text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, and Arthur Pritchard, Appellants, v. Herman T. BYRNE, Appellee.
    No. 74-1370.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    Rehearing Denied Nov. 3, 1975.

      Smathers & Thompson and Mercer K. Clarke, Miami, for appellants.
    Pettigrew & Bailey, Miami, for appel-lee.
    Before BARKDULL, C. J., and PEARSON, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   DREW, E. HARRIS (Retired), Associate Judge.

This appeal is governed by the stipulation entered into between the parties, which greatly simplifies the issues and substantially reduces the necessity for an extensive review of a large record. Counsel is to be commended for using the provisions of the rules in this regard.

While we ordinarily do not copy exhibits extensively in our decisions, we deem it appropriate and useful here to set forth this stipulation — and the decree of the trial court from which this appeal is prosecuted.

The Stipulated Statement:

“1. On July 6, 1972, Herman T. Byrne, who had an account with Merrill Lynch, requested that Arthur Prit-chard buy for Byrne’s account 1,000 shares of Curtiss Wright stock ‘at market with a stop loss at 54.’ A stop loss order is an order automatically to sell stock whenever its market price decreases to the designated price. Pritchard did not comply with Byrne’s order. Instead he placed a buy order without a ‘stop loss,’ resulting in a purchase for Byrne’s account of 500 shares of Curtiss Wright at 57}i and 500 shares at 57(4- Pritchard then entered the stop order, and went to lunch. When he returned from lunch Pritchard learned that the buy order had been effected but that the later stop order had been rejected. This was because the New York Stock Exchange was not accepting stop orders on Curtiss Wright stock due to its volatility. At the time Byrne had placed the order with him, Pritchard had at his immediate disposal a computer printout listing those stocks for which the Exchange was not ad-cepting stop loss orders, and Curtiss Wright was listed on it. Pritchard did not check the computer printout and erroneously advised Byrne that a stop order in Curtiss Wright could be placed at 54.
2. This Court has previously rendered a summary judgment for Byrne on the facts set forth in paragraph 2, this is, on plaintiff’s case-in-chief, leaving only the applicability, in law and fact, of Defendants’ affirmative defenses to be decided.
3. Curtiss Wright stock decreased in market price below 54 on July 7, 1972, and remained below 54 until the latter part of August of 1972. During this period of time, Merrill Lynch personnel periodically, advised Byrne of the changes in market price of Curtiss Wright stock. On August 31, and September 1, 1972, Paul Marsal, the branch manager of the Merrill Lynch office at which Byrne had placed his initial order, advised Byrne of the market price at or near the closing of the market on each day. Among others, the quotes given to Byrne were as follows:
August 30, 1972 54%
August 31, 1972 54%
September 1, 1972 54
4. If called to be a witness, Marsal would testify as follows: (a) Mar-sal also said to Byrne on each of these days that the market in Cur-tiss Wright stock was orderly, that there had been no halts in trading and that if he wished to sell his Curtiss Wright stock at the market, it easily could be done; (b) on one
such occasion Byrne advised Marsal that he was not interested in selling at that time and wished to hold onto the Curtiss Wright stock; (c) in a subsequent telephone conversation, Byrne advised Marsal that he, Byrne, would have to consult with his attorney as to what course of action to take.
Although Plaintiff concedes that Marsal would so testify, Plaintiff does not agree that such testimony and facts are material, relevant or admissible.
5. If called to be a witness, Bennett Falk of the Law Department of Merrill Lynch would testify that: (a) he wrote the letter attached hereto as Exhibit 1 to Byrne’s attorney confirming a prior conversation with Byrne’s attorney to the effect that, in Falk’s view, Merrill Lynch’s liability, if any, would be fixed by the highest price of Curtiss Wright Stock on the rebound. Plaintiff agrees that this letter was receive by Byrne’s attorney soon after it was mailed, but does not agree that such testimony and evidence is material, relevant or admissible.
6. On August 31, 1972, Byrne’s attorney wrote the letter attached hereto as Exhibit 2 to Paul Marsal advising him to cease further personal communications with Byrne. This letter was received by Mr. Marsal. Plaintiff does not agree that such evidence is material, relevant or admissible.
7. If called to be a witness, Falk would also testify that on September 1, 1972, he wrote the letter attached hereto as Exhibit 3 to Byrne’s attorneys advising Byrne’s attorney of Falk’s view that, in substance, as of that date Curtiss Wright had reached a level in excess of $54.00 per share and that Byrne’s decision to hold the stock rather than sell it would be from that point forward at his own risk. Byrne’s attorney received this letter. Plaintiff does not agree that this evidence is material, relevant or admissible.
8. On August 30, August 31 and September 2, 1972, Curtiss Wright stock closed at 54 or above and on the next trading day, September 5, 1972, it reached its (post-July 6, 1972 and prior to this suit) high of 55}i. Byrne knew on these days that the stock had reached such levels and could have sold his Curtiss Wright stock at such levels, less commissions, on such days, but did not do so.
9. On January 9, 1973, Byrne wrote the letter attached hereto as Exhibit 4, to the branch manager of the Merrill Lynch office of which he had placed his initial order advising Merrill Lynch that he intended to assert a claim for rescission under the Florida Sales and Securities Statute. Defendants declined, and this lawsuit ensued.
10. The question of attorneys’ fees and interest may be decided by the Court following resolution of the applicability, in law or fact, of Defendants’ affirmative defenses.”
The Final Decree:
“1. Defendants’ failure to advise the Plaintiff that a stop order could not be entered on the Curtiss-Wright stock constituted an omission to state a material fact in violation of Fla.Stat. § 517.301.
2.The Court finds that the defenses of estoppel, waiver and ratification are proper legal defenses to a violation of Fla.Stat. § 517.301 and the remedies set forth in Fla.Stat. § 517.21, but finds that Defendants would have had to have offered to re-purchase the subject stock from the Plaintiff at the Plaintiff’s original purchase price in order to prevail on any or all of these affirmative defenses.
3. Defendants, Merrill Lynch, Pierce, Fenner & Smith, Inc., and Arthur Pritchard, have failed to make a showing by the greater weight of the credible evidence that they at any time offered to make Plaintiff whole.
4. The matter having been submitted to the Court by agreement of the parties on affidavits, and the Court being fully advised in the premises finds that a reasonable attorneys’ fee pursuant to the statute, the work performed and the result obtained by Plaintiff’s counsel in this case is $8,000.
It is, therefore,
Ordered and adjudged as follows:
A. Merrill Lynch, Pierce, Fenner & Smith, Inc., already having possession of the one thousand (1,000) shares of Curtiss-Wright common stock, is hereby declared to be owner of the said stock, and Plaintiff, Herman T. Byrne, is therefore entitled to have and recover of and from Defendants, Merrill Lynch, Pierce, Fenner & Smith, Inc., and Arthur Pritchard, jointly and severally, the entire purchase price paid by him on July 6, 1972, in the amount of Fifty-Seven Thousand Four Hundred Thirty-Seven and 9ioo Dollars ($57,437.50), together with interest at six percent (6%) per annum from that date totaling Six Thousand Eight Hundred Sixteen and %oo Dollars ($6,-816.33), making a grand total of Sixty-Four Thousand Two Hundred Fifty-Three and 83/100 Dollars ($64,253.83). B. Plaintiff is further awarded 8000.-00_-- ($-) as attorneys’ fees and Two Hundred Eighty-Two Dollars ($282.00) as costs.
C. Plaintiff is therefore entitled to have and recover of and from Defendants, Merrill Lynch, Pierce, Fenner & Smith, Inc., and Arthur Pritchard, jointly and severally, a total of _ ($72,535.83), for which sum let execution issue forthwith.”

We can eliminate from further discussion the question of whether this transaction falls within the orbit of Florida’s Blue Sky Laws in view of the provisions of the stipulation that it does. This being conceded it necessarily follows that all provisions of this Chapter are applicable to the transaction. The portion of the Act relating to remedies available in the case of an unlawful sale is ¶[ 517.21.

Many challenging attacks are made by appellants on the judgment appealed from, among which is that scienter is necessary to establish the violation of jf 517.301. This question is foreclosed by the terms of the stipulation but, if it were present here, we cannot agree that it is material. Scienter may well be an essential element in statutes where fraud and deceit are made the essence of an action. It is particularly applicable, of course, in criminal statutes. In laws of the type involved here, we think the principal wholly inapplicable. Appellant concedes there are no Florida cases supporting his contention but says the Federal cases relating to identical statutes hold to the view he presents. We don’t agree with the Federal decisions he relies on. Moreover they are not at all conclusive on the point, and, of course, they are not binding on us. We think the better Federal decisions and the clear weight of authority is that scien-ter is not necessary to recovery. The de-fense of estoppel, so strongly argued, is not available here for the reasons stated by the trial judge and hereafter more fully discussed. These defenses — and related defenses were ably argued and presented in the briefs.

After due consideration of the points preserved by the assignments of error, we reach the conclusion that the answers to the questions presented for decision are found in the language of the Statute. This being so, it becomes not only unnecessary but unseeming to turn to other sources for guidance. The business of selling securities' to the general public has long been recognized as an area subject to legislative regulation and control. The first significant legislation at the Federal level was in 1933. The States for many years prior 4o that had enacted many statutes all primarily designed to protect the “naive and unsophisticated investor” against unscrupulous dealers. Such statutes are now universally in effect, both State and Federal.’ These are paternalistic laws enacted by the States under the police power and are the type of laws that are entitled to vigilant enforcement by the courts, where, as here, they are unambiguous and meet constitutional requirements.

The main thrust of appellants’ argument — and the portion that at first blush appeared palatable to us — was that, although the statute was clearly applicable to the transaction, when it was discovered that the stop order was inapplicable to Curtiss-Wright stocks, the later rise in the market value accompanied by the action of the broker in so advising the buyer and urging him to sell at a price above the point agreed in the original purchase, that the buyer caused the subsequent loss and was bound thereby — or at least such loss should be no more than the difference between the later price above the stop order price and the cost to the buyer. On further consideration, however, we think this argument is untenable here because the statute clearly and unmistakably places the burden on the broker to “offer in writing” to take back the securities and refund the purchase price in full together with interest to be computed as provided in detail in the statute. The broker, therefore, is able to limit its loss in most cases by prompt action so the argument that the broker should not have to bear the loss here when the buyer — by selling at the higher price— could have prevented it, is without substance. Moreover, we feel that the statute is clearly designed for the benefit of the buyer — not the broker who is presumed to have superior knowledge and is in a position to .minimize his losses. The statute also gives the buyer two years to bring an action where such offer to repurchase is not made. It must be assumed the Legislature knew that in a two-year period the loss to the broker could be substantial and placed the limitation there to enforce the sanctions imposed and to compel immediate attention to buyers who do not get what they thought they bought.

And so, if we literally apply the statute —which we must — the simple answer is that the broker should have immediately told the buyer he could have his money back and offered it “in writing” to him. This was not done. The buyer is guilty of nothing. He is protected by the statute. He has a right to invoke its sanctions. He has done so within the time the statute prescribed and in the manner prescribed and the trial court was correct in requiring the broker to do what the statute says it should do and to add to the judgment the additional charges authorized.

Affirmed.

      . F.A.R. 3.6(h).

      . Particularly ¶ 517.301 which provides “It is unlawful * * * (b) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; . . . ”

      . Chapter 517 F.S.A.

      . “517.21 — (1) Every sale made in violation of any of the provisions of this chapter shall be voidable at the election of the purchaser; and the person making such sale and every director, officer or agent of or for the seller, if the director, officer or agent shall have personally participated or aided in any way in making the sale, shall be jointly and severally liable to the purchaser in an action at law in any court of competent jurisdiction upon tender of the securities sold or of the contract made, for the full amount paid by such purchaser, with interest, together with all taxable court costs and reasonable attorney’s fees; provided, that no action shall be brought for the recovery of the purchase price after two years from the date of such sale and provided further, that no purchaser otherwise entitled shall claim or have the benefit of this section who shall have refused or failed within thirty days from the date thereof to accept an offer in writing of the seller to take back the security in question and to refund the full amount paid by such purchaser, together with interest on such amount for the period from the date of payment by such purchaser down to the date of repayment, such interest to be computed:
      (a) In case such securities consist of interest bearing obligations at the same rate as provided in such obligations; and
      (b) In case such securities consist of other than interest hearing obligations at the rate of six per cent per annum; less, in every case, the amount of any income from said securities that may have been received by such purchaser.
      (2) Any person having a right of action against a dealer or salesman under this section shall have a right of action under the bond provided in § 517.12.”

      . In Moerman v. Zipco, Inc., 302 F.Supp. 439 (E.D.N.Y.1969) ; Heit v. Weitzen, 402 F.2d 909, 913 (2nd Cir. 1968) ; Gerstle v. Gamble-Skogmo, Inc., 298 F.Supp. 66, 97 (E.D.N.Y.1969) ; City National Bank of Fort Smith, Arkansas v. Vanderboom, 422 F.2d 221 (8th Cir. 1970).

      . Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972) ; Ellis v. Carter, 291 F.2d 270 (9th Cir. 1961). (These decisions were candidly cited by appellant as being contrary to the view he urged.)

      . See Securities Regulation Federal — 69 Am. Jur.2nd pg. 591 et seq. Also see Security Regulation State, 69 Am.Jur.2nd pg. 1059 et seq.

      . The broker says this position was the one taken by it in the correspondence by its attorney with the buyer’s attorney. We agree that, while a close question, this is a conclusion that could be reached from that correspondence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Samuel Louis FULLER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-113.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Rehearing Denied Nov. 3, 1975.
    Engel & Mishkin and David B. Javits, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for ap-pellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

On this appeal from a denial of a motion to vacate judgment and sentence pursuant to CrPR 3.850, the appellant-petitioner argues that where probation is granted “in each case” after conviction upon several independent crimes and one of the sentences of probation is illegal, he must be discharged from all probation. See Fuller v. State, Fla.App.1974, 294 So.2d 367.

We do not agree inasmuch as probation in each case constituted an independent judicial act and there is no relationship other than one based on the fact that they were combined for sentencing.

Affirmed.


author: NATHAN, Judge.

text:
    Louis A. BRESLERMAN and Shirley G. Breslerman, his wife, in behalf of themselves and all others similarly situated, Appellants, v. DORTEN, INC., a Florida Corporation, et al., Appellees.
    No. 75-32.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
    Rehearing Denied Nov. 3, 1975.

      Milton E. Grusmark, Miami Beach, for appellants.
    Rosen & Rivkind, Miami Beach, for ap-pellees.
    Before PEARSON, and NATHAN and HAVERFIELD, JJ.
   NATHAN, Judge.

Plaintiffs, Louis A. Breslerman and Shirley G. Breslerman, his wife, condominium unit owners in the Maison Grande Condominium, on behalf of .themselves and all others similarly situated, appeal from an order of the trial court dismissing, with prejudice, their third amended complaint in a class action for damages and recission of a 99-year recreation lease entered into on November 24, 1971, between Dorten, Inc., a Florida corporation, and Norman H. Goldstein, as trustee under the Siegel family trust, lessors and Maison Grande Condominium Association, Inc., lessee. These parties are all named defendants in the action.

The third amended complaint alleges that the 99-year lease covers the Maison Grande communal recreational area which is built upon property encroaching, in part, on public lands. It further alleges that the defendant-lessors have no possessory interest in the property in question which could be leased to the unit owners and that they knew at the time of the execution of the lease that they did not have title to the property, but that, in fact, the property conveyed was beyond the mean high water mark and thus the lease failed for lack of consideration, and was void and illegal as against public policy; and that the property sought to be conveyed for 99 years was, in fact, public property which could not be conveyed by the defendants who seek to secure rental for land not owned by them. The plaintiffs seek recission of the lease and damages in the amount of monies already paid to the defendants as rental under the lease.

The trial court dismissed the third amended complaint with prejudice, having determined that “a class action does not lie in the premises”. It appears that the complaint would comply with the requirements necessary to proceed with a class action, as set forth in Port Royal, Inc. v. Conboy, Fla.App.1963, 154 So.2d 734, 736-737 and Costin v. Hargraves, Fla.App.1973, 283 So.2d 375, 376-377. However, it is fatally defective for the reason that it sounds in fraud and deceit. A cause of action based ■upon fraud and deceit is generally inappropriate for a class action. Osceola Groves v. Wiley, Fla.1955, 78 So.2d 700; Hendler v. Rogers House Condominium Incorporated, Fla.App.1970, 234 So.2d 128. We find that the alleged facts in the instant case present no exception to the general rule and, therefore, the order of the trial court is affirmed.

Affirmed.


text:
    Myron J. SINGER et al., Appellants, v. E. W. ESTELLE, d/b/a Airline Realty Corporation, a Florida Corporation, Appellee. ESTATE of Max A. HEIMAN, Appellant, v. E. W. ESTELLE, d/b/a Airline Realty Corporation, a Florida Corporation, Appellee.
    Nos. 74-750, 74-824.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Rehearing Denied Nov. 3, 1975.
    Myers, Kaplan, Levinson & Kenin and Thomas R. Spencer, Jr., Marx & Squitero, Miami, for appellants.
    High, Stack, Davis & Lazenby, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See National Airlines, Inc. v. Oscar E. Dooly, Assoc., Inc., Fla.App.1964, 160 So.2d 53, and see also Vincent v. Lawson, Fla.App.1973, 272 So.2d 162.


text:
    John PARISE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-77.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Rehearing Denied Nov. 4, 1975.

      Cushman & Cushman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HAVERFIEED and NATHAN, JJ.
   PER CURIAM.

Appellant, defendant in the trial court, appeals his conviction following a jury trial for (1) conspiracy to commit a felony by trespassing upon land, and (2) trespass.

We first considered appellant’s contention on appeal that the information was not sufficiently definite and have determined this point is without merit. See State v. Smith, Fla.1970, 240 So.2d 807 and Machin v. State, Fla.App.1972, 270 So.2d 464.

We next turned our attention to the second point on appeal with respect to the alleged improper remarks of the trial judge to the jury.

This issue arrises from the following remark to the jury by the judge immediately after the court declared a mistrial as to the codefendants of the appellant:

“THE COURT: Ladies and gentlemen of the jury, the Court has—for reasons that do not have to be explained to you—has granted a mistrial on the defendants, Green and Duffield, and this case will proceed as to Mr. Parise.
“Do not infer guilt solely from the fact that the trial is continuing with regard to Mr. Parise, and not to Mr. Duf-field and Mr. Green. They will be tried at another time, retried.
“However, the Court has ruled that a conspiracy had been proven, and not really in that sense for you to decide, but only in a sense that evidence now will be, admissible evidence that has been admitted, that I had originally told you was to be applied to any of the defendants, each of the defendants, can be applied to all of the defendants.” [Emphasis Supplied]
* * * * * *

The firmly established rule in Florida is that the trial judge should avoid making directly to or within the hearing of the jury any remark which is capable directly or indirectly, expressly, inferentially or by innuendo of conveying any intimation as to what view he (or she) takes of the case or as to what opinion the judge holds as to the weight, character or credibility of any evidence adduced. Leavine v. State, 109 Fla. 447, 147 So. 897 (1933); Seward v. State, Fla.1952, 59 So.2d 529; Raulerson v. State, Fla.1958, 102 So.2d 281.

We agree with the appellant that the above remark “that a conspiracy had been proven,” being highly prejudicial, deprived appellant of his right to a fair trial. Thus, we reverse for a new trial.

In light of our disposition of this point on appeal, it is not necessary to determine appellant’s remaining contentions.

Accordingly, the judgment of conviction and sentence is reversed and the cause remanded for a new trial.

It is so ordered.


text:
    John FORTE, Appellant, v. Mary FORTE, Appellee.
    Nos. 75-215, 75-597.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    'Andrew C. Hall, Miami, for appellant.
    Sinclair, Louis & Siegel and Neil A. Shanzer, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is the consolidation of two interlocutory appeals by the husband, John Forte, petitioner in the trial court. In the first, he seeks review of the order of January 29, 1975, on motions to enforce the property settlement agreement. In the second, he seeks review of the order on the husband’s motion to enforce the order of January 29, 1975.

On April 25, 1972, the marriage of John Forte and Mary Forte was dissolved. The separation agreement entered into by the parties on April 13, 1972, was incorporated within the final judgment of dissolution of marriage.

Under the terms of the agreement, Mary Forte was afforded an option with respect to housing and the right to purchase housing. As the first alternative, she had the right to select a homesite of a total value of, and not to exceed $15,000 and thereafter to cause John Forte to construct a home upon that site which should contain not more than 2,500 square feet under roof and have a construction cost of not more than $50,000 at the husband’s actual cost. In the event that the wife exercised her option under this provision, the husband was required to assist the wife in the design of the home. The second alternative available to Mary Forte was to require John Forte to purchase a home for a sum not to exceed $65,000.

In either event, under the terms of the agreement, title to the house was to be taken in the husband’s name and Mary Forte had the right to later purchase the home from John Forte for the amount of money expended by him in constructing or purchasing it.

In the event that Mary Forte failed to exercise either option, the agreement provided that John Forte would pay to Mary Forte additional support of $350 per month to be used by her and their two minor children for housing expenses. The agreement further provided that:

“In the event that the Husband refuses to perform any of his obligations in accordance with Paragraphs 8 and 9 above, providing that the Wife has rendered performance in accordance with the provisions thereof, then the time limit set forth in such preceding paragraphs shall be extended until the disagreement between the parties has been resolved.”

In March of 1973, John Forte filed a motion to enforce the terms of the agrees ment, contending that the wife had elected to cause a house to be constructed, but that she failed to timely provide him with plans for the construction as provided in the agreement. He sought an order either compelling that the plans be furnished, or discharging him from the obligation to have a house constructed. At the hearing on the motion, the architect selected by Mary Forte to design the house, testified that the plans were 75 per cent completed. The court required him to complete the plans within three weeks. When the plans were submitted to John Forte for approval and bids were obtained, it became apparent that the house could not be constructed within the agreed price. Mary Forte then sought to revert to the second option, the purchase of a home.

On January 29, 1975, after hearing extensive testimony, the trial judge found that the husband acted in bad faith in his negotiations with the wife as to constructing or purchasing a home, and entered an order on motions to enforce property settlement agreement, providing that

“(a) John Forte shall purchase for the use and benefit of Mary Forte a residential home to be selected by Mary Forte within sixty (60) days of January 10, 1975, the purchase price of which shall not exceed $75,000.
(b) That Mary Forte shall have the option to purchase the said house including all appurtenances thereto from John Forte for the sum of $70,000.” (emphasis added)

Subsequently, John Forte filed a motion to enforce the order of January 29, 1975, since Mary Forte had not complied within sixty days. Following a hearing, the court entered an order denying the motion and directing John Forte to purchase the house selected by Mary Forte.

There are two separate appeals in this case, one from each order. The two points presented by John Forte on appeal, in substance, are (1) whether the court erred in finding that he had been guilty of bad faith. If so, then Mary Forte should be estopped from obtaining any house, but should be required to receive the $350 per month for housing purposes; (2) whether the court had the authority to order John Forte to pay $75,000 for a house when the agreement called for purchase of a house by him for up to $65,000. He contends that the court, in effect, has modified a portion of the separation agreement which does not relate to alimony or support monies.

The law in Florida is well settled that provisions of a separation agreement relating to the support, care and custody of children are always subject to review and approval by the court, the guiding star being the best interests and welfare of the children. Lang v. Lang, Fla.App.1971, 252 So.2d 809 and cases cited therein. Interpretation or modification of a separation agreement affecting welfare of children is not only permissible but obligatory where the circumstances so indicate. Lang v. Lang, supra. According to Sirkin v. Sirkin, Fla.App.1967, 204 So.2d 13, there is a continuing obligation of a father to provide living quarters as an element of support for the children. Therefore, the provision for housing for Mary Forte and the two minor children directly relates to the maintenance and support of the children and it was proper for the court to modify such provision.

As in Stanley v. Stanley, 1947, 158 Fla. 402, 28 So.2d 694, where the Florida Supreme Court took judicial knowledge of the rise in the cost of living, we now take judicial knowledge of the fact of inflation from 1972 when the separation agreement was executed and the final judgment was entered in this cause until 1975, when the two orders now on appeal were entered. Even if such were not the case, the record of the hearings before the trial judge is replete with expert testimony as to the rise in the cost of construction or purchase of a single family home from 1972 to 1975. We find no error in the modification by the trial judge from a $65,000 home to a $75,000 home.

John Forte’s argument that Mary Forte did not comply with the January 29, 1975, order is erroneous. The order states that she must select a home within 60 days, which she did; not that the deal must close. As to whether the husband failed to act in the spirit of cooperation and good faith, the record contains ample evidence to support the court’s finding that both sides failed to do so to a certain extent, but the husband to the greater extent.

Therefore, for the reasons stated and upon the authorities cited, the orders herein appealed are

Affirmed.


text:
    Jerry Dwayne WARD, Appellant, v. STATE of Florida, Appellee.
    No. 75-44.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.

      Richard L. Jorandby, Public Defender, and Elliot R. Brooks, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review and consideration of the briefs, record and oral argument we are of the opinion that the error in failing to instruct the jury on certain lesser offenses and degrees was harmless in that the error did not injuriously affect the substantial rights of the defendant, Gilford v. State, Fla.1975, 313 So.2d 729; Spigner v. State, Fla.App. 1974, 304 So.2d 496. Having considered the other appellate points and finding no reversible error, the judgment and conviction are affirmed.

Affirmed.

WALDEN, C. J., and .CROSS and MA-GER, JJ., concur.


text:
    Dennis Paul COX, Appellant, v. STATE of Florida, Appellee.
    No. 74-1501.
    District Court of Appeal of Florida, Fourth District.
    July 31, 1975.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, 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.
   ON MOTION FOR ORDER DIRECTING COUNSEL TO PETITION THE FLORIDA SUPREME COURT FOR WRIT OF CERTIORARI

PER CURIAM.

The appellant seeks an order from the court directing the public defender to pursue his petition for writ of certiorari to the Florida Supreme Court.

Appellant was convicted of robbery from which conviction appellant took a plenary appeal to this court. The public defender represented him for appellate purposes. His conviction was per curiam affirmed, Cox v. State, 317 So.2d 152, Fourth District Court of Appeal, Opinion filed July 11, 1975. Appellant was then informed that his counsel would not pursue his case and appeal any further. Appellant now seeks an order requiring counsel to do so.

We deny appellant’s motion as it is not necessary to provide an indigent person with counsel for a discretionary review to this State’s Supreme Court. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).

Denied.

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


author: OWEN, Chief Judge.

text:
    STATE of Florida ex rel. Jimmie Lee WALKER, Relator, v. Honorable J. Cail LEE, Judge of the Circuit Court of Broward County, Florida, Criminal Division, Respondent.
    No. 75-512.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1975.
    Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for relator.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for respondent.
   OWEN, Chief Judge.

Relator filed suggestion for writ of prohibition to prohibit respondent from proceeding with the announced trial of relator for a charged violation of the drug abuse laws. We issued a rule to show cause, respondent filed an answer and brief and relator filed his reply brief. The cause is now ready for final disposition, the court having dispensed with oral argument pursuant to Rule 3.10(e), F.A.R.

Relator alleged double jeopardy in that theretofore he had been brought to trial on the same offense and after the jury had been impanelled and sworn respondent had declared a mistrial over relator’s objection. The mistrial had been granted by the court on its own motion when it was made known to the court that the relator was voluntarily absent from the trial and the prosecution represented to the court that the absence of the relator would be prejudicial to its efforts to establish identification of relator as the perpetrator of the offense.

The power of the court to discharge a jury who have been sworn in chief before a verdict should be exercised only in case of a manifest, urgent, or absolute necessity. Allen v. State, 1906, 52 Fla. 1, 41 So. 593; State ex rel. Anderberg v. Strawn, Fla.App.1975, 307 So.2d 213. In the last cited case we discussed in some depth the subject of mistrials in criminal cases and therein noted that among the several causes which create a recognized necessity to declare a mistrial is the situation where the prisoner by his own misconduct places it out of the power of the jury to investigate his case correctly, thereby obtaining an unfair advantage of the State. Other courts in discussing the subject have also recognized that some unfair or wrongful tactic, action or conduct on the part of the defendant by which a substantial interest of the State is unfairly frustrated or embarrassed is a valid reason for declaring a mistrial. See: State ex rel. Mitchell v. Walker, Fla.App.1974, 294 So.2d 124, at 127.

We have no difficulty in concluding that under the facts of this case the respondent properly exercised his discretion in determining that there was a manifest necessity to declare a mistrial over relator’s objections where relator by his own misconduct prejudiced the State in the presentation of its case.

The writ is denied and the suggestion is dismissed.

CROSS and DOWNEY, JJ., concur.


author: OWEN, Judge.

text:
    Patrick Leigh ANDRESS, Petitioner, v. Melvin C. COLEMAN, as Sheriff of Orange County, Florida, Respondent.
    No. 75-916.
    District Court of Appeal of Florida, Fourth District.
    July 3, 1975.

      James M. Russ, Law Offices of James M. Russ, Orlando, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for respondent.
   OWEN, Judge.

By original petition for writ of habeas corpus we are called upon to resolve an apparent conflict between Rule 3.550 R.Cr. P. and Fla.Const. art. I, § 14 (1968).

An information was filed in the Circuit Court of Orange County, Florida charging petitioner with the third degree felony offense of possession of marijuana in excess of five grams. Following his arrest he was released on bail in the amount of $2,500. In due course the case was tried before a jury. A verdict of guilty as charged was rendered and recorded. The trial judge withheld adjudication of guilt but under the authority of Rule 3.550 R. Cr.P. ordered petitioner to be taken into respondent’s custody forthwith.

While thus incarcerated petitioner filed with this court his application for writ of habeas corpus alleging essentially the above matters. Perceiving that the petition set forth a prima facie case in view of Fla.Const. art. I, § 14 (1968) and the case of Ex Parte McDaniel we issued a rule to show cause. Respondent’s return to the rule did not deny any of the material allegations of the petition, but in essence asserted that petitioner was in custody under the provisions of Rule 3.550 R.Cr.P. and that the Florida Supreme Court’s adoption of this rule constituted an implicit ruling on its constitutional validity. Petitioner’s reply correctly notes that the rule is taken verbatim from former Fla.Stat. § 919.20 (1967), which was originally enacted as Ch. 19554, § 235, Laws of Fla. (1939). We therefore reject the respondent’s argument that the Supreme Court’s adoption of the Rules of Criminal Procedure constituted a ruling per se on the constitutionality of Rule 3.550 R.Cr.P.

When read literally and construed strictly, Rule 3.550 R.Cr.P. does conflict with Fla.Const. art. I, § 14 (1968). However, the rule can be saved by construing it to mean, in conformity with the constitutional provision and Rule 3.130(a) R.Cr.P., that it deals with a situation where adjudication has also taken place, so that the “pre-adjudication bail” guaranteed by Fla. Const, art. I, § 14 (1968) effectively comes to an end and the “limited appeal bail” authorized by law becomes applicable.

We specifically hold that until such time as petitioner has been adjudicated guilty his right to be released on bail continues after verdict in all respects the same as before verdict. Since petitioner’s right to bail was denied solely because of the jury verdict of guilty, and for no other 'reason, it follows that petitioner was unlawfully deprived of his liberty when taken into custody by respondent. The petition is granted, but inasmuch as petitioner is now at liberty under a temporary order of this court, the writ is unnecessary. The temporary order will remain in effect until such time as the judgment and decision of this court becomes final.

It is our opinion that this decision passes upon the following question of great public interest:

“Where a person has been charged with a crime as to which he is entitled to bail as a matter of right under Fla.Const. art. I, § 14 (1968), does his entitlement to bail as a matter of right continue between return of a verdict of guilty and the entry of a judgment of guilty?”

Upon timely request of either party to this cause, it is our intention to so certify to the Supreme Court of Florida.

WALDEN, C. J., and DOWNEY, J., concur.

      . “Rule 3.550. Disposition of Defendant.

      “If a verdict of guilty is rendered the defendant shall, if in custody, be remanded; if he is at large on bail he may be taken into custody and committed to the proper official, or remain at liberty on the same or additional bail as the court may direct.”

      . “SECTION 14. Bail. — Until adjudged guilty, every person charged with a crime or violation of municipal or county ordinance shall be entitled to release on reasonable bail with sufficient surety unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.”

      . 86 Fla. 145, 97 So. 317 (1923).

      . “Rule 8.180. Pre-Trial Release.

      “(a) Offenses Less Than Capital. All persons in custody for the commission of an offense unless it is a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great shall be entitled as of right to be admitted to bail before conviction. After conviction bail may be granted in the discretion of either the trial or appellate court.”
      An accused in a criminal matter is not “convicted” until formally adjudged guilty by the trial court. Ex Parte McDaniel, supra; Timmons v. State, 97 Fla. 23, 119 So. 393 (1929).

      . See, Rule 3.691 R.Cr.P., Rule 6.15 F.A.R., and Younghans v. State, 90 So.2d 308 (Fla.1956).


text:
    The STATE of Florida, Appellant, v. Zebedee JOHNSON, Jr., also known as Henry Williams, Appellee.
    No. 73-1370.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1975.
    Rehearing Denied Nov. 4, 1975.

      Robert L. Shevin, Atty. Gen., Richard E. Gerstein, State’s Atty., and Joseph Durant, Asst. State’s Atty., for appellant.
    Phillip A. Hubbart, Public Defender, and Karen Gottlieb, Asst. Public Defender, for appellee.
    Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The State of Florida appeals from an order discharging defendant, Zebedee Johnson, who was tried by jury and found guilty of murder in the second degree. In a previous appeal by the defendant, this court reversed the conviction and remanded the cause to the trial court for a new trial. The mandate ordering the new trial was issued on July 9, 1971. Thereafter, the state filed a petition for certiorari in the Florida Supreme Court to review the decision of this court. The petition not having been filed wtihin IS days of the July 9, 1971 mandate, the state petitioned for and obtained a stay of the trial court proceedings on September 28, 1971. On July 18, 1972 the Florida Supreme Court entered an order discharging the writ of certiorari and said order became final on August 2, 1973.

On October 10, 1973 defendant filed a motion for discharge and alleged that (1) 81 days had elapsed between the mandate of July 9, 1971 and the stay of order of September 28, 1971, (2) from the August 2, 1973 final order discharging the writ of certiorari, 69 days had elapsed until the date of the filing of the motion to discharge, and, (3) therefore, a total of 150 days of speedy trial time had elapsed during which the defendant continuously had been available for trial without causing any continuance or delay in the proceedings.

After hearing argument ■ of counsel thereon, the trial judge entered an order discharging the defendant. The state appeals therefrom. We reverse.

RCrP 3.191(g) very clearly provides that:

“(g) Effect of Mistrial, Order of New Trial.—
“A person who is to be tried again shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time’’ [Emphasis Supplied]

The state having obtained a stay of the proceedings, we find that the 90 days began to run from the August 2, 1973 final order discharging the writ of certiorari which was the last order in time. Thus, appellee’s motion for discharge on October 10, 1973 was premature and should have been denied.

Accordingly, the appealed order discharging defendant is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.

      . See PAR 4.5(c)(6).
      “The petition for certiorari under this rule shall he filed in the Supreme Court within 30 days from the rendition of the order, decision or judgment of the district court of appeal. The petition shall set forth briefly and clearly the grounds for invoking jurisdiction of the Supreme Court and the facts relied upon for the issuance of the writ. Unless the district court shall otherwise direct for good cause shown after notice and hearing, a petition for certiorari filed in the Supreme Court within 15 days from the date of the filing of the order, decision or judgment sought to be reviewed or within 15 days from the date of the disposition of a petition for rehearing shall automatically stay further proceedings in the district court and the trial court until the disposition of said petition by the Supreme Court; otherwise such petition for certiorari shall operate as a stay of such proceedings only upon the order of the Supreme Court or the Chief Justice after due notice to the adverse party. As amended effective Oct. 1, 1968 ([In re Florida Appellate Rules, Fla.] 211 So.2d 198).”


author: PER CURIAM. NATHAN, Judge

text:
    Howard M. PLANT, Appellant, v. Louise Donna PLANT, Appellee.
    Nos. 74-1461, 75-152.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
    Rehearing Denied Nov. 4, 1975.

      Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for appellant.
    Fine, Jacobson, Block & Semet, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

In these consolidated appeals ex-husband seeks review of certain provisions of a final judgment of dissolution of marriage and subsequent order wherein ex-wife was awarded attorney’s fees and costs.

After approximately ten years of marriage, Howard Plant, appellant, petitioned for a dissolution of his marriage and entry of a court order approving the antenuptial agreement entered into by the parties on September 18, 1964. Respondent, Louise Plant, filed her answer alleging the above agreement to be a legal nullity and void, and a counterclaim seeking, inter alia, an award of the marital residence.

After final hearing, the chancellor entered a final judgment dissolving the marital bonds between the parties and awarding Louise custody of her two minor children by a prior marriage who were adopted by Howard Plant.

In addition, the judgment contained extensive findings upon which the chancellor based his conclusion that the September 18, 1964 prenuptial agreement was void. Thereupon, the chancellor provided, inter alia, that (1) petitioner, Howard Plant, pay to the respondent, Louise Plant, $35,000 per year as alimony, payable monthly in advance until she should die or remarry; (2)Howard pay to Louise the sum of $10,000 per year per child for support until such time as said children attain the age of 21; (3) Howard pay all dental and medical expenses for Louise and the two children; and (4) Howard convey to Louise all his interest in the marital home, the furnishings, furniture and fixtures therein, and the vacant lot adjacent to the residence.

After the conclusion of a full evidentia-ry hearing thereon, the chancellor awarded Louise $100,000 in attorney’s fees and $5,521.78 as costs.

These consolidated appeals follow.

Appellant first urges as error the chancellor’s invalidation of the antenuptial agreement.

A valid antenuptial agreement contemplates a fair and reasonable provision therein for the wife, or absent such a provision, a full and frank disclosure to the wife before the signing of the agreement, of the husband’s worth, or absent such a disclosure, a general and approximate knowledge by her of the prospective husband’s property. Del Vecchio v. Del Vecchio, Fla.1962, 143 So.2d 17.

The provision for appellee, ex-wife, of $15,000 per year being patently an unfair and unreasonable provision in light of appellant’s wealth and standard of living at the time the agreement was executed, it was within the province of the chancellor to determine as matter of fact whether the appellee, seeking to set aside the antenup-tial agreement, had some understanding of her rights. Del Vecchio, supra.

The evidence with respect thereto amply supports the finding of the chancellor that (1) appellee’s allegedly independent counsel was not representing her, but in reality was acting in the best interest of the appellant; (2) said counsel did not advise the appellee competently and independently of the rights she was waiving; (3) appellant’s 1963 income tax return showing a net taxable income of $16,000 was deceiving and did not reflect adequately the true worth of appellant; (4) without any prior notice, appellee on the day preceding her wedding was presented and requested to sign the agreement; and (5) the agreement itself tended to facilitate divorce or separation as it permitted appellant by his unilateral act of leaving the appellee to deprive her of the homestead should he die and to limit her to the inadequate alimony provisions thereof.

In addition, the fact is uncontested that appellant failed to obtain a $200,000 life insurance policy on his life for the benefit of appellee as required by the agreement. Appellant thereby abandoned-said agreement. See McMullen v. McMullen, Fla.App.1966, 185 So.2d 191.

Thus, appellant’s argument that there was no competent substantial evidence sustaining- the findings of the chancellor in nullifying the subject agreement is devoid of merit.

Appellant next contends that the chancellor exceeded his jurisdiction by transferring to appellee title of the marital residence and its contents solely owned by the appellant and the vacant lot adjoined thereto. We find this point well taken.

The chancellor found that appellant and appellee entered into a joint contract to purchase the marital residence and the appellant in taking title in his own name is deemed to have taken title as trustee for himself and the appellee. Thereupon, the property and furniture was determined by the chancellor to be an estate by the entire-ties. Assuming arguendo that this determination as to the nature of the property is correct (which we do not), we conclude that the chancellor was in error in directing appellant to transfer to the appellee all of his interest in the marital residence, the adjoining lot, and household furnishings and fixtures. The established case law is that an award to the wife of the husband’s interest in property held as tenants by the entireties is proper where and to the extent she is able to establish the existence of a special equity therein in her favor, and where a transfer of the husband’s interest in such property to the wife is ordered by the court as lump sum alimony. Owen v. Owen, Fla.1973, 284 So.2d 384 and cases cited therein. It affirmatively appearing that the award of the appellant’s interest in the subject property was not considered as lump sum alimony nor was it based upon the existence of a special equity of the ap-pellee, we hereby reverse that portion of the final judgment, leaving appellant, Howard Plant, as the sole owner and title holder of the marital residence, the furnishings and fixtures therein and the vacant lot adjacent thereto.

The judgment is amended hereby to provide that Louise Plant shall have the right of possession, occupancy and use of the marital home including its furniture, furnishings and fixtures for the purpose of residing therein with the two minor children of the parties until such time as both children attain the age of majority. From the time of the effectiveness hereof, appellant shall be responsible for the monthly payments on the mortgage, taxes, insurance, and the necessary repairs and upkeep. Cf. Venzer v. Venzer, Fla.App.1975, 308 So.2d 544.

We next turned our consideration to argument of appellant that the award of $35,000 per year alimony to the appellee “until she should die or remarry” was erroneous. This point also has merit.

Appellant claims that the phrase “until she should die or remarry” in effect binds the estate of appellant to continue the alimony after his demise. A chancellor is without authority to award alimony as a charge against the estate of a deceased husband during the lifetime of the wife unless the husband has so stipulated or agreed thereto. Ford v. First National Bank in St. Petersburg, Fla.App.1972, 260 So.2d 876; Wilbur v. Wilbur, Fla.App. 1974, 299 So.2d 99. Appellant has not entered into such stipulatioh or agreement and we conclude that the chancellor acted in excess of his jurisdiction with respect thereto.

Additionally, we are' in accord with appellant that the amount of the alimony award ($35,000 per year) is excessive. In view of our holding that appellee will continue to have possession, occupancy and use of the marital residence with appellant being responsible for all the carrying charges, we hold that the amount of alimony to be paid to the appellee by the appellant shall be $25,000 per year payable monthly during the lifetime of the appellee or until she shall marry, with the provision that if appellant shall predecease the ap-pellee while the obligation to pay such alimony is in effect, the obligation to pay same would terminate thereupon and the judgment is so amended.

We finally considered appellant’s two remaining points on appeal that the award of $10,000 for each of the two children as child support and the award of $100,000 to appellee’s attorney and $5,561 in costs against appellant were excessive. After a careful scrutiny of the record, we find no abuse of discretion on the part of the chancellor in his determination thereof. Hence, we conclude these points of appellant, lack merit.

In all other respects the final judgment is affirmed.

Upon the authorities cited and for the reasons stated hereinabove, the judgment herein appealed is affirmed in part and reversed in part.

NATHAN, Judge

(concurring in part, dissenting in part).

I concur with all aspects of the majority opinion except as to the awards of alimony and child support. I would remand the cause to the trial court to determine, by further hearing, the amount of alimony and support money now required because of the substantial change, by this court, in the disposition of the real property.


text:
    In the Interest of B. S. et al., Juveniles, Appellants, v. The STATE of Florida, Appellee.
    Nos. 74-1746, 74-1747 and 74-1753.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
    Rehearing Denied Nov. 4, 1975.

      Engel & Mishkin, Miami and Mitchell D. Aronson, North Miami Beach, for appellants.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The three juvenile defendants were charged by petitions for delinquency with breaking and entering and grand larceny as against B. S., now age 13, and breaking and entering and buying, receiving or aiding in the concealment of stolen property as against A. S., now age 13, and J. H., now age 14. All three juveniles appeal their adjudications of delinquency on those charges following a hearing in the juvenile court. The three appeals are consolidated herein.

The record reflects that the three juveniles were accused of entering the home of the Jeffreys family, and stealing some $16,000 worth of jewelry and cash. The stolen valuables have never been recovered. The evidence showed that the valuables were stolen and that the Jeffreys’ four year old son, Andrew, was inside the house and saw the persons who entered and took the valuables; however, when Andrew was called as a witness, the court was not able to qualify him to testify. Another witness, a nine-year-old, testified that from a distance of five yards, he saw J. H., accompanied by the other two defendants, throw a large jewelry box into a canal. The box was later retrieved and identified by Mrs. Jeffreys, but the money and jewelry were gone. The trial judge adjudicated B. S. delinquent for breaking and entering and grand larceny, and A. S. and J. H. delinquent for breaking and entering and buying, receiving or aiding in the concealment of stolen property.

On appeal therefrom, the juveniles contend that the court erred in denying a motion for acquittal, in that the only evidence against them was that J. H. threw the jewelry box into the canal; to conclude from this that he broke and entered the Jeffreys home is stacking an inference on an inference. They further contend that there is no evidence that B. S., the only one adjudicated delinquent for grand larceny, actually removed the jewelry box from the house, or that A. S. and J. H. bought, received or aided in the concealment of stolen property. Their final contention is that there is a rebuttable presumption that a child between the ages of 7 and 14 did not commit a crime.

Under Florida law, the corpus delicti may be proved by circumstantial evidence as well as by direct evidence. Rowe v. State, Fla. 1956, 84 So.2d 709, 711. The burden resting on the State to prove guilt by circumstantial evidence is well established. Gayle v. State, Fla.App.1972, 258 So.2d 455, 456. In order to convict on circumstantial evidence, the circumstances must be consistent with guilt and inconsistent with innocence, and the circumstances must be of such a conclusive nature and tendency that there can be no reasonable hypothesis other than that the defendant is guilty. Camporeale v. State, Fla.App.1972, 270 So.2d 49.

“When circumstantial evidence is relied upon for conviction in a criminal case, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else, committed the offense. If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves it indifferent as to which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be. It is the actual exclusion of each other reasonable hypothesis which clothes mere circumstances with the force of proof. Circumstantial evidence which leaves nothing more than a suspicion that the accused committed a crime is not sufficient to sustain a conviction.” Harrison v. State, Fla.App.1958, 104 So.2d 391, 394.

Accord: Hall v. State, Fla.App.1974, 303 So.2d 428, wherein a grand larceny conviction based solely on circumstantial evidence was reversed because the record disclosed only the possibility of guilt, but the proofs were not of sufficient certainty to meet the standards prescribed.

In the case sub judice, the record establishes that the evidence adduced at the hearing in support of the charges of breaking and entering against all three defendants and grand larceny against B. S., all circumstantial, falls far short of measuring up to the standard required in order to sustain the adjudications of delinquency. There was no competent substantial evidence presented to show that they were on the Jeffreys’ premises nor that they broke or entered the home or that B. S. stole the valuables. Therefore, it is our view and we so hold, that the trial court erred when it denied in toto the motion for judgment of acquittal at the close of* the evidence. However, as to the adjudications of delinquency of A. S. and J. H. on the charge of buying, receiving or aiding in the concealment of stolen property, we find that the trial court was correct in denying the motion for judgment of acquittal. The defendants were observed with the jewelry box and while together and in the presence of each other, J. H. threw it into the canal. Knowledge on a defendant’s part to sustain a conviction for receiving stolen property may be shown in one of two ways. It will suffice if the state proves: (1) that the defendant had knowledge that the property was stolen at the time he dealt with it or (2) that the circumstances of the transaction were sufficiently suspicious to put a person of ordinary intelligence and caution on inquiry. State v. Graham, Fla.1970, 238 So.2d 618; Schuster v. State, Fla.App. 1970, 235 So.2d 30. Proof of constructive notice as to the stolen nature of goods will suffice. Mayer v. State, Fla.App.1970, 231 So.2d 540.

For the foregoing reasons, the adjudications of delinquency of A. S. and J. H. as to breaking and entering, and of B. S. as to both charges are reversed and remanded with directions that B. S. be discharged. The adjudications of delinquency of A. S. and J. H. as to buying, receiving or aiding in the concealment of stolen property are affirmed. The remaining points on appeal will not be discussed.

Affirmed in part, reversed in part and remanded with directions.


text:
    Homer Allen FRAZEE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 74-41, 75-194.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant was tried on a charge of breaking and entering a building with the intent to commit petit larceny. The jury found him guilty of the charge; the court entered judgment and imposed a sentence of three years in prison.

Appellant in these consolidated appeals urges reversal on the grounds that the evidence showed that he was so intoxicated when he committed the acts complained of he did not have the capacity to form a specific intent to commit a misdemeanor. There was uncontroverted testimony that appellant had been drinking alcoholic beverages prior to the time when he was found in the Bar that had been broken into after it had been closed for the night; that within reaching distance of appellant there was a bag containing Twenty-one Dollars in quarters and that the coin box had been ripped off the pool table. The testimony is conflicting as to the extent of his intoxication.

It is appellant’s contention that the trial court should have granted his motion for a directed verdict because the jury, as reasonable individuals could not have found appellant guilty beyond a reasonable doubt on the evidence before it. We cannot agree. The state’s evidence was sufficient to require that the issues be submitted to the jury.

The jury, after hearing all the testimony and considering the evidence, found the appellant guilty.

It is well settled that where a defense is interposed that the defendant was too intoxicated to form a specific intent to commit the crime and there is sufficient competent evidence adduced on this issue the resolution of such question is solely for the trier of the facts. This court will not substitute its judgment of such matters of fact for that of the jury. Therefore, the judgment and sentence are affirmed.

Affirmed.


author: GRIMES, Acting Chief Judge.

text:
    Govan Henry LAWTON, Appellant, v. STATE of Florida, Appellee.
    No. 75-113.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1975.
    Rehearing Denied Nov. 10, 1975.
    James A. Gardner, Public Defender, Sarasota, and Patrick R. Cunningham, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant entered pleas of nolo contend-ere to the charges of possession of marijuana and narcotics paraphernalia, reserv* ing the right to appeal the denial of his motion to suppress pursuant to State v. Ashby, Fla. 1971, 245 So.2d 225.

About two weeks prior to the date of the occurrence which precipitated these charges, appellant and his wife separated. Mrs. Lawton moved from the apartment where she and appellant had been living. The lease to the apartment had been signed by Mrs. Lawton at a time before she married appellant. After the marriage appellant paid the rent. When Mrs. Lawton moved out, she took all of her clothes with her and gave up her key. On the date in question she went back to the apartment for the purpose of picking up her marriage license preparatory to filing suit for divorce. She obtained a passkey from the apartment manager and entered the apartment. She walked into the bedroom and saw appellant with another woman. She promptly went next door and called the police.

When the police arrived, Mrs. Lawton opened the apartment door and told the officers to go in. Mrs. Lawton never told the police what was in the apartment but simply continued to urge them to go in and see what was going on inside. At this point the appellant came to the door and stretched his arm across the doorway. He stated that he did not wish the officers to enter the apartment. After ascertaining that the parties were still married, the officers entered anyway. Once inside, one of the officers observed a woman walking out of the bedroom. Mrs. Lawton continued to insist that they should look in the bedroom but still did not tell them what they might find. After physically subduing the appellant when he tried to keep them from going into the bedroom, the officers went in and discovered the marijuana and paraphernalia which are the subject of the charges against him.

There is no suggestion that the officers had probable cause to make the search. Likewise, there were no indications that an emergency existed which would justify the intrusion. E. g., Webster v. State, Fla.App.4th, 1967, 201 So.2d 789. Therefore, the case turns on whether the search can be legally sustained on the consent of Mrs. Lawton.

The husband and wife relationship itself, without more, does not impute authority to one spouse to waive the other’s constitutional right to demand a search warrant for the search of one’s own premises. State v. Blakely, Fla.App.2d, 1970, 230 So.2d 698. On the other hand, the voluntary consent of a joint occupant sharing common authority over the premises searched is valid as against an absent defendant. United States v. Matlock, 1974, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. Such a search is’valid not because of the relationship between the parties but because of the consenting occupant’s right of control over or access to the premises. McCravy v. Moore, 6th Cir. 1973, 476 F.2d 281; Stein v. United States, 9th Cir. 1948, 166 F.2d 851; Commonwealth v. Martin, 1970, 358 Mass. 282, 264 N.E.2d 366.

Assuming, without deciding, that Mrs. Lawton still had sufficient control over the premises as to authorize her to consent to a search, we believe that the search cannot stand because appellant was physically present on the premises and affirmatively objected to the search.

Under analogous circumstances, the court quashed a warrantless seach in Dorsey v. State, 1967, 2 Md.App. 40, 232 A.2d 900. There, the defendant lived at Rona Jordan’s apartment “off and on” and said he contributed toward the rent, After telling the officers that she paid the rent out of her welfare check, Mrs. Jordan gave police officers permission to search the apartment. During the course of the search the officers found stolen property. On these facts, the court concluded that appellant and Jordan were joint occupants of the premises. Nevertheless, the court declared the search to be illegal because the defendant was present and expressly objected to the search. See also Tompkins v. Superior Court, 1963, 59 Cal.2d 65, 27 Cal.Rptr. 889, 378 P.2d 113, in which the consent given by a joint occupant who was away from the premises did not authorize police officers to conduct a search over the objection of another joint occupant who was present at the time of the proposed search.

The court in People v. Mortimer, 1974, 46 A.D.2d 275, 361 N.Y.S.2d 955, went even further. There, a twenty-one year old defendant had been arrested and booked at the police station on charges of unlawful drug possession. The police officers asked him to consent to a search of his room, but he refused to do so. The officers then returned to his parents’ home where he lived and requested permission from his parents to search the defendant’s bedroom. The parents consented to the search, and the police discovered marijuana in the defendant’s gym bag. In upholding the motion to suppress, the court stated:

“Upon these facts we assume that general principles would warrant a ruling that the search was valid were it not for defendant’s earlier denial of the police officers’ request. However, it is one thing to find a consent to search shared premises binding upon an absent, non-consenting defendant and it is quite another to hold the consent binding upon an absent defendant who has been requested by the police to consent to a search of his property and who has refused that permission. In the former case the authority to consent to a search may be recognized because the mutual interest, of the parties allows one of them a personal right to consent that is equal to defendant’s right to deny a war-rantless search of the premises, or, it may be recognized simply because a defendant sharing premises assumes the risk of such searches (see United States v. Matlock, supra, n. 7). But if the Fourth Amendment means anything, it means that the police may not undertake a warrantless search of defendant’s property after he has expressly denied his consent to such a search. Constitutional rights may not be defeated by the expedient of soliciting several persons successively until the sought-after consent is obtained.”

With the exception of Vandenberg v. Superior Court, 1970, 8 Cal.App.3d 1048, 87 Cal.Rptr. 876, no case has come to our attention in which a search predicated upon the consent of a joint occupant has been sustained when the defendant was physically present and affirmatively objecting to the search. Vandenberg upheld the search of a minor’s room over his objection based upon consent given by his father. However, the court specifically grounded its holding upon the right of a father to exercise his parental authority over his son’s behavior.

The rule we announce in the case sub judice accords with the long cherished principle that a man’s home should not be subjected to unreasonable governmental intrusion. In addition, such a rule' is more likely to promote peace and tranquility. When one of two joint occupants consents to a search while the other is actively objecting, the possibility of an untoward confrontation cannot be overlooked. Under these circumstances, absent an emergency or other recognized authority for a war-rantless search, the consent of a single joint occupant is not enough.

Reversed.

SCHEB, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Stephen WEISS, Appellant, v. MIAMI NATIONAL BANK, a national banking association, et al., Appellees.
    No. 75-652.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Thomas A. Groendyke, of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Ray H. Pearson and Dennis L. Webb, of Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for appellees.
   PER CURIAM.

Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we determine that the order entitled “Partial Summary Judgment and Ruling on Other Pending Motions” bearing date March 6, 1975 is void, the order having been entered by the judge subsequent to his disqualification herein. Accordingly, the order appealed is vacated and set aside as a nullity, and the cause remanded for further proceedings.

Reversed and remanded.

CROSS, OWEN and MAGER, JJ., concur.


text:
    Mervin ARMBRISTER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-212.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, Mervin Armbrister, seeks reversal of a judgment of conviction based upon a jury verdict finding him guilty of murder in the second degree. He was sentenced to life imprisonment.

Appellant’s sole point on appeal is whether the trial court committed reversible error in permitting, over appellant’s objection, the testimony of a custodian of records of the Dade County Public Safety Department, who had not been listed by name but only by job title in response to a request for discovery pursuant to Rule 3.-220 F.R.C.P.

We have carefully considered appellant’s point on appeal in the light of the record and the controlling principles of law and have concluded that no reversible error has been demonstrated. Richardson v. State, Fla.1971, 246 So.2d 771; Savinon v. State, Fla.App.1973, 277 So.2d 58.

Affirmed.


text:
    Norman Peter MANASA, Jr., Appellant, v. UNIVERSITY OF MIAMI, Appellee.
    No. 74-1689.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
    Rehearing Denied Nov. 3, 1975.

      Norman Peter Nanasa, Jr., m pro per.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for ap-pellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by Norman Peter Manasa, Jr., plaintiff in the trial court, from an order dismissing with prejudice his complaint against the University of Miami for infringement of a common law copyright to which he claims to be entitled for preparation of a written proposal for one of the University’s accredited academic programs. The proposal was prepared for the purpose of, obtaining federal funding for the program, and was submitted by Manasa to the University. It was then revised and delivered to a Federal Governmental Agency for funding.

The sole issue is whether the complaint, as amended, presents a cause of action for infringement of a common law copyright. We agree with the trial court that it does not for two reasons. First, it affirmatively appears from the complaint that Manasa prepared the document for the benefit of the University pursuant to his employment by the University as director of the program. Compare Tumey v. Little, 18 Misc.2d 462, 186 N.Y.S.2d 94 (S.Ct.1959), involving architectural plans and Williams v. Weisser, 273 Cal.App.2d 726, 78 Cal.Rptr. 542, 546-547 (2d Div. 1969) involving lectures of a university professor. Second, his submission of the proposal to the University as alleged in the complaint is more than a limited publication and, therefore, not subject to common law copyright. In order to qualify as a limited publication for purposes of a common law copyright, the publication must be directed “ . . . to a definitely selected group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale. White v. Kimmell, 193 F.2d 744, 746 (9th Cir. 1952). Also see Ball, The Law of Copyright and Literary Property, § 60.

We find no error in the trial court’s transfer to the county court of Manasa’s action for reimbursement of expenses from the University of Miami which is within the jurisdictional limit of that court.

Affirmed.


author: DOWNEY, Judge. ALDERMAN, JAMES E., Associate Judge DOWNEY, Judge. ALDERMAN, JAMES ' E., Associate Judge

text:
    Thomas NOWLIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-599.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1975.

      Emmett A. Moran, P. A., Altamonte Springs, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

From our consideration of the briefs and record in this cause we are not persuaded that the points raised by appellant demonstrate error. In any event, if there was any error it was harmless. Section 924.33, F.S., 1973; McDonnell v. State, Fla.App.1974, 292 So.2d 420.

Although not raised, we take note of the sentence as fundamental error. Appellant was convicted of robbery, use of a firearm in the commission of a felony and aggravated assault and sentenced to concurrent sentences of life imprisonment, IS years and 5 years, respectively. Since all three charges were but facets and the same transaction, appellant should have been sentenced on the robbery count only. Cone v. State, Fla.1973, 285 So.2d 12. Accordingly, the sentences for use of a firearm in the commission of a felony and aggravated assault are vacated. In all other respects the judgment and sentence appealed from is affirmed.

Affirmed in part and reversed in part.

MAGER, J., concurs.

ALDERMAN, JAMES E., Associate Judge, dissents, with opinion.

ALDERMAN, JAMES E., Associate Judge

(dissenting):

Appellant was shot by a police officer during the course of a robbery. In the hospital, while in custody, he was interviewed on two occasions by police officers and made incriminating statements. A proffer of these statements was made by the State during its case in chief. However, the State voluntarily withdrew its proffer, apparently because the statements would have been inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 ALR 3d 974 (1966). The statements were obtained while the appellant was in custody prior to his-having or effectively waiving counsel.

Appellant thereafter elected to take the stand and testified on his own behalf. His testimony conflicted with the State’s version of the robbery. If the jury believed his story he most likely would have been acquitted. On cross-examination he denied ever having admitted that he was guilty of committing the robbery.

On rebuttal the State offered in evidence the testimony of the officers who had taken the incriminating statements from appellant while he was in the hospital. Appellant objected upon the grounds that there was no showing that the statements were voluntarily given. The trial court overruled his objection and allowed the testimony on rebuttal, citing Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971). The trial judge apparently was of the opinion that the question of voluntariness was irrelevant at that point and allowed no further inquiry as to the voluntariness of the statement.

The statements were inadmissible during the State’s case in chief because they were obtained while appellant was in custody prior to having or effectively waiving counsel. Miranda v. Arizona, supra. If Miranda were the only criterion by which we measured trustworthiness of confessions there would be no doubt that under Harris v. New York, supra, the statements in question would be admissible for the purpose of rebuttal. However there are other elements which must be considered and weighed before we can say that evidence of a statement or confession satisfies legal standards. This was recognized by Chief Justice Burger in his Opinion in Harris v. New York, supra, when he said:

“It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” (Italics added)

I wholeheartedly agree that a criminal defendant’s privilege to testify in his own defense cannot be construed to include the right to commit perjury and certainly a defendant who voluntarily takes the stand is under an obligation to speak truthfully and accurately. A defendant should not be allowed to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent statements.

By the same token however a defendant who takes the stand to testify should not, in my opinion, be impeached by a statement which was involuntarily obtained from him. An extreme example of what I am talking about would be a confession obtained while the defendant was drugged or intoxicated to the extent that he did not know what he was saying, or a confession coerced from the defendant by torture or threat of torture.

I believe the State has the burden of establishing “voluntariness” of a confession or statements even when used only for rebuttal under Harris v. New York, supra. Before admitting any such evidence the trial judge should first determine that the trustworthiness of the proffered evidence satisfies legal standards.

In my opinion the trial judge below misconstrued the effect of Harris v. New York, supra. The effect of Harris is to excuse the State from compliance with Miranda, but it does not allow the State to use every statement or confession on rebuttal without any showing that such evidence satisfies legal standards. Perhaps the State could have very easily have shown in this case that the “trustworthiness of the evidence satisfied legal standards.” However no such showing was required and appellant was prohibited from challenging the incriminating statements. When the State withdrew its proffer of the evidence during its case in chief there was no need for appellant to challenge its trustworthiness. When it was offered on rebuttal appellant was not allowed to challenge its trustworthiness.

I can not say that the error in 'this case was harmless. I would, therefore, reverse and remand with instructions that appellant be granted a new trial.

ON PETITIONS FOR REHEARING

DOWNEY, Judge.

We are presented with the anomalous situation of both appellant and appellee petitioning for a rehearing.

We previously affirmed the judgment of conviction in this case but reversed the sentences as violating the “facets of the same transaction rule.”

Appellant was charged in four counts with robbery, use of a firearm in the commission of a felony, and two counts of aggravated assault. One aggravated assault count involved the victim of the robbery, the other involved a policeman who came upon the scene after the robbery. Appellant was convicted of robbery, use of a firearm in the commission of a felony, and of the aggravated assault count involving the robbery victim. He was acquitted of the aggravated assault count involving the police officer. The court sentenced appellant to serve consecutive sentences of life imprisonment, fifteen years and five years.

The state maintains that assault with intent to commit a felony and robbery are not part of the same transaction, relying upon Davis v. State, Fla.App.1974, 295 So.2d 124; and Still v. State, Fla.App.1974, 296 So.2d 67. We fail to find support for that proposition' in the Davis case and we disagree with the breadth of the statement in Still. From the opinion in the latter case one cannot determine the factual setting for the charges involved.

In the case at bar, if appellant had been convicted on the count involving aggravated assault upon the police officer, we would be dealing with a separate criminal act not involved in the same transaction. That alleged assault took place after the transaction involving the robbery, the use of a firearm in the commission of a felony, and the assault upon the robbery victim. However, the robbery and the use of the firearm therein make up the very acts which constitute the aggravated assault upon the robbery victim. Thus, we maintain they are all but facets of the same transaction and appellant is properly sentenced only for the highest offense. See Edmond v. State, Fla.App. 1973, 280 So.2d 449, and Judge Mann’s exposition of the basis for the rule in question,

We have also considered appellant’s petition for rehearing and find it to be without merit.

Accordingly, the petitions for rehearing filed by appellant and appellee are denied.

MAGER, J., concurs.

ALDERMAN, JAMES E., Associate Judge, dissents, with opinion.

ALDERMAN, JAMES ' E., Associate Judge

(dissenting).

I concur with Judge Downey’s opinion that the Petition for Re-Hearing of the ap-pellee, State of Florida, should be denied. If the convictions are to be affirmed the appellant may be properly sentenced only for the highest offense.

However, I believe appellant’s Petition for Re-Hearing should be granted. In addition to the reasons set out in my dissent previously filed herein, appellant has brought to the court’s attention the case of Crawford v. State (1915), 70 Fla. 323, 70 So. 374. Sixty years ago, the Florida Supreme Court in .Crawford held an involuntary confession of a defendant inadmissible as evidence against him, even though he takes the stand as a witness in his own behalf, and the involuntary confession is sought to be used for the purpose of impeaching him as a witness. The words of Justice Ellis in that case are as true today as they were in 1915. Speaking for the Court he said:

“. . . . An involuntary confession, however, is inadmissible against the prisoner on the trial. It is so considered because, having been made under compulsion, it is unworthy of belief, and was obtained in violation of the prisoner’s constitutional rights. May it reasonably be contended that, because the prisoner at a later time, namely, at the trial, avails himself of the privilege of becoming a witness in his own behalf, he thereby imports to his former statements a virtue that they did not possess when made? The object of the prosecution is to get before the jury the confession of the prisoner; it cannot be done before the prisoner takes the stand as a witness, because it was extorted from him, he gave it under compulsion, he was deprived of his constitutional rights; it would therefore be unfair and unjust to him, besides being considered in law unworthy of belief. May such a confession be used nevertheless for purposes of impeachment, and thereby accomplish indirectly what could not be accomplished directly? The jury would hear the confession just the same, and it would have its effect in convicting the defendant just as if it had been admitted as part of the state’s case in chief.
There is little or no difference in effect upon the jury, whether the confession is admitted as part of the state’s case in chief, or later during the trial to impeach the testimony of the defendant; the jury hears it and acts upon it, and the consequences to the defendant are the same; his legal rights as a prisoner are thus violated, and his conviction unlawfully obtained. We do not approve the narrow reason which seeks to justify the admission in evidence of a confession unlawfully obtained but hold that, being inadmissible as evidence against the defendant in the one case, it is inadmissible as evidence against him in the other. His becoming a witness in his own behalf does not change its unlawful character, nor does he thereby waive his right to its exclusion. . . . ”

Crawford has not been overruled and in my opinion the language quoted above is a correct statement of the law of Florida.


text:
    Alex BERNSTEIN, Appellant, v. Evelyn DWORK, Appellee.
    No. 75-129.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Rehearing Denied Nov. 3, 1975.

      Norman F. Solomon, Miami, for appellant.
    Joseph Teichman, North Miami Beach, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN; JJ.
   PER CURIAM.

Defendant appeals an adverse final judgment in an action to recover the outstanding balance due on two promissory notes of which he was the co-maker and accommodation endorser.

In 1972 Alex Bernstein, appellant herein, and Leo Dwork, husband of the appellee Evelyn Dwork, formed Ivy Investment Corporation, a real estate venture. On March 12 and June 7 Ivy Investment Corporation issued two promissory notes in the aggregate sum of $35,300 to Evelyn Dwork. Alex Bernstein was co-maker and accommodation endorser of these notes. In the latter half of 1973, Bernstein and Leo Dwork mutually agreed to dissolve their business relationship. Thereupon, Bernstein conveyed his interest in all his Ivy stock to Leo Dwork and in exchange therefor Leo Dwork personally released Bernstein from any obligations or causes of action which may arise in connection .with Ivy Investement Corporation. On October 19 Evelyn Dwork presented the notes for payment to Ivy Investment and Alex Bernstein. The notes having been dishonored, Evelyn Dwork, as holder and payee, filed the instant lawsuit against Bernstein and Ivy Investment Corporation to recover the balance due thereon plus interest and attorney’s fees. Bernstein filed an answer denying the allegations of plaintiff’s complaint and plead as one of his affirmative defenses, the release. Bernstein also filed a counterclaim for conspiracy against Evelyn Dwork and several cross-claims against Ivy Investment Corporation, Leo Dwork and others. These claims were severed by the trial judge. The cause proceeded to a non-jury trial, at the conclusion of which the trial judge entered final judgment holding defendants Alex Bernstein and Ivy Investment Corporation jointly and severally liable to Evelyn Dwork in the total amount of $31,514.80 plus costs and reasonable attorney’s fees. Alex Bernstein appeals therefrom.

Appellant first urges as reversible error the trial court’s proceeding without an indispensable party, to wit: Leo Dwork.

An indispensable party is defined as one whose interest in the subject matter of the action is such that if he is not joined, a complete and efficient determination of the equities, rights and liabilities of the other parties is not possible. Grammer v. Roman, Fla.App.1965, 174 So.2d 443; Kephart v. Pickens, Fla.App.1972, 271 So.2d 163. In the case sub judice, the trial court was concerned only with the promissory notes reflecting plaintiff as the holder and payee and appellant as co-maker and accommodation endorser. There being no allegation in appellant’s answer that plaintiff and her husband were joint obligees, we hold that Mr. Dwork was not an indispensable party to the instant action.

For his second point on appeal, appellant argues that the court erred in failing to recognize that the release given by Evelyn Dwork’s husband was binding upon her.

Hereunder, Bernstein basically contended that Leo Dwork was acting as an agent for his wife and, therefore, she should be bound by the release. The question of agency is one of fact to be determined by the trier of the fact and the burden of proof is on the party who asserts it. See 1 Fla.Jur. Agency §■ 8 (1955) and cases cited therein. Implicit in the final judgment is the finding of the trial judge, the trier of the facts, that appellant failed to prove the agency relationship. We will not disturb this determination as the record contains substantial competent evidence in support thereof.

Last, appellant contends the trial court erred in severing his counterclaim and crossclaims. We disagree.

A trial judge has broad discretion in the interest of effective judicial administration to sever the claims or to order separate trials under RCP 1.250 and 1.-270(b). Roberts v. Keystone Trucking Company, Fla.App.1972, 259 So.2d 171. We cannot say the trial judge abused his discretion in severing the counterclaim and crossclaims which sound in tort from plaintiff’s contract claim.

Affirmed.


author: DOWNEY, Judge.

text:
    Joseph SEGAL, Appellant, v. William A. GARRIGUES, III, Appellee.
    No. 74-1682.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1975.
    Lloyd Herold, P. A., North Palm Beach, for appellant.
    Larry Klein, of Cone, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellee.
   DOWNEY, Judge.

ON MOTION TO DISMISS APPEAL

Appellant Segal sued appellee Garrigues in three counts. Count I is for slander; count II is for interference with contractual rights in the operation of appellant’s business; count IV is for conspiracy to destroy appellant’s business and good will; count III has been abandoned. Upon motion to dismiss, the trial court granted the motion as to count I “with prejudice” and as to counts II and IV “with leave to amend.” Appellee has moved to dismiss appellant’s plenary appeal from the dismissal of count I on the ground that said order is not a final appealable order, relying upon the decision of this court in Raphael v. Carner, Fla.App.1967, 194 So.2d 298.

In the Raphael case this court held that an order granting a motion to dismiss a complaint “with prejudice” is not a final order; that the words “with prejudice” added nothing to the effect of the order. However, in Duncan v. Pullum, Fla.App.1967, 198 So.2d 658, the Second District Court of Appeal held that striking a counterclaim “with prejudice” was a final ap-pealable order. Only recently in Mendez v. West Flagler Family Association, Inc., Fla.1974, 303 So.2d 1, the Supreme Court of Florida approved the holding in Duncan v. Pullum, supra, thus for all intents and purposes overruling our holding in Raphael. Accordingly, it appears safe to conclude now that the addition of the words “with prejudice” indicates finality.

Since the order granting the motion to dismiss count I with prejudice is a final order, it is appealable even though other counts of the complaint remain pending if count I is a distinct and separate cause of action which is not interdependent with counts II and IV. Mendez v. West Flagler Family Association, Inc., supra. As previously noted count I attempted to allege a cause of action for slander by virtue of remarks which appellee allegedly publicly made about appellant. Counts II and IV charge appellee with business interference. In our view count I is a distinct and separate cause of action and is not interdependent with the other two counts. Consequently, the order appealed from is a final appealable order within the rule of Mendez v. West Flagler Family Association, Inc., supra.

Accordingly, appellee’s motion to dismiss this appeal is denied.

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