author: GRIMES, Judge.

text:
    Betty HINTON, Appellant, v. IOWA NATIONAL MUTUAL INSURANCE COMPANY and Steve Dellinger, Appellees.
    No. 74-984.
    District Court of Appeal of Florida, Second District.
    July 23, 1975.
    Richard R. Mulholland, Mulholland & Hapner, Tampa, and David A. Maney, Gordon & Maney, Tampa, for appellant.
    John R. Bush, Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.
   GRIMES, Judge.

Betty Hinton was involved in an accident with a truck owned by Ralph Quinlan and driven by Steve Dellinger. Hinton brought a suit for personal injuries against Quinlan, Dellinger and Iowa National Mutual Insurance Company. During the trial of the case and before the jury retired, her attorney stated on the record that Hinton was taking a voluntary dismissal of her claims against Dellinger and Iowa National. The trial judge refused to recognize the right of the plaintiff to take a voluntary dismissal as to fewer than all of the defendants. The case was then submitted to the jury and a verdict was returned for the plaintiff in the amount of $1,715. Final judgment in this amount was entered for the plaintiff and against all three defendants. No appeal was taken from this final judgment.

The plaintiff declined a tender of payment of the judgment, and no satisfaction was given. Thereafter, she commenced a new action against Dellinger and Iowa National seeking damages for the same accident. The defendants filed pleas of res ju-dicata, estoppel by judgment and collateral estoppel predicated upon the final judgment entered in the earlier lawsuit. The new suit was dismissed with prejudice, and Hinton appeals this order.

Absolute Right of Taking Voluntary Dismissal Against Less Than All of the Defendants

As authority for refusing to recognize the dropping of Dellinger and Iowa National as parties in the first case, the court below cited Scott v. Permacrete, Inc., Fla.App.1st, 1960, 124 So.2d 887; Cooper v. Carroll, Fla.App.3d, 1970, 239 So.2d 511, and Fears v. Lunsford, Fla.App.1st, 1974, 295 So.2d 323. In Scott, the court held that, standing alone, a notice of voluntary dismissal filed pursuant to Rule 1.35 RCP (the predecessor of current Rule 1.420) and directed to some but not all of the defendants was not effective to eliminate those parties as defendants in the case. The court said:

“. . . We are unable to agree with appellants’ position on this point. The mentioned rule provides that a plaintiff may voluntarily dismiss his action without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer or motion for summary judgment or decree. This rule has been construed as applicable only to a dismissal of the entire action or controversy as distinguished from a dismissal of any claim or cause of action against one or more, but less than all, of the defendants. The proper method of dropping parties defendant from a suit is to move for and procure an order of court dismissing the complaint as to the designated defendant or defendants as permitted by Rule 1.18, F.R.C.P.”

At that time, the only reference in Rule 1. 18 to the dropping of parties called for obtaining an order of court. However, in 1968, Rule 1.18, which had then become Rule 1.250, was amended by the addition of the following pertinent language:

“(b) Dropping Parties. Parties may be dropped by an adverse party in the manner provided for voluntary dismissal in Rule 1.420(a)(1) subject to the exception stated in that rule. . . . ”

Thus, while the old rule was explicit in requiring the entry of an order by the court as a condition precedent to the successful dropping of a party, the amended rule stated that an adverse party could be dropped in the manner provided for under Rule 1.-420(a)(1).

Cooper reached the same conclusion as Scott and was decided two years after the amendment had been added to Rule 1.250. However, the opinion does not indicate whether it was considering the rule before or after its amendment. Pears is not directly on point because it involved one of two plaintiffs seeking to voluntarily dismiss her claim against all of the defendants. In any event, whatever support Fears provided for the action of the court below was eliminated when the District Court’s decision in Fears was recently quashed by the Supreme Court (Case No. 45,834, opinion filed June 1, 1975). In its Fears opinion, the Supreme Court approved a later decision of the same district court in deMaupassant v. Evans, Fla.App. 1st, 1974, 300 So.2d 313, which held that under Rule 1.420(a)(1) a plaintiff had a right to take a voluntary dismissal against less than all of the defendants prior to the retirement of the jury. Therefore, even though Rule 1.420(a)(1) still only refers to “actions” rather than “parties”, it now appears settled that the reference in Rule 1.-250 to dropping of parties pursuant to the provisions of Rule 1.420(a) is sufficient to authorize a plaintiff to take a voluntary dismissal against less than all of the defendants.

Failure to Appeal Prior Judgment

Even though Hinton was entitled to take a voluntary dismissal against Dellinger and Iowa National, this case must be affirmed for two reasons, each of which is sufficient unto itself. In the first place, the judgment entered in the prior case was against all of the defendants and was not appealed. Hence, the judgment became res judicata regardless of the error leading to its entry. Thus, in Lucy v. Deas, 1910, 59 Fla. 552, 52 So. 515, the court said:

“A void judgment is a nullity, and may be attacked collaterally; but a judgment is not void if the court as organized legally existed and had jurisdiction of the subject-matter and of the parties. . where the court is legally organized, and has jurisdiction of the subject-matter, and the adversary parties are given an opportunity to be heard by the actual or constructive service on them of notice of the litigation as required by law, any errors or irregularities, or even wrongdoing, in the proceedings, short of an illegal deprivation of an opportunity to be heard, will not render the judgment void.”

Hinton seeks to avoid the import of this rule by asserting that the judgment was void-as to Dellinger and Iowa National because the court lost jurisdiction of them when she declared her intention to take a voluntary dismissal. There is some support for this argument in Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., Fla.App.4th, 1970, 244 So.2d 526, in which the plaintiff purported to take a voluntary dismissal pursuant to the authority of Rule 1.420. Thereafter, at the instance of the plaintiff, the trial court reinstated the action. In granting certiorari and quashing the order which reinstated the respondent’s cause of action, the district court said:

“Since a trial court has no discretion under F.R.C.P. 1.420(a) (1) (i) in granting or denying a voluntary dismissal by a plaintiff, it follows, then, that a trial court has no authority to review a voluntary dismissal. A voluntary dismissal of an action by the plaintiff pursuant to F.R.C.P. 1.420(a)(1) serves to terminate the action and to divest the trial court of jurisdiction.”

See also Modular Construction, Inc. v. Owen, Fla.App.3rd, 1972, 270 So.2d 753, and Meyer v. Contemporary Broadcasting Company, Fla.App.4th, 1968, 207 So.2d 325.

It must be noted that while these cases talk in terms of the court losing jurisdiction, in each case the dismissal was taken against all of the defendants in the case. Hence, it could be said that there was no longer any subject matter over which the court could exercise its jurisdiction. However, if the court automatically loses jurisdiction to the extent that any subsequent order is void, presumably it could not even enter the cost judgment specifically provided for in Rule 1.420(d). Of more significance is the fact that each of the cited cases was a direct appeal. None of these cases passed on the question of whether a judgment could be collaterally attacked for the failure to recognize the plaintiff’s right to take a voluntary dismissal against less than all of the defendants. We construe the .holding of these decisions only to be that a plaintiff may take a voluntary dismissal without the necessity of obtaining a court order.

It is generally held that once a party is in court through legal process or by appearance, he is in legal contemplation still in court until the final disposition of the cause. Whitaker v. Wright, 1930, 100 Fla. 282, 129 So. 889. Once jurisdiction has been obtained, any orders pertaining to the party, even though erroneous, must be attacked on appeal at the risk of becoming final. Tervin v. State, 1934, 116 Fla. 633, 156 So. 627. If Hinton wished to overcome the effect of the final judgment being entered against Dellinger and Iowa National, it was incumbent upon her to appeal so as to obtain the removal of those parties from the judgment. Once that judgment became final, it was properly raised by a plea of res judicata in the new suit involving the same parties and the same subject matter.

Effect of Obtaining Prior Judgment Against Owner on Same Cause of Action

The second ground for affirmance is predicated on the fact that in the prior suit Hinton obtained a judgment against Quin-lan on the same cause of action she now seeks to assert against Dellinger and Iowa National. Quinlan was liable only vicariously as a result of Dellinger’s negligence. Hinton proved Dellinger’s negligence and had her day in court on the issue of damages. Simply because she is dissatisfied with the amount of the jury award, should she now be entitled to another “bite at the apple” ?

At the outset, it should be noted that where a plaintiff unsuccessfully sues the servant, he is barred from bringing a second action against the master predicated upon the servant’s negligence. See, e. g., Carroll v. Hubay, 2d Cir. 1959, 272 F.2d 767; Taylor v. Denton Hatchery, Inc., 1960, 251 N.C. 689, 111 S.E.2d 864; Restatement of Judgments § 96(1)(a) (1942). Likewise, once obtaining a judgment against the servant, a plaintiff is limited to the amount of his prior recovery in a second action which seeks to hold the master vicariously liable. See, e. g., Pinnix v. Griffin, 1942, 221 N.C. 348, 20 S.E.2d 366; All v. Delaware & H. R. Corporation, Sup.Ct.1941, 176 Misc. 977, 29 N.Y.S.2d 439; Restatement of Judgments § 96(1) (b) (1942). In essence, the same principles apply in both situations. The question is whether the same result obtains when the first suit is against the master and the second is against the servant.

The point was considered in Racino v. Saxon, Fla.App.4th, 1969, 222 So.2d 274, in which the court stated:

“In cases involving motor vehicle collisions and liability arising therefrom, we construe the rule to be that if a plaintiff sues a driver and loses on the merits, the owner may raise this in defense to a subsequent action against him. So too, if a plaintiff sues the owner and loses, the driver may raise this in defense to a later suit against him. . .
“The respondent exercised his opportunity to fully litigate his issues with the owner of the truck and chose not to include the driver as a defendant. This places him squarely within the above rule when the driver now pursues his independent claim seeking recovery.”

A contrary conclusion was reached in Gerardi v. Carlisle, Fla.App.1st, 1969, 232 So.2d 36. The court held that the doctrines of res judicata and estoppel by judgment do not operate to bar a plaintiff who has recovered a judgment against an automobile owner on a theory of vicarious liability from bringing a second suit against the driver. The Restatement of Judgments § 96(2) (1942) supports this view.

More recently, however, the First District Court of Appeal seems to have had second thoughts about Gerardi. In Phillips v. Hall, Fla.App.1st, 1974, 297 So.2d 136, the plaintiff recovered a personal injury judgment against an employer predicated upon the negligence of one of its employees which did not involve the use of a dangerous instrumentality. The plaintiff then sought to sue the employee on the same cause of action. The court held that since the master was only vicariously liable for the servant’s negligence under the doctrine of respondeat superior, the plaintiff could not sue the servant after having elected to sue and having obtained a collectible judgment against the master. The court distinguished its holding from Gerar-di by saying that when an automobile owner entrusts a dangerous instrumentality to a driver who operates it in a negligent manner the owner becomes a party to the driver’s negligence. In a special concurring opinion, Judge Boyer questioned the wisdom of Gerardi and suggested that an owner who merely lets someone else drive his car has not committed any wrong which would make him a true joint tort-feasor with his negligent driver. Judge Boyer observed that he concurred with the rationale of Gerardi only because of the doctrine of stare decisis.

In Phillips, the court quoted at length with approval from McNamara v. Chapman, 1923, 81 N.H. 169, 123 A. 229. On facts similar to the case sub judice, the New Hampshire court held that a plaintiff who had obtained a judgment against an automobile, owner,- but who had refused tender of payment, could not bring a second action against the driver. The New Hampshire court said:

“The true foundation for the nonliability of the present defendant is not found in the doctrine of estoppel by judgment, nor in that of satisfaction obtained by the plaintiff from some other party. The plaintiff is debarred from maintaining the present suit because he had and has exercised an election. There was a single wrongful act, and it was the plaintiff’s privilege to treat it as that of the actor or as that of the-master. .
Hi H? Hi ^ * Hi
“In holding the plaintiff to the consequences of his election, there is no idea of compelling him to act without knowledge or to take chances. His right to choose remains open as long as there is just cause that it should be, but no longer. Hutt v. Hickey, supra. It should be preserved until he can be fully informed as to all the facts. This may involve a retention of that right until a trial of a suit against the master settles whether the master can be identified with the servant for the purposes of the claim presented. It may possibly be extended so as to permit the plaintiff to ascertain whether the first judgment against one of them is collectible. But it is entirely clear that there is no sound reason for extending it to a case like the present. For the reasons before stated, the choice is complete, and the plaintiff is bound by it.”

In Marange v. Marshall, Tex.Civ.App. 1966, 402 S.W.2d 236, the court held that when the plaintiffs obtained a personal injury judgment against an automobile owner they were precluded from bringing a subsequent suit against the driver. The majority holding was predicated upon theories of res judicata and estoppel by judgment as well as the theory of election. A concurring judge rested his views solely on election of remedies. On res judicata and estoppel by judgment, the court observed:

“The appellee was not a party in haec verba in the prior case, but in accordance with these and many other authorities, he was in actuality as though he was a party defendant in the prior action. It was his negligence that supported the jury verdict in the prior action. We therefore conclude that res judicata urged in the court below was a part of the structure of the bar that protects the appellee in this appeal, similar in effect to the rule of estoppel by judgment. Technical discussion of estoppel by judgment merges into the rule of res judicata and, in the interest of brevity, we only pause to observe that in our opinion the prior judgment, * * * where the relationship was undisputed and the action was purely derivative and entirely dependent upon the doctrine of respondeat superior, * * * estops the appellants from urging their case in a second time by the pretext of avoiding the rule by naming an adventitious different defendant, whose negligence proved and supported the prior judgment.”

With respect to election of remedies, the court said:

“Was there a binding election by the appellants when they brought the prior action, that bars them from making a further election as to parties defendant? When the prior action was filed, appellants had their choice of parties defendant, the employer, the employee, or both. Since, however, both were in privity, to the extent stated above, their selection in the prior action was both binding and exclusive, when once made and final judgment obtained and satisfaction legally tendered. It was optional with them which one, or the other, or both, but did not operate to reserve to them a future action as to the one not first selected as party defendant under these facts. McNamara v. Chapman, 1923, 81 N.H. 169, 123 A. 229, 31 A.L.R. 188. Public policy supports the reasoning of the several rules of law, that the prior action in this case bars the second action. Public policy demands that this be so, because it is only fair and right and just, and avoids a multiplicity of suits. Were it otherwise, the courts could be cluttered with retrials and there would be no finality to litigation. . . .”

In Lober v. Moore, 1969, 135 U.S.App. D.C. 146, 417 F.2d 714, the plaintiff had suffered a prior judgment against her in a suit brought against a taxicab company for injuries received while riding as a passenger in one of its taxicabs. The Court of Appeals affirmed the dismissal of a new suit against the taxi driver on the ground that the prior judgment foreclosed relitigation of the issues previously tried. The court said:

“We need not, however, enter the debate on the relative merits of mutuality and nonmutuality, or explore the question whether either deserves exclusivity in this jurisdiction. For mutuality is not iron-bound in the law of res judicata but, like so many other broad legal concepts, is subject to well defined exceptions. One such exception obtains where a defendant’s responsibility is derivative or secondary and it has been judicially determined that the situation is lacking in one or more of the conditions giving rise to it. Consequently it is settled that a judgment exonerating a servant or agent from liability bars a subsequent •suit on the same cause of action against the master or principal based solely on respondeat superior. And conversely, it is the prevailing rule in the federal and the state courts that a judgment excusing the master or principal from liability on the ground that the servant or agent was not at fault forecloses a subsequent suit against the latter on the same claim.”

Thus, it appears that upon varying theories, the weight of authority is on the side of barring a plaintiff from relitigating his claim against the servant when a judgment has been entered in a prior suit brought against the master involving the same issues. The authors of Corpus Juris Secun-dum (50 C.J.S. Judgments § 757, p. 279) state the rule as follows:

“. . . While a person injured by the tort of a servant may bring suit against either the master or servant, a recovery against the master has been held to bar a subsequent action against the servant, and a recovery against the servant has been held to bar a subsequent action against the master, or, at least, to fix the maximum limit of the master’s liability; and, where plaintiff in an action against an employee is defeated on the merits, the judgment is generally regarded as a bar to a subsequent action against the employer, and vice versa, at least when the master is not guilty of any independent or concurrent wrong, but must be held, if at all, under the doctrine of re-spondeat superior. . . . ”

In most, if not all, of the cases from other jurisdictions, the master was vicariously liable for the servant’s conduct because the servant was acting within the scope of his employment rather than on a dangerous instrumentality theory. However, we see no logical reason for having a different rule where the vicarious liability occurs as a result of the negligent operation of an automobile as contrasted with other types of negligent conduct, particularly since the dangerous instrumentality doctrine is grounded upon the theory of re-spondeat superior. May v. Palm, Beach Chemical Company, Fla.1955, 77 So.2d 468. Furthermore, we can perceive of no valid reason why one should be permitted to have successive suits against an owner and a driver when, at the same time, he is prohibited from maintaining the second suit where the sequence of defendants is reversed. Aside from the public policy considerations against the multiplicity of actions, there is a basic unfairness in permitting one party to relitigate the same issues in a second suit because he is dissatisfied with the recovery obtained in the first. Therefore, we hold that where one obtains a collectible judgment from an automobile owner who is liable only because of the negligence of his driver, the plaintiff has made an election which precludes him from prosecuting a second action against the negligent driver.

Accordingly, the judgment is

Affirmed.

McNULTY, C. J., and BOARDMAN, J., concur.

      . The reason normally advanced for this distinction is that permitting a second suit against a driver will not affect the owner’s right of subrogation against the driver, whereas allowing a second suit against an owner will interfere with this right. See Restatement of Judgments § 96, comment (d) (1942).

      . If the first judgment were not collectible, the plaintiff could sue the automobile driver for a sum not to exceed the amount of the first judgment.


source: Caselaw Access Project

author: BOARDMAN, Judge.

license: Public Domain

text:
    Frederick H. HEINZMAN, as Director of the Department of Environmental Control, County of Sarasota, Florida, et al., Appellants, v. U. S. HOME OF FLORIDA, INC., a Florida Corporation, Appellee.
    No. 74-1030.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 1975.

      Richard E. Nelson, of Nelson, Stinnett, Surfus, Payne, Hesse & Cyril, Sarasota, for appellants.
    John Patterson, of Icard, Merrill, Cullis, Timm & Furen, Sarasota, for appellee.
   BOARDMAN, Judge.

This is an appeal from a final judgment granting a peremptory writ of mandamus against the appellants, constituting the Board of County Commissioners of Sarasota County (County). The writ directed the County, through the proper administrative personnel, to accept for processing the application of the appellee, U. S. Homes, for 73 applications for construction in Sarasota County for 95 single family, duplex and multifamily dwellings in the South Gate area.

Appellants were respondents in the trial court and the appellee was the relator. The factual background shows that South Gate and Gulf Gate are two large contiguous subdivision developments situate in Sarasota County. Florida Cities Water Company (Florida Cities), not a party to this action, was providing sanitary sewer service to both the South Gate and Gulf Gate areas pursuant to an exclusive franchise agreement entered into with the County. The sewer service to each of said areas was provided by a separate treatment plant operating independently of each other. In 1965 and 1967, First Development Corporation of America (FDC), which corporation was subsequently acquired by and merged into appellee, entered into contracts with Florida Cities. In these contracts it was agreed that Florida Cities, as an exclusive franchisee of the County, would provide the demands of sanitary sewer service within certain property then owned by FDC situate in the South Gate area. According to the record, both of said parties performed their obligations under the aforesaid contracts until February 7, 1974. On this date the County considered a proposal submitted by Florida Cities to interconnect its South Gate and Gulf Gate treatment plants. This interconnect was designed to divert a portion of the load on the Gulf Gate plant, which was operating at capacity, to the South Gate plant, which had not yet reached its capacity. The interconnect, when completed, would allow Florida Cities to provide service to all the proposed 754 dwelling units in the Gulf Gate area which had been issued conditional and unconditional building permits. Florida Cities’ proposal to interconnect the two sewerage systems was approved by resolution of the County on the same day, i. e., February 7, 1974.

The interconnect was completed about April 17, 1974. It appears that the County passed and adopted Ordinance 74-12 on April 16, 1974, which found in Section 1 that the interconnect would provide capacity to serve the 754 units which had been' issued building permits in the Gulf Gate area without creating a health hazard or potential health hazard. Section 2 authorized the issuance of certificates of occupancy to the 754 dwelling units and to all those dwelling units in the South Gate treatment plant area which had also been issued building permits. The connection of the 754 dwelling units in the Gulf Gate area, together with the connection of the units in the South Gate area, would bring the interconnected Gulf Gate and South Gate treatment plants to capacity. Section 3 thereof prohibited the issuance of any further building permits requiring sewer service from either plant until Florida Cities’ committed expansion facility in the South Gate and Gulf Gate areas was completed. The date of completion was scheduled for December 31, 1974. However, on March 13, 1975, the date of oral argument before this court, counsel for the respective parties indicated that the project had not yet been completed.

On April 29, 1974, appellee submitted 73 applications for construction of 95 dwelling units in the South Gate area. All but two of the applications were denied. On May 6, 1974, appellee filed its petition for issuance of alternative writ of mandamus alleging that the approval of the interconnect and adoption of Ordinance 74 — 12 unlawfully impaired appellee’s contractual rights under its sewer service contracts with Florida Cities; were arbitrary, capricious and discriminatory; had no reasonable relationship to valid public purposes; were in violation of previously adopted county ordinances; were in violation of Florida Cities’ franchise agreements; and were unconstitutional.

The trial court issued the amended alternative writ of mandamus directing the County to show cause or answer on or before May 24, 1974, why appellee’s application for issuance of the 73 building permits submitted on April 29, should not be granted. The County did not file written answer to the amended alternative writ of mandamus, but counsel for the parties, prior to trial, read into the record the allegations of the writ that were admitted or denied. The case proceeded to trial on June 4, 1974.

The County has raised three points on appeal. Upon review of the record, including approximately 21 exhibits, the briefs and able oral argument, we affirm the ruling of the trial court.

The County contends, and correctly, that Florida Cities initially proposed the interconnect. However, as we interpret and construe the franchise agreement, county approval was necessary in order for Florida Cities to make an installation of the magnitude of the interconnect. Furthermore, the County, by its resolution and order of February 7, 1974, did grant such authority. There is no evidence in the record to support the contention that by proposing the interconnect that Florida Cities intended to breach its sewer service contracts with appellee to provide sanitary sewer service to the South Gate area. On the contrary, there is competent evidence in the record that at all times pertinent, the South Gate Plant was operating below maximum capacity and was functioning in accordance with the county standards for such operation.

There is no real dispute that appel-lee’s application for the issuance of the 73 building permits in the South Gate area could have been processed if not for the action of the County. It was the County officials, after meeting with developers in Gulf Gate, who enlarged and expanded the initial proposal for the interconnect and went further than was intended so that developers holding conditional and unconditional building permits would be guaranteed a sewer connection even though, in many instances, construction had barely begun. At the same time, it had the obvious effect of preventing the issuance of any, further building permits in the South Gate area for the reason that with the addition of the Gulf Gate load the South Gate Plant would be operating at its maximum capacity. As a consequence, the Florida Cities’-appellee’s contractual rights were impaired in violation of Article I, Section 10 of the Florida and U.S. Constitutions, unless it could be said that Ordinance 74— 12, supra, was based upon a legitimate exercise of the police power of the county. See Mahood v. Bessemer Properties, Fla. 1944, 154 Fla. 710, 18 So.2d 775; State v. Knott, Fla.1934, 154 So. 143.

The trial court found that there was no present or potential health hazard involved, either at the time the application for the building permits was submitted by appellee or at the time of trial. The court’s determination that Ordinance 74-12 was unconstitutional as an improper exercise of the police power of the county, bearing no reasonable relationship to public health, safety, morals, or welfare, comes to this court clothed with the presumption of correctness, the burden being upon appellants to show error. None has been demonstrated. The effect of the ordinance and resolution was simply to prefer the landowners at Gulf Gate by allowing them to preempt the remaining sewerage capacity of the South Gate system. Cf. Rabin v. Conner, Fla.1965, 174 So.2d 721.

The fact that the County may have improvidently issued Gulf Gate building permits in excess of the sewerage capacity of the Gulf Gate Plant cannot be invoked as a reason to deny building permits to ap-pellee in South Gate when the South Gate Plant has the sewerage capacity to supply the South Gate properties. Moreover, the record reflects that the number of conditional permits issued in Gulf Gate far exceeds the 95 permits presently sought by appellee.

Appellants further argue that the trial court erred in failing to grant their motion for rehearing. Appellants premise their argument on County Ordinances Nos. 74-14 and 74-18 passed and adopted after the final hearing, but prior to the rendition of the final judgment. It should be recalled that appellee filed its petition for the amended writ of mandamus on May 6, and the amended alternative writ of mandamus was issued on May 7. The trial took place on June 4 and 5, and final judgment was rendered on July 30. These ordinances direct that no further building permits should be issued in the Florida Cities franchise area until such time as the public water and sewer facilities have the necessary capacity. The County relies on the case of City of Boynton Beach v. Carroll, Fla.App. 4th, 1973, 272 So.2d 171, cert. den. Fla.1973, 279 So.2d 871, for authority that the law in effect at the time of rendition of judgment controls. However, the Supreme Court in City Co. of City of No. Miami B. v. Trebor Const. Corp., Fla.1974, 296 So.2d 490, recently discharged a writ of certiorari directed to a decision which had held that the ordinance in effect at the date the suit was filed controlled. The court said:

“. . . Although there is language in Boynton Beach v. Carroll, supra, to the effect that the law at the time of final determination governs, this must be considered in light of the fact that, in Boyn-ton, the law as of final determination of the suit was the same as the law as of the date of filing of the suit. The decision of the 3d DCA sub judice did not apply the law as of the time of application for a building permit; it applied the law as of the date of filing of the suit, as in Boynton Beach v. Carroll, supra, where the court likewise applied the law as of the date of filing of the suit, albeit by another name. Hence, no conflict appears, thus no jurisdiction here.”

Therefore, the trial court properly refused to consider the effect of Ordinances Nos. 74—14 and 74-18. See also Harris v. State ex rel. Webster, 1947, 159 Fla. 195, 31 So.2d 264; Aiken v. E. B. Davis, Inc., 1932, 106 Fla. 675, 143 So. 658.

After oral argument, we received from counsel for appellants an order of the trial court in another action granting a temporary injunction against Florida Cities. We find it has no bearing on the issues now before us in this appeal and does not change or alter our opinion.

Affirmed.

McNULTY, C. J., and GRIMES, J., concur.

      . Prior to this date, the County had initiated proceedings to revoke the sewerage franchise granted Florida Cities. However, the County dismissed, without prejudice, the revocation proceedings in return for Florida Cities commitment to undertake expansion of its sewerage treatment plants in both the Gulf Gate and South Gate areas as shown in resolution and order of the County dated February 7, 1974.

      . “THIS IS A CONDITIONAL BUILDING PERMIT. All contractors and owners furnishing any material or services pursuant hereto are proceeding at their own risk as a certificate of occupancy will not be issued by the County until the public water and sewer system servicing the property has been certified as being in full compliance with all regulations pertaining to its use, operation and capacity. The contractor and the owner by acceptance of this conditional building permit do hereby waive any and all claims or causes of action which they may have against the County or any officer or employee thereof by reason of the County’s refusal to permit any person from occupying the concerned premises prior to the issuance of a certificate of occupancy.”

      . Ordinance 73-30, adopted November 29, 1973, prohibited any new connections to the Florida Cities sewer system while that system was at capacity.


text:
    STATE of Florida, Appellant, v. Roy D. BELCHER and Verdell Teal, Appellees.
    No. 75-125.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    G. Robert Schultz, St. Petersburg, for appellee Teal.
    F. M. Wells, Jr., St. Petersburg, for ap-pellee Belcher.
   GRIMES, Judge.

The state appeals an order granting defendants’ motions to suppress. We reverse.

Defendants were charged with breaking and entering with intent to commit grand larceny after jewelry allegedly taken in a burglary was found in their possession. At the hearing on the motions to suppress, Sergeant Henseley of the St. Petersburg Police Department testified that on October 3, 1974, at approximately 9:30 p. m., he and his partner, Officer Lewis, were on routine patrol when they were ordered to the vicinity of 11th Avenue South and 39th Street to investigate a burglary. Henseley testified that as he drove south on 40th Street, he observed three men sitting on a couch on the porch of a residence. Hense-ley stated:

“The porch was very well lit. We were approximately 25 to 30 feet away when I first glanced over. And when I glanced over, the subject in the middle had a red box in his lap, open, was looking into it, and had his hands in it. The subjects on either side were both looking into the box, also. At approximately the same time I made eye contact, or shortly thereafter, the subject with the red box shut the box and very deliberately put it between his legs.”

Henseley, an officer with seven years experience and a veteran of approximately one hundred drug-related arrests, testified that he suspected a drug transaction was taking place. He stated that based on prior observations of other persons handling marijuana he believed the subject in the middle [defendant Belcher] to be rolling a marijuana cigarette or dividing up some marijuana.

Henseley hacked his cruiser up and pulled into the front yard. He explained that there was no fence and that the yard was “the type that people park on . mostly dirt and scrub grass.” Henseley and Officer Lewis then walked to the front porch. There, both officers observed jewelry scattered about on the couch. Henseley then contacted the burglary scene by portable radio and was advised that jewelry and a red jewelry box had been taken. The officers placed defendants under arrest and seized the jewelry.

Officer Lewis testified that when the cruiser passed the house, she saw defendants handling jewelry. She stated that defendant Belcher put the box between his legs, “just as we passed him, and he noticed that we were turning around and looking at him.” Officer Lewis testified:

“I just thought it was a little suspicious that at that time of night, you know, three males were going through jewelry out on the porch.”

The state concedes that the officers lacked probable cause to arrest defendants before going on the property. It is clear, however, that upon observing the jewelry and contacting the burglary scene the officers did have probable cause to arrest the defendants. The question we must resolve, then, is: Did the officers, by observing and then seizing the jewelry, violate the defendants’ Fourth Amendment rights against unreasonable search and seizure?

Defendants contend that the officers were trespassers and, therefore, the “search” and subsequent seizure which they made were unlawful. We reject these claims.

In the first place, we do not believe the officers were trespassers. In Foster v. United States, 5th Cir. 1962, 296 F.2d 65, appellant was charged with interfering with United States officials engaged in the performance of their duties. Two F.B.I. agents went to the defendant’s Duval County home to question him in connection with an investigation. They walked up the front steps and onto the porch, rang the doorbell and knocked. When appellant opened the door and the agents identified themselves, appellant ordered them off the property. When the agents requested a brief interview, appellant re-entered his home, picked up a rifle and pointed it at the agents. In affirming appellant’s conviction, the court rejected his claim that because he had ordered other agents off his property on prior occasions the agents recently on his premises were trespassers. The court said:

“ . . .We proceed, therefore, on the premise that the original approach, the knocking at the door, the inquiry of appellant as to his identity, were all actions which were protected under the principle that ‘when the performance of his duty requires an officer of the law to enter upon private property, his conduct, otherwise a trespass, is justifiable.’ See Giacona v. United States, 5 Cir., 257 F.2d 450, 456, and see 52 Am.Jur., Trespass, Sec. 41.”

It is worth noting that in negligence law a policeman entering upon private premises in the discharge of his duties is classified as a “licensee.” 13 A.L.R. 637, 646 (1921). By way of obiter dicta, the Supreme Court in Fred Howland, Inc. v. Morris, 1940, 143 Fla. 189, 196 So. 472, stated:

“ . . . Defendant cites many cases dealing with firemen and policemen, where the courts have almost uniformly held that such officers are licensees. The theory — and it is a correct one— upon which such holdings are based is that of overwhelming necessity. . . . ” (Emphasis added.)

Sergeant Henseley and Officer Lewis were on routine patrol when they observed what they considered to be “suspicious” circumstances. They decided to investigate and walked to the porch. They were not trespassers, and they observed the jewelry from a place where they had a right to be.

“ . . .It has, long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

Secondly, assuming arguendo that the police officers were “trespassers”, it has long been held that a mere trespass to land does not invalidate an otherwise valid search or seizure. In Hester v. United States, 1924, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, appellant was convicted of concealing distilled spirits. In affirming appellant’s conviction, the court rejected appellant’s claim that testimony about moonshine whiskey discovered outside his father’s home, but on property owned by his father, should not have been admitted in evidence. The court, speaking through Justice Holmes, stated:

“ . . . It is obvious that even if there had been a trespass, the above testimony was not obtained by an illegal search . . . . This evidence was not obtained by the entry into the house . . The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination of the vessels took place upon Hester’s father’s land. As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects,’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law. 4 Bl.Comm. 223, 225, 226.”

This rule was repeated by the Fifth Circuit in Monnette v. United States, 5th Cir. 1962, 299 F.2d 847. In affirming appellant’s conviction for possession of non-tax paid whiskey, the court stated:

“ . . . It is argued that Agent Hil-lidge detected the mash odor only after an illegal search and the facts learned through an illegal search cannot justify the issuance of á valid search warrant. Agent Hillidge did go on the property of Monnette before he could definitely identify the mash odor. It is well settled, however, that a trespass upon the grounds surrounding a building does not constitute an illegal search. The protection of the Fourth Amendment does not extend to the grounds. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), Martin v. United States, 155 F.2d 503 (5 C.A. 1946).” (Emphasis added.)

The aforementioned principle was restated by this court in Cobb v. State, Fla. App.2d, 1968, 213 So.2d 492. There we held that a pocketbook found in some high weeds on appellant’s property line was admissible in evidence. We said:

“Even assuming that the consent to search given by the appellant was involuntary and therefore invalid and that the officer who searched the grounds and located the pocketbook was a trespasser, the pocketbook and its contents was not the result of an illegal search.”

The Fourth Amendment prohibition against unreasonable searches and seizures applies only to “persons, houses, papers, and effects.” Neither Sergeant Henseley nor Officer Lewis entered the house or looked through any windows. See Olivera v. State, Fla.App.2d, 1975, 315 So.2d 487. We think that the officers made their observations from the “grounds” around the house and did not violate defendants’ Fourth Amendment rights. In fact, Officer Lewis observed the jewelry from the street.

Most of what we have just said, however, may be of historical value only. Because of the problems in determining exactly what constitutes a “house” and its “curtilage”, a new test to determine the “reasonableness” of a search has emerged in recent years. It is now clear that:

“ . . . [T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.
“ . . . [T]he reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.
“ . . . [T]he ‘trespass’ doctrine can no longer be regarded as controlling.” Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

and that:

“ . . . [Wjherever an individual may harbor a reasonable ‘expectation of privacy’, . . . he is entitled to be free from unreasonable governmental intrusion.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In the case sub judiee two alert police officers observed suspicious activity on the well-lit porch of a residence. These observations were made from the street. The officers then walked to the front porch to investigate and there observed the jewelry which the trial court ordered suppressed. Under these circumstances, we do not feel defendants’ “expectation of privacy”, if any, was “reasonable.” The officers did not violate defendants’ Fourth Amendment rights by committing an “unreasonable governmental intrusion.” Terry v. Ohio, supra.

The order of suppression is reversed.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


author: HOBSON, Judge.

text:
    STATE of Florida, Appellant, v. Terry Lee COLLINS, Appellee.
    No. 74-1499.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
    Rehearing Denied Sept. 11, 1975.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Lex Taylor, of Taylor & Laurent, Lake-land, for appellee.
   HOBSON, Judge.

The lower court granted Collins’ motion to suppress the evidence seized in his private dwelling pursuant to a search warrant based upon the affidavit of a police officer. The court found that there was insufficient probable cause to warrant the search of Collins’ residence, and insufficient probable cause to search the residence at night. The State has appealed this interlocutory order.

The officer’s reasons for believing that the law was being violated in the described premises were stated in his affidavit as follows:

“Larry Kasiba . . . has sworn to this affiant and the the Court that (1) Larry Kasiba is personally acquainted with Terry Collins, (2) that on the days from August 11, 1974 to August 17, 1974 inclusive Larry Kasiba was present in the residence of Terry Collins 232 Crevasse Street more particularly described above, and August 14, 1974 he saw nine (9) pounds of Cannabis in a Publix grocery bag, the Cannabis being identified to Larry Kasiba as Cannabis by Terry Collins, this being in the above described house of Terry Collins, (3) on August 18, 1974 Terry Collins gave to Larry Kasiba a one (1) pound bag of Cannabis for ‘safe keeping’, this transaction taking place at the Norland Mine located in Polk County, more specifically Cannabis was removed from the trunk of a 1972 Oldsmobile Cutlass, Black over- yellow more particularly described above, (4) in conversation on August 18, 1974 Terry Collins told Larry Kasiba that he was leaving Polk County on August 19, 1974 to go to Mexico in order to buy approximately two hundred (200) pounds of Cannabis, Terry Collins also told Larry Kasiba that he would be at his home more particularly described above approximately midnight August 22, 1974 with the previously mentioned quantity of Cannabis.” (Emphasis supplied)

On the face of the affidavit appears a handwritten notation, signed by the issuing magistrate, which states:

“Larry Kasiba also appeared before me and swore to the facts set forth in the attached exhibits.”

The search warrant was issued on August 21, 1974.

Larry Kasiba was not a non-swearing informant, but as related in the affidavit, he personally appeared before the issuing magistrate and swore to the facts set forth in the affidavit. Therefore, the hearsay principles of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, are not applicable. The facts sworn to the magistrate by Kasiba reflect that the information was obtained through personal observation, and the criminal activities of the accused were described in sufficient detail to justify the issuance of a search warrant. Kasiba related that he had observed nine pounds of Cannabis in the described premises approximately a week prior to the issuance of the warrant. This was sufficient to meet the probable cause test for the beliefs that the law relating to narcotics or drug abuse was currently being violated therein. State v. Compton, Fla.App.2d 1974, 301 So.2d 810.

The magistrate did not abuse his discretion in authorizing service of the search warrant at night. Section 933.10 F.S. specifically provides that the issuing magistrate may authorize a night-time search “as the exigencies of the occasion may demand or require.” The affidavit indicated that Collins would be at his home at approximately midnight on ■ August 22, 1974, with a quantity of Cannabis.

The order appealed in reversed and the cause remanded for further proceedings.

McNULTY, C. J., and BOARDMAN, J., concur.


author: PER CURIAM.

text:
    Paul BRUNE, d/b/a Cooling Service Co., Appellant, v. KINGS CREEK OF GAINESVILLE, INC., etc., et al., Appellees.
    No. W-223.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
    Fred C. Isaac, Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appellant.
    William N. DeCarlis, Jones, Bates & DeCarlis, Gainesville, for appellees.
   PER CURIAM.

We have considered the record and briefs filed in this cause. Although there were conflicts in the evidence, such conflicts were resolved by the trial judge who was the trier of both the facts and the law. Where evidence is conflicting, we are not privileged to substitute our judgment for that of the trial court even were we inclined to so do, unless' clearly unsupported by the evidence. Walker v. Connolly, Fla.App. (1st), 299 So.2d 67. The evidence supports the findings of the trial judge and we find no error.

Affirmed.

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


author: McNULTY, Chief Judge.

text:
    Margaret E. DEMAGGIO, Appellant, v. Biagio Gene DEMAGGIO, Appellee.
    No. 74-308.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.

      Frank A. McClung, Brooksville, for appellant.
    D. J. Bradshaw of Bradshaw, Wagner & Mount joy, Inverness, for appellee.
   McNULTY, Chief Judge.

This is an appeal from a denial of a motion filed pursuant to Rule 1.540(b)(3), RCP, which seeks relief from a judgment of dissolution of marriage. The issue involved is whether appellant-wife established a sufficient basis for requiring, as a matter of law, a determination by the trial judge that there was fraud in the execution of a separation agreement which was incorporated in the judgment of dissolution. We think there was such a basis, and we reverse.

The parties hereto severed their marital ties after twenty-six years of marriage, for the last twelve of which the wife had been á chronic alcoholic. In fact, within the last two years of the marriage she had been confined no less than three times for treatment. The agreement in dispute here was entered into in September, 1972, within a few days after her last confinement, and her contention is that the circumstances surrounding the entering into of that agreement give rise to a presumption of fraud in the execution thereof. We agree; and the basis for our conclusion is that the appellee-husband unfairly concealed from the wife his true wealth resulting in a grossly disproportionate settlement agreement.

To begin with, it is undisputed that for the last several years the wife was essentially debilitated by her alcoholism. The husband was clearly the dominant figure in the marriage and had accumulated considerable wealth consisting of approximately 200 separate parcels of property which included a home, lots, acreage and business property in Massachusetts and Florida and, in addition, automobiles, boats, savings accounts, mutual funds, tractors and other items of personal property. Most of this property was individually owned by the husband. The wife was never informed nor was she aware of the extent of this wealth, although it’s obvious she knew they were able to live most comfortably.

Secondly, at the time the parties entered into the agreement herein the wife was not represented by counsel. At the husband’s insistence, the parties went to the office of the husband’s attorney who prepared all the necessary papers both for the agreement and for the dissolution proceedings which followed the execution of the agreement. The husband admitted that he arranged the settlement conference, that he told the wife that he intended to seek a dissolution of the marriage but that, if she signed a settlement agreement and “straightened out”, he would remarry her in 60 to 90 days (which obviously will not come to fruition).

While the husband testified that he was of the opinion his attorney was fairly representing both parties, the attorney himself denied it saying that he represented only the husband. Both the husband and the attorney admitted that the values of the husband’s properties were neither asked for by the attorney nor revealed by the husband; and the attorney testified that he gave the wife no legal advice whatsoever either with regard to the value of the properties involved, all to which she was quitclaiming her interest, or relating to such rights of alimony and/or support to which she may be entitled under the law.

These circumstances alone, we think, indicate a departure from the basic criterion of “fairness” called for in these cases and are sufficient to give rise to the presumption of fraud; but when considered in the light of the grossly disproportionate settlement which is apparent herein they become even more probative thereof. The wife quitclaimed her interest in jointly owned property which, pursuant to the husband’s own appraisers, exceeded the value of $140,000. Additionally, the standard of living to which the parties had become accustomed may be illustrated not only by the accumulations of the husband to which we referred earlier but also to the fact, as the husband testified, that on one sojourn to Puerto Rico he lost over $9,000 in a gambling casino. In contrast, the total settlement to the wife was that she receive $500 cash immediately, a deposit in the bank of $12,000 from which she would be allowed to draw only $200 monthly and the payment by the husband of premiums on any insurance policies which the wife owned. Furthermore, it is undisputed that the wife had no separate estate of any kind nor other income from any source other than her current employment at $2.55 an hour as a cleaning woman. She was fifty-four years old at the time of the settlement, debilitated by alcoholism as noted, and with regard to any special training, in the words of the husband, “She can’t type. She can’t do books. She can’t do office work. All she can do is answer the telephone and take the message and then you can’t read it.” Under the terms of the settlement, she will be totally on her own, with virtually nothing to fall back on, when the $12,000 escrow account runs out in 60 months when she will be 59 years of age.

Withal, the husband being the dominant figure in the marriage having accumulated considerable wealth in non-jointly owned property; the wife being an alcoholic and without independent advice of counsel; the concealment by the husband of his true wealth from the wife and from his own attorney who, at the husband’s instance, was advising the parties; and the grossly disproportionate settlement of the marital assets after twenty-six years; all these, we conclude, shout “unfairness” and give rise to the presumption of fraud in the inception of the agreement herein. Moreover, there is no evidence in the record rebutting this presumption; so relief should have been granted under Rule 1.540, supra, and the settlement set aside.

In view whereof, the order appealed from denying such relief should be, and the same is hereby, reversed and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON and GRIMES, JTJ., concur.

      . Del Vecchio v. Del Vecchio (Fla.1962), 143 So.2d 17; McCormick v. McCormick (Fla.App. 2d, 1965), 181 So.2d 220.


author: MILLS, Judge.

text:
    Robert Allen DAVENPORT, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-147.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1975.
    James Ron Shelley, Public Defender; Ernest L. Cotton, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

The question raised by this appeal is whether the trial court erred in imposing a sentence on Davenport without the benefit of a presentence investigation and recommendation where the record does not show a previous felony offense. The trial court erred. Angel v. State, 305 So.2d 283 (Fla.App.1st, 1974).

The record in this case is silent as to a previous felony offense. Rule 3.170, Florida Rules of Criminal Procedure, provides that no sentence shall be imposed on a defendant found guilty of a first felony offense until a presentence investigation and recommendation has been received and considered by the sentencing judge. As the trial court’s error was a mere defect in sentencing, reversal is not required.

This case is remanded with the following directions:

1. the trial court may hold a hearing at which it must be established that the defendant has been convicted previously of a felony, and if he has been convicted, reimpose the sentence, or

2. the trial court may vacate the sentence, then obtain a presentence investigation and recommendation, consider them, and resentence the defendant.

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


text:
    Franklin BAXLEY, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-350.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1975.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Baxley was charged by information with two counts of robbery. He pled no contest to the first count, and the second count was dismissed. Throughout the arraignment, the trial court referred to Baxley’s plea of no contest as a plea of guilty. In its judgment and sentence, the trial court adjudicated Baxley guilty on a plea of guilty to the second count of robbery. Baxley contends the trial court erred. We agree.

In addition, Baxley urges that the trial court erred in failing to fully determine a factual basis on his plea of no contest. We disagree.

The trial court’s reference to Bax-ley’s plea of no contest as a plea of guilty was a slip of the tongue. The finding of guilt on a plea of guilty to the second count of robbery was a slip of the pen. Both errors were made while counsel stood by and failed to direct the trial court’s attention to the errors. The errors are not fundamental not prejudicial. They may be corrected so that they speak the truth.

The determination of a factual basis for a plea of no contest is not required. Tucker v. State, 316 So.2d 297, opinion filed June 30, 1975 (Fla.App. 1st).

Remanded to correct the record as stated above; otherwise, affirmed.

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


author: BOYER, Chief Judge.

text:
    Willie James KING, Appellant, v. STATE of Florida, Appellee.
    No. V-447.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1975.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   BOYER, Chief Judge.

We here consider the issue of whether there exists under Florida law the offense of attempted uttering of a forged instrument. Appellant, defendant below, was charged with and convicted of uttering a forged instrument as defined by F.S. 831.-02. He argued unsuccessfully in the court below that the jury should be instructed as to a lesser included offense of attempted uttering, pursuant to Rule 3.510, RCrP.

Appellant realizes that in order for the trial judge to instruct the jury on the attempt, he must establish that attempted uttering is an offense cognizable under Florida law. In support of this proposition, appellant relies on Edwards v. State, Fla.App.3rd 1969, 223 So.2d 746. For reasons expressed below, we refuse to follow the reasoning of the Third District as revealed in the Edwards case. As recognized by the Third District in its decision, “ * * * an uttering is proved as fully by an attempt to negotiate a forged instrument as it is proved by a completed negotiation. Harrell v. State, 79 Fla. 220, 83 So. 922 (1920); Hazen v. Mayo, 90 So.2d 123 (Sup.Ct.Fla.1956).” Nevertheless, the Third District held that merely because attempted uttering is not a separate crime from the offense of uttering itself, attempted uttering may be considered a separate offense for the purposes of F.S. 919.-16. Logic dictates to us a different conclusion. If a crime is itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime. (22 C.J.S. Criminal Law § 74) We, therefore, hold that there is no offense nor crime under Florida law of attempt to utter a forged instrument. Accordingly, the trial court was correct in refusing to give the standard jury instruction on attempt as requested by the appellant.

We have examined the remaining points raised by the appellant on appeal in light of the applicable law and the relevant facts as contained within the record, and find them to be without merit. The judgment and sentence rendered by the lower court are, therefore,

Affirmed.

RAWLS and McCORD, JJ., concur.

      . The language in F.S. 919.16 is virtually identical to the language contained in Rule 3.510, RCrP.


text:
    Rita G. LAZAR, Appellant, v. Stephen LAZAR, Appellee.
    No. 74-540.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 1975.
    C. Eugene Jones of Ginsburg, Ross, Dent & Byrd, Sarasota, for appellant.
    No appearance by appellee.
   McNULTY, Chief Judge.

Appellant-wife appeals the modification of alimony and child support provisions of an Ohio decree. We reverse.

To begin with, we point out that the Ohio court reserved jurisdiction to modify the foregoing decree. This being the case, its provisions are entitled to enforcement by comity, rather than by full faith and credit, as long as the decree is established in Florida as a Florida decree. This was done here.

But a foreign decree so established in this state is enforceable pursuant to Florida law as though it were a Florida decree. Here, the trial court modified the alimony and support provisions when the record clearly reflects that there was no substantial change of circumstances. This is contra to Florida law.

Although the terms of the Ohio decree are arguably burdensome, they are no more so than if they were originally entered in a Florida decree with which the Ohio decree is now in parity; and if originally decreed in Florida the proper vehicle for relief would have been direct appeal, not modification in the absence of substantial change of circumstances.

In view whereof, the order appealed from should be, and it is hereby, reversed and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN and SCHEB, JJ., concur.

      . See Sackler v. Sackler (Fla.1950), 47 So. 2d 292; West v. West (Fla.App.2d, 1974), 301 So.2d 823.

      . Id.

      . See Rogers v. Rogers (Fla.App.2d, 1969), 229 So.2d 618.

      . Cf. Chastain v. Chastain (Fla.1954), 73 So.2d 66.


text:
    Julian CAPLAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 71-846, 71-847 and 71-848.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 1975.
    Rehearing Denied Sept. 18, 1975.
    John R. Newcomer, Jr., and Gerald W. Nelson, Yado, Keel, Nelson & Casper, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant, Julian Caplan, was charged by-information with having in his possession with intent to show an obscene film, showing an obscene film, advertising an obscene film and hiring another to assist in showing an obscene film in violation of Florida Statutes, Section 847.011(1) (a), (1969), (Case No. 71-846). All counts arose from the showing of the film “Little Sisters” on October 8, 1970. A second information charged the same four offenses occurring, on October 7, 1970 (Case No. 71-847). On April 23, 1971, appellant was charged with hiring or permitting another person to show the obscene film, “Continuing Adventures of Johnny Gonad” (Case No. 71-848). After a jury trial, appellant was convicted of all eight counts in Case No. 71-846 and Case No. 71-847. In a non-jury trial, on November IS, 1971, appellant was found guilty in Case No. 71-848.

Appellant first contends that at the time of his alleged violations on October 7 and 8, 1970, Chapter 847, Florida Statutes, was unconstitutionally vague. This contention is without merit. See State v. Papp, Fla.1974, 298 So.2d 374. Likewise, appellant’s contention that comments made by the prosecution in its closing argument to the jury had the effect of commenting on his failure to testify is without merit.

Appellant argues that it was improper to convict him of identical offenses committed on consecutive days since his offense was a single, continuous violation of Chapter 847, supra. We disagree. Section 847.011(4), supra, provides in pertinent part:

Every act, thing, or transaction forbidden by this section shall constitute a separate offense ....

Therefore, separate convictions under the statute for crimes committed on consecutive days were proper.

There is no.indication in the record that sentences have been imposed. Thus the question of dual punishment for different facets of the same crime is not presented here. However, we are certain that the trial court is fully aware of Yost v. State, Fla.App.3d, 1971, 243 So.2d 469, and will impose sentences in accordance with that decision. See also Easton v. State, Fla.App.2d 1971, 250 So.2d 294.

However, the two convictions for advertising the same film are improper. The record indicates that appellant purchased and paid for a weekly advertisement which appeared in the “St. Peters-burg Times.” Both dates in question were included within the particular billing period. Thus, while there was a continuing newspaper advertisement appearing on both October 7 and 8, appellant’s offense consisted of a single act of procuring the advertisement. Therefore, we vacate the judgment of conviction of .advertising an obscene film in Case No. 71-846.

Appellant also alleges that the trial court erred in denying his motion for discharge, pursuant to RCrP 3.191, of Case No. 71-848. The record indicates that appellant went to trial after the 90-day misdemeanor time limit had already run. The record contains only appellant’s motion to discharge and a minute book entry indicating that argument was heard on the motion and the motion denied.

In view of the delay and the silent record, Case No. 71-848 is hereby remanded with directions for the trial court to hold an evidentiary hearing to determine whether appellant was denied his right to a speedy trial under RCrP 3.191. Should the court decide that appellant’s speedy trial rights were violated, it should vacate the judgment and discharge appellant. A copy of the order should be sent to this court and the state would have a right to file a new appeal from that order. If the trial judge should determine that appellant’s speedy trial rights were not violated, he should enter an order setting forth his findings in support of this conclusion. This order, together with the record of the hearing, should then be transmitted to this court for review of its legal sufficiency.

Case No. 71-847 is affirmed. Case No. 71-846 is affirmed as modified. Case No. 71-848 is remanded with directions.

McNULTY, C. J., and GRIMES, J., concur.


author: HOBSON, Acting; Chief Judge.

text:
    CHRYSLER CREDIT CORPORATION, a Foreign Corporation, Appellant, v. Ronald W. REHUREK and Susan Rehurek, his wife, Appellees.
    No. 74-391.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 1975.
    Rehearing Denied Sept. 16, 1975.
    Charles W. Pittman, Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Howard C. Hadden, Tampa, for appel-lees.
   HOBSON, Acting; Chief Judge.

Appellant appeals a final judgment entered in favor of the appellees in an invasion of privacy suit. We have carefully reviewed the voluminous record on appeal and find that all issues were properly submitted to the jury on conflicting facts and under correct instructions from the court on the law. Sacco v. Eagle Finance Corp. of North Miami Beach, Fla.App.3d 1970, 234 So.2d 406; Santiesteban v. Goodyear Tire & Rubber Company, 5th Cir., 1962, 306 F.2d 9.

The other points raised on appeal have been considered and found to be without merit.

Affirmed.

BOARDMAN and GRIMES, JJ., concur.

      . For a factually similar case brought under the tort of libel, see Vinson v. Ford Motor Credit Company, Fla.App.1st 1972, 259 So.2d 768.


text:
    ECOLOGICAL SCIENCE CORPORATION, a Florida Corporation, f/k/a Southern Gulf Utilities, Inc., Appellant, v. BOCA CIEGA SANITARY DISTRICT and the Board of County Commissioners of Pinellas County, as its governing body, Appellees.
    No. 74-1079.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 1975.

      Paul C. Huck of Aurell & Huck, Miami, and Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for appellant.
    Daniel N. Martin of Delzer, Edwards & Martin, Port Richey, and Adrian S. Bacon, of Bacon & Hanley, St. Petersburg, for appellees.
   BOARDMAN, Judge.

The parties to this instant appeal have previously been before us. A prior suit was filed by the appellant against the ap-pellees in 1966 for breach of contract. Appellant was the general contractor for the construction of a sanitary sewer system built for the appellees. The trial court granted a summary judgment against appellant as to Counts II and III. This court reversed the summary judgment in Southern Gulf Utilities, Inc. v. Boca Ciega Sanitary District, Fla.App.2d, 1970, 238 So.2d 458, cert. den. Fla.1970, 240 So.2d 813.

Upon remand, appellant sought leave of the trial court to amend its complaint and to file supplemental pleadings to include a claim allegedly arising subsequent to the filing of the suit. The trial court, after hearing, denied the motion assigning as grounds that it was “. . .of the opinion that too much time has elapsed and the issue have been framed for such a period of time that it is now inappropriate to bring into the controversy an additional cause of action. . . .’’In view of the trial court’s ruling appellant then filed the present action. In response, appellees filed a motion to consolidate the two suits and a motion to dismiss based on the following defenses, to wit: election of remedies, splitting a cause of action and res judicata. The hearing on the said motions was conducted by a judge other than the judge who presided over the first suit. Counsel for appellees urged that the initial judge, who was thoroughly familiar with the case and the issues involved, should hear all matters. Counsel for appellant, on the other hand, was satisfied that the second judge should rule on whether a motion to dismiss was the proper vehicle in which to raise the above defenses. The trial court, after hearing, granted the motion to dismiss with leave to amend. Appellant chose not to amend and final judgment was entered. This timely appeal followed from that final judgment.

Appellant has raised several points on this appeal. The first is whether appel-lees could properly raise the defenses of election of remedies, splitting a cause of action and res judicata in its motion to dismiss.

Affirmative defenses are covered by Rule 1.110(d), RCP, which requires a party in its pleading to set forth “. affirmatively . . . res judicata . . . and any other matter constituting an avoidance or affirmative defense.” The defenses known as election of remedies and splitting a cause of action are certainly within the scope of the aforementioned rule and, therefore, constitute affirmative defenses.

Under a prior rule it was held that affirmative defenses could not be raised by a motion to dismiss. Volpicella v. Volpicella, Fla.App.2d, 1962, 136 So.2d 231; Hough v. Menses, Fla.1957, 95 So.2d 410. Subsequent to these decisions the following sentence was added to Rule 1.110(d), RCP:

“. . . Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under Rule 1.140(b); provided this shall not limit amendments under Rule 1.190 even if such ground is sustained.”

This amendment provides no comfort to appellees for the reason that these affirmative defenses do not appear on the face of the complaint. Therefore, the exception, as provided in Rule 1.110(d), RCP, cannot be successfully relied upon. See Stern v. First National Bank of South Miami, Fla.App.3d, 1973, 275 So.2d 58. The court is bound by and must confine itself solely to the allegations within the four corners of the complaint. See Pizzi v. Central Bank and Trust Company, Fla.1971, 250 So.2d 895.

Appellant’s remaining points are addressed to each of the above mentioned affirmative defenses. Since we have reversed on point I, it is not necessary to comment on the remaining issues. However, since this controversy has been pending for an inordinate length of time and our record includes the file in the other case, we think it advisable to discuss the merits of these defenses.

In the original complaint, the appellant was suing for damages resulting from the appellees’ alleged failure to provide certain easements and for their alleged failure to acknowledge or pay for certain extras over the original contract price performed by appellant. The new complaint sought final payment of the remainder of the contract price. The original complaint was filed on July 29, 1966. The new complaint alleges that the appellees became obligated to pay the balance of the contract price on March 7, 1967. Thus, it appears that even though the first complaint contains the allegations that appellant had substantially completed the contract, its claim for the balance of the contract price had not even matured at the time of filing of that complaint. Ap-pellees’ contention that appellant should have asserted the claim for the final payment in its first suit is without merit, because appellant attempted to do just that but was prevented from doing so by the court’s order in the first case. Accordingly, these affirmative defenses do not appear sufficient to negate the cause of action alleged in the second suit. Any risk of duplication of claims could be avoided by a consolidation of the two suits.

For the above reasons the portion of the order dated August 14, 1974, directing that the motion to dismiss be granted is hereby reversed and the cause is remanded to the circuit court in compliance with the provisions of said order reassigning this cause to the Honorable C. Richard Leavengood, the presiding judge in the first case, and for further proceedings consistent with this opinion.

Reversed and remanded.

HOBSON, Acting C. J„ and GRIMES, 7., concur.


author: OWEN, Judge.

text:
    Ursel LUDEMANN, Appellant, v. Manfred LUDEMANN, Appellee.
    No. 74-1471.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.

      Phillip T. Crenshaw and Curtis L. Witters of Hamilton, James, Merkle & Young, Boynton Beach, for appellant.
    Robert E. Oglesby of Simpson, Anstead & Brodbeck, West Palm Beach, for appel-lee.
   OWEN, Judge.

When this domestic litigation was previously before us on the husband’s appeal from a final judgment, we affirmed the judgment and granted the wife’s motion for attorney’s fees on appeal, remanding to the trial court for the assessment of such fees pursuant to Rule 3.16(e) F.A.R. Thereafter, upon notice and hearing the trial court entered the following order which the wife now asks us to review:

“On September 26, 1974, this Court heard the Petitioner’s Motion for Attorneys’ Fees with respect to the appeal taken herein by the Respondent. This Court was directed by the District Court of Appeal, Fourth District, to fix a reasonable fee for counsel for the Petitioner (Appellee). The Court does not have the benefit of the full court file, which is apparently still reposed with said appellate court. It is obvious that said appellate court is in a far better position to make the assessment requested since the proceedings and legal services for which compensation is sought were before said higher court.
“The Petitioner offered expert testimony that the services of her attorney should be fixed at $1,500. The Respondent has offered no testimony other than asserting that the Petitioner is now employed, that such a fee is unreasonable, and that the Petitioner is entitled to no allowance.
“Accordingly, it is adjudged that a reasonable attorneys’ fee with respect to the appeal herein for the Petitioner’s attorney of record is $250.00.”

This case presents the opportunity for us to set out some guidelines on the matter of the allowance and assessment of attorney’s fees for services in the appellate court in dissolution of marriage cases, a subject which is not without some practical problems.

The question of whether to award attorney’s fees for services on appeal in domestic litigation is a prerogative of the appellate court. Generally, this is determined primarily on a consideration of the financial resources of the parties as reflecting one party’s need for, and the other party’s ability to pay, reasonable attorney’s fees. Where such is not readily apparent from the record then the appellate court usually ascertains whether the trial court awarded attorney’s fees to either party for services in the trial court, as there would be implicit in such award a factual determination by the trial court of one party’s need for, and the other party’s ability to pay, a reasonable attorney’s fee. If there was an award of attorney’s fees in the trial court, and such award is not contested on appeal (or if contested, is affirmed), the appellate court then has a sound basis to conclude, in the absence of extenuating circumstances, that an allowance of attorney’s fees for services rendered in the appellate court would also be justified. Of course, the matter of allowance of attorney’s fees in. domestic litigation is always a matter of sound judicial discretion. If an allowance might otherwise appear proper, but extenuating circumstances are shown, such as a substantial change in the financial resources of the parties occurring subsequent to the trial, or that the one seeking the allowance of an attorney’s fee on appeal has taken an appeal which is wholly frivolous and vexatious, the court well may deny any allowance of fee. Any extenuating circumstance should be brought to the attention of the appellate court promptly in response to the motion seeking the allowance of an attorney’s fee.

If the appellate court determines, in the exercise of its sound discretion, to allow an attorney’s fee for services in the appellate court, it may assess the amount of such fee, or it may, as we did in this case, elect to utilize the provisions of Rule 3.16(e) F.A.R. to authorize the trial court to assess the amount of such attorney’s fee upon remand. The latter alternative is usually the more preferable, and the reason is quite simple. An appellate court is not equipped to conduct evidentiary hearings and thus for it to assess the amount of the fee it would either have to do so solely on the basis of affidavits and counteraffida-vits (which is an undesirable practice in the absence of the agreement of the parties to such) or would have to appoint a commissioner to take testimony .and report the same back to the court (which is a cumbersome process).

Turning more specifically to this case, we determined from the record that the wife was entitled to an award of attorney’s fees on appeal, and entered an order to that effect. The issue of her entitlement vel non to the award of attorney’s fees was thus settled by our order, which left to the trial court upon remand only the assessment of the amount thereof.

The proceedings before the trial court at the hearing on the motion to assess attorney’s fees were not reported, but the trial court’s order adequately sets forth the substance of the matters before the court at that time. We think it clear from the court’s order that the amount awarded to the wife as attorney’s fees for services in the appellate court was not the result of the court’s determination that such amount was the reasonable value of the services rendered on appeal, but instead was due to the court having reevaluated the question of the wife’s need for, and the husband’s ability to pay, a reasonable attorney’s fee. As we have stated above, that question was not before the trial court for determination.

The order appealed is reversed and this cause remanded to the trial court for reconsideration of the amount of attorney’s fees to be awarded the wife’s attorney for services rendered on the prior appeal in this cause, consistent with the views herein expressed.

Reversed and remanded.

CROSS and MAGER, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    George Eugene CLINGAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-52.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 1975.
    James A. Gardner, Public Defender, and Catherine Wings Slocum, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant Clingan was charged and convicted by a jury of committing a lewd and lascivious act in violation of § 800.04 F.S.

During the trial the complaining witness, a twelve year old male child, positively identified Clingan and described the incident. He related that Clingan approached him, lured him to a secluded area, suggested homosexual acts with him, and then grabbed his leg twice before he could get away.

Over objection, the trial court permitted a police officer to testify regarding a previous homosexual encounter between Clin-gan and an intoxicated adult male which occurred in a city park some four months prior to the present incident. The officer did not testify that Clingan had initiated the act or that any threats had been made.

The State failed to meet its burden of demonstrating that the collateral offense was relevant to a material fact in issue. The two offenses were so dissimilar that evidence of the prior offense would not tend to prove motive, intent, absence of mistake, identity or a common scheme or design. The testimony of the collateral act merely showed the bad character of the defendant and his propensity to commit a homosexual act. Banks v. State, Fla.App.1st 1974, 298 So.2d 543; Harris v. State, Fla.App.2d 1966, 183 So.2d 291. See Williams v. State, Fla.1959, 110 So.2d 654; Marion v. State, Fla.App.4th 1973, 283 So.2d 53; Drayton v. State, Fla.App.3d 1974, 292 So.2d 395.

In view of our conclusion, it is unnecessary to consider the other points of law raised on this appeal.

The judgment and sentence are reversed and the cause remanded for a new trial.

BOARDMAN and GRIMES, JJ., concur.


author: DOWNEY, Judge.

text:
    Clara Mae BRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 74-711.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
    Richard L. Jorandby, Public Defender, and Bruce J. Daniels, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Robert L, Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Initially, appellant entered a plea of not guilty to the charge of unlawfully tormenting a child intentionally causing great bodily harm in violation of § 828.04(1) F.S. 1973, a second degree felony. Subsequently, appellant withdrew her not guilty plea and pleaded guilty to the lesser included offense contained in § 828.04(2), a misdemeanor of the first degree.

Prior to accepting the change of plea the trial judge carefully examined appellant as to the voluntariness of the plea, her appreciation of her rights, and her satisfaction with her counsel. The court then advised appellant of the charge against her and inquired if she was guilty of the charge, to which appellant answered, “no.” He then asked her if she was pleading guilty “because you are afraid that if you went to trial you would receive a more harsh punishment than if you pled guilty to the lesser offense.” Appellant acknowledged that was her reason for pleading guilty. The court ordered a presentence investigation and in due course sentenced appellant to eleven and one-half months in the county jail.

On appeal it is the contention of appellant that the trial court erred in accepting the guilty plea, relying upon Reddick v. State, Fla.App.1966, 190 So.2d 340, as authority for that contention. The Red-dick case is not helpful here. It stands for the proposition that any “undue motivation” inducing an accused to plead guilty vitiates the plea. It is clear from the record in this case there was no “undue motivation.” Appellant calculated her chances and elected not to gamble on proving her innocence. This she had a right to do. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Laird v. State, Fla.App.1973, 280 So.2d 454; Scarborough v. State, Fla.App.1973, 278 So.2d 657.

The real problem in this case is that the trial judge did not comply with Rule 3.170(j) RCrP; he did not determine that there was a factual basis for the plea of guilty. However, based upon the facts of this particular case we find the error in failing to make the factual determination required by the rule is harmless. In support of that conclusion we would point out that appellant does not contend she was prejudiced thereby. The plea in question was the result of plea bargaining. Finally, when appellant advised the court she had not committed the crime but chose to plead guilty to the misdemeanor rather than gamble on the outcome of a trial for the more serious charge, it was quite obvious that she was not unwittingly admitting guilt to a crime she did not commit and such unwitting admission is the evil Rule 3.170(j) seeks to remedy. 1 Wright, Federal Practice & Procedure, § 174 (describing the purpose of Federal Rule of Criminal Procedure 11, the counterpart of our Rule 3.170 (j)); cf. Williams v. State, Fla. 1975, 316 So.2d 267.

The rule in question requires a trial judge to make a determination that there is a factual basis for the plea. Failure to do so is error, but of course not all errors are harmful. We believe this case is a classic example of harmless error. Appellant has not shown any prejudice or manifest injustice resulting from the trial court’s acceptance of her plea under these circumstances. Williams v. State, supra.

For the foregoing reasons, the judgment of conviction under review is affirmed.

WALDEN, C. J., and OWEN, J., concur.


text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. John Arthur HERZOG and Marlene Herzog, Appellees.
    No. 73-734.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 1975.

      Chester G. Senf and Eve Dunkerley Peck, Jacksonville, for appellant. .
    Robert E. Pyle, Lake Alfred, for appel-lees.
   PER CURIAM.

This appeal arises out of an adoption proceeding in the court below.

A petition for adoption was filed below by appellees to adopt a minor child bom out of wedlock. This petition was filed pursuant to Chapter 63, Florida Statutes 1971, which did not require notice to be given to the putative father. Attached to the petition for adoption was the written consent of the living mother of the child.

Appellant’s Division of Family Services commenced the social investigation required by Fla.Stat. § 63.091 (1971). At this point, the trial court entered an injunction without notice enjoining appellant from inquiring into the identity of the natural father. Thereafter, appellant filed its report stating that it did not question the suitability of the petitioners as adoptive parents but advised the court that it felt the natural father of the illegitimate child would be denied due process of law if he were not given notice of the adoption proceedings and an opportunity to be heard. The court declined to change its order.

The appellees contend that appellant has no legal standing to raise this issue. However, Fla.Stat. § 63.091 (1971) specifies that the agency which files the written recommendations as to the desirability of the adoption shall be deemed a party to the cause. Under these circumstances, we cannot say that appellant was without standing to suggest that the failure to give a notice and 'hearing to the putative father might result in a subsequent attack on the validity of the adoption which would be detrimental to the welfare of the child.

Appellant’s position was that the recent decision of the United States Supreme Court in Stanley v. Illinois, 1972, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, required the natural father to be made a party to the proceedings. In Stanley, following the death of the mother of some illegitimate children, the State of Illinois instituted a dependency proceeding whereupon the children were declared wards of the state and placed with court-appointed guardians. Illinois law provided that children of unwed fathers became wards of the state upon the death of the mother and did not provide for a notice or hearing to the father. The United States Supreme Court held that the unwed father was entitled to notice and hearing before his parental rights could be terminated.

Two weeks after the filing of the Stanley opinion, supra, the United States Supreme Court in Rothstein v. Lutheran Social Services of Wisconsin and Upper Michigan, 1972, 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 786, reversed the Supreme Court of Wisconsin which had held that an unwed father was not denied his constitutional rights when he was not given notice of a hearing prior to the termination of his parental rights in an adoption proceeding. The court simply entered a memorandum order in which the case was reversed and remanded in light of Stanley.

Stanley involved a compelling situation where a putative father who had lived with his children and supported them for many years was deprived of their custody without notice or hearing and can be limited to its facts. Cf. Cheryl Lynn H. v. Superior Court for Cty. of Los Angeles, Cal.App. 1974, 41 Cal.App.3d 273, 115 Cal.Rptr. 849. However, the Rothstein adoption had taken place only one week after the child was born. According to the opinion of the Wisconsin Supreme Court upon remand, the putative father in Rothstein apparently denied that he was the father when the child’s mother first became pregnant but later changed his mind prior to its birth and began to manifest an interest in the child. State ex rel. Lewis v. Lutheran Social Servs. of Wis., 1973, 59 Wis.2d 1, 207 N.W.2d 826.

The question before us is whether the court was within its right to enjoin appellant “from inquiring into the identity of the natural father or otherwise into the paternity of the subject child, save and except as to his physical condition and characteristics.” The court recognized the Stanley decision by offering to modify its position if the Department had any evidence that the father had either contributed to the expense of the child’s birth or its support or had manifested any other interest in the child.

Where the child has been living with the father or where the father has contributed to its support or given any other tangible indication of an interest in the child, the dictates of Stanley and Roth-stein clearly require that he be given notice and hearing before his parental rights can be validly taken from him. However, the U. S. Supreme Court has not held that every putative father is entitled to notice and hearing when his illegitimate child is put up for adoption, and we are not disposed to do so. Where there has been no evidence of any interest on the part of the father, we do not think it is incumbent upon the appellant to try to seek him out. Indeed, the consequences could be counterproductive. Far be it from preserving the interests of a putative father, the practical effect would be more likely to penalize him. It would be difficult enough when the process server came to the home of a married man to ask about his illegitimate child, but what could be expected if the mother was mistaken or was simply being spiteful. Perhaps more significant would be the fact that pursuing such a policy would make it extremely difficult to keep the identity of adoptive parents from the natural parents, and vice versa.

The ultimate determination of whether the adoption proceeding is being conducted according to law is upon the court and not the appellant. In the absence of a showing of some interest on the part of the father in his child, the court was within its authority to prohibit the appellant from trying to ferret him out. See In re Guardianship of Donna P., 1974, 80 Misc.2d 129, 362 N.Y.S.2d 370.

Affirmed.

HOBSON, Acting C. J., GRIMES, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . Presumably, in any effort to bring our adoption laws in line with these decisions, our legislature has recently amended § 63.062(1), (b), (4-5) effective July 1, 1975, to require notice to a putative father if he has acknowledged and supported the child.