power to define real property for tax purposes. Their argument is that the Legislature did not clearly do so by enactment of Section 193.481(1), Florida Statutes.

Although the operative effect of the statute is not spelled out in terms as clear as is possible within the limits of the English language, we think the purpose the Legislature intended the statute to have is clear. That purpose is to classify leasehold interests in subsurface minerals, oil and gas as interests in real property and to have them taxed accordingly. The statute recites that whenever rights to subsurface minerals, oil or gas have been sold or “otherwise transferred” they shall be treated as an interest in real property. The broad terms “otherwise transferred” encompass a transfer by lease. When these rights are separated from the fee, as they are when transferred by lease, the statute directs that they be subject to separate taxation. The oil companies are the only ones with the technological power to find and extract oil, gas and minerals from the subsurface. There is little difference whether the rights to the subsurface minerals are transferred to them by deed or lease, since in either case they can then extract the minerals and become the true owners of the severed minerals in fact. It is only just that the tax burden generated by subsurface mineral rights fall on those who benefit from possession of those rights, and it is clear that the Legislature was motivated by such a concern.

Our conclusion of legislative intent is bolstered by a comparison of the present statute with its predecessor, Section 193.-221, Florida Statutes (1961), which specifically exempted leasehold interests. The exemption was deleted when the present statute was enacted. All property is subject to taxation unless expressly exempt and exemptions are strictly construed against the party claiming them. State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381 (Fla.1958).

Accordingly, the decision of the District Court of Appeal, First District, is quashed, the writ to the District Court of Appeal, Second District, is discharged, and the causes remanded for proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

DREW (Retired), J., dissents with an opinion, with which ADKINS, J., concurs.

DREW, Justice

(Retired), dissenting.

It is not necessary for us to decide whether the legislature may constitutionally authorize the levy of ad valorem (emphasis mine) taxes on mineral leases of the kind involved in these cases. A study of these, and related acts, simply leads to the inescapable conclusion that there was no intention to do so.

The words used in the act viz. “otherwise transferred” immediately following the word “sold” clearly indicates an intention to tax only an interest in real estate that would be susceptible to intelligent and uniform appraisal, levy and enforcement by methods constitutionally authorized and long recognized by the legislature in dealing with ad valorem taxation on real estate. These “oil leases,” if they can properly be classified as leases simply do not, in my view, relate to “an interest in real estate.” The problems which will arise in the appraisal of such leases, equalization of values as the organic law requires and in levy and enforcement are obvious. And, I’m sure, the members of the legislature charged with the duty of drafting these laws are aware of this even more than we are. Moreover, it seems to me they have already spoken on this subject, when, in the enactment of § 211.13 F.S.A. they stated, “it is impossible under known valuation methods to accurately ascertain the time value of oil and gas in place.” These acts must be construed together to ascertain legislative intent. And both acts can be preserved by a recognition that so called “oil leases” are not interests in real property.

The decision authorized by Judge McCord below reaches the same conclusions I do but in a much more detailed manner. I agree completely with that decision as supplemented by these additional observations.

I therefore respectfully dissent.

ADKINS, J., concurs.

      . 141 Fla. 318, 193 So. 45 (Fla.1940), 137 Fla. 114, 188 So. 103 (Fla.1939).

      . Straughn v. Amoco Production Co., 309 So.2d 39 (Fla. 2d DCA 1975).

      . Fisher v. Sun Oil Co., 330 So.2d 76 (Fla. 1st DCA 1976). The certification vests jurisdiction in this Court. Art. V, § 3(b)(3), Fla.Const.

      . One for each of the cases consolidated before the Court.

      . I agree with the Hardee County Circuit Judge’s view that these documents are no more than a “contractual license to explore and produce.”

      . 330 So.2d 76 (Fla. 1st DCA 1976).


author: ADKINS, Justice.

text:
    Gerald A. LEWIS, as Comptroller of the State of Florida, Appellant, v. Judge Chas. C. MATHIS, Jr., et al., Appellees.
    No. 49398.
    Supreme Court of Florida.
    March 17, 1977.
    Rehearing Denied June 6, 1977.

      Robert L. Shevin, Atty. Gen., Bernard S. McLendon and William C. Sherrill, Jr., Asst. Attys. Gen., and Richard E. Gentry, Asst. Gen. Counsel, Jacksonville, for appellant.
    Joseph C. Jacobs and Robert J. Angerer, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellees.
   ADKINS, Justice.

This appeal comes to us directly from the Circuit Court, Second Judicial Circuit, and involves the constitutionality of Section 34.-024, Florida Statutes (1975), and Chapter 75-280, Florida Laws (1975). The trial court expressly held the laws in question to be unconstitutional. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

Section 34.024, Florida Statutes (1975), states as follows:

“County court judges shall receive the following salaries, to be paid by the state:
“(1) In counties having a population of 40,000 or less according to the last decennial census $ 24,000.
“(2) In counties having a population of more than 40,000 according to the last decennial census $ 28,000.”

Chapter 75-280, Section 18, Laws of Florida (1975), the Appropriations Act of 1975, provided in part:

“The salaries of the following officers during the fiscal year 1975-76 shall be paid at the annual rate shown below. ******
“Judges — County Courts:
“Counties with 40,000 population or less $ 26,000.
“Counties over 40,000 $ 34,000.”

The appellees, several county judges, filed a complaint on November 20, 1975, seeking a declaration that the laws in question are invalid under the Florida and United States Constitutions because such laws created a disparity between the salaries of county judges in counties having a greater than 40,000 population and those in counties having less than 40,000 population.

The lower court in its final summary judgment held in part:

“18. There appears no reasonable basis for County Judges in the larger counties to have received a 17% greater salary since 1972. There is likewise no reasonable basis for County Judges in the larger counties to receive 31% greater salaries than other County Judges during the current fiscal year.
“19. Each County Judge is entitled to receive the same salary under these statutory provisions and the Constitution of Florida. The classification is not reasonably related to the salary of County Judges. The attempted legislative classification of salaries on the sole basis of population is arbitrary and is not reasonably related to the subject of the law.
“20. Accordingly, Section 34.024, Florida Statutes and Section 18, Chapter 75-280, Fla. Laws (1975), are declared invalid and unconstitutional insofar as they purport or attempt to authorize a classification of County Judges on the basis of population, contrary to the requirements of Article III, Sections 10, 11(a)(1), 11(b); Article I, Section 2; and Article V, of the Constitution of Florida.”

The Legislature has wide discretion in choosing a classification, and therefore the presumption is in favor of the validity of the statute. Hunter v. Flowers, 43 So.2d 435 (Fla.1949). When a classification of counties for governmental purposes based upon population or otherwise is made by the Legislature in the enactment of general laws for governmental purposes in regard to the counties classified, if any state of facts can reasonably be conceived that will sustain the classification attempted by the Legislature, the existence of that state of facts at the time the law was enacted will be presumed by the courts. The deference due to the legislative judgment in the matter will be observed in all cases where the court cannot say on its judicial knowledge that the Legislature could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made. Anderson v. Board of Public Instruction for Hillsborough County, 102 Fla. 695, 136 So. 334 (1931).

The impact the population of an area has on its social character has long been realized by the courts of this State. The courts have taken judicial notice of the fact that there is more rampant crime in metropolitan areas, Lightfoot v. State, 64 So.2d 261 (Fla.1952); that the larger the population the greater the responsibility of county officers, State v. Gray, 182 So. 620 (Fla. 1938), and that densely populated areas have a higher divorce rate, In Re Rouse, 66 So.2d 42 (Fla.1953).

A legislative classification based upon population must have a reasonable basis for the classification to be held constitutional. State ex rel. Juvenal v. Neville, 123 Fla. 745, 167 So. 650 (1936); Levine v. Bailey, 124 Fla. 241, 168 So. 12 (1936); Waybright v. Duval County, 142 Fla. 875, 196 So. 430 (1940); Vance v. Ruppel, 215 So.2d 309 (Fla.1968). The classification based upon population must also be potentially applicable to other political subdivisions of the state with the same population. Ex parte Wells, 21 Fla. 280 (1885); Coral Gables v. Crandon, 157 Fla. 71, 25 So.2d 1 (1946); Sparkman v. County Budget Commission, 103 Fla. 242, 137 So. 809 (1931). There is a reasonable basis for the classification by population in the statutes under attack. Furthermore, the statutes are applicable to all counties of the state within the population range.

The legislative classification of salaries for county judges on the sole basis of population is not arbitrary and is reasonably related to the subject of the law.

Appellees also say that the laws in question are in violation of Article I, Section 2, of the Florida Constitution, and as a result create a denial of equal protection under the laws.

The laws complained of were enacted to provide for greater compensation to the judges of the more populous counties, which the Legislature determined was warranted by the conditions existing in those counties. The Legislature may, as was done in this case, enact legislation that is not all-embracing. Legislation may be classified with reference to degrees of responsibility and to the areas where the responsibility is considered to be greater, without denying the equal protection of the laws. If the greatest responsibilities exist in the counties having relatively large populations, laws may determine the lines of differentiation without denying to any person the equal protection of the laws.

The United States Supreme Court has recently held, where a court system was based upon the classification of cities according to size that as long as all people within the classified area are treated equally, there is no denial of equal protection. North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976). This would render useless any further argument that the laws questioned here are a denial of equal protection.

Those who complain of unjust discrimination by the State in violation of the State and Federal constitutions have the burden of showing that the alleged discrimination has no conceivable basis, in differences of conditions, sufficient to justify the statutory regulation under attack. No such showing is made in this case. The greater responsibilities required of the judges in those counties of more than 40,000 population create a sufficient basis for a classification on that population unit.

The judgment of the trial court is reversed and the cause is remanded with instructions to dismiss the complaint.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG, HATCHETT and DREW (Retired), JJ., concur.

ENGLAND, J., dissents.


author: ADKINS, Judge.

text:
    STATE of Florida, Appellant, v. Beverly T. JOHNSON, Appellee.
    No. 50581.
    Supreme Court of Florida.
    March 17, 1977.

      Robert L. Shevin, Atty. Gen., and Sydney H. McKenzie, III, Chief Trial Counsel, Tallahassee, for appellant.
    Harold D. Lewis and Stephen C. Reilly, of Lewis, Lewis & Williams, P. A., Tallahassee, for appellee.
   ADKINS, Judge.

This is a direct appeal from the County Court of Leon County which held that Chapter 318, Florida Statutes, is unconstitutional. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

Chapter 318, Florida Statutes, which became effective on January 1, 1975, had as its stated purpose the “decriminalization” of certain violations of various motor vehicle and traffic statutes, thereby facilitating the implementation of a more uniform and expeditious system for the disposition of traffic offenses. Section 318.12, Florida Statutes. The legislature recognized that a large number of motor vehicle offenses do not involve a high risk of harm to others or damage to property. These offenses could be dealt with informally in an administrative manner by the judge so as to reduce cost to the state and the offender. The removal of imprisonment as a possible penalty does away with the requirement of court-appointed counsel for indigents. Under this procedure, the judge is free to discuss the individual problem of the offender so as to guide him toward driver improvement and safety programs. The over-crowded facilities of jails can now be utilized for persons convicted of more serious offenses. The proceedings are civil in nature.

The appellee Johnson was issued a uniform traffic citation for violation of a noncriminal traffic offense. A motion to dismiss was filed attacking the constitutionality of Chapter 318, Florida Statutes. The court proceeded to hear testimony and made a finding of fact that appellee was traveling 45 miles per hour in a 35 mile posted zone. The court then granted the motion to dismiss on the ground that Chapter 318, Florida Statutes, was unconstitutional. The State has appealed.

The trial court ruled that Chapter 318, Florida Statutes, is violative to the right to due process as guaranteed by the State and Federal Constitutions. The primary thrust of appellee’s argument is that due process is denied when the hearing official is the prosecutor, defender and finder of fact. Appel-lee says this results in the lack of a fair and impartial hearing.

It was the purpose and intent of the legislature in enacting Chapter 318 to provide a forum that could consider problems involving minor traffic infractions in an informal fashion without the necessity of applying the strictness and technicalities that often accompany routine litigation. The hearing is conducted in an informal manner by a judge without a jury. This is similar to the procedure in juvenile court, as described in F. & F. v. Duval County, 273 So.2d 15 (Fla. 1st DCA 1973), cert. den. 283 So.2d 564 (Fla.1974).

This contention of appellee is contrary to the great weight of authority as discussed in 1 Am.Jur.2d, Administrative Law, § 78, p. 873. The combination of inquiry and judicial functions has never been held to violate due process. In such situations the courts point out that the hearing officer must be zealous in the recognition and preservation of the right to a hearing by an impartial trier of fact. If the authorities recognize that an administrative officer can constitutionally perform these duties, certainly a judge, guided by the Canons of Judicial Conduct, may also make inquiry and perform judicial functions. See State v. Sinner, 207 N.W.2d 495 (S.Ct. N.D.1973). In searching for truth, inquiry is a part of judicial functions.

Appellee also says that the absence of a prosecuting officer violates due process, but cites no case which asserts that the absence of a prosecutor violates her due process rights to a timely and meaningful hearing. There is nothing constitutionally prejudicial about a hearing official handling a noncriminal traffic infraction without a prosecutor being present to move the case forward. The proceedings partake of an inquiry rather than a prosecution.

Appellee takes the position that a violation of the constitutional requirement of the separation of powers among branches of government (Article II, Section 3, Florida Constitution) is violated when a judicial officer acts as a prosecutor officer.

The rules of procedure require the judge to exercise only the judicial function. If the offender disputes the infraction, the judge is required to explain the purpose and procedure of the hearing and the rights of the offender. The law enforcement officer who issued the citation must be sworn and testify. The offender or counsel must be allowed to pose questions. An opportunity is given the offender to offer sworn testimony and the judge must allow each witness to be questioned by the offender or his counsel. Finally, the offender or counsel must be permitted to make a statement in the nature of the closing argument. These duties imposed upon the judge are judicial in nature in that they are incidental to his authority to hear and determine the justiciable controversy. It is the fundamental and general duty of a judge to patrol the orderly process and progress of any cause over which he presides in such a manner that justice under the law may prevail. Crews v. Warren, 157 So.2d 553 (Fla. 1st DCA 1963); Watson v. State, 190 So.2d 161 (Fla.1966).

Separation of powers does not mean that every governmental activity be classified as belonging exclusively to a single branch of government. 1 Am.Jur., Administrative Law, § 76; State v. Atlantic Coastline Railroad Co., 56 Fla. 617, 47 So. 969, 975 (1908).

This Court in State v. Atlantic Coastline Railroad Co., supra, 47 So. at 975, stated:

“In construing, interpreting, and applying the Constitution of the state, the guiding star should be to effectuate its primary purpose, viz., the welfare of the people in the preservation and exercise of the rights of sovereignty and of individuals. The division of governmental powers into Legislative, executive, and judicial is abstract and general, and is intended for practical purposes. There has been no complete and definite designation by a paramount authority of all the particular powers that appertain to each of the several departments. Perhaps there can be no absolute and complete separation of all the powers of a practical government. . . .
“A clear violation of the constitutional provisions dividing the powers of government into departments should be checked and remedied; but where a reasonable doubt exists as to the constitutionality of a statute conferring power, authority, and duties upon officers, the legislative will should be enforced by the courts to secure orderly government and in deference to the Legislature, whose action is presumed to be within its powers, and whose lawmaking discretion within its powers is not reviewable by the courts. . . .
“Where a duly enacted statute confers upon officials authority that is not in its nature exclusively and purely a legislative, executive, or judicial power, and it can fairly be done to accomplish a valid legislative purpose, such authority may be construed as an administrative duty rather than as a governmental power.”

The statute does not violate the constitutional requirement of separation of powers among the branches of government, as expressed in Article II, Section 3, Florida Constitution.

In Levitz v. State, 339 So.2d 655 (Fla.1976), the offender attacked the constitutionality of Chapter 318.14(5), Florida Statutes, on the ground that it subjected him to a greater penalty when he exercised his right to confront witnesses against him. We said:

“We cannot agree with appellant that the challenged statute violates his constitutional rights to due process and equal protection of the law.
“By Chapter 318, the Legislature sought to decriminalize certain violations of Chapters 316, 325, part II, 339, 239 and 340, to facilitate implementation of a more uniform and expeditious system for the disposition of traffic infractions. See Section 318.12, Florida Statutes. Pursuant to the provisions of Section 318.14, Florida Statutes, one charged for any infraction enumerated therein may either pay the civil penalty established by Section 318.18, Florida Statutes, or request a full hearing to contest the citation. Chapter 318, Florida Statutes, does not deprive appellant of his due process right to a full and fair hearing but rather avails him of an alternative more expedient method of complying with the law by merely paying a previously statutorily determined fine.
* * * * %
“It is undisputed that if one chooses to contest a traffic citation all constitutional guaranteed due process rights are available to him.
“This Court finds that Section 318.14(5) Florida Statutes, is constitutional and not violative of due process guarantees or equal protection of the law.” At 657-58.

There is no record support for the contention that the statute was unconstitutionally applied.

The other objections to the statutes relating to an alleged conflict with the Integration Rule of The Florida Bar and the Code of Judicial Conduct are without merit and do not warrant a discussion.

The judgment of the trial court is reversed.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and DREW (Retired), JJ., concur.


author: PER CURIAM.

text:
    Fred HADDAD, Appellant, v. STATE of Florida, Appellee.
    No. 49546.
    Supreme Court of Florida.
    March 17, 1977.
    Rehearing Denied June 6, 1977.
    Fred Haddad, of Sandstrom & Hodge, Fort Lauderdale, for appellant.
    Philip S. Shailer, State’s Atty., and Linda A. Naze, Asst. State’s Atty., for appellee.
   PER CURIAM.

Affirmed. State v. Johnson, Fla. 345 So.2d 1069, opinion filed March 17, 1977; Levitz v. State, 339 So.2d 655 (Fla.1976).

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and DREW (Retired), JJ., concur.


author: ENGLAND, Justice.

text:
    Myra RIDDLE and William Riddle, Appellants, v. STATE of Florida, Appellee.
    Nos. 50000, 50001.
    Supreme Court of Florida.
    May 5, 1977.
    G. Robert Schultz of the Law Offices of G. Robert Schultz and John L. Waller and John T. Cook, of Akerson & Cook, St. Pe-tersburg, for appellants.
    Robert L. Shevin, Atty. Gen. and William I. Munsey, Jr. and Mary Jo M. Gallay, Asst. Attys. Gen., for appellee.
   ENGLAND, Justice.

This case brings to us by appeal from the Pinellas County Circuit Court the constitutionality of Florida’s current burglary statute, as set forth in Section 810.02, Florida Statutes (1975). Appellants entered “no contest” pleas to burglary charges under the statute and specifically reserved the right to appeal the trial court’s ruling that the statute is constitutional. We have jurisdiction.

Appellants’ challenge to the statute is rather unique. They argue that the statute is constitutionally vague, and therefore vio-lative of due process of law under the federal and state constitutions, because the conduct which constitutes “burglary” under the law is not said to be proscribed — that is, not prohibited in express terms in the text of the law. Appellants acknowledge that the elements of burglary are adequately set out so that persons of common understanding would know what acts constitute a “burglary”, but they say that the Legislature failed to put in the statute words to the effect that the defined conduct is criminal.

We reject appellants’ contention. The challenged statute appears in Title XLIV of the Florida Statutes, which is entitled “Crimes”. It states in relevant part that “burglary is a felony.” Taken as a whole the law is adequate to apprise persons of common understanding that the described conduct is also proscribed even if, technically speaking, a declarative prohibition is missing from the language of this statute. No constitutional infirmity exists which would warrant our invalidation of Section 810.02.

The order of the trial court is affirmed.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG and KARL, JJ., concur.

      . Art. V, § 3(b)(1), Fla.Const.; State v. Ashby, 245 So.2d 225 (Fla.1971).

      . Appellants also concede that the Legislature plainly intended to make the crime of burglary a statutory offense. They argue, simply, that the Legislature made a mistake in drafting the law and left out a directive that “thou shaft not burgle”.

      . § 810.02(2) and (3), Fla.Stat. (1975).


author: PER CURIAM. MAGER, Chief Judge PER CURIAM.

text:
    STEAK ENTERPRISES, INC., a Florida Corporation, Individually and d/b/a Rapp Lounge, Buckaroo Steak Ranch Rapp and Buckaroo Steak Ranch, et al., Petitioners, v. John CLAUS, Respondent.
    No. 76-592.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1976.
    Eugene H. Steele, of Marlow, Mitzel, Ort-mayer & Shofi, and Robyn Greene, Miami, for petitioners.
    Jeffrey Michael Cohen, of Fromberg, Fromberg & Roth, Miami, for respondent.
   PER CURIAM.

On authority of Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4 DCA 1975) and Soliton Devices v. Reiland, 311 So.2d 729 (Fla. 4 DCA 1975), petition for writ of certiorari is hereby denied.

DOWNEY and ALDERMAN, JJ., concur.

MAGER, C. J., dissents with opinion.

MAGER, Chief Judge

(dissenting):

In my opinion the petitioners have clearly demonstrated that the trial court’s dismissal of their third party complaint seeking contribution and/or indemnity constitutes a departure from the essential requirements of the law which will cause material injury to the petitioners throughout the remainder of the proceedings below for which the remedy by appeal would be inadequate. Pic v. Hoyt Development Co., Inc., 309 So.2d 586 (Fla. 2d DCA 1975); see also Stuart v. Hertz Corporation, 302 So.2d 187 (Fla. 4th DCA 1974); Beta Eta House Corporation v. Gregory, 230 So.2d 495 (Fla. 1st DCA 1970); 5 Fla.Jur., Certiorari, § 12.

The petitioners’ third party complaint seeking contribution and/or indemnity is consistent with the Florida rules on third party practice, Rule 1.180(a), Fla.R.Civ.P., and conforms with the intended objectives embodied within the Uniform Contribution Among Tortfeasors Act, section 768.31, Florida Statutes, adopted by the Florida legislature in 1975. See Nationwide Mutual Insurance Company v. Fouts, 323 So.2d 593 (Fla. 2d DCA 1975); Stuart v. Hertz Corporation, supra ; see also Florida Power Corporation v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976).

The purposes and objectives of third party practice as well as the newly enacted rule permitting contribution are defeated when a defendant is unable to bring into the litigation “a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” Rule 1.180(a), supra. See Mims Crane Service, Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla. 2d DCA 1969).

The decisions in Siegei v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975) and Soliton Devices v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975), upon which the majority relies as a basis for denying the petition for certiorari, are factually distinguishable and therefore inapplicable. In Siegel and Solitron the orders sought to be reviewed were clearly matters which were directly relevant to the merits of the litigation for which an adequate remedy was available by appeal after final judgment. However, where the dismissal of a third party complaint is involved, an erroneous disposition of this issue would have no relation to the merits of the litigation nor to the disposition of the case on the merits on appeal. An appeal would simply not provide a full, adequate and complete remedy. Siegel v. Abramowitz, supra.

It would seem that by dismissing the third party complaint we do very little to avoid a multiplicity of actions which the third party practice rule was designed to eliminate. Mims Crane Service, Inc. v. Insley Mfg. Corp., supra. Therefore, I would grant certiorari upon the authorities herein-above cited and permit the plaintiff to file a third party complaint.

PER CURIAM.

ON PETITION FOR REHEARING

Respondent sued petitioners for damages sustained when he was stabbed by a patron in the restaurant owned by petitioner Steak Enterprises, Inc., while respondent was a patron in said restaurant. After the cause was at issue petitioners filed a motion for leave to file a third party complaint against one Robert Lawson, the patron who allegedly stabbed respondent. The trial court denied the motion, and petitioners sought a writ of certiorari to have that order reviewed.

On October 1,1976, we published an opinion denying the petition on authority of Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4 DCA 1975), and Solitron Devices v. Reiland, 311 So.2d 729 (Fla. 4 DCA 1975), Judge Mager dissenting.

In their petition for rehearing petitioners suggest that the majority of the court failed to consider the fact that if the case is allowed to proceed without permitting the petitioners to implead Lawson, the alleged wrongdoer, petitioners might sustain irreparable injury not rectifiable by plenary appeal. Petitioners point out that Lawson claims he stabbed respondent in self defense. If the trier of fact believes this claim, petitioners might well be absolved of liability. However, in the present status of this litigation, if the trier of fact decides that Lawson did not act in self defense, one or both of the petitioners might be held liable to respondent. But unless Lawson is made a party to this action the finding that he did not act in self defense would not be binding on him. Hence, if the petitioners filed an independent action against Lawson seeking indemnity, another trier of fact would be free to find that Lawson did act in self defense, thereby preventing petitioners from obtaining indemnity from Lawson. A plenary appeal from an adverse judgment in the main case could not rectify the injury petitioners might suffer in an indemnity action.

We therefore conclude that under the facts of this case, the trial court’s order denying petitioners’ motion for leave to file a third party complaint constituted a departure from the essential requirements of law which may reasonably cause material injury to petitioners for which remedy by plenary appeal would be inadequate. We therefore grant the petition for rehearing, vacate and withdraw our opinion published October 1, 1976, and remand the cause with directions to the trial court to grant petitioners’ motion for leave to file a third party complaint.

GRANTED AND REMANDED, with directions.

MAGER, C. J., and DOWNEY and ALDERMAN, JJ., concur.


author: NATHAN, Judge.

text:
    NATIONAL INDEMNITY CO. et al., Appellants, v. The HOME INSURANCE CO., Appellee.
    No. 76-179.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Rehearing Denied June 1, 1977.
    Virgin, Whittle & Popper and Gary E. Garbis, Greene & Cooper, Corlett, Merritt, Killian & Sikes, Miami, for appellants.
    Knight, Peters, Hoeveler, Pickle, Niem-oeller & Flynn, Jeanne Heyward, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by several insurance carriers from a trial judge’s decision determining responsibility for the payment of damages to an accident victim, Howard Ho-man. Homan’s motorcycle was struck by an automobile driven by Elissa D. Timoner. The vehicle had been leased from Main Line Fleets, Inc.

Homan initially sued Elissa Timoner, as operator of the automobile, Main Line Fleets, Inc., as the holder of legal title to the vehicle, and their respective insurance carriers. Pursuant to a stipulated agreement, the defendants agreed to a reasonable settlement of Homan’s claim and to present the question of insurance coverage to the trial judge, while simultaneously reserving the right to appeal from the court’s determination.

The trial judge ultimately found that Main Line Fleets, Inc., was primarily liable for Homan's injuries as owner of the lease vehicle; that North River Insurance Company provided primary coverage for Main Line Fleets, although the policy with North River was procured and paid for by Elissa Timoner and despite the fact that Main Line Fleets is not mentioned in the policy; that policies issued by National Indemnity Company and American Home Assurance Company were excess policies covering Main Line Fleets; and that Home Insurance Company was an excess insurer for Elissa Timoner.

North River admitted primary liability prior to the trial judge’s determination and tendered $100,000 — the limit of its policy— to Homan. Since the stipulated settlement with Homan was for $300,000, it remained for the trial judge to determine responsibility for payment of the balance of the settlement. In accordance with the court’s findings as noted above, National Indemnity was required to pay its $100,000 policy limits and American Home Assurance was required to pay the remaining $100,000 under its umbrella coverage of Main Line Fleets. Home Insurance was not required to pay any part of the settlement agreement. National Indemnity and American Home Assurance thereafter took this appeal.

Appellants have asserted numerous reasons in their respective briefs as to why appellee Home Insurance'should have been held responsible for paying the balance of the settlement amount which remained after the $100,000 payment by North River. In particular, it is argued that the trial court erred in finding that Main Line Fleets was primarily liable as owner of the lease vehicle. We agree, and accordingly reverse the determination of the trial court.

Our decision necessarily requires a discussion of the Florida Supreme Court’s ruling in Roth v. Old Republic Insurance Co., 269 So.2d 3 (Fla.1972). There the Court held that the lessor and its insurer could not escape liability for an accident caused by Roth, a permittee of the lessee, through the use of a collateral agreement between the lessor and lessee which provided that the leased vehicle would not be operated by anyone other than the lessee without the express consent of the lessor. Despite the fact that the Roth case found the lessor to be primarily liable for injuries caused by the accident, we feel that it is not controlling here due to the marked differences between that case and the factual situation presented herein.

In Roth, the Supreme Court was clearly concerned with the threat which would be posed to the public if lessors were able to avoid liability for accidents caused by per-mittees of a lessee:

“The Susco [Susco Car Rental System v. Leonard, Fla., 112 So.2d 832] and Blanton [American Fire & Cas. Co. v. Blanton, Fla.App., 182 So.2d 36] cases recognize that in the very nature of modern automobile use a lessee of a rental car often has to turn the car over to car park, garage, or filling station personnel and others for temporary operation and that it would be unreasonable to negate the rental car agency’s liability and its insurance coverage in case of accident because of the existence of a collateral or side agreement of the kind here involved. Often such permittees of rental car lessees temporarily driving rental cars would not be as fortunate as Roth and have the protection of their own personal auto liability insurance coverage, rendering it even more difficult for injured members of the public to recover their losses arising from the negligence of drivers of rental cars.” Roth, 269 So.2d at 6-7.

The Court therefore felt that no private contract could be allowed to abrogate the owner’s “implied consent” to ordinary usage by the lessee or his permittees.

Further, the Roth court noted on several occasions that the lessee had paid the “item of premium” for the insurance coverage afforded by the lessor’s insurer. The Court specifically approved this court’s ruling in Morse Auto Rentals, Inc. v. Lewis, 161 So.2d 235 (Fla. 3d DCA 1964), wherein it was held that a lessee who was an active tortfeasor was released from liability as to the owner of the lease vehicle where the lessee had compensated the owner for liability insurance. This rule was announced as an exception to the general rule that one who is held vicariously liable may recover from the active tortfeasor.

The factual situation surrounding the instant appeal is distinguishable from Roth in two critical respects. First, the lease agreement clearly states that the lessee was to indemnify and hold harmless Main Line Fleets from losses arising out of the use of the vehicle. To that effect, the lessee was to procure vehicle liability insurance with a minimum limit of $100,000 per person. This provision was in complete conformity with Main Line Fleets’ policy with its primary carrier, National Indemnity. According to the terms of that agreement, Main Line Fleets was required to obtain a certificate of insurance from the lessee in the same amounts as were required in the lease instrument. Any failure to obtain such a certificate would void coverage by National Indemnity. Thus, there was no “collateral agreement” which conflicted with or negated liability which would have otherwise arisen under the lessor’s insurance policy, as there was in Roth.

The fact that the lessee was required to procure her own insurance demonstrates a second distinction from the situations involved in Roth and Morse, supra. In those cases, the lessees were required to pay the lessors for insurance coverage. Here, the lessee was required to obtain and pay for her own insurance, independent of any insurance which the lessee might procure itself.

In light of these facts, we find that Roth is inapplicable here. We are of the opinion that Roth did not announce a policy of virtual strict liability for lessors of automobiles. There is no harm to the public stemming from a long-term lease agreement which requires a lessee to purchase his own insurance, indemnifying the lessor as well, especially where the lessee must certify financial responsibility, as was the case here. Nor are we faced with a situation where the lessee has paid a premium to the lessor for insurance, only to be later faced with a claim for indemnity. Given these facts, we feel that there is no need to derogate the primary common law liability of the active tortfeasor.

We therefore find that the trial court erroneously concluded that Main Line Fleets was primarily liable as owner of the lease vehicle. Accordingly, the judgment is reversed and remanded to the trial court with directions to vacate the judgment against National Indemnity Company and American Home Assurance Company and to enter a judgment against Home Insurance Company as the primary excess carrier.

Reversed and remanded with directions.


text:
    Richard C. HOWE, Individually and as Administrator of the Estate of Ruth Howe, Deceased, et al., Appellants, v. SOUTH BROWARD HOSPITAL DISTRICT, a special tax district of the State of Florida, d/b/a Memorial Hospital, et al., Appellees.
    No. 75-2055.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Rehearing Denied June 8, 1977.
    Howard Todd Jaffee of Kaplan, Jaffee & Associates, Hollywood, for appellants.
    Michael D. Stewart of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee, South Broward Hospital District.
   PER CURIAM.

This is an appeal from the entry of summary judgments against the plaintiffs in a medical malpractice case. We reverse.

The burden of proving the absence of a genuine issue of material fact is upon the moving party. Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain. Holl v. Talcott, 191 So.2d 40 (Fla.1966). From our review of the record on appeal we conclude that appellees failed to meet this burden.

REVERSED AND REMANDED.

CROSS and ALDERMAN, JJ., and NE-WELL, EMERY J., Associate Judge, concur.


author: LETTS, Judge.

text:
    GULF MACHINERY COMPANY and Liberty Mutual Insurance Company, Appellant, v. Fred AVANT and Hazel M. Avant, his wife, Appellees.
    No. 76-81.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Rehearing Denied June 8, 1977.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach,' for appellant.
    Michael Jeffries of Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for appellees.
   LETTS, Judge.

We affirm the judgment of the trial court; however, the appellant is not precluded by this affirmance, from seeking relief against the employer in an independent action.

AFFIRMED.

CROSS and ANSTEAD, JJ., concur.


text:
    Barbara SMITH a/k/a Beverly Denise Scanes a/k/a "Sunshine”, Appellant, v. The STATE of Florida, Appellee.
    No. 76-475.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Rehearing Denied June 1, 1977.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

This is an appeal by the defendant, Barbara Smith, a/k/a Beverly Denise Scanes, a/k/a “Sunshine,” from an order revoking probation on a charge of possession of a controlled substance. The trial court sentenced Sunshine to eighteen (18) months in the state penitentiary.

The sole point raised by the defendant on this appeal is that the trial court erred in revoking probation and in imposing a sentence of incarceration where the defendant was a juvenile at the time of the offense for which she was initially placed on probation; therefore, the circuit court never acquired the requisite jurisdiction to treat her as an adult, in violation of Section 39.02, Florida Statutes (1975).

The record reflects that the defendant was arrested on November 13, 1974, and charged with two counts of possession of a controlled substance. She told the police that her name was Barbara Smith and that she was born on October 21, 1953, making her age twenty-two. The defendant was represented by private counsel, and on April 7, 1975, by way of plea bargain, she pled guilty to one count of possession. The State dropped the second count, and the court entered an order of probation for a period of one year.

Subsequently, an affidavit and an amended affidavit of violation of probation were filed. On January 8, 1976, a probation revocation hearing was held. The defense moved to dismiss on the grounds that the defendant was only sixteen years of age at the time of the offense for which she was placed on probation; and that pursuant to Chapter 39, Florida Statutes, no procedure was implemented through which the trial court could have obtained jurisdiction over her. The defense contended that since the trial court lacked jurisdiction, the probation was a nullity and any action taken pursuant to it, such as revocation, would be void.

The trial judge did not consider the defendant’s motion to dismiss, stating that the proper procedure to attack the probation would have been to appeal from the order of probation, and not to raise the validity of the probation at the revocation hearing. At the conclusion of the testimony, the court revoked the defendant’s probation and imposed a sentence of eighteen months. It was brought out at the probation revocation hearing that the defendant’s real name is Beverly Scanes, and that she was born on November 21,1957, and was, therefore, only sixteen years of age at the time of the commission of the offense.

The record further discloses that the defendant testified at the probation revocation hearing that in the prior proceeding she lied under oath about her name, age and arrest record in order to avoid being sent to Youth Hall, and for the specific purpose of being placed on probation. Thus, she voluntarily submitted herself to the jurisdiction of the circuit court’s adult division and pled guilty to a felony. When the trial court entered its order granting probation, which is an appealable order, the defendant did not take an appeal. She was represented by the same private counsel at the proceeding at which she was placed on probation, and at the revocation hearing; she misrepresented her name and age to the arresting authorities and to the court with the express purpose of subjecting herself to the jurisdiction of the adult court and obtaining probation. She accepted the benefits of probation and had one of the counts against her dropped as a part of the plea negotiations.

Under these circumstances, we find that Sunshine is estopped from changing her position and challenging the order of probation on the grounds of lack of jurisdiction to enter it. In our opinion, the trial court was correct in refusing to entertain the defendant’s challenge to the order of probation at the time of the revocation hearing. Therefore, the order of revocation of probation and sentence to eighteen months are hereby-affirmed.

Affirmed.


author: ANSTEAD, Judge: DAUKSCH, Judge

text:
    John C. FRANKLIN, Appellant. v. STATE of Florida, Appellee.
    No. 76-1045.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1977.
    Rehearing Denied June 6, 1977.
    W. Ford Duane, Robertson, Williams, Duane & Lewis, P. A., Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge:

This is an appeal from an order revoking probation. We reverse.

The defendant, John C. Franklin, was found by the trial court to have violated two conditions of his probation:

(f) Neither carry nor own any weapons without first securing the consent of the Probation Supervisor.
(h) Live and remain at liberty without violating any law.

Condition (f) was alleged to have been violated when Franklin and another individual disarmed an assailant armed with a gun at a bar where Franklin was doing carpentry work. He was shown to have had the gun in his hand momentarily after the weapon was taken from the assailant. Subsequently, the police, acting on a report that Franklin was seen with the gun, went to Franklin’s home, where Franklin denied he had the gun and refused the police permission to search his home. The police then secured a search warrant and upon searching Franklin’s home found another gun in a closet, not the one involved with the assailant; and this other gun turned out to have been stolen. Franklin was then arrested for possession of stolen property resulting in the charge as to condition (h).

Franklin denied any knowledge that the gun was stolen and testified that a relative placed- the gun in his home for safekeeping. He also called a neighbor as a witness to establish the existence of his relative. Franklin’s denial of knowledge about the gun being stolen and his explanation of the presence of the gun were not contradicted, and his testimony about disarming the assailant was actually confirmed by the State’s witnesses. Under these circumstances we find the proof presented at the hearing was not sufficient to sustain the revocation of probation. Larocco v. State, 276 So.2d 538 (Fla.4th DCA 1973).

Accordingly, the order of revocation of probation and the judgment and sentence are reversed with directions that the order of probation of November 3, 1971 be reinstated.

DOWNEY, J., concurs.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge

(concurring specially).

I am compelled to point out that the condition (f) proscribed owning or carrying but not possessing a weapon and the undisputed evidence was that the Defendant’s cousin had left the gun with the Defendant for safekeeping. Further I note the Defendant complied with all requirements of the probation order for 5V2 years before this alleged violation and the Parole and Probation Commission saw fit to have the Defendant on a 3 month written report status as their limited supervision.


text:
    Raymond M. HAMRA, Appellant, v. Barbara HAMRA, Appellee.
    No. 76-593.
    District Court of Appeal of Florida, Third District.
    April 26, 1977.
    Rehearing Denied June 1, 1977.
    McCain & Browd, Miami, for appellant.
    Barbara Hamra, in pro. per.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

The respondent former husband appeals a final judgment of dissolution of marriage. The main thrust of the appeal is that the court abused its discretion in the financial arrangements for the wife and four minor children. Our review of the record convinces us that no such abuse appears and this portion of the appeal is affirmed upon authority of Shaw v. Shaw, 334 So.2d 13 (Fla.1976); and Herzog v. Herzog, 346 So.2d 56 (Fla.1977).

Appellant’s point claiming procedural error does not present reversible error on this record inasmuch as no abuse is shown in the court’s referral of the dissolution and custody matters to a master. Also, the claimed error upon the determination of property rights by the master was not preserved in the record and was not made the subject of an assignment of error.

Affirmed.


author: PEARSON, Judge.

text:
    RANDLE EASTERN AMBULANCE SERVICE, INC., a Florida Corporation, Petitioner, v. Elena VASTA, as Administratrix of the Estate of Louis Vasta, Deceased, for the benefit of Elena Vasta, Respondent.
    No. 76-2215.
    District Court of Appeal of Florida, Third District.
    April 26, 1977.
    Rehearing Denied June 1, 1977.
    Stephens & Schwartz, Richard M. Gale, Miami, for petitioner.
    Wolf son, Diamond, Logan & Edge, Miami Beach, Podhurst, Orseck & Parks, Joe N. Unger, Miami, for respondent.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PEARSON, Judge.

We are presented with a petition for writ of certiorari to review an action of the trial judge taken pursuant to Fla.R.Civ.P. 1.540. The final judgment set aside was a voluntary dismissal entered in open court pursuant to Fla.R.Civ.P. 1.420(a)(l)(i). The petitioner urges that the trial court was without jurisdiction to reinstate the action where the plaintiff had exercised her absolute right to voluntarily dismiss the cause by entering into the record her notice of dismissal. Secondly, the petitioner urges that the trial court departed from the essential requirements of law by a clear abuse of its discretion in finding good cause for the reinstatement where the mistake claimed was not due to inadvertence or excusable neglect, but due to a mistake of the application of the law to the facts.

The order under review was entered under circumstances as follows: Plaintiff, who is the respondent, brought an action to recover for alleged wrongful death against Randle Eastern Ambulance Service, Inc., the petitioner, urging negligence in the performance of the ambulance services. At the trial, the plaintiff attempted to introduce evidence that the ambulance service was negligent in that it arrived late in response to the call. The trial court ruled that this evidence was not admissible under the allegations of the complaint, whereupon, the plaintiff took a voluntary dismissal by means of the following announcement:

“MR. LOGAN [Plaintiff’s Counsel]: After all of these discussions, we are taking a voluntary dismissal. If the statute hasn’t run we’ll have time to re-file.”

Thereafter, almost three months later, plaintiff filed a “Motion For Relief From Judgment of Voluntary Dismissal.” In the motion, the plaintiff alleged that prior to the voluntary dismissal, the death statute had run in the cause and that it was now too late to refile the action and that the voluntary dismissal had been taken as a result of mistake, inadvertence or excusable neglect. The trial court granted the motion for relief upon the following finding:

“The above referenced Voluntary Dismissal is considered a ‘proceeding’ by this Court and therefore within the Court’s jurisdiction to amend. See Cooper v. Carroll, 239 So.2d 511 (Fla.App. 3d 1970).
“Plaintiff’s motion for relief is granted due to counsel for the Plaintiff’s mistake in asking for a Voluntary Dismissal subsequent to the running of the applicable Wrongful Death Statute of Limitations. This cause is reinstated.”

We agree with the trial judge that this court’s holding in Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970), supports his holding that a voluntary dismissal is a proceeding which may be reached by Fla.R. Civ.P. 1.540. We note the decision of the Fourth District in Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1970), which appears to be contrary to our holding in Cooper. Nevertheless, we adhere to our prior holding for the reasons stated in Cooper.

The discretion reposed in the trial judge by Fla.R.Civ.P. 1.540 is of the broadest scope and may be reversed only by a clear showing that the facts of the case do not legally support the exercise of that discretion. See Farish v. Lum’s, Inc., 267 So.2d 325 (Fla.1972). We, therefore, hold that there has been no showing of a departure from the essential requirements of the law.

Accordingly, the petition for writ of cer-tiorari is denied.

It is so ordered.


author: PER CURIAM. MAGER, Chief Judge,

text:
    Jeffrey WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-301.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1977.
    Rehearing Denied June 6, 1977.

      Richard L. Jorandby, Public Defender, and Henry Prettyman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.

MAGER, C. J., dissents.

MAGER, Chief Judge,

dissenting:

As Judge Rawls aptly observed in Reed v. State, 333 So.2d 524, 525 (Fla.1st DCA 1976): “Once again the extensive time and money expended in a criminal proceeding must go ‘down the drain’ because of the over zealous argument of one prosecutor.” Most respectfully, this is precisely the situation with which we are once again confronted.

In the proceeding below, the following colloquy occurred:

“MR. KRISCHER [Prosecutor]: . . .
You have no evidence before you that Ernest Redden has ever been convicted of any of the things he’s been talking about here. If you close your eyes to this ripoff, which was in retribution to a bad drug deal, shootings on the street will take place and innocent people will get hurt.
MR. BROOKS [Defense Counsel]: I would ask the jury be taken out.
(Jurors left the courtroom)
MR. BROOKS: The last comment by Mr. Krischer is the most blatant attempt to invoke the insidious impression to get a conviction that I have seen. ‘If you don’t convict Ernest Redden, more innocent people are going to get shot.’ I move for a mistrial, I think it’s well warranted.
MR. KRISCHER: The comment by the State was made based on the evidence the defense himself put on. If that was not an attempt to get the jury’s sympathy for the defendant, I don’t know what is. I don’t see any other reason for putting it on. I should be allowed to comment on it.
THE COURT: I will overrule the motion.” (Emphasis supplied.)

After the retirement of the jury, as if to add insult to injury, the prosecutor repeated substantially the same statements to which defense counsel again timely and vainly objected:

“MR. KRISCHER: I submit to you, if you allow yourselves to be blinded by defense tactics in this case, putting Ernest Redden on trial here, and you allows yourselves to be blinded by the rip-off that occurred in this case, that was, in retribution to a bad drug deal, there are going to be more shootings on the streets and innocent people are going to get hurt. You cannot allow Palm Beach County to get involved in this case.” (Emphasis supplied.)

In Grant v. State, 194 So.2d 612 (Fla.1967), the Supreme Court of Florida in reversing the murder conviction of the defendant based upon the prejudicial nature of the prosecutor’s closing argument, reaffirmed the proposition that every defendant has the right to have his fate “determined in a fair and impartial manner, free from prejudicial and inflammatory statements.” The statements in the instant case, although distinguishable from those condemned in Grant, were sufficiently similar in their potential adverse effect so as to render the Grant decision applicable.

There is, however, a marked similarity between the instant statements and those found by this Court in Russell v. State, 233 So.2d 154 (Fla. 4th DCA 1970), to be “highly prejudicial” so as to constitute reversible error. In Russell, the prosecutor asserted in his closing argument:

‘People are getting killed and I submit to you if we let this individual go in society, possibly something will happen will effect [sic], that an innocent party, another innocent party could possibly get killed by this individual.’ ” 233 So.2d at 154-155.

See also Price v. State, 267 So.2d 39 (Fla. 4th DCA 1972); Chavez v. State, 215 So.2d 750 (Fla.2d DCA 1968).

As heretofore noted, although it appears that the evidence is sufficient to sustain a conviction, the conclusion is inescapable that defendant was deprived of a fair trial by virtue of the prejudicial comments made by the prosecuting attorney.

The observation made by former Justice Ervin, dissenting in Wade v. Wainwright, 273 So.2d 377, 378 (Fla.1973) perhaps best sums up the situation:

“The record indicates that the prosecuting attorney presented an oral argument before the jury that was designed to arouse their emotions and divert their minds from the relevant evidence which was properly before them. This is not American justice nor a fair trial. In each instance the defense counsel made a timely objection to the improper argument so as to bring the court’s attention to the prejudicial effect. 23 Fla.Jur., New Trial, § 23. Even though there appears to have been substantial relevant evidence to support the conviction, I would grant the petition and remand for a new trial ‘conducted coolly and fairly, without the indulgence in abusive or inflammatory statements made in the presence of the jury by the prosecuting officer.’ Goddard v. State, 143 Fla. 28, 196 So. 596 (1940).”

Accordingly, I would reverse and remand for a new trial.


text:
    ABC BRAKE SERVICE, Appellant, v. Ira FEINBERG et al., Appellees.
    No. 76-464.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 3, 1977.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellant.
    Greene & Cooper, Miami, Grover, Ciment, Weinstein & Stauber, Miami Beach, for ap-pellees.
    Before HENDRY, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of Auto Specialities Mfg. Company v. Boutwell, 335 So.2d 291, 292 (Fla. 1st DCA 1976); Coleman v. Allen, 320 So.2d 864, 866 (Fla. 1st DCA 1975); Bill Kelley Chevrolet, Inc. v. Kerr, 258 So.2d 280 (Fla. 3d DCA 1975); Holman v. Ford Motor Company, 239 So.2d 40, 44-45 (Fla. 1st DCA 1970); Yarbrough v. Ball U-Drive System, 48 So.2d 82 (Fla.1950).


text:
    FIRST REALTY INVESTMENT CORPORATION, a Delaware Corporation and FRI Construction Services Corporation, a Florida Corporation, Appellants, v. Robert P. GALLAHER, Jr., et al., Appellees.
    No. 76-775.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 6, 1977.
    Kelly, Black, Black, & Kenny and Michael Nachwaiter, Miami, for appellants.
    Pallot, Stern, Proby & Adkins, Miami, Marko, Stephany & Lyons, Ft. Lauderdale, for appellees.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from a judgment entered in favor of plaintiff-appellee and against defendants-appellants on an oral employment contract for a bonus.

Appellants, in urging reversal, raise many points on appeal, however, we need only address ourselves to the following point, to-wit: appellee’s claim is barred by the statute of frauds provision forbidding actions on oral agreements not to be performed within the space of one year from the date of the making of the agreement.

Factually, appellee Robert P. Gallagher was awarded a judgment of $209,000.00 against appellants First Realty Investment Corporation (FRI) and FRI Construction Services Corporation (FRICSC), FRI’s wholly owned subsidiary, on an oral employment contract for a bonus. The contract allegedly arose out of a discussion between Gallagher and one Stanley J. Magenheimer, vice-president of FRI, concerning the question of incentives to be built into Gallagher’s compensation as vice-president of the newly formed FRICSC. According to Gallagher, he was to receive, along with a salary, fifteen percent (15%) of the annual net profits of FRICSC, before taxes, as an interim bonus, until such time as a stock option plan for key employees could be put into effect. The alleged conversation and agreement was not evidenced by any written contract as to the bonus, nor was there any record of such an agreement on the books of either appellant corporation.

The trial judge, in his findings of fact and conclusions of law, determined that an agreement for the bonus had in fact been reached and “could be accomplished and brought to an end well within a year and could terminate at any time, namely, upon the occurrence of the death of either Robert P. Gallagher, Jr. or upon his resignation or upon his firing . . ., or on the implementation of the stock option plan, any of which could have occurred at any time after the date of the agreement between the plaintiff and the defendants concerning the plaintiff’s remuneration.” Thus, the trial judge concluded that the statute of frauds had no application sub judice. We disagree and reverse.

Section 725.01, Florida Statutes (1975), the Statute of Frauds, provides in pertinent part that:

“No action shall be brought upon any agreement that is not to be performed within the space of one year from the making thereof, . . . unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.”

Even assuming the existence of an agreement, a fact which we have difficulty in accepting given the lack of both written memoranda and corroborative testimony by similar key personnel on the subject of bonuses, we nevertheless are of the view that the aforementioned agreement violated the above cited statute and is therefore unenforceable.

It is undisputed that the alleged agreement upon which Gallagher recovered is strictly oral. Therefore, in order to avoid the statute of frauds, the agreement must have been capable of performance within one year from its “making.” The trial judge incorrectly reasoned that the contingencies of death, resignation and/or firing could take the agreement out of the statute’s control. See Niagara of Florida, Inc. v. Niagara Therapy Manufacturing Corporation, 231 So.2d 277 (Fla. 2d DCA 1970); 72 Am.Jur.2d, Statute of Frauds §§ 15, 16 (1974); compare Schenkel v. Atlantic National Bank of Jacksonville, 141 So.2d 327 (Fla. 1st DCA 1962), a personal service contract “for life” case where the contingency of death did take the agreement out of the statute of frauds.

The primary factor to be utilized in determining whether or not an oral contract is to be performed within the one year limitation of the statute is, of course, the intent of the parties. Markowitz Brothers, Inc. v. John A. Volpe Construction Co., 209 F.Supp. 339 (S.D.Fla.1962). Sub judice, the intent was clear. Profits from the newly formed FRICSC, from which the interim fifteen percent (15%) bonus was to be taken, were not even expected for at least sixteen (16) months after the agreement’s inception. The trial judge erroneously viewed the interim bonus agreement as separate and distinct from the stock option plan and therefore reasoned that upon implementation of the latter, allegedly within six or eight months from the making of the agreement, the terms of the employment agreement would be fulfilled and the statute satisfied. Such rationale is not founded upon the contents of the record and is clearly contrary to the intent of the parties.

In addition, appellees argue alternatively that should the statute of frauds void the agreement, Gallagher should nevertheless recover damages via the doctrines of estoppel and/or part performance. In that Gallagher was paid a salary and did receive certain bonuses during the course of his employment (although much less than allegedly promised him), we do not believe that he suffered any unjust or unconscionable injury, or performed any extraordinary work not covered by his regular salary, as would permit the application of either of the above doctrines. Rowland v. Ewell, 174 So.2d 78 (Fla. 2d DCA 1965).

Finally, we address ourselves to the counterclaim filed by appellants against appel-lees Gallagher, Isen, Jasinski and the Monitor Group, Inc. Both Isen and Jasinski, like Gallagher, were former officers of FRICSC and the Monitor Group, Inc., was a corporation established by appellees to compete with FRICSC. The counterclaim alleged that appellees breached their fiduciary duties to appellants and intentionally interfered with their advantageous business relationships by confiscating confidential records of FRICSC and by “stealing” FRICSC’s clientele.

The trial judge denied recovery on the counterclaim and, as there was competent substantial evidence to support his decision, we affirm.

In conclusion, after having considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law we hold that appellee-Gallagher’s claim for a bonus based upon an alleged oral agreement was barred by the statute of frauds and therefore, that portion of the final judgment awarding Gallagher damages is reversed. As pertains to the counterclaim filed by appellants, the final judgment is affirmed.

Affirmed in part; reversed in part. ’


text:
    Felicia THOMPKINS, a minor by and through her father and next friend, Bobby Thompkins, and Bobby Thompkins, Individually, Appellants, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, et al., Appellees.
    No. 76-797.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 6, 1977.

      Horton, Perse & Ginsberg, Miami, Sadow & Lynne, North Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Plaintiffs appeal from an order dismissing their amended complaint for failure to state a cause of action. The original complaint was found defective for failure to allege a legal deputy imposed upon the County and a violation of that duty. The amended complaint was dismissed on the same ground and plaintiffs declined to plead further. Thereupon, final judgment was entered.

Whether a complaint states a cause of action must be determined from the allegations of the complaint itself. Geer v. Bennett, 237 So.2d 311 (Fla. 4th DCA 1970). It appears from a reading of the complaint that plaintiffs would not be entitled to recovery if they proved each and every allegation of the complaint. Therefore, the complaint was properly dismissed. See Rice v. White, 147 So.2d 204 (Fla. 1st DCA 1962). Cf. Wong v. City of Miami, 237 So.2d 132 (Fla.1970).

Affirmed.