text:
    Peter W. P. GRAULICH, Appellant, v. FREDERIC H. BERLOWE & ASSOCIATES, INC., et al., Appellees.
    No. 75-1990.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.
    Rehearing Denied Nov. 22, 1976.

      George V. Lanza and John A. Finn, Coral Gables, for appellant.
    Linet, Weiner & Zedeck, Richard H. Bergman, North Miami Beach, for appel-lees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellant, Peter Graulich, the third party defendant below, appeals a final judgment in a non-jury trial entered for the appellees, Paul and Eleanor Pesce, who were third party plaintiffs.

The appellees are owners of a parcel of land upon which they planned to construct an office building. They obtained the services of the appellant, a licensed architect, to draw up preliminary plans. Thereafter, the appellee property owners entered into an agreement for $9,275 with the appellant architect to furnish a complete set of plans for the construction of the proposed building. The architect retained the services of Frederic H. Berlowe & Associates, Inc., to furnish mechanical and electrical design services, and Allen M. Reese & Associates, Inc., to furnish structural design engineering work in connection with the proposed plans. Subsequently, the architect advised the owners that due to zoning problems, it would be necessary to apply for a variance before the Planning and Zoning Board and the Council of the City of North Miami Beach. The appellees, thereafter, ceased making further payments to the appellant. It appeared to the trial judge that the architect had not investigated the zoning relative to the property prior to drawing up his plans pursuant to the agreement, it being apparent that the architect knew the parcel of land involved. What followed were actions by Frederic H. Berlowe & Associates, Inc., and Allen M. Reese & Associates, Inc., seeking to foreclose mechanic’s liens against Paul and Eleanor Pesce, the appellees. In turn, the Pesces brought a third party action against the architect Graulich. The court found, from the testimony of three professional architects, as to the standards and the normal, common practice of architects upon being retained by a client, that . . it is incumbent upon the architect to first check with the governmental authority as to the zoning of the property for which plans are to be prepared and then to prepare preliminary plans to be submitted to the municipal authority for zoning and lay out approval.” It was the opinion of the trial court that “. . architecture is a highly specialized profession,” and “[t]hat a lay person employing an architect’s services must rely on the expertise of said architect.” Further, the court found that “[a] professional standard exists in this profession; one created by the architects in the community. Work that is done by an architect that is below professional standard in the community is a non-compliance with the contractual agreement entered into between the lay person and the employed architect and will relieve the person employing the architect of financial responsibility of the substandard work.” The court then found that the work completed by the appellant was “substandard,” and that the appellees were not financially obligated to pay for his work.

Judgment was then entered for the plaintiff Frederic A. Berlowe & Associates, Inc., and Allen M. Reese & Associates, Inc., against the appellees, defendants therein, and judgment was entered for the appel-lees, as third party plaintiffs, against the appellant architect, as third party defendant.

The thrust of this appeal concerns appellant’s contention that the judgment is not supported by substantial evidence. We have reviewed the record and cited authorities, and find that there is substantial, competent evidence to support the trial judge and, therefore, we affirm on the authority of Strawgate v. Turner, 339 So.2d 1112 (Fla. 1976). As the Supreme Court stated in Strawgate:

“Findings of fact by a trial judge are presumed to be correct and are entitled to the same weight as a jury verdict. Read v. Frizzell, 60 So.2d 172 (Fla.1952). Findings by trial court will not be disturbed unless there is a lack of substantial evidence to support the court’s conclusion. Chakford v. Strum, 87 So.2d 419 (Fla. 1956).
“Our examination of the record convinces us that the trial court had ample evidence before it as a basis for its judgment. In reaching a contrary decision the District Court improperly substituted its judgment for the trial court’s.”

Compare Bott v. Moser, 175 Va. 11, 7 S.E.2d 217 (1940), where the Supreme Court of Appeals of Virginia found that an architect is bound to know the building restrictions of the place where the building is to be constructed, and to draw his plans and specifications accordingly.

Affirmed.

HENDRY, J., dissents.


source: Caselaw Access Project

author: McNULTY, Chief Judge.

license: Public Domain

text:
    Muriel LUTGERT, Appellant, v. Raymond L. LUTGERT, Appellee.
    No. 75-1748.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1976.
    Rehearing Denied Nov. 24, 1976.

      Marion E. Sibley and Robert C. Ward of Sibley, Giblin, Levenson & Ward, Miami Beach, for appellant.
    B. Clarke Nichols of Vega, Brown & Nichols, Naples, for appellee.
   McNULTY, Chief Judge.

We void this day an antenuptial agreement because of involuntariness on the part of the wife.

The ten-year marriage of the parties hereto was dissolved upon the petition of the husband. An antenuptial agreement which, among other things, provided for the matter of support or alimony and a waiver by the wife of attorneys fees in the event of separation or divorce was sustained by the trial court and the questions relating to alimony and attorneys fees were adjudicated accordingly. The relevant portions of the agreement are as follows:

“FIRST: The said RAYMOND L. LUTGERT represents that his present estate consists of approximately Three Million Dollars ($3,000,000.00) in value. The nature of his assets are such that precise valuation is impossible, but this is believed to be a reasonable and conservative figure at this time.
U * # *
“THIRD: All the personal and real estate now owned by the said RAYMOND L. LUTGERT shall be his own personal estate to be dealt with by him during his lifetime or by will as freely as though this agreement had not been executed in all respects except as indicated immediately hereinafter, namely:
« * * *
“C. The foregoing provisions hereof are in contemplation of the parties remaining married to and living with each other until the death of one of them. However, it is the desire of the parties to recognize the possibility of presently unanticipated separation or divorce.
Each of the parties has been previously married and is aware of the expense and possible publicity with resultant personal embarrassment, which may result from court controversy in a divorce or separate maintenance action over financial matters, in addition to great emotional strain.
The parties therefore further agree as follows:
In the event of the separation of the parties with or without divorce the said RAYMOND L. LUTGERT will pay to the said MURIEL STEVENSON the sum of One Thousand Dollars ($1,000.00) per month so long as she shall live, and not remarry.
Such payments shall be in full of any support money or alimony from the said RAYMOND L. LUTGERT to the said MURIEL STEVENSON, and each party shall pay his or her own attorneys fees and other expenses in any separation or divorce proceeding." (Italics ours.)

In sustaining the agreement the trial court found in pertinent part as follows:

“1. The parties entered into a valid prenuptial agreement according to the standards set forth in Del Vecchio, 143 So.2d 17. In reaching this conclusion the Court weighed the testimony of all witnesses concerning the circumstances of the signing of the agreement, the fact that the time element from the first discussion of the agreement by the parties and, actually, from her reading of the first draft, would have allowed her to consult any attorney of her own choosing for advice on the agreement but that she did consult with the law firm of Cummings and Wyman . . . and also, the Court considered that both parties were mature and this was not a first venture onto the sea of matrimony for either party.
“As to the ‘full and frank disclosure to wife, before signing of agreement of husband’s worth, or, absent such disclosure, a general and approximate knowledge, by the wife of the prospective husband’s property’ as set forth in Del Vecchio, supra, the Court has the benefit of statements of the financial condition of husband on July 1, 1963 ($3,163,000) and again on September 30,1974, ($3,915,929), together with a statement as to the financial condition of the prospective husband as set forth in the agreement itself .. In addition, testimony showed that the parties lived in close proximity to each other, moved in the same social circles, and had ample opportunity to observe the other’s standard of living for a considerable period of time prior to their marriage to each other.
“The Court specifically finds that the agreement was signed freely and voluntarily by the parties, that when the wife signed same she had or reasonably should have had a general and approximate knowledge of the character and extent of the husband’s property, and, as to the variation in the husband’s financial status at the time of the signing of the agreement and the hearing of this cause ‘the vicissitudes of his fortune in the interval were only that which can be said to have been reasonably contemplated from the nature of his assets’, Singer v. Singer, 4th DCA, (1975), 318 So.2d 438. The testimony also shows that the personal financial standing of the wife also changed considerably for the better during the period of the marriage of the parties. . . . ” (Italics ours.)

There is sufficient evidence in the record to support the foregoing findings of the trial court except, in our view, the findings of validity as respects the free and voluntary execution by the wife; and as indicated this is the basis of our determination that the wife can avoid the agreement.

While the testimony relating to the execution of the agreement is conflicting in several particulars, we accept the husband’s version except as to the undenied portions of the wife’s version. A narrative of significant events follows:

The parties, and their then spouses, were acquainted socially for a considerable period of time before their marriage in Chicago, where they previously resided. Their relationship ripened into a love affair after their respective former spouses became illicitly involved with each other and two divorces ensued. They kept company for approximately a year and became engaged' some four weeks prior to their marriage herein at 12:30 in the early morning hours of Friday, April 30, 1965.

An understanding of the odd hour of the marriage can be had from the events which began on Monday evening of that fateful week, April 26, when appellee husband called and suggested that they be married shortly after midnight on Thursday, April 29, provided they could book passage for an extended honeymoon cruise on the SS Constitution, scheduled to sail from New York later on that same day. The wife ecstatically agreed.

On Tuesday morning,. April 27, the husband advised appellant by telephone that he had succeeded in getting passage on the Constitution and that the wedding plans could go ahead. The parties met shortly thereafter and spent the rest of that day purchasing a sable stole for her and a wedding outfit for him; getting their passports straightened out; getting blood tests; arranging for a state Court of Appeals judge to marry them; acquiring the use of V.I.P facilities, called the “Topflight Room” of Northwest Airlines, at the O’Hare Airport in Chicago; and inviting family and friends to the wedding.

On Wednesday, April 28, the wife purchased her trousseau, after which the parties met at their jewelers to select and fit wedding rings. Thereafter, a marriage license was procured.

The following day, Thursday, April 29, is the critical date concerning the execution of the antenuptial agreement. That afternoon the parties met again at the jewelers to finalize the sizing of the wedding rings. While they were being readied the husband took the antenuptial agreement out of his pocket and for the first time presented it to appellant and asked her to sign it. She objected, saying that it indicated lack of trust on his part and that she didn’t want the marriage to start out on such a weak footing. He made light of that suggestion, proclaiming that the agreement was of no consequence anyway since they wouldn’t we getting a divorce. He joked about being married for some 80 years, getting married at their age. The wife still objected; so the husband called his Chicago lawyers, Cummings and Wyman, while still at the jewelers and apparently some conversation ensued between the lawyers and the wife after the husband put her on the telephone. While the evidence is conflicting as to whether this phone conversation resulted in any change in the wording of the agreement (the husband contends it did), the documentary evidence itself irrefutably demonstrates that the document was in fact drawn up and finally drafted the preceding Monday, April 26, and was not changed in any respect thereafter.

As a further insight into the events leading up to the agreement herein, it is agreed that the subject of an antenuptial agreement had been brought up on more than one occasion for perhaps up to a year before the marriage herein. The husband testified that he wanted such an agreement because his father had advised it and because he had had extreme difficulty during his first divorce. No specific agreement nor draft thereof was made, however, until the instant agreement was prepared on April 26 of that eventful week in 1965 as aforesaid. The wife insists that she consistently objected to such an agreement, whatever its terms, and the sole testimony in rebuttal of this is the husband’s statement that “there was no refutation of any willingness to sign such an agreement.”

In any case, following the aforementioned phone call, the wife finally agreed reluctantly to sign the agreement after the husband insisted that the wedding would otherwise be called off. She contends that she signed the agreement then and there at the jewelers; but we can accept the husband’s version that it wasn’t signed until just before the wedding that night (i. e., about 12:30 a. m. on Friday) when the minute hand of the clock was on the rise “for luck,” as several of the witnesses testified. Two witnesses corroborated the husband’s version that the agreement was indeed signed at the airport shortly before the wedding, one Williams, the husband’s nephew, who also was a notary public and who appears to have taken the acknowledgment of the parties, and one of the husband’s attorneys who was a member of the aforementioned Cummings and Wyman firm. Each additionally testified that he did not hear the wife voice any objections to the agreement as she executed it.

After the marriage, as may be gleaned from the admitted wealth of the husband the parties enjoyed a lifestyle reserved only to the fabulously rich. While the trial court found that during the times material herein the husband was worth from approximately $3,100,000 at the beginning to $3,900,000 at the present time, the wife points to much of the record tending to the conclusion that he is really presently worth nearer to $25,000,000. Indeed the admitted opulent lifestyle would appear to be supportable only if the latter figure were found to be the fact. For example, the present homeplace in Naples, Florida, is a palatial mansion directly on the Gulf of Mexico. It has eight bedrooms, twelve baths, a five-car garage, a guest house and servants’ quarters and is surrounded by some four and a half acres of formal gardens with a gate house at its entrance. The parties owned at least three luxury motor yachts, one of them a 50-footer custom built in North Carolina, and one a 63-footer custom built in Japan. They at one time owned a private turbojet airplane. They drove only luxury cars, including Rolls Royces and Lincoln Continentals. They took at least one round-the-world cruise and several extended cruises to Europe and other parts of the world. They had staffs of servants and gardeners. He gave expensive gifts of valuable jewelry. The husband has a hobby of collecting classic automobiles, his present collection having a value in excess of $900,000; and on one occasion he bid for and purchased an original Dues-enberg automobile for some $207,000.

The wife was fully aware before the marriage, of course, that the husband was a man of great wealth — and lived it. But all this, it seems to us, should only point up the expectancy of security on the part of the wife at the time of her acceptance of the marriage proposal, as well as the disproportionate relative positions of the parties, when it is emphasized that she had only a relatively small amount of cash in her own right at that time, together with some interest in the marital home of her prior marriage, and approximately $600 a month alimony (for only 10 years) as a result of a prior divorce. Clearly, since the agreement herein limits her simply to $1,000 a month alimony in the event of separation or divorce, and no attorneys fees, a grossly disproportionate benefit to the husband as a result of the agreement is startlingly patent.

Now, it is black letter law that the parties to an antenuptial agreement do not deal at arms length with each other. Their relationship is one of mutual trust and confidence. While such agreements are not per se suspect in the law, the courts nevertheless scrutinize them with care; and the parties must exercise the highest degree of good faith, candor and sincerity in all matters bearing on the terms and execution of the proposed agreement, .with fairness being the ultimate measure. Moreover, a presumption of undue influence or overreaching arises in transactions or contracts between persons in such a confidential relationship when it is clear that the dominant party thereto is the grossly disproportionate beneficiary of the transaction. It is well settled, for example, that with respect to the issue of full disclosure of the prospective husband’s wealth, a disproportionate benefit to the husband in an antenuptial agreement casts upon him the burden of showing that the wife in fact did have full or sufficient knowledge of the husband’s wealth.

The presumption which arises in these cases operates against the party receiving such benefit and imposes upon him the burden of coming forth with evidence sufficient to rebut it to the extent necessary to avoid its preponderating on the issue to which it relates. We see no reason why the burden on the part of the husband ought be any less with respect to the issue of voluntariness on the part of the wife in entering into such an agreement, than it is with respect to the issue of full disclosure, when there is a grossly disproportionate benefit to him together with sufficient coercive circumstances surrounding the execution of the agreement as to give rise to a presumption of undue influence or overreaching.

Here, it appears that the wife was in her middle or late thirties at the time of the agreement. The instant marriage was her third, following one of approximately seventeen years during which she bore three children. Her first marriage was of very short duration having been entered into when she was seventeen years old. Conced-edly, therefore, it can hardly be said that she was mesmerized by prehymeneal ardor when she entered into the agreement. But that doesn’t mean that her volition could not still have been overcome by circumstances sufficiently coercive in nature.

There is ample conclusive evidence of such circumstances in this case. To begin with, the husband sprang the agreement upon her and demanded its execution within twenty four hours of the wedding; and it has been said that a woman ought not be “too much hurried” into such an agreement. Passage had been booked for a honeymoon cruise to Europe; rings had been bought; a trousseau had been bought; all invitations to family and friends had been given; all arrangements otherwise had been made; an ultimatum had been delivered by the husband: “No agreement, no wedding”; and, obviously, there arose a sudden stark awareness of the potential immediate loss of a future life of enormous grandeur.

Surely, particularly at the last moment, a prospective wife ought not be forced into a position of being “bought” at the price of losing all if she does not agree to a grossly disproportionate benefit to the husband should she leave him under any and all circumstances, any more than she should be permitted to “sell” herself at zero hour for an agreement resulting in a grossly disproportionate gain to her upon the same eventuality. Along with public policy considerations this is the very reason why “fairness” is the polestar in these agreements; and fairness would certainly include an opportunity to seek independent advice and a reasonable time to reflect on the proposed terms.

Clearly, in our view, all the circumstances surrounding the execution of the agreement in this case, including its disproportionate terms, militate against fairness and are sufficient to support a presumption, as a matter of law, of undue influence and overreaching which bore adversely on the free exercise of the wife’s will. We certainly couldn’t indulge a contrary presumption; the wife could hardly say more in rebuttal. Nor need we go so far as to say that the wife proved in voluntariness as a matter of law. The device of a presumption such as that we employ here is the prevalent judicial tool commonly used in the determination vel non of undue influence or overreaching in transactions arising out of confidential relationships.

The burden thus shifted to the husband to rebut this presumption by coming forth with some competent evidence to the contrary. We have searched the record in vain to find it — it simply isn’t there. The mere statement by the husband that “there was no refutation of any willingness [on the part of the wife] to sign such an agreement,” which alluded to prior discussions of an antenuptial agreement generally and not to the specific one involved here which was objected to, will not alone suffice.

The question here is not whether the wife knew what she was signing or what she was or was not getting. The agreement is clear on its face and she can’t be heard to deny its contents. The question is whether she, in the free exercise of her will, voluntarily signed it. Evidence that she may have gotten some legal advice has no great impact on this issue either. For one thing, the only evidence of legal advice is that within twenty four hours before the wedding, when the husband first presented the ante-nuptial agreement and she rebelled, she spoke on the telephone to his lawyers; and we have already indicated that the documentary evidence conclusively demonstrates that this conversation could not and did not result in any change in the agreement enuring to the benefit of the wife. Additionally, in the face of the grossly disproportionate benefit to the husband, whatever legal advice she may have gotten at that time certainly wouldn’t tend to neutralize the other coercive factors bearing on her volition. In short, the presumption of undue influence and overreaching which we perceive to have been established as a matter of law is not rebutted at all and thus, remaining in the case, it must prevail as though the conclusion to which it points is admitted. The wife is entitled to avoid the agreement.

In view of our disposition hereof, it is unnecessary at this time to consider the other points raised on appeal. It is also unnecessary to consider the improved financial condition of the wife. This factor will undoubtedly bear on the equities existing between the parties as may be appropriate in the determination of alimony and/or the settlement of property rights generally.

The husband’s single cross-assignment of error is without merit. The judgment as to this is therefore affirmed.

But the judgment in other respects inconsistent with this opinion should be, and it is hereby, reversed; and the cause is remanded for further proceedings consonant herewith.

HOBSON and GRIMES, JJ., concur.

      . See, e. g., Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962); Weeks v. Weeks, 143 Fla. 686, 197 So. 393 (1940).

      . See, e. g., Reese v. Reese, 212 So.2d 33 (Fla. 3d DCA 1968). See also 41 Am.Jur.2d, Husband and Wife, § 296 at p. 243; 17 Fla.Jur. Husband and Wife, & 47 at p. 109; and A. Lindey, Separation Agreements and Ante-Nuptial Contracts, Vol. 2, § 90-37 et seq. (rev. ed. 1967).

        .See, e. g., 25 Am.Jur.2d, Duress and Undue Inñuence, § 44, at p. 404 and 41 Am.Jur.2d, Husband and Wife, § 314, at p. 225.

      . See Posner v. Posner, 257 So.2d 530, 534 (Fla. 1972), and Del Vecchio v. Del Vecchio, note 1 supra.

      . Cf. In re Estate of Carpenter, 253 So.2d 697 (Fla.1971). Also cf. Majorana v. Constantine, 318 So.2d 185 (Fla.2d DCA 1975).

        .See In re Estate of Maag, 119 Neb. 237, 228 N.W. 537, 541 (1930).

      . See n. 3, supra.

      . See n. 5, supra.

      . See n. 5, supra. Also cf. Leonetti v. Boone, 74 So.2d 551 (Fla.1954).


author: SCHEB, Judge.

text:
    Raymond CLARK et al., Plaintiffs, v. SUNCOAST HOSPITAL, INC., et al., Defendants.
    No. 76-1222.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1976.
    Rehearing Denied Nov. 24, 1976.
    John A. Lloyd, Jr., of Lloyd & Henniger, St. Petersburg, and Karl B. Grube, Seminole, for plaintiffs.
    Charles S. Carrere, of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for defendants, Evans and Harvey.
   SCHEB, Judge.

The Circuit Court of the Sixth Judicial Circuit in and for Pinellas County has certified to this court the following question under Fla.App. Rule 4.6(a):

DOES A DEPENDENT CHILD UNDER THE AGE OF EIGHTEEN YEARS HAVE A “DERIVATIVE” CLAIM ARISING FROM AN INJURY TO A PARENT UPON WHOM THE MINOR DEPENDS FOR SUPPORT, INSTRUCTION OR COMPANIONSHIP, IN CIRCUMSTANCES IN WHICH THE PARENT IS INJURED BUT DOES NOT DIE AS A RESULT OF THE INCIDENT IN LITIGATION?

Plaintiff Raymond Clark, in Count I of his suit against the defendants, seeks damages on allegations that defendants’ negligence resulted in his suffering cardiac arrest during surgery on April 23,1973, thereby causing brain damage, paralysis and personality changes which have rendered the plaintiff disabled and unable to care for his children. In Count II, Clark’s wife seeks damages for loss of support, care, companionship, and consortium of her husband. In Count III, the Clark children, as plaintiffs, seek damages against the defendants, alleging:

“15. Donathon Clark, Sherry Clark and Shane Clark state that they are the minor children of Raymond Clark and Linda Clark, the plaintiffs herein, and that as a result of the negligence of defendants as set forth by Raymond Clark in Count I and on account of the injury to Raymond Clark’s brain, and personality changes and disabilities imposed by his said injuries, they have been deprived of the support and the instruction and the companionship of Raymond Clark who has been unable, as a result of his said injury, to function as a father and as a provider for his said children.”

Defendants moved to dismiss Count III; however, the trial judge reserved ruling and certified the above question to this court. Counsel for the parties agree that an answer to the question certified would be determinative of the entire cause inasmuch as all claims of the Clark children as plaintiffs are alleged in Count III. We agree that our answer will be dispositive of their case. See Fla.App. Rule 4.6(a). Cf., Dees v. State, 295 So.2d 296 (Fla.1974); Gordon v. Norris, 90 So.2d 914 (Fla.1956).

Admittedly, the question is without controlling precedent in this state. Plaintiffs make a forceful argument that as children of a disabled father, they will not only suffer a loss of the funds that their father ordinarily would have provided for their food, shelter and health; but likewise, the loss of love, moral training, example and guidance they would otherwise receive. And while plaintiffs concede that their father is the appropriate claimant to recover for loss' of income which would be used to pay for their basic requirements of life, they argue that to deny them the right to recover their own intangible losses is a manifest injustice. The cause of action now claimed by the plaintiffs was unknown at common law and has not been provided by statute. But, plaintiffs cite Gates v. Foley, 247 So.2d 40 (Fla.1971), where the court recognized a wife’s entitlement unknown at common law, to recover for loss of consortium derivative of her husband’s claim for damages for his own injuries. Moreover, plaintiffs point to statutory enactments in favor of children for damages occurring during the lifetime of an injured parent where that parent ultimately dies as a result of the injuries, Sections 768.16-768.27, Florida Statutes. Plaintiffs view their own claims here as equally meritorious.

We, in effect, are asked to judicially declare that there are derivative claims in favor of children as a result of injuries to their parents. Sensitive as we are to the claims of the Clark children and all others who may be deprived of those intangible moral benefits which only parents can provide, we decline the invitation for a judicial intrusion into this area.

Numerous considerations weigh against formulation of children’s right of action. Nine of these reasons are cited in a note in 54 Michigan Law Review 1023 (1956):

(1) The absence of any enforceable claim on the child’s part to the parent’s services, (2) the absence of precedent, (3) the uncertainty and remoteness of the damages involved, (4) the possible overlap with the parent’s recovery, (5) the multiplication of litigation, (6) the possibility of settlements made with parents being upset, (7) the danger of fabricated actions, (8) the increase of insurance costs, and (9) the public policy expressed in some jurisdictions in the enactment of “heart balm” statutes.

In Duhan v. Milanowski, 75 Misc.2d 1078, 348 N.Y.S.2d 696 (Sup.Ct.1973), the court quoted the reasons cited in that article and added its own when it posited the question of whether the cause of action accrues to the children collectively or individually, and, if collectively, the problem of apportionment among them. Asking the rhetorical question, of what are these damages to consist, the court in Duhan observed that to a child who has lost the services of a parent, the possibilities of claim for damages may range from malnutrition to a warped psyche.

The asserted cause of action is novel in this state; however, as pointed out in the Annotation at 59 A.L.R.2d 454 (1958), the decisions in other states and federal jurisdictions with virtual unanimity hold that such a cause of action does not lie. The one decision which initially upheld a child’s right of action for negligent injury to his parent was Scruggs v. Meredith, 134 F.Supp. 868 (D.Hawaii 1955). It was reversed on appeal. See 244 F.2d 604 (9th Cir. 1975).

If the claims asserted by plaintiffs were properly circumscribed, there could be merit to their position from a policy standpoint. But, if these contentions are to be considered, they should be addressed by the legislative branch after a comprehensive study.

Accordingly, we answer the question posed in the negative.

GRIMES, A. C. J., and GOBBIE, EVELYN, Associate Judge, concur.


author: SMITH, Judge.

text:
    COLONIAL STORES, INC., a Foreign Corporation, doing business as Big Star Food Stores and Clyde D. Carter, Appellants, v. Doyle Wayne SCARBROUGH, Appellee.
    No. Y-160.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1976.
    Rehearing Denied Nov. 24, 1976.

      George L. Hudspeth and James A. Bled-soe, Jr., of Mahoney, Hadlow, Chambers & Adams, Jacksonville, for appellants.
    Stephen H. Davis and Richard G. Rum-rell, of Smathers & Thompson, Jacksonville, for appellee.
   SMITH, Judge.

We have thoroughly considered the entire record, the briefs and the oral argument on this appeal from a money judgment entered on a general verdict for plaintiff in an action for malicious prosecution and false imprisonment.

Appellants’ only argument attacking the sufficiency of evidence on the malicious prosecution count is that the trial court failed to give proper effect, when ruling on appellants’ motions for directed verdict, to the presumption of probable cause which is said to have arisen from the State Attorney’s decision to prosecute. Gallucci v. Milavic, 100 So.2d 375 (Fla.1958), held that such a presumption arises from a magistrate’s finding of probable cause and that it is conclusive, absent fraud or other corrupt means employed by the person initiating the prosecution. For the reasons stated in Rodgers v. W. T. Grant Co., 326 So.2d 57, 65 (Fla.App. 1st, 1976), cert. pending, we decline to accord the Gallucci presumption to a prosecutor’s decision. We do not construe Meade v. Super Test Sales, Inc., 306 So.2d 211 (Fla.App. 2d 1975), as supporting appellants’ position. Rather, that decision found that “there was reasonable cause presented” for the State Attorney’s decision to prosecute. 306 So.2d at 212. Similarly, Ward v. Allen, 152 Fla. 82, 11 So.2d 193 (1943), held that the filing of an information is evidence tending to show grounds for prosecution, but it did not give such evidence presumptive effect.

Here, the trial court charged the jury that filing of an information against appellee gave rise to a presumption of probable cause. The charge was favorable to appellants in this respect, and we agree with appellee that the instruction was in error.

In accordance with Rule 1.110(g), R.C.P., appellee pleaded alternatively or cumulatively both false imprisonment and malicious prosecution. The jury was separately charged concerning these distinct torts and it returned a general verdict. Our duty, of course, is to uphold the verdict if any reasonable view of the evidence, read in a light favorable to plaintiff, would sustain it. Because the judgment may thus be sustained as one based on sufficient evidence of malicious prosecution, concerning which appellants’ only attack has failed, we need not decide whether the judgment is sustainable also under the alternative or cumulative theory of false imprisonment.

The declaration of the actual robber concerning his crime was against his penal interests and was properly admitted. Baker v. State, 336 So.2d 364 (Fla.1976). Taken as a whole, the instructions did not omit essential elements and were not misleading. Appellants have not demonstrated, by testimony or otherwise, prejudice resulting from their inability to discover all contents of the State Attorney’s file. None of the other asserted errors warrant reversal.

AFFIRMED.

MILLS, Acting C. J., and MELVIN, WOODROW, Associate Judge, concur.


text:
    Daniel W. RODGERS, Appellant, v. STATE of Florida, Appellee.
    No. 75-178.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1976.
    Rehearing Denied Nov. 23, 1976.
    James J. English, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   TEDDER, GEORGE W., Jr., Associate Judge.

This case comes before this Court on appeal from a judgment of conviction of second degree murder and sentence of twenty-five years in the Division of Corrections. Appellant was charged with the offense of murder in the second degree and pled not guilty. He was found guilty as charged by a six man jury.

Although there are a number of points raised by appellant as grounds for a new trial, we find only one point has merit. That point stems from the conduct of one of the jurors. The record indicates that the juror in question was asked, during voir dire, specific questions as to her age, education and work experience. She was specifically asked how old she was and stated she was 21. The record also indicates that just prior to the jury rendering its verdict, appellant’s attorney was advised of the possibility of the juror’s minority. This information came to appellant’s attorney without any specific evidence. No objections were raised by appellant prior to the jury verdict. The record is now clear that the juror did indeed lie when asked her age and lied about other matters as well. Indeed, at the time of trial the juror was seventeen (17) years old. The issue then arises as to whether the appellant, Rodgers, had a fair and impartial trial by six (6) qualified jurors.

Article 1, Sec. 22, The Florida Constitution, provides:

“The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.”

Sec. 913.10, Florida Statutes, and Rule 3.270, Florida Rules of Criminal Procedure, provide that six (6) persons shall constitute a jury to try all other criminal cases other than capital cases.

Sec. 913.12, Florida Statutes, states that the qualifications of jurors in criminal cases shall be the same as their qualifications in civil cases.

Sec. 40.01(1), Florida Statutes, provides that grand and petit jurors shall be taken from the male and female persons over the age of twenty-one (21) years. The Florida Supreme Court, in the case of Reed v. State, 292 So.2d 7 (1974), held that eighteen (18) year-olds are eligible for jury duty.

This Court recognizes the multitude of statutes wherein reference is made to minors: Florida Statutes, 744.102(5), an “incompetent” is a person who, because of minority ... is incapable of either managing his property or caring for himself, or both. An “infant” or a “minor” is a person under eighteen (18) years of age whose disabilities have not been removed by marriage or otherwise. Florida Statutes, 62.011, on removal of disabilities: Minors.

These statutes, and many others not cited by this Court, enacted by the Legislature, obviously make clearcut distinctions between minors and adults. While the age of majority might be considered somewhat arbitrary, whether it is eighteen (18) or twenty-one (21), nevertheless, a person, until he reaches the age of majority, (age 18), is considered, by operation of law, “incompetent” to perform certain acts. Thus a minor cannot vote in Federal and State elections. He cannot act as an executor or administrator. His contracts with adults are voidable by him until he reaches the age of majority, and he is not eligible to serve on a jury.

Obviously, the effect of these statutes is to clothe the minor with the presumption that he is not able to completely understand and judge all that will affect him until he reaches his age of majority.

The blatant untruths by the juror were certainly indicative of her inability to comprehend the seriousness of the responsibility that was before her.

We have noted the numerous cases cited by appellant regarding the statutory qualifications of jurors, but find none of them directly on point. Furthermore, although cognizant that much of the case law requires a showing of actual prejudice to the defendant’s rights, nevertheless, this Court feels that the distinction in the case sub judice lies with the fact that one of the jurors, by virtue of being a minor, was legally incompetent to serve as a juror.

The right to a fair and impartial jury is an organic right pursuant to Article 1, Sec. 22, of The Florida Constitution, and this Court strongly believes that “[a] fair and impartial jury denotes jurors who are not only fair and impartial, but also qualified”, Boca Teeca Corporation v. Palm Beach County, 291 So.2d 110 (Fla. 4 DCA 1974).

For the foregoing reasons the judgment and sentence is reversed and this cause is remanded for a new trial.

REVERSED AND REMANDED.

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


author: ALDERMAN, Judge.

text:
    Charles Richard GROTNES, Appellant, v. Janet Wass GROTNES, Appellee.
    No. 75-1482.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1976.

      Patrick L. Bailey of Sullivan, Cochran, Ranaghan, Bailey & Gleason, Pompano Beach, for appellant.
    Larry Klein, and Alexander Myers, West Palm Beach, for appellee.
   ALDERMAN, Judge.

Appellant, the defendant below, appeals from a judgment entered by the Circuit Court of Broward County.

Appellant and appellee were formerly married to each other. In 1967 they were divorced in the State of Georgia. An agreement between the parties, providing for alimony and child support was made a part of the Georgia divorce judgment. Appellant fell behind in his payments. In 1971 the Georgia court issued an order finding appellant to be in arrears and holding him in contempt. In 1973 the same Georgia court amended its 1971 order and entered a money judgment against appellant in favor of appellee in the amount of $21,875.00. In the meantime appellant had moved to Florida.

Appellee filed suit to establish the Georgia judgment as a Florida judgment. The complaint further requested such other relief as the court deemed proper. Subsequently an amendment to the complaint was filed seeking a judgment for damages for breach of the agreement between the parties and specific performance of said agreement. Appellee also filed a complaint under the Uniform Reciprocal Enforcement of Support Act seeking an order for support of the seventeen year old daughter of the parties. On appellant’s motion, the two cases were consolidated.

Trial was held resulting in the following final judgment which is the subject of this appeal:

“ORDERED AND ADJUDGED as follows:
1. That the Defendant is hereby found to be in contempt of the Court’s prior orders as submitted in evidence by the Plaintiff for the Defendant’s failure to pay the sum of $21,875.00 as past due alimony and child support and the sum of $800.00 due for attorney’s fees to the Plaintiff’s attorney in the State of Georgia. It is hereby ordered and adjudged that the Sheriff of Broward County, Florida, will arrest the person of the Defendant, CHARLES RICHARD GROTNES, and place said Defendant in the Broward County, Florida, Jail House until that time that the Defendant shall pay into the Registry of the Court the sum of $21,875.00 which represents past due child support and alimony, and an additional $800.00 for attorney’s fees which represents the sum owed to the Plaintiff’s attorney in the State of Georgia pursuant to the attachment for contempt. It is the express order of this Court that the Defendant can purge himself by making the payment of the aforesaid sums to the Registry of the Circuit Court, in and for Broward County, Florida, within fifteen (15) days from the date of this judgment but that upon the expiration of said fifteen (15) days, and the Defendant’s failure to pay as ordered, the Defendant’s person shall be arrested pursuant to this judgment.
2. The Court expressly finds that the Defendant is also in arrears in child support and alimony which has lawfully accrued, and is past due and is owing to the Plaintiff in the amount of $28,000.00. This figure is over and above the amount in the above paragraph. The Court hereby finds the Defendant to be in arrears of said amount. The Court finds the Defendant to be in contempt and orders him confined to the Broward County, Florida, Jail for his failure to make said payments to the Plaintiff. That the Court hereby orders that the Defendant can purge himself of said contempt by the payment of said sum of money to the Registry of the Circuit Court, in and for Broward County, Florida, within thirty (30) days from the date of this Judgment. That upon failure of the Defendant to make such payment, it is hereby ordered that his person be arrested and placed in the Bro-ward County, Florida, Jail until compliance with this Court’s Judgment.
3. That the Plaintiff, pursuant to the laws of the State of Florida, in regard to action for child support and alimony, present and past due, is hereby entitled to reasonable attorney fees and court costs. Said attorney fees and court costs will be awarded upon appropriate motion filed by the Plaintiff with reasonable notice to the Defendant.
4. That the Defendant shall pay to the Plaintiff, by lawful money order, the sum of $35.00 per week as child support for the remaining daughter still under the age of twenty-one (21), pursuant to the terms of the Property Settlement •Agreement which is in evidence and expressly incorporated into this Judgment by this Court. The payment shall be sent to the Plaintiff at: 7349 Cardigan Circle, Atlanta, Georgia 30328.
5. That this court expressly reserves jurisdiction of this matter and all other matters relating to the divorce and Property Settlement Agreement and those court proceedings in the State of Georgia which are now valid and lawful Judgments and Orders of the State of Florida.
6. That the Court finds that the Defendant has not complied with another Order of this Court, to-wit: that the Defendant has failed to make any attempt to reduce the previous arrearage in Case No. 73-15421 which was merged with the present case. The Defendant did pay $1,000.00 as ordered but still owes another $1,000.00 based on the Order dated December 20,1974. The Court orders the Defendant to pay said sum within ten (10) days of this Judgment. Upon Defendant’s failure to do so, this Court orders that the Defendant be arrested and confined to the Broward County, Florida, Jail House for contempt of court. However, the Defendant can purge himself of said contempt by the payment of said sum of money to the Registry of the Circuit Court, in and for Broward County, Florida, within ten (10) days from the date of this Judgment.
7.That, pursuant to the laws of the State of Florida, this Court additionally enters a Final Money Judgment in favor of the Plaintiff and against the Defendant in the amount of $50,675.00 for which let execution issue. This Final Money Judgment reflects the monies due and owing from the Defendant to the Plaintiff for past due and accrued child support, alimony and attorneys’ fees but not including attorneys’ fees and court costs for this present case.”

Appellant does not dispute the entry of the final money judgment against him for $50,675. This sum represents $21,875.00 for past due alimony and child support and $800.00 attorney’s fee, previously reduced to judgment by the Georgia court; plus an additional $28,000.00 which had accrued as of the date of the Florida judgment. The three issues raised by appellant are whether the trial court erred (1) in adjudging appellant to be in contempt; (2) in awarding attorney’s fees to appellee; and (3) in granting appellee equitable remedies for enforcement of alimony and child support.

On the first issue we conclude that appellant’s adjudications • of contempt in paragraphs one and two of the Final Judgment must be reversed. In effect appellant was found by the Florida court to have been in contempt of the Georgia court. At the time appellant was found in contempt there was no order of the Florida court which he had violated. As a general rule, the power to punish for contempt rests with the court contemned, and one court cannot punish a contempt against another court. Graham v. State, 144 So.2d 97 (Fla. 2d DCA 1962). The trial court’s adjudication of contempt in this case was premature. There being no order of the Florida court that appellant pay alimony and child support, he was not in contempt of the Florida court. In this instance it was the Georgia court which was contemned, and it is beyond the power of the Florida court to punish for this contempt. However, once the Georgia judgment has been duly established in Florida, and appellant ordered by the Florida court to comply, a failure to comply would then be a violation of the Florida court’s order for which appellant could then be held in contempt.

A different factual situation is presented by the adjudication of contempt found in paragraph six of the final judgment. In the Uniform Reciprocal Enforcement of Support action, which had been merged with the present action, appellant had been ordered by the Florida court to pay $2,000.00. He paid $1,000.00 as ordered but still owed another $1,000.00. The trial court did not exceed its authority in ordering him to pay said sum within ten days, or be subject to arrest and confinement for contempt of court. However, the commitment order contained in paragraph six is defective in that it fails to specify a definite term of imprisonment. In the past similar orders sentencing an offender to imprisonment for an indefinite and indeterminate period, or until he pays past due alimony, or until further order of the court, have consistently been held void for indefiniteness and uncertainty. State v. Anderson, 168 So.2d 554 (Fla. 1st DCA 1964); Satterfield v. Satterfield, 39 So.2d 72 (Fla.1949); Avery v. Sinclair, 153 Fla. 767, 15 So.2d 846 (1943). The commitment portion of paragraph six is reversed without prejudice to the Circuit Court of Broward County to enter such other or further sentence consistent with this opinion as may be required to enforce its order.

The next point involves the trial court’s determination, in regard to the action for child support and alimony, present and past due, that appellee was entitled to reasonable attorney’s fees and court costs. This court has previously recognized that under Section 61.16, Florida Statutes, a trial court may allow a divorced wife a reasonable amount for attorney’s fees in an action to enforce a foreign divorce decree under which the former husband was in arrears in child support. Courtney v. Warner, 290 So.2d 101 (Fla. 4th DCA 1974). We find no error in the trial court’s determination in this case that the former wife is entitled to reasonable attorney’s fees and court costs.

The final question is whether the trial court may grant to appellee the equitable remedies customary for the enforcement of decrees for alimony and child support. Appellant contends that appellee’s complaint was merely an attempt to collect on a foreign money judgment and that the equitable remedies for the enforcement of support and alimony are not available to her. We disagree. When the complaint and amendments thereto are read together they are sufficient to advise appellant of the nature of the action and invoke the equitable jurisdiction of the trial court.

A more fundamental issue is presented by the trial court’s entry of a money judgment for past due alimony and support while at the same time invoking its contempt power to enforce payment of the arrearage. This court in State ex rel. Clark v. Muldrew, 308 So.2d 136 (Fla. 4th DCA 1975) held that where a former wife elected to reduce to money judgment alimony in arrears under her Florida divorce judgment, her remedies for enforcement of such judgment were limited to those available to ordinary judgment creditors and contempt was not an appropriate or available remedy for her in that it would constitute imprisonment for debt. The only difference in the present case is that appellee’s money judgment for $50,675 was for alimony and support in arrears under a Georgia divorce judgment, rather than a Florida divorce judgment. On the other hand the courts of Florida have repeatedly and consistently held that a nonresident wife who seeks to enforce past due and unpaid installments of alimony and support which have been reduced to judgment in another state is entitled to the equitable processes of our courts in the enforcement thereof. Sackler v. Sackler, 47 So.2d 292 (Fla.1950); Haas v. Haas, 59 So.2d 640 (Fla.1952); Lanigan v. Lanigan, 78 So.2d 92 (Fla.1955); Miller v. Miller, 105 So.2d 386 (Fla. 1st DCA 1958); West v. West, 301 So.2d 823 (Fla. 2nd DCA 1974). The principle upon which these cases rest was first announced by the Florida Supreme Court in the earlier case of McDuffie v. McDuffie, 155 Fla. 62, 19 So.2d 511 (1944). In McDuffie the court quoted with approval the following language from Fanchier v. Gammill, 148 Miss. 723, 114 So. 813 (1927):

. a judgment for alimony rests largely on public policy in that the husband should be required to support his wife and children, that they not become derelicts and a charge on the public, that a judgment in equity is more efficacious than a judgment at law in that it may be enforced by attachment or contempt, that a court of equity has sole jurisdiction in matters of divorce and alimony and that to hold that a foreign judgment for alimony can be enforced only by execution at law would amount to depriving it of its inherent power of enforcement by attachment and contempt.”

These eases raise doubts as to the validity of our holding in Clark v. Muldrew, supra. An anomalous situation is created in that under the rationale of Sackler v. Sackler, supra, a nonresident wife may reduce her claim for past due alimony to a money judgment and also be entitled to the equitable processes of our court in the enforcement thereof. On the other hand a resident Florida wife, under our holding in Clark v. Muldrew, supra, is limited to those remedies available to the ordinary judgment creditor.

In the present case the nonresident wife had a money judgment from the Georgia court in the amount of $22,675.00. This amount, plus an additional $28,000.00 which had accrued, was entered as a money judgment by the Florida court against appellant. If appellee’s divorce judgment had been entered by the Florida court, under our holding in Clark v. Muldrew, supra, contempt would not be an appropriate or available remedy to enforce payment of the money judgment. A contrary result for the nonresident wife is dictated by the holdings of the Supreme Court and other District Courts cited above.

In Clark v. Muldrew, supra, we held that contempt was not an appropriate or available remedy as it would constitute imprisonment for debt. We still believe this to be true in the normal debtor-creditor situation. However after full consideration we believe that a special situation exists in reference to money owed for alimony and support. There are considerations of public policy which place the enforcement of alimony and support payments in a special category. As stated by the Supreme Court in Sackler:

“The mere transformation of an obligation to support into more specific form, such as a decree to pay, does not make it an ordinary debt but a continuing obligation.” (47 So.2d 294)

It also appears that the Third District in Ginsberg v. Ginsberg, 123 So.2d 57 (Fla. 3d DCA 1960) has recognized the authority of the trial court to enter a money judgment and also adjudicate a delinquent husband guilty of contempt for failure to pay the sums adjudged in arrears. We therefore recede from our opinion in Clark v. Mul-drew, supra. If foreign money judgment for past due alimony and support may be enforced by those equitable remedies customary in the enforcement of our local decrees for alimony and support money, there is no logical or legal reason why a domestic money judgment for past due alimony and support money may not also be enforced in a like manner.

In the present case we hold that upon remand the trial court, upon notice and after hearing, may grant to appellee such equitable remedies as are warranted by the evidence, to enforce payment of the $50,-675.00 money judgment entered by the trial court for past due alimony and support, as well as those payments which may have accrued subsequent to the entry of the money judgment.

REVERSED, in part, and AFFIRMED, in part, and REMANDED for further proceedings consistent with this opinion.

DOWNEY, J., and DANAHY, PAUL W., Jr., Associate Judge, concur.


text:
    Dennis Michael MYERS, Appellant, v. Hon. Reubin O’D. ASKEW et al., Appellees.
    No. 75-1504.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1976.

      Richard L. Jorandby, Public Defender, and Daniel T. O’Connell and Craig Barnard, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellees.
   ALDERMAN, Judge.

This is an appeal from a Circuit Court order denying appellant’s petition for writ of habeas corpus. Appellant is an inmate at the Lantana Correctional Facility. During confinement he was charged in five disciplinary reports with infractions of rules, and as a consequence, pursuant to hearings before various disciplinary committees, was deprived of 115 days’ gain-time. Appellant alleges that his gain-time was taken without due process of law in that (1) he was denied a neutral and detached hearing body; (2) there were no written statements by the disciplinary committees as to the evidence relied on and the reasons for the disciplinary actions taken; and (3) the decisions of the disciplinary committees were not based on evidence adduced at the hearing.

The United States Supreme Court has recognized that a state, at its option, may or may not create a right to a shortened prison sentence through the accumulation of credits for good behavior. But the state having created the right may not thereafter take it away without first providing minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state created right is not arbitrarily abrogated. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

The Legislature of the State of Florida authorized the Department of Offender Rehabilitation to adopt and promulgate regulations for the administration of the correctional system including conduct to be observed by prisoners, punishment of prisoners and gain-time. Chapter 945.21, Florida Statutes (1975). Pursuant to this authorization the Division of Corrections adopted regulations for the operation of institutions which have been published as Chapter 10B-12 of the Florida Administrative Code.

This Court must first consider and determine whether, within the scope of the issues raised by this appeal, the regulations in question are sufficient under the circumstances to meet the requirements of due process. If they are found to be sufficient we must also determine if appellees in fact complied with the regulations.

I

NEUTRAL AND DETACHED HEARING BODY

Section 10B-12.08(1) of the Regulations provides:

“The Director shall authorize the composition of an impartial team or teams at each correctional institution which shall administer discipline and shall authorize punishment for violation of any rules of prohibited conduct as listed by an inmate; provided, however, that such authority to punish shall be subject to the approval of the Superintendent and the Director as hereinafter provided. Any member of the disciplinary committee should be disqualified as a committee member if has participated as an investigating officer, was a witness, initiated the charge, or is the person designated to review the decision of the disciplinary committee.”

Measured against Wolff, supra, we conclude that this regulation for the impaneling of disciplinary committees meets the requirements of due process. The fact that a disciplinary committee is composed of- prison officials, in and of itself does not mean that an accused inmate is deprived of his right to have an accurate and fair fact finding determination prior to imposition of sanctions. Provided that no member of the disciplinary team has participated or will participate in the case as an investigating or reviewing officer, or is a witness or has personal knowledge of material facts related to the involvement of the accused, or is otherwise personally interested in the outcome of the disciplinary proceeding, a hearing team comprised of prison officials will satisfy the due process requirement of a “neutral and detached hearing body.” Clutchette v. Procunier, 497 F.2d 809, 820 (9th Cir. 1974).

We next consider whether the actual composition of the disciplinary teams complied with Rule 10B-12.08(1). Appellant contends that he was not afforded a “neutral and detached” hearing body in two instances. In reference to exhibit 1, appellant alleges that Mr. Wilcox was a member of the disciplinary committee even though he had witnessed the offense charged and had a preconceived notion of appellant’s guilt. We have reviewed the testimony of Mr. Wilcox at the habeas corpus hearing and agree with appellant. Mr. Wilcox, having witnessed the offense charged and having a preconceived notion of appellant’s guilt, should have been disqualified in this instance as a member of the disciplinary team.

Appellant also alleges, as to exhibit 4, that Mr. Pearson was chairman of the disciplinary committee even though' he had previously been made aware of personal threats directed at him by appellant. From our review of the record we find no showing that Mr. Pearson’s knowledge of appellant’s threat deprived appellant of a “neutral and detached” hearing body. The alleged threat had nothing to do with the pending charge. In some instances personal animosity and feeling between a prisoner and a particular prison official may require that the official involved be disqualified from serving on a disciplinary committee involving that prisoner. But to say that a prison official is disqualified in every instance where a threat has been made against him by a prisoner would place in the hands of the prisoner population a method by which they could disqualify all prospective members of disciplinary committees. In the absence of a showing that Mr. Pearson was in fact prejudiced by the alleged threat we hold that he was not disqualified.

II

STATEMENT OF EVIDENCE RELIED ON AND REASONS FOR THE DISCIPLINARY ACTION

The United States Supreme Court in Wolf, supra, 418 U.S. at 565, 94 S.Ct. at 2979, specifically held that there must be a “written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action.” This exact language has been incorporated into Chapter 10B-12(13)(h), Florida Administrative Code, which provides in part that “upon conclusion of the hearing, the Disciplinary Team will write a statement as to the evidence relied on and reasons for the1 disciplinary actions.” This portion of the regulations obviously complies with the mandate of Wolff, supra.

Testing this case against the unambiguous requirement of Wolff, supra, and Chapter 10B-12(13)(h), supra, we find that disciplinary reports, marked as exhibits 1, 2, 3 and 4, are defective in that they contain no statements as to the evidence relied on by the disciplinary teams. The disciplinary report marked as exhibit number 5 is sufficient.

ill

DISCIPLINARY ACTION NOT BASED ON EVIDENCE ADDUCED AT THE HEARING

The charging officers did not testify at the hearings on the disciplinary reports marked as Exhibits 1,2, 3 and 4. Appellant contends that failure of the disciplinary teams to require the testimony of the charging officers prior to finding appellant guilty was an arbitrary abuse of discretion, exceeded the power of the hearing committees, and constituted a denial of due process.

In Wolff, supra, at 567, 94 S.Ct. 2963, the United States Supreme Court recognized that even though an individual threatened with serious sanctions would normally be entitled to present witnesses and relevant documentary evidence, in a prison situation we must balance the inmate's interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Wolff held that confrontation and cross-examination are not “at the present time” constitutionally compelled. (418 U.S. at 567, 94 S.Ct. 2963.) The court concluded that the better course at this time, in a period where prison practices are diverse and somewhat experimental, is to leave these matters to the sound discretion of the officials of state prisons.

Chapter 10B-12(11), Florida Administrative Code, provides:

“(11) The chairman of the Disciplinary Team, or a majority of the members of the Disciplinary Team, have the authority to initiate the following actions:
“(a) To require the person filing the charges personally appear before the Disciplinary Team at the time of the hearing.
“(b) To request that the investigating officer personally appear before the Disciplinary Team at the time of the hearing.
“(c) To request available resource personnel such as medical staff, work super-
visors, psychologists, or other personnel in a consultant capacity.
“(d) To require the inmate file and medical records to be made available at all hearings.
“(e) To restrict questions and answers to relevant matter to preserve decorum and to limit repetition.
“(f) To postpone the hearing for a good and valid reason.”

In addition, Chapter 10B-12(13)(j), Florida Administrative Code, provides:

“(13) Whenever the disciplinary report is of such a nature to warrant consideration of disciplinary confinement and/or loss of gain time, the Disciplinary Team shall conduct the disciplinary hearing, observing the following rules:
* * * * * *
“(j) The inmate or the Disciplinary Team may request material witnesses. The chairman will call those witnesses (staff or inmates) who are available and who are determined to be necessary for an appreciation of the circumstances. Repetitive witnesses will not be called. Unavailable witnesses may submit written statements. Witnesses will not be called if doing so would create a risk or reprisal or would undermine authority. The inmate witness must be willing to testify. An inmate witness may elect to offer an oral or written statement to the investigating officer in lieu of a personal appearance before the Disciplinary Team. The chairman should note in the report the reasons for declining to call requested witnesses.”

We hold that these regulations provide a sufficient framework within which prison officials may exercise sound discretion as to a prisoner’s right of confrontation and cross-examination. Wolff v. McDonnell, supra; See also Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).

Applying the provisions of Chapter 10B-12(13)(j) to the present case it does not appear from the record that appellant ever requested that the charging officers be called as material witnesses. There having been no request we cannot say that there was an abuse of discretion.

CONCLUSION

The order of the Circuit Court discharging the writs of habeas corpus and remanding appellant to the Division of Corrections is reversed. As to disciplinary reports, marked as exhibits 1, 2,3 and 4, appellant is entitled to new disciplinary hearings in compliance with Chapter 10B-12, Florida Administrative Code.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

DOWNEY, J., and DANAHY, PAUL W., Jr., Associate Judge, concur.


author: GREEN, OLIVER L., Jr., Associate Judge.

text:
    RINKER MATERIALS CORPORATION, Appellant, v. CITY OF BOYNTON BEACH, Florida, Appellee.
    Nos. 75-1552 and 75-1553.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1976.
    Anne C. Booth, Hall & Booth, Tallahassee, and Toby Prince Brigham, Miami, for appellant.
    Ernest G. Simon, Delray Beach, for ap-pellee.
   GREEN, OLIVER L., Jr., Associate Judge.

The judge below dismissed the appellant’s complaint upon the ground that municipal administrative remedies had not been exhausted as to a zoning permit. This ruling was made at pre-trial conference, upon complaint and affirmative defense. We conclude that there were disputed issues of fact relating to this matter. We hold that an evidentiary hearing should have been held pursuant to the complaint and affirmative defense on this issue. Kagan v. Garfinkle, 312 So.2d 778 (Fla.3d DCA 1975); Chaulsett v. City of Fort Lauderdale, 272 So.2d 163 (Fla.4th DCA 1973); Feltner v. Fluder, 252 So.2d 823 (Fla.4th DCA 1971).

This cause is reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Morris SHERMAN and Selma E. Sherman, his wife, Appellants, v. CITY OF LAUDERHILL, a Municipal Corporation, and Inverrary Management Corporation, a Florida Corporation, Appellees.
    No. 76-4.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1976.
    Patricia S. Levey" of Chonin & Levey, P. A., Miami, for appellants.
    Steven R. Berger of Carey, Dwyer, Austin, Cole & Selwood, P. A., Miami, for ap-pellee, City of Lauderhill.
   PER CURIAM.

We find that the court below was in error in dismissing appellants’ complaint with prejudice. Appellants should have been granted leave to amend their complaint.

Reversed and remanded for further proceedings in accordance with the above.

REVERSED AND REMANDED.

CROSS, J., and SMITH, CULVER, MASON, ERNEST, Associate Judges, concur.


author: SCHOONOVER, JACK R., Associate Judge.

text:
    R. Todd WOODS and Barbara A. Woods, Appellants, v. FEDERAL INSURANCE COMPANY, a corporation, Appellee.
    No. 75-1505.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1976.
    Rehearing Denied Nov. 29, 1976.

      Brooks P. Hoyt of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    Norman Stallings, Jr. of Shackleford, Farrior, Stallings & Evans, Tampa, for ap-pellee.
   SCHOONOVER, JACK R., Associate Judge.

Appellants/plaintiffs, R. Todd Woods and Barbara A. Woods, his wife, sought recovery under the terms of an insurance policy issued by the appellee/defendant, Federal Insurance Company, as a result of damage to the appellants’ home caused by a fire. The lower court granted a partial summary judgment in favor of the appellee, and the appellants filed their timely interlocutory appeal.

The appellants/plaintiffs contend that the lower court erred in allocating to Coverage C of the policy (Unscheduled Personal Property) one-half of the cost of police protection, and in holding that the wall-to-wall carpeting destroyed by the fire fell under the same coverage of the policy.

We agree with the appellants/plaintiffs that the lower court erred on the evidence presented in allocating one-half of the cost of the police protection to Coverage C of the policy, but agree with the lower court’s holding that the wall-to-wall carpeting was properly considered as personal property. We accordingly reverse that portion of the summary judgment relating to the cost of police protection and affirm that portion holding that wall-to-wall carpeting was personal property under the facts of this case.

On Thanksgiving Day, November 22, 1973, the appellants’ home was destroyed by fire. The appellee’s agent authorized police protection for the premises over the holiday weekend. The damage to the dwelling and contents were subsequently determined, and damages to the contents of the home exceeded the $37,500 limit in the policy. The appellee/defendant Insurance Company treated the Woods’ wall-to-wall carpeting, attached to Oak parquet flooring by tack strips, as “unscheduled personal property,” under Coverage C of the policy, and allocated the costs of protection ($450.00) equally between the dwelling coverage and the contents coverage. Since the contents coverage had been exhausted, this resulted in the appellants/plaintiffs, in effect, not recovering for one-half of the police protection costs, and the carpet which had a value of $4,825.00.

The insurance policy in question contained no mention of police protection. In response to plaintiffs’ request, the defendant admitted that police protection was ordered “at the suggestion of the defendant.” Evidence on this point consisted of a deposition of the adjuster and an affidavit of the plaintiffs’ neighbor. The adjuster testified that it was agreed that police protection was needed; that the purpose was to protect the property as a whole; and that he would recommend police protection over a long holiday weekend without reference to any valuable personal items in the house. The neighbor’s affidavit said that Mr. Woods expressed concern about the cost of the guards and the agent replied that it was all right, that he should not worry about it, “that the insurance company will pay for it.”

We think that the adjuster’s own testimony failed to conclusively demonstrate that the insurance company was justified in allocating one-half the cost for police protection to personal property. Additionally, the neighbor’s affidavit may indicate that the company is estopped to deny coverage. Appellee/defendant insurance company having failed to conclusively demonstrate that no material issues remain for trial, the summary judgment on this issue must be reversed. Smith v. Avis Rent-A-Car, 297 So.2d 841 (Fla.2d DCA 1974).

On the next point raised by the appellants/plaintiffs, i. e., whether or not the carpeting in the case sub judice is realty and accordingly covered under the dwelling portion of the insurance policy, Coverage A, two factors must be considered. First, whether or not the carpeting was physically annexed to the realty, and if so; whether it could be removed without doing substantial damage to said realty. Next, the intention of the parties, i. e., the owner of the chattels and the insurance company who contracted with them for insurance coverage.

A review of the evidence upon which both parties moved for a summary judgment requires us to agree with the lower court and affirm as to its finding that the carpeting, under the circumstances involved in this case, be treated as personalty under the insurance policy issued by the appel-lee/defendant, Federal Insurance Company.

The carpeting was not the original floor covering, and was not installed over a bare concrete slab nor was it included as a part of the construction contract, but instead was a covering which could be removed without substantial damage to the realty and still leave a permanent flooring underneath.

In the instant case, we are not concerned with those cases dealing with conflicting interests between landlord and tenant, vendor and vendee, creditor and debtor, carpeting subcontractors and general contractors, or other similar types of conflicting interests, but only with the question of insurance coverage under the terms of the policy involved in this case. The appellants/plaintiffs paid a premium on the dwelling coverage portion of their insurance coverage to protect the floor, and the floor was paid for by the insurance company. The contract is clear and unambiguous and the appellants/plaintiffs were compensated for a “floor,” but we do not feel they should be compensated for two of them.

Affirmed in part and reversed in part.

GRIMES, A. C. J., and SCHEB, J., concur.

      . Rigel v. National Casualty Company, 76 So.2d 285, 286 (Fla. 1954).


text:
    Jerry P. DAVIS, Appellant, v. BLUMBERG REALTY, INC., a Virginia Corporation, and George Blumberg, Appellees.
    No. 75-1542.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Rehearing Denied Nov. 22, 1976.

      Gelb & Spatz, Miami, for appellant.
    William R. Alvin, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment in an action for fraud, deceit and breach of contract. The case arose out of a purchase by the plaintiff of an apartment house which had in it, and which was included as part of the purchase price, a liquor lounge and the attached liquor license. The trial court set forth as a basis for the judgment the following:

“3. Upon the specific request of the attorney for the Plaintiff the Court would state that although there are multiple bases for the entry of this Final Summary Judgment, one basis is the lack of any evidence of a false representation made by the Defendant, GEORGE BLUMBERG, to the Plaintiff, JERRY P. DAVIS. This finding of a lack of evidence of a false representation includes the written deposit receipt and sale-purchase contract between the parties dated March 20, 1972.”

We hold that the trial judge has, in fact, tried this ease upon a motion for summary judgment. See Benson v. Atwood, 177 So.2d 380 (Fla. 1st DCA 1965). While we express no opinion on the ultimate correctness of his conclusions, we hold that there is a genuine issue of material fact which should be tried. See Alepgo Corporation v. Pozin, 114 So.2d 645 (Fla. 3d DCA 1959); and Dean v. Gold Coast Theatres, Inc., 156 So.2d 546 (Fla. 2d DCA 1963). The evidence in this record does not conclusively demonstrate that there is no issue upon the alleged fraud, inasmuch as the record shows some evidence that would support a finding that the defendants knowingly offered for sale a liquor license they knew could not be transferred and, by overt actions, that they prevented or acted to prevent the plaintiff from discovering this fact.

Accordingly, the judgment is reversed for a trial of the issues involved.

Reversed and remanded.


text:
    Judith GIBBONS and Philip Gibbons, Appellants, v. Dock SHOCKLEY et al., Appellees.
    No. 75-1879.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Rehearing Denied Nov. 23, 1976.
    Gerald M. Walsh & Associates and Richard D. Heller and David' L. Kahn, Fort Lauderdale, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and Thomas F. Martin, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

This appeal by the plaintiff is from a final judgment based on a jury verdict for one of several defendants in a personal injury action. The point argued is that the trial court erred in denying the plaintiffs motion for a new trial because of an allegedly erroneous jury instruction and the failure to give one of plaintiff’s requested instructions. A review of the record in the light of these arguments convinces us that no error appears. See Smith v. Johnson, 187 So.2d 655 (Fla.2d DCA 1966), and Scissors v. Seaboard Coast Line Railroad, 311 So.2d 708 (Fla.3d DCA 1975).

Affirmed.


author: RAWLS, Acting Chief Judge.

text:
    Louis ALLELUIO, Appellant, v. STATE of Florida, Appellee.
    No. BB-165.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Jeanne Dawes Schwartz and Carolyn M. Snurkow-ski, Asst. Attys. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Appellant’s sole point on appeal is that the trial court erred in summarily denying his motion to withdraw his guilty plea and then adjudging him to be guilty without making inquiry into and determining whether appellant was insane at the time he entered his plea.

On November 10, 1975, appellant, accompanied by his counsel, an assistant public defender, entered a plea of guilty to robbery as charged in the information filed against him. Eleven days later, the trial court, after reciting that it had been suggested that appellant might show his mental incompetency as legal cause why sentence should not be imposed, appointed two qualified medical experts to examine him. A hearing was held on February 10, 1976, for the purpose of sentencing, and at this time the trial court found that both psychiatrists had examined appellant and found him to be incompetent “at this time” for sentencing. The trial court then, in committing appellant to the State Hospital, stated: “. . . where if he becomes competent he’s still within the jurisdiction of this court and he will be brought back, treated accordingly.” At the sentencing hearing, the assistant public defender stated that he didn’t realize the depth of appellant’s psychiatric problem until he had received the medical report and had talked to appellant’s father from New York. The assistant public defender stated that he had talked to appellant and could get answers to his questions, but at the same time, he felt that appellant was probably competent. However, according to the medical report, the psychiatrists felt that appellant’s “condition being an ongoing one he was probably in the same condition before he entered a plea as he was after the plea.” The assistant public defender then stated: “It’s —based on this information, I’ll ask the Court to allow me to withdraw the plea that the Defendant has entered of guilty so that he might be eligible to go to the State Hospital as being incompetent to stand trial, which I think he clearly is.” The trial court denied the motion to withdraw the plea and proceeded to adjudge appellant guilty of robbery. Under the circumstances, the trial court erred in denying the motion to withdraw the guilty plea. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); and Williams v. State, 316 So.2d 267 (Fla.1975).

REVERSED.

MILLS and SMITH, JJ., concur.


author: GRIMES, Judge.

text:
    Bruce A. BURCHAM, Appellant, v. STATE of Florida, Appellee.
    No. 75-458.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1976.
    Jack 0. Johnson, Public Defender, Bartow, and Thomas W. Garrard, Lake Wales, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

On this appeal from a conviction of first degree murder with its resulting life sentence, the only point of merit relates to the contention that the court committed fundamental error in failing to properly charge the jury on the crime with which the defendant was charged.

The state attorney’s office submitted requested jury instructions to the trial judge. The defendant’s attorney reviewed and approved these instructions. These instructions were read to the jury. No objections were made, and no additional instructions were requested. From a perusal of the instructions so given, it is obvious that they were intended to track the Florida Standard Jury Instructions as applicable to this case. Through inadvertence and unknown to either counsel or the trial judge until this appeal, the instructions on first degree murder which are set forth on pages 68 and 69 of the standard jury instructions were not given because they were not included in the requested instructions. The issue before us is whether the failure to give these particular instructions constituted fundamental error.

The omitted instructions set forth on pages 68 and 69 of the Florida Standard Jury Instructions in Criminal Cases read as follows:

“MURDER — FIRST DEGREE F.S. 782.04(l)(a)
First Murder in the first degree is Degree the unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of (or in the attempt to perpetrate) any of the following crimes: arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person over the age of eighteen years when such drug is proven to be the proximate cause of the death of the user.
Premeditated A premeditated design to kill Design is a fully-formed conscious purpose to take human life, formed upon reflection and present in the mind at the time of the killing. The law does not fix the exact period of time which must pass between the formation of the intent to kill and the carrying out of the intent. It may be only a short time and yet make the killing premeditated, if the fixed intent to kill was formed long enough before the actual killing to permit of some reflection on the part of the person forming it, and that person was at the time of carrying out that intent fully conscious of a settled and fixed purpose to kill and of the results which would follow such killing. When such state of mind exists there is a premeditated design to kill, although the killing follows closely upon the formation of the intent.
Proof The question of premeditated design is a question of fact to be determined by the jury from the evidence like every other material fact in the case. The law does not require that a premeditated design be proved only by direct and positive testimony. The existence of a premeditated design as well as its formation are operations of the mind, as to which direct and positive testimony cannot always be obtained; therefore, the law recognizes that it may be proved by circumstantial evidence. It will be sufficient proof of such premeditated design if the circumstances attending the homicide and the conduct of the accused convince you beyond a reasonable doubt of the existence of such premeditated design at the time of the homicide.
If a person has a premeditated design to kill one person and in attempting to kill that person actually kills another whom he did not intend to kill, he is nonetheless guilty of murder in the first degree.
The killing of a human being when committed by a person engaged in the perpetration of (or in the attempt to perpetrate) any arson, involuntary sexual battery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person over the age of eighteen years when such drug is proven to be the proximate cause of death of the user, is murder in the first degree even though there is no premeditated design or intent to kill. In Committing Other Crime
The crime of (name crime applicable to evidence! is defined as follows: (define other felonvl.
If a person kills another in trying to do or commit any (arson) (involuntary sexual battery) (robbery) (burglary) (kidnapping) (aircraft piracy) (unlawful throwing, placing or discharging of a destructive device or bomb), or while escaping from the immediate scene of such crime, the killing is in perpetration of or in the attempt to perpetrate such crime.”

Commenting upon a deviation from the standard jury instructions, our Supreme Court in State v. Bryan, 287 So.2d 73 (Fla. 1973), said:

“By this Court’s approval of the jury instructions for publication, it was not intended that they be iron clad, because we recognized the importance of the trial judge on the scene who has the ‘feel’ of the case, the psychology of its movement through trial and what aspects appear from subtle inflections and overtones to be important in the jury’s mind and for its decision. That is one of the reasons that a trial court’s decision has historically had the presumption of correctness on appeal. These are matters, as we have repeatedly said, that are not apparent from the ‘cold record’. What is important is that sufficient instructions — not necessarily academically perfect ones — be given as adequate guidance to enable a jury to arrive at a verdict based upon the law as applied to the evidence before them. The evidence presented in particular cases will, of course, often vary what instructions apply, or whether certain instructions apply.”

Thus, it is necessary to examine what instructions the jury in this case did receive.

At the outset, the court read the charge against the defendant in the language of the statute. Section 782.04(l)(a), Florida Statutes (1973). The other standard jury instructions applicable to homicide, including those relating to unlawful homicide, justifiable homicide, excusable homicide, second degree murder, third degree murder and manslaughter were generally followed. Likewise, the summary set forth on page 73 of the standard jury instructions was read which included the following definition of first degree murder:

“If the defendant, in killing the deceased, acted from a premeditated design to effect the death of the deceased (some other human being) (in the perpetration of or in an attempt to perpetrate an arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, or as a result of the unlawful distribution of heroin by a person over the age of eighteen years when such drug is proven to be the proximate cause of the death of the user), he should be found guilty of murder in the first degree.”

Other jury instructions which are customarily appropriate in any criminal case were also given.

Since the definition of first degree murder contained in the statute and in the summary is essentially the same as the definition of that crime set forth on page 68 and since there was no evidence that this defendant mistakenly killed the wrong person or committed the killing in the course of committing another crime, it becomes evident that the only relevant matters left out were the paragraph under first degree murder topically designated as Premeditated Design and the first paragraph under the title of Proof. In essence, both of these paragraphs deal with what constitutes premeditated design for purposes of first degree murder.

In affirming a conviction for first degree murder in McDonald v. State, 55 Fla. 134, 46 So. 176 (1908), the Supreme Court said:

“In a criminal prosecution, where a premeditated design is an essential element of the offense, it is not, ordinarily, in the absence of a proper request, incumbent upon the court to give to the jury a definition of the phrase ‘a premeditated design.’ It is presumed that the jury understand the meaning of ‘a premeditated design.’ . .”

Many years later this court in Polk v. State, 179 So.2d 236 (Fla.2d DCA 1965), held that the failure to give the defendant’s requested instruction which defined premeditated design in a first degree murder case was reversible error. Conceding that the term “premeditated design” was not a term of art, the court nevertheless distinguished McDonald because in that case no instruction had been requested.

The Bryan case referred to above was a first degree murder prosecution which resulted in a second degree murder conviction. Even though no instruction had been requested, the First District Court of Appeal held that it was fundamental error to fail to explain to the jury the meaning of the words “evincing a depraved mind” as set forth in the standard jury instructions defining second degree murder. Bryan v. State, 271 So.2d 197 (Fla. 1st DCA 1972). However, upon certification to the Supreme Court, this decision was reversed. State v. Bryan, supra. The Supreme Court reasoned that the average juror could understand what a depraved mind was and held that it was not fundamental error to fail to give an instruction which defined this term.

We believe the words premeditated design fall in the same category. We do the average juror an injustice to suggest that he does not understand what it means. Both counsel obviously thought that the jury understood the term because they both labored it in closing argument. Moreover, a careful reading of the language of the omitted paragraphs reflects that the discussion of premeditation tends to favor the state rather than the defendant. If anything, the omission of these paragraphs was more likely to have benefited the defendant.

We do not suggest that these paragraphs should not have been read. We simply hold that in the absence of a request to give the instruction or other appropriate objection, the failure to do so does not constitute reversible error.

AFFIRMED.

BOARDMAN, Acting C. J., and SCHEB, J., concur.


author: SMITH, Judge. MILLS, Judge

text:
    Roy Edward DELOACH, Appellant, v. STATE of Florida, Appellee.
    No. AA-335.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1976.
    Alan R. Parlapiano, Public Defender, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Charged with manslaughter in operating an automobile while intoxicated, appellant Deloach moved unsuccessfully for discharge under Rule 3.191, R.Cr.P., then pleaded nolo contendere, reserving his right to appeal the speedy trial issue. The trial court held that the Rule’s 180-day period for trial did not begin to run until July 28, 1975, when Deloach was arrested on a capias issued upon filing of the information. The determinative issue is whether, as Deloach contends, he was arrested or taken into custody on the night of the incident, March 30,1975.

Following a collision in which a passenger was killed, Deloach was taken to a hospital for observation and treatment for broken ribs and lacerations. The investigating officer asked a doctor to administer a blood alcohol test. The doctor stated that De-loach would first have to be arrested. The officer thereupon advised Deloach that he was under arrest for driving while intoxicated and he advised Deloach of his rights to remain silent and to consult counsel. At the officer’s request, Deloach then acquiesced in the blood alcohol test. The officer did not touch Deloach or make any effort to remove him to jail. Deloach was discharged from the hospital only after hospital authorities sought and obtained permission from the police to release him.

Florida’s speedy trial rule establishes time periods for trial which “commence when . . . [the accused] is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.” Rule 3.191(a)(1), R.Cr.P. The State does not contend that Deloach’s alleged driving while intoxicated was independent of the “criminal episode” in which the manslaughter is said to have been committed. See Crain v. State, 302 So.2d 433 (Fla.App.2d, 1974); State ex rel. Meyer v. Keough, 325 So.2d 75 (Fla.App.2d, 1976). The State asserts only that Deloach was not “taken into custody” on the night of the incident.

Although the officer disclaimed any intention to take the injured Deloach into actual custody on the night of the incident, he admittedly “placed him under arrest for driving while under the influence to get his permission” for the blood alcohol test. The officer advised Deloach he was arrested. Deloach plainly understood he was arrested and subject to the officer’s direction. Even the hospital authorities considered Deloach not subject to discharge without police approval. The arrest therefore met the classic test of Melton v. State, 75 So.2d 291, 294 (Fla.1954), including the element of “[a]n actual or constructive seizure or detention of the person to be arrested . . . .” The Supreme Court held that an arrest and constructive detention had occurred, so justifying a search incident to a lawful arrest, notwithstanding that the person arrested in her home was not physically restrained or removed. State v. Parnell, 221 So.2d 129 (Fla.1969). The principle of that case controls this one. The judgment of conviction must be reversed and Deloach discharged.

REVERSED.

BOYER, C. J., concurs.

MILLS, J., dissents.

MILLS, Judge

(dissenting):

I dissent. The investigating officer had no intent to arrest the defendant. He told the defendant he was under arrest only because the hospital would not make a blood test until it was informed that the defendant was under arrest. The defendant was never served with a citation for DWI. The liberty of the defendant was never limited nor restricted. Although the hospital requested permission from the investigating officer to release the defendant when it was ready to discharge him, this was unnecessary because the defendant was neither under arrest nor in custody. When discharged by the hospital the defendant returned to his home where he remained under no charge and with no restraint of liberty. He was not arrested until 28 July 1975 when he was arrested on a capias based on an information charging him with manslaughter in operating an automobile while intoxicated.

An arrest is the taking into custody of an alleged offender in order that he may be brought into the proper court to answer for a crime. Melton v. State, 75 So.2d 291 (Fla.1954). This did not occur in the case before us. In addition, the four elements involved in an arrest, as set forth in the Melton case, were not met.

I agree with the trial court that the 180 day speedy trial rule did not commence to run until the defendant was arrested and taken into custody on 28 July 1975. I would affirm.