author: ALDERMAN, Chief Judge.

text:
    Martha PENDER, Appellant, v. SKILLCRAFT INDUSTRIES, INC., et al., Appellees. DADE WHOLESALE PRODUCTS, INC., d/b/a Eagle Army-Navy Stores, Inc., Appellant, v. Martha PENDER et al., Appellees.
    Nos. 76-1527 and 76-1803.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied May 18, 1978.
    Richard W. Slawson of Thompson, Tucker & Slawson, West Palm Beach, for appellant-Pender.
    Robert B. Bennett, Jr., Sarasota, for ap-pellee-Skillcraft Industries, Inc.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellees-Escom Enterprises, Inc., and United States Fidelity & Guaranty Co.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellees-Dade Wholesale Products, Inc., and Consolidated Mut. Ins. Co. as to Case No. 76-1527, and for appellant-Dade Wholesale as to Case No. 76-1803.
    James S. Robinson, West Palm Beach, for appellees-A. B. Aetna Manufacturing Co. and Greater New York Mut. Ins. Co.
   ALDERMAN, Chief Judge.

These consolidated appeals result from protracted products liability litigation. In the primary action, Case No. 76-1527, the plaintiff, Martha Pender, claims to have sued the defendants (two retail sellers, two manufacturers, and their respective insurance carriers) in three distinct capacities: (1) for her own personal injuries resulting from an electrical shock; (2) as a statutory beneficiary under the wrongful death statute for the electrocution death of her minor son; and (3) as administratrix of her minor son’s estate under the survival statute. The sufficiency of the complaint to state a cause of action for her own personal injuries became an issue during the trial and was disposed of adversely to plaintiff.

Mrs. Pender questions the propriety of the trial court’s order denying her oral motion made at a late stage of the trial to amend her pleadings in order to state a cause of action for her own personal injuries and refusing to permit her personal injury claim to go to the jury. Under the totality of the circumstances, we find no abuse of discretion in this regard. She raised five other points in her brief; however, at oral argument these points were waived except as they might apply to the claim for her own personal injuries. Since we find that the trial court did not abuse its discretion in denying her motion to amend and in refusing to allow her claim for personal injuries to go to the jury, we shall not consider these other points on appeal.

In the consolidated appeal, Case No. 76-1803, the cross-appellant, Dade Wholesale Products, Inc., d/b/a Eagle Army-Navy Stores, Inc. (retail seller of a defective clamp-on light that contributed to the electrocution of Mrs. Pender’s son), challenges the trial judge’s denial of its claim against codefendant Aetna Manufacturing Co. (manufacturer of the defective clamp-on light) and its insurance carrier for indemnification for attorney fees and costs of defending itself in the primary action. Although Dade Wholesale as a retail seller was exonerated of liability in the primary action, Aetna as manufacturer was found liable and judgment was entered against it for $65,000 in the wrongful death action and for $15,000 in the estate’s action; said judgment having already been satisfied. The trial judge held that since no judgment was rendered against the cross-claimant in the primary action, there was nothing for which to indemnify Dade Wholesale.

Dade Wholesale has alleged no express contractual relationship between it and Aetna wherein Aetna obligated itself to defend actions brought against Dade for injury caused by defective products manufactured by Aetna. Thus any right to indemnification would have to be by implied contract, or one otherwise created purely by law.

In the present case there was no evidence that Dade Wholesale, the retailer, knew or should have known of the defect in the clamp-on light; all testimony was to the effect that the defect was latent. Thus if Dade Wholesale was found to have been liable for the death of plaintiff’s minor child on a negligence theory, it would necessarily have been only passive negligence and Dade Wholesale would have then been entitled to indemnification from Aetna. See General Motors Corp. v. County of Dade, 272 So.2d 192 (Fla. 3d DCA 1973), cert. denied, 277 So.2d 535 (Fla.1973). Likewise if Dade had been found liable on a breach of implied warranty theory, Aetna would be obligated to indemnify Dade also on a breach of implied warranty theory. Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla. 2d DCA 1969), cert. denied, 234 So.2d 122 (Fla.1969). Logically the same result would apply if Dade Wholesale would be liable on a strict liability theory. And this court has held that if a retailer, who is not an active wrongdoer according to the evidence at trial, is entitled to indemnity from a manufacturer for a judgment against the retailer due to its sale of a defective product, the retailer is also entitled to be indemnified for its attorney’s fees and court costs incurred in defending itself in the primary action. Insurance Co. of North America v. King, 340 So.2d 1175 (Fla. 4th DCA 1976).

The difficulty in the present case, of course, is that Dade Wholesale was exonerated of liability on all possible theories (by directed verdict on the strict liability and negligence counts and by jury verdict on the implied warranty count). Ordinarily one would expect Dade Wholesale to be pleased with this; however, in reality, Dade Wholesale is being penalized. If Dade Wholesale was found to be liable it would be entitled to indemnification not only for the judgment against it but also for attorney’s fees and court costs. Insurance Co. of North America v. King, supra. But since Dade Wholesale successfully defended itself in the main action, the lower court judge held that it must bear its own costs of litigation. We perceive no rational justification for such an illogical result.

The issue is apparently one of first impression in Florida; there are no cases requiring, under an implied contract theory, indemnification of attorney’s fees and court costs to a defendant found not liable from a codefendant who is found liable. But by the same token, there are no cases prohibiting it. We believe that sound policy considerations favor the allowance of indemnification for attorney’s fees and court costs under the circumstances of this case.

We therefore reverse the lower court’s denial of the cross-claim for indemnification and hold that if a retailer would clearly have been entitled to indemnification of attorney’s fees and court costs if it had lost in the main action and had a judgment rendered against it (for passive negligence, breach of implied warranty, or strict liability), then it will be equally entitled to such indemnification in the event that it should successfully defend itself in the main action. This presupposes that there is no question as to entitlement to indemnification if the retailer had been found liable. Our holding should not be construed to open a floodgate for cross-claims seeking indemnification when there is no connection between the cross-claimant and the party from whom indemnification is sought. Some nexus is required to support an implied contract theory of indemnification. In the present case there was clearly privity of contract between the manufacturer and the retailer of the defective clamp-on light.

The judgment in Case No. 76-1527 is affirmed.

The judgment in Case No. 76-1803 is reversed and the cause remanded for further proceedings in accordance with this opinion.

CROSS, J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM. CROSS, Judge,

license: Public Domain

text:
    Eugene Ewan MORI, Appellant, v. BOMAC INDUSTRIES, INC., et al., Appellees.
    No. 76-1993.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied May 23, 1978.

      David M. Goldstein, North Miami, for appellant.
    Fred J. Ward, Hallandale, for appellee Bouley.
   PER CURIAM.

Our consideration of the briefs and record convinces us that there is adequate support in the record for the trial court’s finding that appellee Paul Bouley is not liable individually to appellant.

However, we find no rational basis in the evidence for the award to appellant of $500.00 as damages. The liquidated damages provision of the lease provided for $15,000.00 as liquidated damages in the event of a breach by appellee Bomac. The money was never deposited with appellant because appellee’s check was returned for insufficient funds. However, the liquidated damage provision is not nullified by appel-lee failing to deposit the money provided therein. The amount of damages remains liquidated by the parties. The determination in the final analysis of the amount thereof should be made in accordance with the formula set forth in Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975).

Accordingly, we reverse the damages aspect of the judgment appealed from and remand the cause for a new trial on damages only.

AFFIRMED, in part; REVERSED, in part; and REMANDED, with directions.

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

CROSS, J., dissents, with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent.

The majority would remand this cause for a re-determination of damages on the authority of Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975). The Bruce Builders case recognizes that even if a valid clause for liquidated damages is included in an executory contract, equity may relieve a party from forfeiture if circumstances demonstrate that it would be unconscionable for the non-breaching party to retain such liquidated sum. In the instant case, the able trial court made a finding of fact that appellant suffered no loss as a result of the breach of the contract of lease. Thus, it appears that the trial court was fully authorized and eminently correct in giving no force and effect to the liquidated damages clause. There has been no showing of any error, and therefore I would affirm the judgment.


author: LETTS, Judge.

text:
    Edgar BULLARD, Appellant, v. STATE of Florida, Appellee.
    No. 77-621.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied May 23, 1978.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This is an appeal from an adjudication of guilt for receiving stolen property. We find one point has merit and reverse.

Upon his arrest as a prime suspect for burglary of a clothing store, the accused was interrogated by police officers and gave a confession which he now claims was “coerced” by promises that he would not be prosecuted. We do not decide here whether the confession was, in fact, coerced. The problem presented, is the method adopted by the trial judge to determine the volun-tariness of the confession which methodology was contrary to the requirements laid down by the Supreme Courts of the United States and Florida.

By way of Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967) the United States Supreme Court determined that a jury may not hear a confession, until the trial judge has made a determination that it was voluntarily given, such determination to appear upon the record with unmistakable clarity. Thereafter, the Florida Supreme Court, applying Sims, held it was not enough for the trial judge, after holding a hearing, to determine admissibility, by simply saying: “Motion denied”. Instead, the trial judge must make a specific finding of voluntariness. McDole v. State, 283 So.2d 553 (Fla.1973). It may appear that by the very act of denying the motion, the trial judge must have so found. We agree that such appears logical, but cannot ignore mandates from our superiors.

In the instant ease at the close of the hearing on the confession, the trial judge remarked,

“All right, I’ll leave it to the jury. Overrule the objection”.

As dictated by existing case law, this is not a “specific finding” of voluntariness and as such it was insufficient.

We have entertained some qualms as to whether promises of relief constitute coercion, as such, comparable to the police brutality present in the McDole case. Indeed, in Wilson v. State, 304 So.2d 119 (Fla.1974) our Supreme Court limited the McDole rule (requiring a specific finding of voluntariness) to those cases in which coercion, as distinct from other forms of involuntariness, is alleged. However, we hold that the alleged confession here was the product of coercion. There can be little valid distinction between:

“Confess, or we’ll throw the book at you”
and
“Confess, and we will not prosecute you”.

In either event, the confession is extracted as a direct result of promises, which any defendant might well believe the police capable of delivering on.

The State also argues that we are not confronted here with a confession, but, in fact, a denial of guilt. We would point out, however, that his stated denial of guilt was as to the actual burglary only. In the same statement, the defendant freely admitted he “bought” the clothes out of the trunk of another man’s car and that that man had confirmed that the clothes were stolen. The charge here involved receiving and concealing stolen property and the statement was therefore, highly inculpato-ry — in essence a confession.

REVERSED AND REMANDED FOR A NEW TRIAL.

DOWNEY and CROSS, JJ., concur.

      . We are discussing here, actual promises of relief as distinct from offers by the police to do whatever they can.


author: MOORE, Judge.

text:
    STATE of Florida, Appellant, v. O. C. HUNTER, Appellee.
    No. 77-1526.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied May 10, 1978.
    Steven W. Gomberg, Asst. State Atty., West Palm Beach, for appellant.
    Curtis G. Levine of Baskin, Schwartz, Brown & Kaplan, Boca Raton, for appellee.
   MOORE, Judge.

The State appeals from an order of the trial court granting appellee’s motion for a new trial.

The sole basis for granting a new trial involved the actions of the prosecutor during the jury’s deliberations. Subsequent to the commencement of such deliberations, the jury returned and requested the court to reinstruct on first degree murder, attempted first degree murder and second degree murder. This was done without any objection. Shortly thereafter, the court took a lunch recess at which time the jury was taken to lunch by the bailiff. Concluding that the failure to reinstruct on justifiable homicide, self defense and manslaughter could be a basis for reversal of a conviction, even in the absence of an objection by the defendant, the prosecutor waited in the courtroom for the jury and the bailiff to return. After the jury was ushered into the jurors room, the prosecutor requested the bailiff to advise the jurors to cease their deliberations until they received further instructions by the court. The bailiff performed as requested and, upon his return, the trial judge was immediately informed as to what had transpired. The prosecutor had no direct contact with the jury. The jury was reassembled in the courtroom and, in the presence of the prosecutor, the defendant and his counsel, the jury was appropriately reinstructed without objection.

Relying upon Slinsky v. State, 232 So.2d 451 (Fla. 4th DCA 1970), the trial court granted appellee’s motion for a new trial approximately seven months subsequent to the conviction for second degree murder. The appellee now relies upon Slinsky and Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA 1960) cert. denied, 125 So.2d 877 in support of the trial court’s granting the motion for new trial.

Generally, communications between an officer of the court and the jury, outside the presence of the defendant and his counsel, are grounds for reversal or new trial regardless of the existence of proof of prejudice to the defendant’s case. See, e. g., Ivory v. State, 351 So.2d 26, 28 (Fla.1977). All of the analogous cases, however, are distinguishable from the instant case in one critical respect. In all of those cases the actions taken were precipitated by a specific request of the jury and resulted in either a granting of such request or the denial of same in the absence of the prosecutor and the defendant or his counsel. Slinsky, supra; Ivory, supra; Holzapfel, supra; McNichols v. State, 296 So.2d 530 (Fla. 3d DCA 1974). In each of these cases it is held that the jury cannot receive any information, or be summarily denied information, in the absence of the defendant or his counsel. The determination of what must be done in response to a jury inquiry must be made in the presence of the defendant and his counsel. •

The instant case merely involved a communication which temporarily delayed the resumption of the jury’s deliberations. No substantive information was provided the jury, nor was a jury request for further information summarily denied, outside the presence of the defendant and his counsel. As such, the defendant’s case was not prejudiced in any way and the granting of the new trial was an abuse of discretion. Cf., Degeer v. State, 349 So.2d 713 (Fla. 2d DCA 1977).

Accordingly, the trial court’s order granting a new trial is REVERSED with instructions to reinstate the conviction for second degree murder.

REVERSED and REMANDED.

ALDERMAN, C. J., and LETTS', J., concur.


author: PER CURIAM.

text:
    Robert H. GREENE, Petitioner, v. FLORIDA REAL ESTATE COMMISSION and H. F. McCue, Respondents.
    No. 77-1592.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied May 23, 1978.
    Benjamin T. Shuman, Orlando, for petitioner.
    Bruce I. Kamelhair, Orlando, and Howard Hadley, Winter Garden, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari denied.

ALDERMAN, C. J., and CROSS and LETTS, JJ., concur.


author: DAUKSCH, Judge.

text:
    James Robert VAUGHAN, Appellant, v. Mary Nellwyn Chick VAUGHAN, Appellee.
    No. 77-2429.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied May 18, 1978.
    Max Schorr of Stierer, Parker & Schorr, West Palm Beach, for appellant.
    Stephen M. Bell, P. A., Plantation, for appellee.
   DAUKSCH, Judge.

This is an appeal from a summary judgment. Because Appellant filed an affidavit raising a factual issue as to whether he was given notice in a foreign proceeding, the court was in error in giving full faith and credit to the foreign judgment by these summary proceedings. Reichert v. Appel, 74 So.2d 674 (Fla.1954); Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1946).

Reversed and remanded for further proceedings not inconsistent herewith.

ALDERMAN, C. J., and ANSTEAD, J., concur.


text:
    Cruz R. RODRIGUEZ, Appellant, v. PALMETTO GAS COMPANY, a Florida Corporation, d/b/a Palmetto Appliance Company, a Florida Corporation, Appellee.
    No. 77-456.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    Rehearing Denied May 19, 1978.

      Edward C. Vining, Jr. and Richard A. Burt, Miami, for appellant.
    Turner, Hendrick, Guilford, Goldstein & McDonald and Bruce D. Fischman, Coral Gables, for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

The defendant appeals a summary final judgment for the plaintiff, and the plaintiff cross-assigns error to an order striking its prayer for attorney’s fees. Defendant’s answer alleged as an affirmative defense that the plaintiff corporation was not, in fact, a corporation and, as such, was not entitled to maintain the action. Plaintiff filed a reply to the affirmative defense factually denying the defense. No affidavit or deposition in any way controverted the affirmative defense, nor was the defense stricken as legally insufficient. On this state of the record, a summary final judgment was entered upon plaintiff’s motion.

Plaintiff urges-that the defense is a “paper defense” and, therefore, not a bar to summary judgment. We are unable to determine whether this is true because plaintiff did not submit anything to the trial court to substantiate its position that the issue created by the pleadings did not exist. The summary judgment must be reversed upon the ground that plaintiff did not bear its burden of showing initially that there was no genuine issue of material fact. See Underwriters Insurance Company v. Sisung, 174 So.2d 461 (Fla.3d DCA 1965).

The order striking plaintiff’s prayer for attorney’s fees must also be reversed because there is nothing in the record to show the inapplicability of the principle stated in Producers Supply, Inc. v. Harz, 149 Fla. 594, 6 So.2d 375 (1942). We do not determine that attorney’s fees must be awarded, but simply that the prayer was not subject to be stricken as legally insufficient at this stage of the proceedings.

The summary final judgment is reversed; the order striking plaintiff’s prayer for attorney’s fees is reversed; and the cause is remanded for further proceedings.

Reversed and remanded.


author: SCHEB, Judge.

text:
    John J. KANE, Appellant, v. STATE of Florida, Appellee.
    No. 77-1551.
    District Court of Appeal of Florida, Second District.
    April 12, 1978.
    Rehearing Denied May 17, 1978.

      Jack 0. Johnson, Public Defender, and Kenneth C. Glover, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant Kane pled nolo contendere to two charges of possession of a controlled substance, specifically reserving the right to appeal the trial court’s orders denying his motions to suppress evidence. The trial court adjudged him guilty of both charges, and sentenced him to two concurrent, indeterminate prison terms of from six months to two years with credit for time served while awaiting sentencing. Appellant argues the evidence against him was obtained as a result of an illegal search and seizure. We think appellant’s contention is meritorious and reverse.

The testimony at the suppression hearing came entirely from Deputies Tilley and Devlin of the Pasco County Sheriff’s Department. These officers testified that on the evening of January 26, 1977, they were on a special burglary detail in an unmarked patrol car. Around 10:30 p. m. as they turned into the parking lot of the 8 Days Inn Motel near Hudson, they noticed two men sitting in an unlighted automobile parked between the motel restaurant, which was closed at the time, and the motel itself. The officers drove through the parking lot, and as they approached the exit several moments later they noticed that the car and its occupants were still there. Suspecting that these men might have just committed or were about to commit a burglary, the officers decided to question them. The officers pulled into a parking space parallel to the suspicious car and got out of their police vehicle. The two deputies then asked appellant and his passenger to get out of their car and produce identification. As appellant was leaving the car, Tilley observed in plain view what he described as an “M-80 ... a long firecracker-like — shaped like a long cylinder with a fuse coming out the side ... an inch- and-a-half long and probably half an inch round” on the front seat of appellant’s vehicle. Tilley ordered appellant and the other man to the rear of their car where he and Deputy Devlin frisked them. The officers discovered additional M-80’s at this time. Then, while Tilley examined their identification, Devlin searched the car and found marijuana, percodan, and valium under the front seat. Further search revealed another bag containing marijuana under the car.

The state attempted at the suppression hearing, as it does here, to justify the war-rantless search of appellant’s vehicle on only one ground — as a search incident to a valid arrest for possession of explosives. For the reasons we now discuss we must reject the state’s argument.

Section 552.081, Florida Statutes (1975), defines explosives as follows:

[A]ny chemical compound or mixture that has the property of yielding readily to combustion or oxidation upon the application of heat, flame, or shock, including but not limited to dynamite, nitroglycerin, trinitrotoluene, ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps and detonators; but not including cartridges for firearms, and not including fireworks as defined in s. 791.01. (Emphasis supplied.)

This definition specifically excludes “fireworks,” which are defined in Section 791.01, Florida Statutes (1975), as:

[A]ny combustible or explosive composition, or any substance or combination of substances, or, except as hereinafter provided, any article prepared for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration or detonation, and shall include blank cartridges and toy cannons in which explosives are used, the type of balloons which require fire underneath to propel the same, firecrackers, torpedoes, skyrockets, roman candles, daygo bombs, and any fireworks containing any explosives or flammable compound or any tablets or other device containing any explosive substance.

This subtle distinction between fireworks and explosives is important because it is not illegal to possess fireworks, only to sell or explode them. Section 791.02, Florida Statutes (1975).

From the evidence before the trial court we are forced to conclude that the explosive devices seized from appellant and his companion were not explosives within the statutory definition, but rather were fireworks. The state attorney conceded before the trial court that these devices were fireworks, but further argued that they were explosives as well. This contention is illogical, because fireworks, as defined in Section 791.01, are specifically excluded from the definition of explosives. Since the mere possession of fireworks is not a crime, and there was no evidence that appellant sold or exploded the devices, the officers had, as we have noted, no basis for an arrest. Since the arrest was invalid the search was illegal and the court should have suppressed the contraband. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Gossett v. State, 188 So.2d 836 (Fla. 2d DCA 1966).

Accordingly, we vacate appellant’s conviction and sentence, reverse the trial court’s orders denying the motions to suppress, and remand this cause for further proceedings consistent with this opinion.

GRIMES, Acting C. J., and DANAHY, J., concur.

      . We have some qualms as to whether this search exceeded the permissible scope of a search incident to a valid arrest. See generally Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). However, it is unnecessary for us to address this point in light of our holding that the arrest was invalid.


author: GRIMES, Judge.

text:
    Jeffrey SUGGS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1822.
    District Court of Appeal of Florida, Second District.
    April 12, 1978.
    As Modified On Denial of Rehearing May 10, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Alleging a violation of his Sixth Amendment rights to a speedy trial, appellant filed a motion to dismiss which the trial court denied. Appellant then pled nolo conten-dere but reserved his right to appeal the denial of his motion to dismiss.

Appellant’s motion was unsworn and no testimony was taken. Yet, the state stipulated to the facts stated in the argument of counsel. According to these statements, a burglary occurred at the home of Anthony and Carol DeVito in St. Petersburg on August 11, 1976. Sometime in December of 1976 the police concluded that appellant was the guilty party. On January 6, 1977, the state attorney’s office filed an information charging appellant with the burglary. At that time one of the investigating detectives knew that appellant was incarcerated in a Florida prison on an unrelated charge. No detainer was lodged against appellant, and he was not notified of the burglary charge pending against him during his prison term. When appellant was released from prison in August of 1977, he was arrested on the burglary charge. He filed his motion to dismiss on October 14, 1977.

Appellant alleged that because of the delay in his arrest he was prejudiced to the extent that he could not remember his whereabouts at the time the burglary occurred. Moreover, he stated that he was unable to locate any witnesses who could testify as to what he was doing at that time. After hearing arguments on the motion, the judge stated that he would be inclined to grant appellant’s motion except for the fact that the state’s delay in arresting appellant had not violated the Speedy Trial Rule. The issue before us is whether a person can be denied his constitutional right to a speedy trial when the state seeks a trial within the time limits prescribed by the Speedy Trial Rule.

In State ex rel. Gentry v. Fitzpatrick, 327 So.2d 46 (Fla. 1st DCA 1976), our sister court said:

[The] right to a speedy trial derives from the Florida and United States Constitutions, not from the Rule, and the Rule’s 180-day prescription neither excuses a shorter but unconstitutional delay nor establishes an absolute deadline for trial in all events. .

327 So.2d at 47. We think that this is a correct statement of the law. Thus, we hold that a delay in the prosecution of an offense which does not violate the Speedy Trial Rule may nevertheless violate a defendant’s constitutional right to a speedy trial.

In view of this principle, it is clear that the trial court should have addressed the constitutional issue of whether the state denied appellant a speedy trial. We shall not do so now because the record is inadequate for that purpose and because we believe the trial court should first have a chance to directly pass on the issue. At this point no effort has yet been made to determine the reasons for the prosecutorial delay. Cf. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). We, therefore, temporarily relinquish jurisdiction of this cause to the trial court for forty-five days from the date this opinion becomes final. Within the first thirty days of this period, the trial court shall hold a hearing to determine whether the appellant was deprived of his constitutional right of speedy trial. In so doing the court should consider the evidence presented in light of the standards set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and enter an order stating its findings and ruling on the appellant’s motion for discharge. Within the remaining period of time appellant shall furnish this court a transcript of the hearing and a certified copy of the court’s order. Thereafter, we will make an appropriate disposition of this appeal.

BOARDMAN, C. J., and RYDER, J., concur.

      . See State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), in which the court affirmed the dismissal of an information on grounds of pros-ecutorial delay where the defendant made similar contentions.

      . Because the appellant was in prison, the state had a year to bring him to trial under the rule. Fla.R.Crim.P. 3.191(b)(1).


author: EDWARDS, WILLIAM F. (Circuit Judge), Associate Judge: ERVIN, Judge,

text:
    HOME INDEMNITY COMPANY, INC., a corporation, Appellant, v. J. F. YEARTY & SONS, INC., a corporation, D. E. Brewer & Company, a corporation, and Northwestern National Insurance Company, a corporation, Appellees.
    No. GG-377.
    District Court of Appeal of Florida, First District.
    April 18, 1978.
    Rehearing Denied May 18, 1978.
    John I. Todd, Jr., Jacksonville, for appellant.
    O. 0. McCollum, Jr., Jacksonville, for ap-pellee Yearty.
    John C. Taylor, Jr., Jacksonville, for ap-pellees Brewer & Co. and Northwestern National Ins. Co.
   EDWARDS, WILLIAM F. (Circuit Judge), Associate Judge:

In June of 1973, Appellee Yearty allegedly contracted with his insurance agent, Brewer, for a one year $100,000/$300,000 automobile liability insurance policy, and additionally, for a one year, one million dollar umbrella auto liability policy. Home issued the $100,000/$300,000 policy, effective for the period from June 29, 1973 through June 29, 1974, but the million dollar umbrella policy was never issued. On June 29, 1974, the $100,000/$300,000 policy was renewed for another year by Home to cover the period ending June 29, 1975, but again the umbrella policy was not issued.

On February 12, 1975, one of Yearty’s employees was involved in an automobile accident with a Charles R. Moren, who later sued Yearty for an amount that could have exceeded the $100,000/$300,000 coverage. Appellant Home Indemnity Company advised Yearty that he should obtain his own counsel for the excess of the claim over the $100,000/$300,000 policy. Yearty obtained his own counsel for the excess claimed and later brought this action against Home Indemnity and others for the attorneys fees in the accident litigation.

On June 2, 1977, the trial court held a final hearing wherein certain documentary exhibits were offered into evidence and the deposition of John Lanahan Brewer was accepted by the trial court, through stipulation, in lieu of live testimony. On June 10, 1977, the trial court found that Yearty was entitled to $1,000 attorneys fees for services in the action stemming from the accident and $1,800 for attorneys fees in the present action. We reverse.

Assuming, but not deciding, that the trial court was correct in finding:

“Subsequent to this request, phone contact was made by Mr. John Brewer of D. E. BREWER & COMPANY with the Home Indemnity Company. A New York representative of the Home Indemnity Company agreed to issue the umbrella policy.”

the umbrella policy would have been issued in accordance with the application which was admitted into evidence.

A review of the application shows conclusively that the application was for a one year period of time and the only way that the trial court could have found a longer time period was from testimony which was presented to him. However, a careful review of the deposition of Mr. Brewer fails to give rise to even an inference that the time period was for more than one year. There being no evidence of a multi-year umbrella policy application, error was committed by finding a contract of more than a one year duration.

Appellant also points to the inconsistency in the final judgment between paragraph 1 and paragraph 6, but with the disposition of the case as set forth above this question is rendered moot.

The judgment appealed is REVERSED with directions to the trial court to enter its order accordingly.

MILLS, Acting C. J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

The record reflects the initial binder issued by agent Brewer to the insured was for a $1,000,000 umbrella policy for the period from June 29, 1973 to June 23, 1974. This period was of course before the accident, which occurred in February, 1975. However, there also appears in the record a certificate of insurance, issued by Brewer, certifying that umbrella excess on all listed liability coverage existed for the period June 29, 1974 to June 29, 1975. This to me is sufficient competent evidence on the question of the parties’ intent as to the duration of coverage.

In my opinion the final judgment should be affirmed.


author: HUBBART, Judge.

text:
    Betty YOUNG, Appellant, v. Lee H. CURGIL et al., Appellees. Earma WILLIAMS, Appellant, v. Lee H. CURGIL et al., Appellees.
    Nos. 76-2328, 76-2329.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied May 19, 1978.

      Law Offices of Joseph Rosenkrantz and Jerold Hart and Stuart H. Abramson, Miami Beach, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Talburt, Ku-bicki & Bradley and Betsy E. Hartley, Miami, for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   HUBBART, Judge.

The plaintiffs Betty Young and Earma Williams appeal the entry of two final orders dismissing with prejudice their tort claims arising from an automobile accident as filed before the Circuit Court for the Eleventh Judicial Circuit of Florida. The final orders of dismissal appealed from are based on a trial court finding of collusion between the plaintiffs to present a fraudulent claim to the court.

The law is clear that a trial court has' the inherent authority to dismiss actions based on fraud and collusion as well as to strike sham pleadings. Such a power is indispensible to the proper administration of justice because no litigant has a right to trifle with the courts. It is a power, however, which should be cautiously and sparingly exercised and only upon the most blatant showing of fraud, pretense, collusion or other similar wrongdoing. Rhea v. Hackney, 117 Fla. 62, 157 So. 190 (1934); Horjales v. Loeb, 291 So.2d 92 (Fla.3d DCA 1974); Parham v. Kohler, 134 So.2d 274 (Fla.3d DCA 1961).

In the instant case, the trial court has made certain findings of fact upon which it based its orders of dismissal which we have carefully studied. In essence, these findings constitute a basis from which it may be inferred that the plaintiffs’ claimed injuries herein were feigned and their subsequently incurred medical expenses fraudulent, collusive and unnecessary. Although this is a fair inference from such facts, it is by no means an overwhelming or compelling inference. In our view, the matter is fairly debatable and should have been decided by the trier of fact, here a jury, as our law generally contemplates. The facts herein do not rise to the level of fraud or collusion as to require the court to dismiss the plaintiffs’ claims as an outrageous misuse of the system of justice.

The orders appealed from are reversed and the cause remanded to the trial court for further proceedings.

      .The trial court’s findings of fact as contained in the two orders of dismissal herein are as follows:
      “1. That on April 5, 1976, this case was consolidated for trial with Case No. 75-37978, Betty Young v. Lee H. Curgil, et al. [with Case No. 75-38192, Earma Williams v. Lee H. Curgil, et al.)

      2. That on November 23, 1976, these cases came on for trial before this Court and a jury.
      3. That on the morning of trial, the Plaintiff, Betty Young, took a voluntary dismissal without prejudice.
      4 * * *
      5. That these cases arise out of an automobile collision which occurred at the intersection of Ponce de Leon Boulevard and LeJeune Road in Coral Gables, Florida.
      6. At the time of the subject incident, the Plaintiffs, Betty Young and Earma Williams, were passengers in an automobile driven by Babe Curgil, a Defendant herein.
      7. That of the six persons who occupied the two vehicles involved in the subject collision, only Betty Young and Earma Williams claimed to have sustained any injuries whatsoever.
      8. That Betty Young and Earma Williams reside in the same apartment building and have been friends for a substantial period of time.
      9. That Walter Gunter, the investigating police officer, observed no visible signs of injury to any of the persons involved in the subject collision and found minimal damage to the vehicles which collided.
      10. That following the collision, Betty Young was taken to the Mercy Hospital emergency room where she received superficial treatment and was sent home. Earma Williams did not receive nor did she seek any medical attention on December 16, 1974.
      11. That with the exception of the emergency room treatment received by Betty Young on December 16, 1974, neither Betty Young nor Earma Williams received medical treatment for the injuries they claimed to have sustained until January 6, 1975, twenty-one days following the subject accident.
      12. That on January 6, 1975, both Betty Young and Earma Williams were seen by Doctor William Levin, an osteopath, whose offices are located a considerable distance from the Plaintiffs’ residence.
      13. That Betty Young had never been treated by Doctor William Levin on any occasion prior to January 6, 1975, and testified that she had been referred to Doctor Levin by ‘a friend’ whose surname she did not recall.
      14. That Earma Williams testified on deposition that she had never been treated by Dr. Levin prior to January 6, 1975 and that she too had been referred to Dr. Levin by ‘a friend.’
      15. That on January 7, 1975, Dr. Levin admitted both Earma Williams and Betty Young to Westchester General Hospital.
      16. That while in Westchester General Hospital, Betty Young and Earma Williams occupied the same room, received essentially the same treatment and were seen in consultation by the same osteopathic physician.
      17. That although Betty Young was an employee of Mercy Hospital and testified that she preferred to be treated at Mercy Hospital over any other hospital, she was admitted to West-chester General Hospital by Dr. Levin.
      18. That on each occasion that Dr. Levin saw Betty Young in his office from January 6, 1975 through July 18, 1975, he also saw Earma Williams.
      19. That an examination of the medical records of Betty Young and Earma Williams reveals that they are strikingly similar in many respects.
      20. That although the Plaintiffs reside in the same apartment building, have been friends for a substantial period of time, were treated by the same osteopath, often travelled together to their osteopath’s office and occupied the same hospital room for approximately one week, they denied ever having discussed the circumstances surrounding this incident with each other . . . ”


text:
    Ronald DANCY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-69.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied May 19, 1978.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal has been accepted by this court as a belated appeal pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). The point presented urges error upon the admission of testimony which indicated defendant’s involvement in a prior crime. We hold that the testimony met the test of relevancy set forth by the Supreme Court of Florida in Williams v. State, 110 So.2d 654 (Fla.1959). See also Dempsey v. State, 238 So.2d 446 (Fla. 3d DCA 1970).

Affirmed.


author: PEARSON, Judge.

text:
    James WEINSIER and George Johnnides, Appellants, v. Donald SOFFER, Steven Weinsier and Joni Weinsier, Appellees.
    No. 77-124.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied May 19, 1978.
    Koeppel, Stark & Newmark, Joe N. Un-ger, Miami, for appellants.
    Bartel, Levine & Shuford, Miami, for ap-pellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

James Weinsier and George Johnnides, defendants in the trial court, appeal a final judgment entered after a trial before the court without jury. Steven Weinsier and Joni Weinsier were also defendants, and judgment was entered against them. They have not appealed. Donald Soffer was the plaintiff. His complaint sought recovery against the defendants for a share of the financial losses Soffer suffered as a result of loans made to a corporation known as the Monza Boat Company. The court found that Soffer and the defendants had agreed to obligate themselves for the capital requirements of Monza Boat Company and for losses suffered in the business.

In its “Order Clarifying Final Judgment,” the court stated:

“1. Plaintiff, DONALD SOFFER, adduced substantial admissible evidence at trial that there was a capital contribution agreement between Plaintiff, DONALD SOFFER, and Defendants, STEVEN WEINSIER, JAMES WEINSIER and GEORGE JOHNNIDES, sufficiently reflected by note or memorandum thereof in writing and signed by each party to be charged therewith or by some other person by him thereunto lawfully authorized, whereby each participant in the enterprise known as Monza Boat Company would be obligated for the capital requirements of the enterprise and losses of the business to the extent of his percentage ownership in the business.
DONALD SOFFER 40%
STEVEN WEINSIER 20%
JAMES WEINSIER 20%
GEORGE JOHNNIDES 20%”

Thus, the judgments against defendants James Weinsier and George Johnnides, each in the amount of $24,542.60, represented 20% of the losses on Monza Boat Company in proportion to the stock owned which it was claimed had been guaranteed by defendants as of January 15,1973, the date on which the defendants terminated their relationship with the company.

The facts giving rise to these final judgments can be summarized as follows:

1. Plaintiff filed a complaint against the two appellants, as well as against Steven Weinsier and Joni Weinsier, his wife. In pertinent part, the three-count complaint stated:

“4. On or about the 28th day of April, 1972, Plaintiff, DONALD SOFFER, and Defendants, STEVEN WEINSIER, JAMES WEINSIER and GEORGE JOHNNIDES, entered into an agreement to contribute by way of loans to the corporation, such working capital as was needed to cover indebtedness as might arise from time to time, the said loans to be to MONZA BOAT COMPANY, INC., in the following proportions:
DONALD SOFFER 40%
STEVEN WEINSIER 20%
JAMES WEINSIER 20%
GEORGE JOHNNIDES 20%
“5. Plaintiff kept his part of the bargain but Defendants failed to do so, leaving MONZA BOAT COMPANY, INC. short of needed working capital to the extent of a considerable sum.
“6. Plaintiff, DONALD SOFFER, to protect his investment and loans to date, advanced sums beyond his proportional debt requirement, to the extent of a total of $200,000.00.”

The defendants answered, asserting as an affirmative defense the statute of frauds.

In 1971, defendant Steven Weinsier acquired an option to purchase the assets of Monza Marine, Inc., which was engaged in the business of manufacturing and selling boats.

Upon the formation of the new business, Monza Boat Company, defendants Steven Weinsier, James Weinsier and George John-nides each owned a 20% interest. Plaintiff Donald Soffer became the owner of a 40% share of the business. As testified to by the plaintiff, the defendants acknowledge their liability for losses. When Monza required capital for its operation, the plaintiff was immediately called upon. During the life of Monza, defendant Steven Weinsier contributed solely the sum of $2,876.90, while his brother, James Weinsier, and his partner in other enterprises, George John-nides, contributed nothing. In late August or early September 1971, the plaintiff and defendants allegedly entered into a written capital contribution agreement whereby the participants in the new boat manufacturing enterprise, Monza Boat Company, would ratably share in the profits and losses of the business based upon alleged percentages.

The plaintiff testified that the writing in question was prepared by the law firm of Lawrence C. Porter and was executed by the plaintiff and all defendants in September, 1971, in Miami, Florida. Thereafter, Donald Soffer testified that he filed his copy of the agreement in his temporary offices at Aventura Trailers, located at 19901 Biscayne Boulevard, Miami, Florida.

Plaintiff testified that his sole copy of the written agreement was destroyed in a 1974 fire at the Aventura Trailer office. A demand for production of copies of the agreement from the defendants was met by their denial that the agreement existed. Plaintiff also sought a copy of the capital contribution agreement from the office of attorney Lawrence C. Porter. Mr. Porter was unable to locate the document or to recall having drafted it.

The trial court based its decision upon the testimony of plaintiff Donald Soffer and entered its final judgment in favor of plaintiff Soffer and against the defendants. This appeal followed.

The first question to be considered is whether in the absence of a written memorandum signed by the parties to be charged, an oral agreement between the plaintiff and the defendants would be sufficient to entitle the plaintiff to recover. There is nothing inherent in this agreement to share losses in a going business which would limit its operation to a period of one year. An oral agreement to enter into a new business which will continue indefinitely has been held to be within the purview of the rule set forth by the Supreme Court in Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937). See Tobin v. Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975); and Davis v. Ferraro, 303 So.2d 407 (Fla. 3d DCA 1974). Cf. First Realty Investment Corporation v. Gallaher, 345 So.2d 1088 (Fla. 3d DCA 1977).

The plaintiff relies upon a claimed exception to this rule, citing Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536 (Fla. 3d DCA 1974). The cited case stands for the proposition that a contract creating a joint venture may be implied from the conduct of the parties or from acts and circumstances which in fact, make it appear that they are participants in a joint venture. A joint venture is therein defined as a special combination of two or more persons who, in some specific venture, seek a profit jointly without the existence between them of any actual partnership, corporation or other business entity.

The plaintiff did not allege nor did the circumstances prove a joint venture. We conclude, therefore, that the statute of frauds (Section 725.01 Florida Statutes (1975) was a valid defense.

The second question is whether evidence before the trial court was sufficient to prove the contents of a lost or destroyed document. The absence of a lost or destroyed document does not necessarily preclude proof of its contents. See Neylans v. Herndon, 79 Fla. 213, 84 So. 89 (1920). It is clear that such proof must be clear, strong and unequivocal. In the cited case, the proof of the contents of the lost instrument was an exact copy.

Where the contents of a claimed lost document are relied upon to avoid the Statute of Frauds, each step in the proof to avoid the statute must be carefully examined. Cf. Welsh v. Veasley, 286 Mo. 93, 227 S.W. 58 (1920). In the case now before us, the existence of the writing was denied by the testimony of the defendants. There is no fact in evidence to support the plaintiff’s claim of its existence. The attorney involved had no recollection of its existence. No copy of other evidence of the contents was submitted. Plaintiff’s recollection concerned only the purpose for drafting the document. The very purpose of the Statute of Frauds is defeated where the sole proof of the existence and contents of a document relied upon to avoid the Statute is the testimony of the plaintiff.

We hold that the Statute of Frauds was applicable to the claimed contract and that the record does not contain sufficient evidence to avoid the application of the Statute. The judgment is reversed with directions to enter a judgment for the defendants.

Reversed.


text:
    James GILMOUR, Appellant, v. The STATE of Florida, Appellee.
    No. 77-440.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.

      Horton, Perse & Ginsberg, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Alan E. Weinstein, Miami Beach, for Florida Criminal Defense Attorneys’ Association, as amicus curiae.
    Before KEHOE, J„ BOYD, JOSEPH A., JR., Associate Judge and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

This appeal is by James Gilmour, an attorney, from a judgment holding him in contempt of the circuit court of Dade County, for which he was sentenced to be confined in the county jail for eight days and was fined $500.00. Enforcement has been deferred pending his appeal. We hold the judgment of contempt was error, and reverse.

The incident forming the basis of the contempt judgment took place during a jury trial of two defendants charged with murder in the first degree. One of the defendants, Patricia Andrews, was represented by Gilmour. The co-defendant, Mark Sublette, was represented by another attorney.

At the trial Gilmour’s client, the defendant Andrews, testified. The co-defendant, Sublette, did not testify. In his final argument Attorney Gilmour called attention to the fact that his client had testified and to the absence of testimony by the co-defendant.

Prior to trial the court had ruled against granting a severance. The court’s instruction to counsel with reference to final argument did not go beyond directing them to restrict themselves to discussion of the evidence and inferences reasonably to be drawn from the evidence and “to avoid problems concerning mistrial”. There was no order or direct instruction to counsel to refrain from comment on the failure of a defendant to testify or on absence of evidence from a defendant. At the time such comments were made by Gilmour in his argument, the court denied co-defendant’s objection thereto and, when considering the latter’s motion for mistrial, the court questioned the jurors and determined that no prejudice had resulted. Later, in his charge, the court instructed the jury as to the right of a defendant to testify or not, as he chose, and instructed them to disregard any reference which had been made to absence of testimony of a defendant.

In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962), the court said:

“An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted . . . .”

To the same effect, in Phillips v. State, 147 So.2d 163 (Fla. 3d DCA 1962), this court said:

“In addition to their inherent power to punish for direct, indirect or constructive contempt, courts have had such power conferred upon them by the legislature. See State ex rel. Giblin v. Sullivan, 157 Fla. 496, 26 So.2d 509; §§ 38.22 and 38.23, Fla.Stat., F.S.A. However, judicial wisdom and experience demand that this extraordinary power be not used except to prevent actual and direct obstruction of, or interference with, the administration of justice by attorneys at law in the manner or means used to present their controversies in the courts. State ex rel. Giblin v. Sullivan, supra; State ex rel. McGregor v. Peacock, 113 Fla. 816, 152 So. 616. * * * ”

Here, not only was the action for which the attorney was held in contempt not in violation of any direct order or ruling of the court, but, as shown by the court’s treatment of the case with reference to this matter, it did not result in any actual and direct obstruction or interference with the administration of justice, or result in “an obstruction to the performance of judicial duty”.

At the conclusion of the case, the court held a hearing upon which the judgment of contempt was entered. In the course thereof Gilmour explained that counsel for co-defendant had sought throughout to convince the jury that his client went back to the scene and committed the murder, and that he, Gilmour, had chosen to have his client testify to the fact that “she was never in the room nor did she ever assault Louis Broeker”, and that in commenting on his client’s testimony and the failure of the co-defendant to testify he had relied on his right and duty to do so in proper defense of his client on authority of the de Luna decision by the Fifth Circuit Court of Appeals [de Luna v. United States, 308 F.2d 140 (5th Cir. 1962)], and unsuccessfully requested that the court read the case before ruling. See also: Gurleski v. United States, 405 F.2d 253 (5th Cir. 1968); United States v. Nakaladski, 481 F.2d 289 (5th Cir. 1973); United States v. Enten, 332 F.Supp. 249 (D.C.Dist.Ct.1971).

de Luna shows that when the arguments or defenses of jointly tried defendants are antagonistic, such as here where the arguments and theory of defense for one who did not testify amounted to an attempt to shunt the guilt to the other, the respective rights of the defendants collide and cause a dilemma. The former has his carefully protected right to silence. According to de Luna the latter has a right to confrontation which allows him to invoke every inference from his co-defendant’s absence from the stand. This matter as dealt with in de Luna was discussed in Gurleski v. United States, supra, and United States v. Enten, supra. On the authority of de Luna the appellant-attorney was entitled to assume, notwithstanding denial of severance, that the defendants were entitled to the benefit of their respective separate rights essential to their defenses. The exercise by the attorney of the right he understood the law recognized in such case, was done in performance of his duty to his client.

In a case decided recently by this court, Ward v. State, 354 So.2d 438 (Fla. 3d DCA 1978), it was held that “A disclaimer of intent to be contemptuous is not sufficient to deprive the court of the power to punish for contempt.” However, in that case the court was dealing with refusal of an attorney to obey the rulings of a trial judge on the ground that the attorney considered the rulings to be improper. That was not the situation here. As pointed out above, in the instant case the appellant did not act in violation of any express order or ruling. Compare Vernell v. State ex rel. Gerstein, 212 So.2d 11 (Fla. 3d DCA 1968); Kleinfeld v. State, 270 So.2d 22 (Fla. 3d DCA 1972). Here the attorney did not rely on lack of intent to be contemptuous. In response, when cited for contempt, his position was that on authority of de Luna his comments were made properly in performance of his duty to so act in the exercise of a right of his client in the latter’s defense. Moreover, as also pointed out above, appellant’s action did not operate to obstruct the performance of judicial duty. The trial proceeded unimpeded, with the court concluding no prejudice was involved.

We hold the record does not support the conclusion and holding of the court that the making of such comments by the appellant-attorney in final argument was contemptuous by being inconsistent with the court’s pre-trial ruling as to severance or rulings as to arguments. While we need not and do not express opinion on whether the law in Florida is in conformity to that expressed in de Luna, with reference to this matter, we hold that in the absence of a contrary pronouncement of the law in Florida the action of the attorney in relying on de Luna (clearly in point on the facts and circumstances of the case) authorized the comments and that in fairness and justice the making of the comments in question could not operate to place the attorney in contempt of the court. This is particularly evident when the comments appeared to have been made in good faith in defense of the client, and were not regarded by the court as .impeding the case or causing a mistrial.

For the reasons stated, the judgment is reversed.

      . Incident to the denial of the motion for mistrial, in a sidebar conference, the record shows the following:
      “THE COURT: I watched the jury as I polled them. I was satisfied from the answers that I received from the members of the panel. I do not feel that any prejudice was involved by the statements that were made by Mr. Gilmour. So, 1 am going to deny your motion.”

      . In de Luna, with reference to similar comments in final argument in a case involving like circumstances, the court said [308 F.2d, at 143]:
      “ * * * These were not casual or isolated references; they were integral to Gomez’s defense. And considering the case from Gomez’s point of view, his attorneys should be free to draw all rational inferences from the failure of a co-defendant to testify, just as an attorney is free to comment on the effect of any interested party’s failure to produce material evidence in his possession or to call witnesses who have of pertinent facts. Gomez has rights as well as de Luna, and they should be no less than if he were prosecuted singly. His right to confrontation allows him to invoke every inference from de Luna’s absence from the stand.”

      . See: Florida Code of Professional Responsibility, Canon 7, EC 7-1 and 7-4. In the American Bar Association Canons of Professional Ethics, Canon 15 provides:
      “The lawyer owes ‘entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability,’ to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client.” [emphasis supplied]

      .In the contempt order, the court stated:
      “A Motion for Mistrial was denied and the jury was questioned concerning the impact of Mr. Gilmour’s statements to them. Having been satisfied that no prejudicial effects had taken place as a result of these comments Mr. Goldstein, representing co-defendant Mr. Sublette, delivered the opening part of his closing statement. Following a short recess and before the State made its closing argument the Court polled individually each of the jurors and again satisfied itself that no harmful or prejudicial error had occurred to Mr. Sublette as a result of these comments, * * *."
      As to whether and to what extent the said comments of counsel were prejudicial to the co-defendant, we express no opinion, since to do so is not necessary to the decision of this contempt matter.


author: HENDRY, Judge.

text:
    COMMODORE PLAZA AT CENTURY 21 CONDOMINIUM ASSOCIATION, INC., Appellant, v. CARIBBEAN PARKING AND SECURITY SYSTEMS, INC., Appellee.
    No. 77-914.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied May 19, 1978.
    Charles L. Neustein, Miami Beach, for appellant.
    Williams, Salomon, Kanner & Damian and Gary S. Brooks, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HENDRY, Judge.

Appellant/defendant appeals from a final judgment rendered in favor of appel-lee/plaintiff pursuant to a jury verdict on a breach of contract action.

Appellant and appellee entered into a contract wherein the latter was to construct a security gate system for the former. In pertinent part, the contract provided that the:

“Purchaser [Owner] shall be responsible for all permits, licenses and applicable taxes. Purchaser [Owner] shall be responsible to provide all electrical service and permits necessary to install and properly operate equipment listed on reverse side.”

It was uncontradicted that no permits were ever obtained for the construction of said system.

Pursuant to the contract and various modifications thereto, appellee completed the security gate system. Notwithstanding the absence of any complaints concerning the construction of the system, appellant, which had made partial payments pursuant to the contract, refused to pay appellee the balance of the contract price.

Suit was ultimately brought by appellee to collect the unpaid sums of money due from appellant. Prior to trial, appellant attempted to assert the defense that pursuant to Chapter 8 of the Code of Metropolitan Dade County, which incorporates the South Florida Building Code, a builder-contractor who fails to obtain a building permit prior to construction cannot recover the cost of construction (contract price) from the owner. Appellant’s rationale was that pursuant to Sections 301, 304.1 and 305 of the South Florida Building Code, to “construct, enlarge, alter, repair, move, remove or demolish any building, structure, or any part thereof” without first acquiring a permit is an illegal act, and contracts dealing with the doing of an illegal act are unenforceable, as against public policy.

Based upon the above quoted provision of the contract whereby the duty to obtain building permits was placed upon the owner, i. e., appellant, the trial judge rejected the “illegality” defense. The case thereupon proceeded to trial, culminating in a jury verdict for appellee. Final judgment was entered in accordance with the verdict and this appeal follows.

After carefully reviewing the record and briefs, it is our opinion that the final judgment must be affirmed. The contract sued upon was not “illegal” on its face; that is, the purpose of the contract was not to accomplish an unlawful or reprehensible end, injurious to the interest of society. If the security system was “illegal,” it was only “illegal” because appellant failed to comply with its contractual obligation. Clearly, general contract law provides that one party to a contract cannot, by his own wrongdoing, benefit at the expense of the other party to the contract. See generally 7 Fla.Jur. Contracts §§ 147, 148 and cases cited therein.

Accordingly, the final judgment appealed from is hereby affirmed.

Affirmed.


text:
    Eduvijes HERNANDEZ, etc., et al., Appellants, v. Renan E. DELGADO, Leroy’s Crane Service, Inc., etc., et al., Appellees.
    No. 77-1049.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied May 19, 1978.
    Robert F. Weiner, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R..Berger, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This is an appeal from a final summary judgment for the defendant Renan E. Delgado in a wrongful death action by an employee of Machine Construction Company. The summary judgment was apparently entered under the provisions of Section 440.10, Florida Statutes (1975), although the defense was not pleaded nor does the judgment so specify.

The scanty record does not clarify the relationship of the parties. Defendant Delgado states in his brief that the owner of the project was West Palmetto Land Corporation. The record reveals that Delgado was an officer and one of the principals of West Palmetto. Delgado says that he was the general contractor but that he employed a contractor, Machín Construction Company, to do all the work. The plaintiff was an employee of Machín. The injury was allegedly caused by the negligence of another defendant, Leroy’s Crane Service. The evidence is conflicting on the contractual relationship of the crane service to Delgado or Machín.

We hold that summary final judgment was improperly entered on this record. The applicability of the exclusion in Section 440.10, Florida Statutes (1975), can be determined only when the status of the defendant Delgado is fully established on the record. See Little v. Jim Santi, Inc., 334 So.2d 150 (Fla. 3d DCA 1976); and Kemper v. First National Bank of Dayton, Ohio, 277 So.2d 804 (Fla. 3d DCA 1973).

Reversed and remanded.


text:
    Richard Eugene TAYLOR, Appellant, v. Rosa P. LOPEZ, etc., et al., Appellees.
    No. 77-1158.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.

      James A. Baccus, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before PEARSON and HENDRY, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   CRAWFORD, GRADY L. (Ret.), Associate Judge.

The appellees herein, plaintiffs below, filed a subrogation complaint for auto negligence against the appellant, defendant below. Summons was issued but returned by the Sheriff as “no service”. Thereafter, an amended complaint was filed but no effort was made to obtain personal service. Ap-pellees proceeded rather to effect constructive service by filing “Notice of Action” and affidavit by counsel in support of publication. A final Default Judgment was entered against appellant on September 2, 1976. On April 27, 1977, appellant filed a motion to set aside default judgment on the ground that the trial court lacked jurisdiction to enter said judgment since no legal service of process had been effected upon the appellant that would give the court proper jurisdiction over him. This motion was denied on April 28, 1977, and this appeal followed.

It seems elemental that service of process by publication may be had only if personal service of process cannot be had. Resort to constructive service by publication is predicated on “necessity”, (25 Fla. Jur. Process, Sec. 31, page 409).

In the instant case, no summons was requested or issued against appellant seeking personal service of the amended complaint.

In attempting to obtain constructive service under F.S. 49.041, the affidavit filed as the basis for such service falls far short of the statutory requirements; e. g., it avers that “the present resident and mailing address of said appellant is as follows: 2741 N.W. 175 Street, # IB, Miami, Florida”, and publication was made addressed to Robert Eugene Taylor at that Miami address. If that was, in truth, the residence address of the appellant, he could have been personally served there.

The affidavit did not state the age of appellant, or aver that it was unknown. It was not stated whether he was a resident or nonresident, absent from the State, concealing himself, or any other statutory requirement to form the basis for good constructive service. In the 4th Dist.Ct. of appeal of Florida, case of Elmex Corp. v. Atlantic Federal Saving and Loan Association, Fla. App., 325 So.2d 58, the court stated at page 61, as follows:

“The courts have consistently observed that statutes relating to substituted service of process (in lieu of personal service of process) must be strictly construed; and the burden of proof to sustain the validity of substituted service of process rests upon the person seeking to invoke the provisions of such statutes.”

Appellees have not and did not satisfy the strict requirements of F.S. 49.041, and, therefore, their constructive service upon the appellant is insufficient and legally void. It follows that there was no jurisdiction over said appellant, and the trial court lacked legal authority to enter its default judgment, and such judgment must be, and is hereby set aside.

Reversed and remanded.


text:
    Luis FERNANDEZ and Aida Lezcano Diaz, Appellants, v. The STATE of Florida, Appellee.
    No. 77-1699.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied May 19, 1978.
    Alan B. Oppenheimer and Harold Mende-low, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAYERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The defendants, Fernandez and Diaz, appeal their judgments and sentences for the crimes of (1) aiding and assisting in the conducting of a lottery, and (2) the possession of lottery paraphernalia. The points raised urge reversal upon the denial of their motions to suppress the evidence seized under a search warrant and their motion to reveal the identity of a confidential informant. Fernandez urges that his sentence to eight months in the county jail, as a condition of probation, was unlawful. Diaz urges that with regard to his participation, the evidence was insufficient to support the finding of guilty. We find no error upon any of the points advanced and we affirm.

Affirmed.


text:
    A. W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1930.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied May 19, 1978.

      Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

On an adjudication hearing the appellant juvenile was determined to be delinquent, based on a petition for delinquency, charging him with stealing a school bus.

Appealing therefrom he contends the court erred in denying his motion to dismiss the petition on the ground that he was not brought to trial or adjudication hearing within the time required by the applicable speedy trial rule. We find merit in that contention, and reverse.

The appellant, who for convenience will be referred to as the defendant, was taken into custody on April 29, 1977. A written report, required to be made to the intake officer within three days after he was taken into custody, was not made until May 23, 1977, twenty-four days after the arrest. The delinquency petition was filed June 22, 1977. Trial thereon was set for August-17, 1977. At that time, on motion of the State, over objection of defendant, the trial or adjudication hearing was continued until August 22, 1977. On August 18, 1977 defendant moved for discharge. Defendant was entitled to be brought to trial within 93 days after arrest, on the basis of Section 39.03(2), Florida Statutes (1975), and Fla.R. Juv.P. 8.180. It was so held in the case of J. W. H. v. State, 345 So.2d 871 (Fla. 1st DCA 1977), on the authority of which the judgment appealed from is reversed, and the cause remanded with directions to dismiss the delinquency petition.


text:
    Moshe KREMNITZER, Appellant, v. Esther KREMNITZER and Henry Kremnitzer, Appellees.
    No. 77-2362.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied May 19, 1978.
    Herbert A. Warren, Miami, for appellant.
    Louis Vernell, Miami Springs, for appel-lees.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Moshe Kremnitzer, who attempted to intervene in this cause in the trial court, appeals an order which denied his petition to intervene, denied a stay of the proceedings and ordered a partial disbursement of $5,000, plus interest, to the attorney for appellee Esther Kremnitzer from a fund created by the sale of real property.

The fund was created by stipulation when the appellant sold property over which he had power of attorney but the title of which was in the name of Henry Kremnitzer, the former husband of Esther Kremnitzer. The appellant brought a suit claiming that the proceeds of the sale were his property. Appellee Esther Kremnitzer, in the dissolution action, sought an order to subject the fund to her claims under the final judgment of dissolution. The appellant sought an order allowing him to intervene in the proceedings and to stay the proceedings concerning the ownership of the fund until the disposition of his independent suit. Intervention was denied and a partial distribution ordered. Subsequently, the trial court did stay further disbursement, pending disposition of the appellant’s claim of ownership. That portion of the appeal is, therefore, moot.

The trial court committed error in denying the petition to intervene and in proceeding with a partial distribution. See Fla.R.Civ.P. 1.210(a). See also Metropolitan Dade County v. Outrigger Club, Inc., 314 So.2d 153 (Fla. 3d DCA 1975). It also follows that the trial judge erroneously ordered the partial distribution before the ownership of the fund was decided.

Reversed and remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


author: McCORD, Chief Judge.

text:
    STATE of Florida, Appellant, v. Eugene PASCHAL, Jr., Appellee.
    No. II-414.
    District Court of Appeal of Florida, First District.
    April 20, 1978.
    Rehearing Denied May 12, 1978.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellant.

      Michael J. Minerva, Public Defender, for appellee.
   McCORD, Chief Judge.

State seeks review of the trial court’s order suppressing certain inculpatory statements made by appellee/defendant. Testimony revealed that upon arrival at the scene of an alleged attempted murder, a police officer questioned the victim, defendant’s wife, regarding the incident. The victim implicated defendant in the offense and indicated that he was in their house next door. The officer entered the house and asked defendant what had happened. After defendant made several inculpatory statements, he was placed under arrest and read the Miranda warnings, which he acknowledged he understood. Defendant then made other inculpatory statements. At the police station, defendant made further statements in a recorded statement. Trial court ordered all statements made by defendant suppressed. We reverse in part and affirm in part.

The initial statements made by defendant were not the product of custodial interrogation and thus were not inadmissible due to the failure to advise defendant of his Miranda rights. Although defendant had been implicated in the crime, when the officer entered the house to ask what happened, defendant had not been placed under arrest nor had his freedom of action been deprived in any significant way. The officer’s question was akin to the investigatory on-the-scene questioning referred to in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Cf. State v. Barnes, 245 So.2d 108 (Fla. 3 DCA 1971); Melero v. State, 306 So.2d 603 (Fla. 3 DCA 1975); United States v. Montos, 421 F.2d 215 (5th Cir. 1970), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). The defendant’s second statements were properly admissible since they were made after Miranda warnings had been given and a waiver of those rights had been shown.

We agree that the taped statements were inadmissible under the principles enunciated in State v. Prosser, 235 So.2d 740 (Fla. 1 DCA 1970), and Jones v. State, 346 So.2d 639 (Fla. 2 DCA 1977). That portion of the order suppressing the taped statement is, therefore, AFFIRMED. The order is otherwise REVERSED and REMANDED for further proceedings consistent herewith.

BOYER and SMITH, JJ., concur.


author: MELVIN, Judge.

text:
    Lincoln L. JACOBS, Appellant, v. Mary S. H. JACOBS, Appellee.
    No. FF-432.
    District Court of Appeal of Florida, First District.
    April 21, 1978.
    Rehearing Denied May 23, 1978.

      Joseph A. Scarlett, DeLand, for appellant.
    Nord L. Johnson, DeLand, for appellee.
   MELVIN, Judge.

Appellant/defendant seeks reversal of a judgment entered in favor of his former wife, Mary S. H. Jacobs, in her suit against him to recover one-half of the proceeds from pine timber alleged to have been cut from lands owned by the parties in Lake County, Florida. The judgment was for the sum of $12,633.20, together with costs.

In the final judgment of dissolution of marriage it was provided that as to the property in Lake County, upon the rendition of such judgment, the parties would own the same as tenants in common. Prior to the date of the judgment, the appellant had sold to a lumber company all of the pine timber standing on the Lake County property and he received, prior to and subsequent to the date of the judgment dissolving the marriage, the total sum of $25,-266.40. The final judgment of dissolution provided that the entry of the same would constitute a settlement of all claims and demands as between the parties up to and including the date of such judgment. However, Mrs. Jacobs did not know and Mr. Jacobs did not reveal to her or to the court that there had been received by him this sum of money from the sale of the trees from the land. The final judgment purporting to settle the property rights of the parties directed that the appellant, within a specified period, furnish to his wife two legal descriptions that would, in his opinion, accomplish an equitable division of the property, and that he should do so within a specified period of time. Upon the legal descriptions having been furnished to her, she went upon the land on two occasions and observed that pine timber had been cut from one area and a lesser amount had been cut from the other. She chose as her parcel the area from which only a small portion of pine timber had been cut. The testimony reveals that 90 percent of the pine timber had been cut from the parcel remaining for the appellant, Mr. Jacobs, the remaining 10 percent of the pine timber having come from the parcel selected by Mrs. Jacobs.

Under all of the circumstances surrounding this case, it is our conclusion that the trial court erred in rendering judgment for the appellee for one-half of the total of the proceeds of the timber sales, but that such judgment should have been limited to 10 percent of the proceeds of such sale. That would represent a just return to her of the money received from timber coming from the parcel of land selected by her following her second inspection of the premises.

As to appellant’s counterclaim that he is entitled to repayment for one-half of the mortgage payments made by him on the Lake County property, the real estate taxes and other incidental expenses, all of these matters were known to him at the time of the property stipulation and settlement that was incorporated in the final judgment. Therefore, it is well established law that he is by such judgment estopped from now asserting such claims.

The final judgment appealed from is reversed with directions to enter judgment in favor of the appellee and against the appellant in the sum of $2,526.64, together with costs.

Affirmed in part and reversed in part.

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


text:
    ESTATE of W. T. GRANT COMPANY (Bankrupt), Petitioner, v. Gerald A. LEWIS, Comptroller of the State of Florida, Reubin O’D Askew, Governor, Robert L. Shevin, Attorney General, Gerald A. Lewis, Comptroller, Doyle Conner, Commissioner of Agriculture, William Gunter, Treasurer, Ralph D. Turlington, Commissioner of Education, and Bruce A. Smathers, Secretary of State, as and constituting the Governor and Cabinet as heads of the Department of Revenue and the Department of Revenue, State of Florida, Respondents.
    No. GG-471.
    District Court of Appeal of Florida, First District.
    April 21, 1978.
    Rehearing Denied May 23, 1978.

      Robert M. Ervin, Joseph C. Jacobs, James R. McCachren, Jr. and Robert J. Angerer, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., for respondents.
   MASON, ERNEST E. (Circuit Judge, Retired), Associate Judge.

On July 28, 1977, petitioner, Estate of W. T. Grant Company (Grant) filed this petition for review seeking review of the decisions of the respondents, State Comptroller and The Department of Revenue (the Department), denying Grant’s request for a sales tax refund.

Prior to its adjudication as a bankrupt on April 13,1976, by the United States District Court for the Southern District of Florida, Grant operated numerous retail stores in the State of Florida. Grant’s sales consisted of cash sales and sales made pursuant to several different types of credit plans. Grant paid Florida sales taxes on both cash and credit sales at the time the sales were made.

Grant on March 29, 1977, requested the refund of $520,060.00 in sales taxes pursuant to the provisions of F.S. 215.26. The reason given in the refund application was that an “over payment of Florida’s sales tax in the amount of $520,060.00” had been made. The refund application admitted that Grant had made numerous “sales” pursuant to several different types of credit plans, with the sales tax collected on the credit sales “at the time the sale was made.” The applicant went on to note that many of the accounts receivable resulting from the credit sales were later found to be uncollectible and were written off the company’s books, and because of its adjudication as bankrupt, it was no longer possible to offset bad debts against future retail sales.

By letter dated April 15, 1977, the Office of the Comptroller notified the Petitioner that the Florida Department of Revenue had audited its claim for refund and had recommended that payment of the refund be denied because the petitioner did not claim credit for the tax paid on its bad debts in the manner required by Section 212.17(3), Florida Statutes (1975).

On May 3, 1977, petitioner, through its trustee in bankruptcy, filed a request for a rehearing and re-examination of the denial of its claim for a refund of overpayment of Florida sales tax in the amount of $520,-060.00. Petitioner made its claim pursuant to Section 215.26, Florida Statutes (1975). It also claimed that Section 212.17(3), Florida Statutes (1975), should entitle it to a refund in the amount requested.

By letter dated June 3, 1977, the Department of Revenue, on behalf of the Comptroller of the State of Florida, denied petitioner’s request for a rehearing and re-examination. Those agencies had concluded that neither Section 215.26 nor Section 212.-17(3) authorized a refund of sales tax paid on the unpaid balance of the accounts which had been found to be worthless and had been written off as bad debts. By letter dated July 1, 1977, petitioner received official notification, in accordance with Chapter 17, Florida Statutes, from the Office of the Comptroller that its request for rehearing and re-examination had been denied.

On July 28, 1977, petitioner filed its petition for review in this Court for review of the respondent Agencies’ final agency action denying petitioner’s request for a refund under Section 215.26 or 212.17(3), Florida Statutes (1975), or both of these statutes.

We have jurisdiction to review the final action of respondents denying the refund of the taxes in question under authority of Article V, Section 4(b), of the Florida Constitution (1968 Revision as amended in 1973) and Section 120.68, Florida Statutes, as amended in 1976 and 1977. Respondents’ contention that jurisdiction lies solely in the Circuit Court is not well taken for the reason that this proceeding does not involve the legality of a tax assessment or toll, as claimed by respondents, but rather involves solely the question of petitioner’s right to a refund of sales taxes lawfully assessed in the first instance but for which petitioner contends it became entitled to a refund due to a condition arising subsequent to the assessment. This being true the recent decision of the Supreme Court of Department of Revenue v. Amrep Corporation, 358 So.2d 1343 (Fla.1978), cited by respondents to this court on March 16, 1978, does riot support respondents’ position that we lack jurisdiction.

We now direct our attention to the merits of the case. Our decision turns upon the proper interpretation of certain sections of Chapter 215 F.S. and Chapter 212 F.S. Petitioner predicates its claim for a refund of the taxes in question upon the provisions of Section 212.17 and Section 215.26.

Section 212.17 which deals with credits for returned goods provides that such credits may be had in one of three situations: First, in the event purchases are returned to the dealer by the purchaser or consumer after the sales tax imposed has been collected by the seller or charged by him to the account of such purchaser or consumer, the dealer (seller) shall be entitled to reimbursement of the tax collected or charged, in the manner prescribed by the Department of Revenue. And in case the tax has not been remitted by the dealer to the department, the dealer may deduct the same in subsequently submitting his return, upon receipt by the department of a signed statement of the dealer as to the gross amount of such returned goods during the period covered by such signed statement which period shall not be longer than 90 days. In the event the dealer has already remitted the tax paid to him upon such later returned goods, the department shall issue to the dealer a credit memorandum equal to the net amount so remitted to be applied against subsequently accrued taxes. Further provision is made for the refund of taxes to a dealer who has retired from business and who has filed a final return, if it is established that the taxes were not due. (Emphasis supplied). Section 212.-17(1) F.S.

Clearly petitioner’s claim for a refund of taxes already paid by it does not fall within these provisions for they deal solely with returned goods which may be subsequently re-sold, and another sales tax collected or charged upon such re-sold goods. Nor can petitioner’s claim be predicated upon its status as a dealer who has retired from business and who is entitled to a refund of taxes remitted upon the theory that the tax was not due. The taxes paid by petitioner and for which it now claims a refund for taxes paid on bad debts subsequently charged off became due when the sales were made and the purchasers at that time became obligated to pay the same (Section 212.06(l)(a)).

The second situation under which a dealer is entitled to a credit under the provisions of Section 212.17 is that where tangible personal property is sold under a retained title or conditional sale contract, and is later repossessed by the dealer. Subsection (2) of Section 212.17 provides that a dealer who has remitted the tax imposed may take credit in future tax returns for the tax paid by him on the unpaid balance of the purchase price when he repossesses the property, in the same manner as he may do so under subsection (1). And when such repossessed property is resold the sale is subject in all respects to the tax imposed by Chapter 212 F.S. Here again the petitioner’s claim does not fall within the provisions of this subsection (2) so as to entitle it to a refund, for the sales with which we are concerned here were not retained title or conditional sales, but were sales made pursuant to several different types of credit plans. Here title passed to the purchaser upon delivery of the goods.

Petitioner places great reliance upon the provisions of subsection (3) of Section 212.-17 to support its claim for a refund of taxes paid upon goods sold on credit which transaction later turned out to be “bad debts”. This subsection provides that a dealer who has paid the tax imposed on the sale of tangible personal property may take credit in any return filed under the provisions of Chapter 212 for the tax paid by him on the unpaid balance due on accounts which during the period covered by the current return have been found to be worthless and are charged off for federal income tax purposes. The subsection provides, however, that if any charged off accounts are thereafter paid to the dealer, the dealer must report such amounts so subsequently received and pay the tax thereon in his first return filed after such payments are received by him.

Here again, the statute is dealing with credits against future taxes collected by the dealer or charged to the purchaser on future sales, not with refunds of taxes remitted to the department. Since petitioner went into bankruptcy and therefore is making no future sales or tax returns, there is nothing against which any credit may be had for “bad debts” charged off.

The only instance wherein a refund (as against a credit) may be made under this statute is that provided in subsection (1) of Section 212.17 wherein it is established and determined by the department that no tax was due to be paid in the first instance. Here it is conceded that the tax was collectible at the time of the sales, but asserted that a refund ought to be made because the charge accounts became sour and uncollecti-ble, and therefore without consideration.

Petitioner’s argument that because in many instances the purchase price was never paid there was no consummation of the sale “and, in retrospect no tax was due when paid by Grant”, is contrary to the express provisions of the statute. Section 212.02(4) defines the term “sales price” upon which the tax is to be paid as:

“. . . the total amount paid for tangible personal property, including . any amount for which credit is given to the purchaser by the seller, without any deduction therefrom on the account of the cost of the property sold, the cost of materials used, labor or service costs, interest charged, losses or any other expenses whatsoever.” (Emphasis supplied)

And Section 212.06(l)(a) as applied to credit sales states:

“The full amount of the tax on credit sales, installment sales, and sales made on any kind of deferred payment plan shall be due at the moment of the transaction in the same manner as a cash sale.”

We hold that the provisions of Section 212.17(3) authorize only the extension of a credit or set-off against future tax liability and do not authorize a refund of sales taxes collected on personal property sold on credit under the facts of this case.

Petitioner bases its claim for the requested refund also upon the provisions of Section 215.26 F.S. We hold that petitioner’s reliance upon this section of the tax laws of this state is not well taken. This section authorizes the State Comptroller to refund to any person entitled to receive it of any money paid into the State Treasury which constitute either:

(a) an overpayment of any tax, license or account due;
(b) a payment where no tax, license or account is due; or
(c) any payment made into the State Treasury in error.

Petitioner’s request for a refund does not fall within either one of these categories and therefore the Comptroller was justified in his refusal to make such refund. See State ex rel. Brunswick Corporation v. Kirk, 204 So.2d 4 (Fla.1967); State ex rel. Victor Chemical Works v. Gay, 74 So.2d 560 (Fla.1954).

Thirdly, the petitioner argues that to deny it the refund sought is to deny it due process and equal protection of the law. We reject this argument as not well founded. In the first place the Florida sales tax, being an excise tax is not subject to the constitutional requirements of equality and uniformity. Rather, the constitutional test to be applied to such a tax is whether the classifications created by such tax are reasonable and not arbitrary. Goulden v. Kirk, 47 So.2d 567 (Fla.1950) and Allied Stores of Ohio v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959).

The classifications created by Section 212.17 are reasonable and not arbitrary. The allowance of a credit only as against future tax liability where the dealer has not reacquired title to and possession of the tangible personal property sold, and not a refund of taxes already paid, rests upon a rational and reasonable distinction. Repossessed property can be resold by the dealer and thereby generate further sales tax collection. Such is not true of tangible personal property that remains in the possession of the purchaser leaving the dealer with only a bad debt writeoff. The same distinction is true of returned personal property to the dealer by the purchaser where the sale was not made under a retained title contract, for here again the returned property can be resold and generate further sales tax collections.

Finally, we find the argument of petitioner to the effect that to deny it a refund of the taxes in question is unconstitutional as being in violation of the Supremacy Clause of the Federal Constitution, in that such a construction of the effect of Section 212.17(3) F.S. allegedly interferes with - the Federal Bankruptcy Act, to be without merit. The taxes sought to be recovered are not assets of the bankrupt estate. As we have herein stated, Section 212.17 deals with credits against future tax liability, not refunds of taxes already imposed and collected.

We affirm and dismiss the petition for review.

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