author: BOYD, Judge.

text:
    STATE of Florida, Petitioner, v. Mark GIESEKE et al., Respondents.
    No. 46804.
    Supreme Court of Florida.
    Feb. 18, 1976.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for petitioner.
    Loyd C. Mosley, Clearwater, for respondents.
   BOYD, Judge.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 305 So.2d 6. Our jurisdiction is based on conflict between the decision sought to be reviewed and State v. Smith. The facts of the case are as follows.

Having been charged by information with possession of marijuana paraphernalia in violation of the Florida Drug Abuse Law, Respondents filed a Motion to Suppress the Evidence and attacked the sufficiency of the affidavit upon which the search warrant was based, their main thrust being that this affidavit failed to include adequate allegations to establish probable cause for the search of a certain residence which was under the control and custody of one of the Respondents. The affidavit was sworn to by one Douglas H. Carey, detective of the Police Department of the City of Clearwater. The affidavit stated in part:

“Affiant’s reasons for this belief are that in his capacity as a detective of the Clearwater Police Department, he had occasion within the past ten (10) days to supervise a controlled buy of marijuana wherein a reliable, confidential informant was searched, given twenty dollars ($20.00) in U.S. Currency, was observed entering the above described building and after a period of approximately fifteen (IS) minutes the confidential informant was observed leaving the above described building and returning to the affiant, who again searched the confidential informant, who had in his possession one (1) baggie containing more than five (5) grams of suspected marijuana.
“Based on a conversation with the confidential informant, affiant believes that other dangerous drugs are located in the above described building.”

The trial court granted Respondent’s Motion to Suppress, and the District Court of Appeal, Second District, affirmed per curiam without a written majority opinion but with a dissenting opinion filed.

Upon careful examination of the record and the argument of counsel we are compelled to reverse the decision of the District Court of Appeal for the following reasons.

It is clear that, when all reference to hearsay testimony is eliminated, the fact that Affiant personally supervised the controlled buy resulting in the purchase of contraband from the described premises was sufficient probable cause to justify the warrant. In this Court’s recent opinion in Findlay v. State, we quoted with approval the following excerpt from State v. Smith:

“ ‘We have carefully reviewed the decisions of the United States Supreme Court in Spinelli v. United States [393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637] and Aguilar v. Texas [378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723], The affidavits held insufficient in those cases were based almost entirely on reports received from informers without supporting factual allegations showing reliability and “underlying circumstances.” The interpretation of Spinelli and Aguilar urged by respondents herein, would require the striking of a search warrant based on affidavits referring to tips from confidential informers not meeting Aguilar’s test, even though the affidavit contained sufficient independent statements based on personal knowledge of the affiant. We are unwilling to adopt such a rule and do not believe Aguilar and Spinelli require it. An affidavit which is otherwise sufficient is not tainted by reference to a confidential tip, even though that tip be inadequate in itself under the Aguilar and Spinelli cases’ [Emphasis supplied]”

Thus, the Findlay decision, supra, clearly indicates that superfluous hearsay information will not vitiate a determination of probable cause where that determination is sufficiently supported by direct testimony of an affiant who personally experienced events which by themselves generate probable cause.

Furthermore, based on United States v. Harris, it was error for the trial court to suppress for lack of probable cause evidence seized pursuant to a valid warrant where that warrant relied in part on hearsay testimony of a reliable informant whose reliability and veracity were independently demonstrated through a successfully controlled buy. Additionally, it appears that both the trial court and the District Court of Appeal overlooked State v. Lewis, which is factually analogous; in that case, the District Court of Appeal, Second District, stated, inter alia, “. . . such an affidavit need not even allege that the informant is a reliable source. . . . ” Also factually similar is Law v. State, in which the District Court of Appeal, Second District, specifically found that a search of the informant’s person by the affiant both before and immediately after the purchase of the drug was sufficient personal knowledge on which to base the issuance of the search warrant.

Applying the directives of State v. Wolff to the instant facts, we conclude (1) that the sworn testimony of the police officer was of sufficient quality to satisfy the test of truthfulness and integrity of the witness; (2) the successful controlled buy was a sufficient demonstration of the probable reliability of the informant’s intelligence information relative to the presence of additional contraband on the premises; and (3) the controlled buy alone is sufficient factual premise from which the Af-fiant and the Magistrate could conclude that additional contraband remained on the premises.

For the foregoing reasons, the decision of the District Court of Appeal, Second District, is quashed and this cause is remanded for further action in the trial court consistent herewith.

It is so ordered.

ADKINS, C. J., and ROBERTS, ENGLAND and HATCHETT, JJ., concur.

      . Article V, Section 3(b)(3), Florida Constitution.

      . 233 So.2d 396 (Fla.1970).

      . 316 So.2d 33 (Fla.1975).

      . Supra, Note 2 at 398.

      . 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

      . 225 So.2d 170 (Fla.App.1969) ; cert. den. 232 So.2d 178 (Fla.).

      . 292 So.2d 596 (Fla.App.1974).

      . 310 So.2d 729 (Fla.1975).


source: Caselaw Access Project

author: JOANOS, JAMES E., Circuit Judge. ENGLAND, Justice

license: Public Domain

text:
    Howard Virgil Lee DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. 44864.
    Supreme Court of Florida.
    Feb. 18, 1976.

      James A. Gardner, Public Defender, and Elliott C. Metcalfe, Jr., Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   JOANOS, JAMES E., Circuit Judge.

The appellant was convicted of murder in the first degree and sentenced to death. Jurisdiction to hear this cause lies in Article V, Section 3(b)(1), of the Constitution of the State of Florida.

The State’s primary witness, Helen Atkins, wife of the victim, was apparently present when the crime was committed. She testified as to having met the appellant, Howard Virgil Lee Douglas, and the victim, Jesse “Jay” William Atkins, at about the same time. She lived with the defendant for periods of time before and after her marriage to the victim. .She had resumed living together with her husband for some short period of time up to the date of the crime. Her account of the crime is essentially as follows.

On the afternoon of July 16, 1963, Helen Atkins learned that she was being evicted by her landlord from the trailer she rented. She proceeded with the victim to the trailer in the vicinity of Bowling Green, Florida, and gathered up her belongings. On the way back the defendant drove up behind them in his truck and ordered the victim who was driving their automobile to pull over to the side of the road. With the use of a rifle, the defendant required them to proceed in a rather complicated route. At one point the vehicle became stuck. At defendant’s direction all three walked to a mine where they got a man to take them back in a truck and free the vehicle. The defendant then required them to proceed to a wooded area near Brewster, Florida. The defendant then made her and the victim undress and perform various sexual acts before him. The defendant then struck the victim in the head with the but of his rifle, with such force that the stock of the rifle was shattered. The defendant then fired three shots into the head of the victim. Helen Atkins was then ordered to perform certain sexual acts upon and with the defendant. The body of the victim was later covered with grass and bushes. It was discovered some five days after-wards by some men out running dogs in the area.

The defendant’s main defense was alibi. Several witnesses testified that they had been with or had seen the defendant at various times on the date the crime was said to have been committed.

The jury, after finding the defendant guilty of murder in the first degree, in the separate sentencing procedure recommended a life sentence. The trial judge found that the crime was especially heinous, atrocious and cruel, and that there were no mitigating circumstances, and imposed the sentence of death.

This appeal is from the judgment of guilt and sentence to death.

Defendant first contends that he was deprived of a public and fair trial in violation of the Constitutions of Florida and of the United States. His argument is centered around the method by which Helen Atkins was permitted to testify. When she was called by the State to testify, the State moved that, due to the nature of her testimony, the court ordered the courtroom to be cleared of all except necessary court personnel, the press, and members of the families of the defendant, the victim, and the witness. The basis of the motion was that the nature of the testimony was so embarassing that there was no reason that anybody should hear it unless necessary. The motion was granted over defendant’s obj ection.

In Robertson v. State a criminal proceeding was reviewed in which the general public was excluded except the “court officers, the jury, witnesses, attorneys representing the parties, and all persons directly interested in the case.” In affirming the trial court, this court approved the following statement of law, “The exclusion by the court of all persons other than those interested in the case, where, from the character of the charge and nature of the evidence, public morality would be injuriously affected, does not violate the constitutional right to a public trial.” We believe that the statement of the law expressed in the Robertson case continues to be correct and is dispositive of appellant’s point. The limitation upon courtroom spectators did not render the matter a star-chamber proceeding and there has been no prejudice shown that resulted from the limitation.

Appellant next argues that the trial court erred in allowing an in court identification to be made of appellant by a witness, Leroy Marshall. On cross examination, it was brought out that prior to the trial the witness identified the appellant from a single photograph shown to him. Appellant maintains that the in court identification was tainted by the showing of the single photograph. However, the in court identification by Marshall was not objected to at the trial. Appellate review in the absence of fundamental error requires an objection or motion to have been made before the trial court. State v. Barber An objection or motion would have given the trial court an opportunity to conduct proceedings to determine whether or not the witness would be permitted to make the in court identification. Without that determination being made, we cannot find that the in court identification was improperly tainted. Beyond that, a study of the record and the evidence does not reflect that the in court identification by the witness Marshall would amount to fundamental error even if appellant could establish that the in court identification by the witness Marshall was improperly affected by the witness being shown the single photograph. The evidence of guilt was much more than adequate. Further the jury had before it evidence as to the conditions under which the witness Marshall had observed the person whom he identified as the defendant and that he had previously identified him from the single photograph. It does not appear that the in court identification by Marshall was of any real significance in the case at all. Under the circumstances it certainly did not constitute fundamental error and may not have been error at all even if an objection or motion had been made.

In his third point, appellant alleges that the trial court erred in denying his motion for new trial based upon newly discovered evidence. Appellant’s newly “discovered evidence” was the testimony of a witness, Faye Finkell. We have studied the transcript of the testimony of the witness. We can find no error by the trial court in denying the motion. The court acted appropriately in determining that the new evidence would have been cumulative to that presented at the trial and that it would not have changed the verdict. See Harvey v. State.

Appellant’s final point is that the imposition of the death sentence pursuant to the Florida Statutes is in contravention of the United States Constitution and the Constitution of the State of Florida. He cites Furman v. Georgia for the argument that the death penalty cannot be imposed where procedures are employed that permit discretion by judges or jurors. This argument has been rejected by this court first in State v. Dixon and several times since. We see no reason to recede from the Dixon opinion.

This court has the responsibility to review the sentence of death and determine whether or not the punishment is too great. State v. Dixon. The abuse to which the victim was subjected to prior to his death and the manner in which he was killed was especially heinous, atrocious and cruel. The method by which the victim and his wife were taken to the location by a complicated route where the killing occurred reflects a determination to kill. Even getting the vehicle stuck and having to get help to have it freed did not break that determination. The evidence is clear that the murder was committed in a cold and calculated manner. No evidence of mitigation was produced. The trial judge buttressed his decision that the death penalty should be imposed by the inclusion in his findings of fact information from a presentence investigation report which the defendant was given the opportunity to traverse. The report reflected that the defendant was 37 years old and had been previously convicted of a number of felonies including grand larceny, breaking and entering (twice), forgery, and escape (three times) as well as numerous misdemeanors. The defendant had previously received penitentiary sentences aggregating seventeen years and an undesirable military discharge. We conclude, as did the trial judge, that the death penalty is the proper sentence.

Pursuant to Rule 6.16(b), Florida Appellate Rules, we have also reviewed the evidence to determine whether the interests of justice require a new trial. We can find no reversible error and the evidence does not reflect that justice requires a new trial. We find that the judgment and sentence of the trial court is lawful and in accordance with justice.

Accordingly, the judgment and sentence of the Circuit Court are hereby affirmed.

It is so ordered.

ADKINS, C. J., ROBERTS and OVER-TON, JJ., and HENSLEY and MELVIN, Circuit Court Judges, concur.

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice

(dissenting).

I dissent. Appellant was denied a “public” trial guaranteed to him by the United States and Florida Constitutions.

During the course of appellant’s four day jury trial in Polk County, Florida, the State brought 18 witnesses to the stand. One of these, the wife of appellant’s homicide victim, was central to the prosecution’s case. Decedent’s wife was the only eye-witness to the crime. She was called to testify after six other witnesses for the State had appeared before the jury and the public. For her testimony, however, the jury was present but the courtroom was cleared of all spectators except the press, members of decedent’s family, the witness’ family and the defendant’s family. After this activity in the courtroom, decedent’s widow was permitted to testify to the events surrounding the homicide. When she left the witness stand, the general public was allowed to re-enter the courtroom for the remainder of the trial. Appellant contends that he did not receive a “public” trial because the general public was excluded from a portion of the trial and the manner of exclusion necessarily precluded a fair trial by focusing attention and sympathy on the widow-witness.

We do not have here the classic nonpublic trial which our jurisprudence has abhorred since the nation was founded. I agree with the majority there was no “Star Chamber” or “Inquisitorial” proceeding where the veracity of testimony was questionable because it was given without exposure to public view. We have instead a more subtle and insidious impairment of appellant’s right to a fair public trial; one which the founding fathers may not have envisioned. We have here an erosion of the original concept by incremental attrition' — a paring of the term “public” to mean something less than all the public. The majority opinion construes Robertson v. State too broadly in finding it controlling here. That case concerned limiting the right to public trial where there would be adverse affects upon public morality. No one has ever suggested such a rationale for the exclusion of the public here. The trial judge undoubtedly acted from compassion for the widow-witness. His exclusion of the general public may have been well motivated and his sympathetic reaction may even have been well-founded, but his concern was misdirected. Solicitude for a witness cannot justify sacrifice of a criminal defendant’s constitutional guarantees. The credibility of a witness is given official emphasis when a trial judge relieves the witness of “embarrassment because she is ‘called upon to testify to the story of the defendant’s crime and her shame.’ ”

Obviously, we can never know whether the widow-witness would have testified to different facts or in a different manner had the general public been permitted to observe her presentation. Nor can we know whether chance observers who might have been in the courtroom (if not excluded) would have come forward with other facts or evidence. Because there is no manner by which prejudice can be shown nor discounted, the constitutional rule must be applied absolutely.

The overwhelming weight of evidence tending to show the appellant’s guilt notwithstanding, I believe that a new trial must be conducted in which appellant is accorded his full constitutional right to a public trial. The slightest invasion of that right today is but a prelude to more extensive erosions of the Constitutions’ guarantee.

      . 64 Fla. 437, 60 So. 118 (1912).

      . 301 So.2d 7 (Fla.1974).

      . 87 So.2d 582 (Fla.1956).

      . 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

      . 283 So.2d 1 (Fla.1973).

      . Supra.

      . U.S.Const. Amend. VI; Fla.Const., art. I, § 16.

      . 64 Fla. 437, 60 So. 118 (1912).

      . The continuing validity of Robertson is not appropriately at issue in this case, though it is subject to scrutiny. See, United States v. Kobli, 172 F.2d 919 (3d Cir. 1949).

      . Tanksley v. United States, 145 F.2d 58, 59, 10 Alaska 443 (9th Cir. 1944).

      . Davis v. United States, 247 F. 394 (8th Cir. 1917).


author: PER CURIAM.

text:
    Francisco CRUZ, Appellant, v. The STATE of Florida, Appellee.
    No. 75-871.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The single point presented on this appeal after defendant was found guilty by a jury of robbery, adjudicated guilty and sentenced to life imprisonment is that the trial court erred in denying defendant the right to comment on his codefendant’s failure to take the stand at the trial. Appellant at no time asked for a severance, and his claim of a right to comment upon his codefend-ant’s failure to testify came at the end of the trial.

Under these circumstances, no error is presented because to have allowed the comment would have required a mistrial for appellant’s codefendant. Cf. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

Affirmed.


text:
    Zenaida Y. RODRIGUEZ, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and D. & L. Maintenance, Inc., Respondents.
    No. 75-898.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.

      Faye, Benincasa & Lassman, Miami, for petitioner.
    Kenneth H. Hart, Jr., Tallahassee, and James R. Parks, Miami, for respondents.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Petitioner brings this petition for a writ of certiorari seeking to review an order of the State of Florida, Industrial Relations Commission, respondent, denying her claim for unemployment compensation benefits.

Petitioner became employed in July, 1973, as a cleaning lady w-ith D. & L. Maintenance (“first employer”) which operates a janitorial service. She was assigned to clean offices belonging to her employer’s customers. Generally, she worked for one to one and a half hours each evening, five days a week. In April, 1974, petitioner became employed as a blind-stitch operator with Winston Manufacturing Corporation (“second employer”) where she worked from eight to nine hours daily, Monday through Friday. Petitioner continued working for both employers until October 15, 1974, at which time she voluntarily left her part-time employment with her first employer. She remained employed full-time with her second employer until November 6, 1974, at which time she was laid off involuntarily due to a decline in her second employer’s work load.

Thereafter, petitioner filed an initial claim for unemployment compensation benefits with respondent to become effective from November 3, 1974. On December 12, 1974, respondent’s claims examiner made a determination that petitioner was not entitled to such benefits on the ground that she had voluntarily left employment with her first employer without good cause attributable to it, within the meaning of § 443.06(1), Fla.Stat., F.S.A.

Petitioner then appealed this decision to respondent’s appeals referee. On March 20, 1975, a hearing was held before the appeals referee who affirmed the decision of the claims examiner.

On March 28, 1975, petitioner filed an appeal to the Industrial Relations Commission from the decision of the appeals referee. On May 7, 1975, the Commission mailed a notice to petitioner wherein it affirmed the decision of the appeals referee. At the conclusion of the administrative process, petitioner filed this writ of certio-rari seeking to review the May 7, 1975, decision of the Commission.

Among the several assignments of error made by petitioner in her writ is one which we find dispositive of the writ. Petitioner contends that the decision of respondent’s appeals referee failed to conform to the essential requirements of law because it failed to properly construe § 443.06(1), Fla.Stat., F.S.A., based on the facts of her claim. This section reads in pertinent part as follows:

“§ 443.06 Disqualification for benefits. — An individual shall be disqualified for benefits:
“(1) For the week in which he has voluntarily left his employment without good cause attributable to his employer ., if so found by the division, and for not more than the twelve weeks which immediately follow such week, as determined by the division in each case according to the circumstances in each case . . . Provided, however, that disqualification under this subsection shall continue for the full period of unemployment next ensuing after he has left his work voluntarily without good cause . . . and until such individual has become re-employed and has earned wages equal to or in excess of ten times his weekly benefit amount; . . . ” [Emphasis added.]

That part of the decision of respondent’s appeals referee dated March 20, 1975, construing this section in regard to petitioner’s claim reads as follows:

“DECISION: The Claims Adjudicator’s determination, disqualifying claimant for the week ended October 19, 1974, plus the five immediately following weeks and until she becomes reemployed and has earned at least $690, for having voluntarily left her employment without good cause attributable to her employer, and relieving the employer’s employment record (114 853) [petitioner’s first employer] of charges in connection with this claim, is hereby affirmed.” [Emphasis added.]

In our opinion, the key operative words in § 443.06(1), Fla.Stat., F.S.A., as they relate to the facts of petitioner’s claim, are “until such individual has become re-employed.” In our opinion, such words contemplate the situation where a person seeking benefits has lost one job without good cause attributable to his employer and thereafter becomes re-employed and earns ten times his weekly benefit amount with another employer. In the instant appeal, petitioner was never “re-employed” after leaving her first employer because, prior to and after leaving her first employer, she was employed with and continued to be employed with her second employer. It appears to us that in drawing up the legislation for Chapter 443, Fla. Stat., F.S.A., the lawmakers did not contemplate petitioner’s situation. Further, although the wording of § 443.06(1), Fla. Stat., F.S.A. could possibly be strained to apply to the facts of her case, we do not think such a result was intended, otherwise, she would be penalized for her industry in having worked concurrently at both a full-time and part-time job. As we stated in Herman v. Florida Dept. of Commerce, Fla.App.1975, 323 So.2d 608, the Unemployment Compensation Law, of which § 443.06(1), Fla.Stat., F.S.A., is a part, is remedial and humanitarian legislation that should be liberally and broadly construed. Therefore, in our opinion, based on the facts of petitioner’s case, we feel that § 443.06(1) should not act as a bar to the recovery by her of unemployment compensation benefits.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that respondent in its order dated May 7, 1975, upholding the March 20, 1975, order of its appeals referee, departed from the essential requirements of law in its application of § 443.06(1), Fla.Stat., F.S.A., to the facts of petitioner’s claim for unemployment compensation benefits. Therefore, for the reasons stated and upon the authorities cited, petitioner’s writ of certiorari is granted, and the order under review is quashed.


author: HENDRY, Judge.

text:
    Theodore M. TRUSHIN, as Trustee, Appellant, v. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellee.
    No. 75-469.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Rehearing Denied March 23, 1976.
    Theodore M. Trushin Law Offices and Michael B. Solomon, Miami Beach, for appellant.
    Joseph A. Wanick, City Atty., and Lee H. Schillinger, Asst. City Atty., Miami Beach, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   HENDRY, Judge.

Appellant trustee, respondent below, appeals a final judgment of the trial court dated February 10, 1975, declaring a building owned by him to be a public nuisance and requiring it to be demolished. The judgment also assessed costs against appellant.

On February 4, 1975, the trial court held a final hearing on appellee’s City of Miami Beach, petitioner below, complaint, as amended, which basically sought equitable relief in enforcing its zoning ordinances as they relate to appellant’s property. The result of this hearing was the final judgment dated February 10, 1975, from which appellant brings this appeal.

The judgment, in pertinent part, is set forth below:

“THIS CAUSE having come on to be heard upon the Petitioner’s request for temporary injunction on January 2, 1975, and this Court having viewed the premises involved on January 24, 1975, and this cause having come on to be heard for trial on February 4, 1975 and both parties having presented evidence and legal argument, and this Court being otherwise fully advised in the premises thereof, the following was found to exist:
“1. The Respondent owns, as trustee, the property located at 21 Washington Avenue, Miami Beach, Dade County, Florida, being the property described as Lot 13, less E 40', Block 10, Ocean Beach Subdivision recorded in Plat Book 2 at page 38 of the Public Records of Dade County, Florida. The described premises is situated between the structure known as the Jewish Community Centers of South Florida, South Beach Activity Center, located at 25 Washington Avenue, Miami Beach, Dade County, Florida, on the north and the restaurant known as Joe’s Stonecrab Restaurant, located at 227 Biscayne Street, situated on the south and east sides of the Respondent’s property. Both "of the surrounding structures are open to and frequented by members of the public.
“2. The aforedescribed premises is designed to be used as an apartment house, however, both parties agree that the property has not been used for several years and, in its present condition, the premises is unfit for human habitation.
“3. The building located at the afore-described premises was constructed during 1925 and 1926, prior to the existence of any zoning ordinance in the City of Miami Beach. The building fails to conform to various requirements of the existing zoning ordinance, being Zoning Ordinance No. 1891 of the City of Miami Beach, as set forth in Paragraph 4 below.
“4. Both parties have agreed and this Court finds that the structure in question fails to conform with the existing density, setback and lot size requirements of Zoning Ordinance No. 1891 of the City of Miami Beach and further fails to conform to the parking requirements of the Zoning Ordinance, inasmuch as the building provides no off-stréet parking spaces whatsoever. As applied to this property, the Zoning Ordinance requires a minimum of one parking space per dwelling unit. This Court, therefore, finds that this building constitutes a non-conforming use as it relates to off-street parking spaces in accordance with the law as stated in City of Miami Beach v. Arlen King Cole Condominium Association, Inc., 302 So.2d 777 (Fla. App.1974).
“5. After having viewed the building and having heard all the evidence, it is obvious that the building constitutes a public nuisance and serves no useful purpose to either the public or the. Respondent in its present condition. Therefore, the only issue that remains is whether this non-conforming building can be repaired or should be demolished.
“6. After viewing the premises and hearing testimony, this Court finds that the building in question cannot be repaired for the following reasons:
“A. The minimum amount of repairs necessary to eliminate the nuisance would amounNto a substantial reconstruction of the building.
“B. Section 12-5 of Zoning Ordinance No. 1891 of the City of Miami Beach provides that:
“No building which has been damaged by any cause whatever to the extent of more than 50 percent of the County tax-assessed value of the building shall be restored except in conformity with the regulations contained in this Ordinance and all rights as a non-conforming use are terminated.
This Court finds that the building in question has deteriorated and been otherwise damaged to an extent which exceeds 50 percent of the tax-assessed value of the building. In fact, the minimal repairs suggested by the Respondent will cost at least 200 percent of the County tax-assessed value. This Court finds that this building cannot be repaired in conformity with Section 12-5 of City of Miami Beach Zoning Ordinance No. 1891. Therefore, it is
“ORDERED and ADJUDGED that the building located at 21 Washington Avenue, Miami Beach, Dade County, Florida, be and is hereby declared to be a public nuisance, and it is
“FURTHER ORDERED and ADJUDGED that the Respondent, THEODORE M. TRUSHIN, be and he is hereby directed and required to demolish the aforedescribed building located at 21 Washington Avenue, Miami Beach, Dade County, Florida, within 30 days from the date of this Order, and it is
“FURTHER ORDERED and ADJUDGED that the Petitioner shall recover its costs, when taxed, from the Respondent, THEODORE M. TRUSHIN, for which let execution issue.”

It is a well established principle that a final judgment of the trial court comes to this court on appeal clothed with a presumption of correctness and the one who asserts error has the burden of showing it. Failure to carry this burden leads includibly to the conclusion that there is no error in the record and the judgment appealed must be affirmed. American Motor Inns. of Fla., Inc. v. Bell Electric Co., Fla.App.1972, 260 So.2d 276; Solomon v. Hunt, Fla.App.1971, 243 So.2d 185; Hamilton v. Liberty National Life Insurance Co., Fla.App.1968, 207 So.2d 472; and see 2 Fla. Jur., Appeals § 316.

In the appeal sub judice, we have considered the record, the numerous points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is affirmed.

Affirmed.


text:
    Mildred Chiasson STRATE, Appellant, v. Zachary A. STRATE, Jr., et al., Appellees.
    No. 73-1550.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.

      Rudolph R. Schoemann, New Orleans, La., Paul Gifford, Miami, for appellant.
    Sibley, Giblin, Levenson & Ward, Lapi-dus & Hollander, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant, plaintiff and counterdefendant below, appeals a final judgment and order of the trial court awarding appellee Cal Koven, defendant and counterplaintiff below, $60,000 plus interest and costs on his counterclaim for slander of title to real property and denying appellant’s motions for a new trial or a judgment n.o.v.

On January 22, 1973, appellant filed a complaint in the trial court seeking, inter alia, to recover certain property allegedly hers pursuant to a Louisiana divorce decree and settlement. Among the several persons named as defendants was appellee, Cal Koven. On February 9, 1973, appellee Koven filed an answer and counterclaim for slander of title to real property. Ap-pellee Koven’s counterclaim was basically predicated upon appellant’s alleged wrongful filings, both before and after her complaint was filed, of several affidavits of lis pendens which affected the title to certain real property owned by him.

On July 6, 1973, appellant dismissed her complaint as to appellee Koven. Subsequently, the case was scheduled for trial on appellee Koven’s counterclaim, and on November 21, 1973, the trial court entered a final judgment, pursuant to a jury verdict, awarding him $60,000 plus interest and costs. Subsequently, appellant’s motions for a new trial or judgment n.o.v. were denied by the trial court in an order dated December 5, 1973. From this final judgment and order appellant appeals.

A firmly established maxim is that a final judgment or order of the trial court comes to this court on appeal clothed with a presumption of correctness and the one who asserts error has the burden of showing it. From this burden devolves the duty of an appellant to make any reversible error clearly, definitely, and fully appear. Failure to meet this burden impels the conclusion that there is no error in the record and the judgment or order appealed must be affirmed. American Motor Inns of Fla., Inc. v. Bell Electric Co., Fla.App. 1972, 260 So.2d 276; Solomon v. Hunt, Fla.App.1971, 243 So.2d 185; Hamilton v. Liberty National Life Insurance Co., Fla.App.1968, 207 So.2d 472; and see 2 Fla. Jur., Appeals § 316.

We have considered the record, the numerous points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment and order appealed are affirmed.

Affirmed.


text:
    Myron B. SUSMAN et al., Appellants, v. Charles M. SCHUYLER and Kurt Birk et al., Appellees.
    Nos. 75-188, 75-189.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Rehearing Denied March 23, 1976.

      Joe N. Unger, Miami Beach, for appellants.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman, Creel & Glasgow, Miami, Burnett Roth, Miami Beach, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

This matter has previously been before this court and the Supreme Court of Florida. See: Susman v. Schuyler, Fla.App. 1973, 274 So.2d 270; Susman v. Schuyler, Fla. 1973, 277 So.2d 787, wherein it was established that the appellee, Schuyler, had a slander of title action against the appellants, Susman and Rosenblatt, by the approval of the summary judgment as to liability on this cause of action. Subsequent to the matter being returned to the trial court, the cause was tried before a jury on Schuyler’s slander of title action and also on the appellees’ (Birk and Barnes) cause of action against Susman and Rosenblatt, alleging malicious interference with an advantageous contractual relationship. The matter was submitted to the jury with numerous forms of verdict. The jury returned a verdict for compensatory and punitive damages in favor of Schuyler and against Susman and Rosenblatt on the slander title cause of action. The jury also returned verdicts in favor of Birk and Barnes against Susman and Rosenblatt for both compensatory and punitive damages on their cause of action for malicious interference with, an advantageous business relationship. Schuyler moved for attorney fees to be taxed as costs, pursuant to a stipulation of the parties that the matter could be determined by the court. Subsequent to the jury verdict for prosecuting the slander of title suit and removing the cloud on his (Schuyler’s) title, the trial judge denied this motion for attorney fees, holding that same were not recoverable.

Susman and Rosenblatt appeal and contend that all the verdicts were erroneous and not supported by the evidence, both as to compensatory and punitive damages. Schuyler cross-appeals, contending error on the part of the trial judge in failure to award him attorney fees as a part of his costs in removing the cloud on his title.

We affirm the verdicts rendered adverse to Susman and Rosenblatt, because we find sufficient competent evidence and reasonable inferences therefrom to support both the verdicts on the slander of title cause of action and the verdicts on the malicious interference with a favorable business relationship. Dade Enterprises, Inc. v. Wometco Theaters, Inc., 119 Fla. 70, 160 So. 209; Lehman v. Goldin, 160 Fla. 710, 36 So.2d 259; Franklin v. Brown, Fla.App.1964, 159 So.2d 893; Gates v. Utsey, Fla.App.1965, 177 So.2d 486; Retzky v. J. A. Cantor Associates, Inc., Fla.App.1966, 192 So.2d 24; Strate v. Strate, Fla.App.1976, 328 So.2d 29. We also find that the jury was justified in concluding that punitive damages were properly awarded on both claims against both Susman and Rosenblatt. Glusman v. Lieberman, Fla.App. 1973, 285 So.2d 29; Adams v. Whitfield, Fla.1974, 290 So.2d 49; Dunn v. Shaw, Fla.1974, 303 So.2d 6.

Turning to the cross-assignment of error, we believe the trial judge erred in denying the attorney fees as part of the costs of removing the cloud from Schuyler’s title. See: Glusman v. Lieberman, supra, wherein the following is found:

* * * * * *
“[3-5] Appellant’s other point complains of the court’s allowance of attorney’s fees. Appellant contends that attorney’s fees are recoverable only when authorized by contract, statute or when a fund has been created or brought into court. True, these are the usual occasions upon which we find attorney’s fees allowed, and the cases which make that statement are legion. However, there are other instances in which attorney’s fees are recoverable, such as wrongful attachment, Bondy v. Royal Indemnity Co., 1938, 134 Fla. 776, 184 So. 241, false imprisonment, City of Miami Beach v. Bretagna, Fla.App.1966, 190 So.2d 364, and malicious prosecution, Tidewell v. Witherspoon, 21 Fla. 359, and the cases and texts cited in Adler v. Segal, Fla.App.1959, 108 So.2d 773. Perhaps one might distinguish the three categories usually referred to as pure attorney’s fees per se, while designating the attorney’s fees allowed in the other designated types of action as special damages to compensate for the wrong done. But call it what you will, the essential element going to make up the ultimate verdict is attorney’s fees. Having established that there are occasions for allowance of attorney’s fees as part of the damages other than in the usual three categories mentioned, we now consider the question of their allowance in a slander of title action. The authority for such an allowance appears in Lehman v. Goldin, Fla. 1948, 36 So.2d 259, wherein the Supreme Court adopted, the provisions, of the Restatement of the Law of Torts, § 624, 625 & 626, providing the circumstances under which one becomes liable for slander of title. Section 633 of the Restatement defines the term ‘pecuniary loss’ contained in the aforesaid sections as including expense of litigation to remove the cloud cast upon the title. See also; 50 Am.Jur.2d Libel and Slander, § 550. Thus, the allowance of attorney’s fees was proper.”
i[i ‡ S¡« * • * *

Therefore, the final judgments here under review by the appellants be and the same are hereby affirmed, but the order denying attorney’s fees as an item of costs be and the same is hereby reversed and the cause is remanded to the trial court for fixing of an award for attorney’s fees, pursuant to the stipulation entered into between the parties and the evidence in the record or such other evidence as the trial judge may desire to hear.

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


text:
    George Allen JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-16.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., Miami, and Roy Kahn, Legal Intern, for ap-pellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The defendant appeals an order denying his motion for relief pursuant to CrPR 3.-850. The single point presented on appeal urges that the trial court erred because the record did not conclusively refute defendant’s allegation of ineffectiveness of counsel at sentencing. This point was not included in petitioner’s written motion for relief but it appears that it was the only point which was presented or argued to the trial judge. The motion was denied.

It is our view that the record, which shows that the defendant 1) pleaded guilty to eleven felonies including charges of grand larceny, larceny of an automobile, burglary and several counts of robbery and 2) received a sentence of only ten years in the state prison, conclusively refutes the charge that defendant was not adequately represented at the time of sentencing. See Caplinger v. State, Fla.App.1973, 271 So.2d 780.

Affirmed.


text:
    In re ESTATE of Mayer WEINSTEIN. Gabrielle NASH, Appellant, v. Herbert WEINSTEIN, Appellee.
    No. 75-351.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Goldman, Goldstein & Paczier, Louis Vernell, Miami, for appellant.
    Horton, Perse & Ginsberg, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of In re Estate of Balch, . Fla.App. 1968, 215 So.2d 343; In re Estate of Carpenter, Fla.1971, 253 So.2d 697; In re Estate of LaRose, Fla.App.1972, 262 So.2d 690.


text:
    Melvyn B. FRUMKES, Appellant, v. Nancy J. FRUMKES, Appellee.
    No. 75-533.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Abbott, Frumkes & Alhadeff, Miami Beach, for appellant.
    Sinclair, Louis & Siegel and Neil A. Shanzer, Marks, Keith, Mack & Lewis and James F. Dougherty, II, Miami, for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Melvyn B. Frumkes, the husband in a marriage dissolution, appeals from an order awarding $900 to his wife’s former attorney.

On June 27, 1974, pursuant to motion by the wife’s former attorney, the trial court entered an order permitting him to withdraw from the case and further ordered “that the question of attorneys fees shall be continued for a subsequent hearing at which time testimony may be taken therefor,” and that the final hearing would be held at 9:00 A.M., on August 16, 1974.

The wife retained new counsel; the final hearing was held and final judgment entered on August 16, 1974. Former counsel received notice of the final hearing but did not appear thereat. The final judgment by its terms retained “jurisdiction of the parties and the subject matter for the effectuation of the terms of this final judgment.” On September 10, 1974, the wife’s former attorney noticed the husband, Melvyn Frumkes, of a hearing for his attorneys fees pursuant to the order of June 27, 1974, which notice of hearing was beyond the time for filing a petition for rehearing on the final judgment. On December 17, 1974, the trial judge entered an order awarding the former attorney a reasonable fee for his services on behalf of the wife. From the record, it appears that the husband, who is an attorney, and the former attorney, had indicated to the court prior to the entry of the final judgment, that the former attorney was entitled to a fee for his services and on that basis the judge entered the order awarding the attorneys fee. The husband now appeals, contending that the court lacked jurisdiction to award an attorneys fee. We reluctantly must agree.

The court retains the power to modify by subsequent order the time and manner of the enforcement of a final judgment after it becomes final, but it does not retain the power, unless provided by statute or rule, to amend, modify or alter the provisions of a final judgment. McEachin v. McEachin, Fla.App.1963, 154 So.2d 894. The reservation clause in the final judgment involved in this appeal, did not have the effect of reserving or retaining the judge’s jurisdiction to award attorneys fees and grant to it jurisdiction that otherwise is lost after the time for filing a petition for rehearing had passed. Therefore, the order awarding attorneys fees is reversed.

Reversed.


text:
    David INGLES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-714.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Donald F. Frost, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., and Roy J. Kahn, Legal Intern, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL, (Ret.). Associate Judge.
   PER CURIAM.

Affirmed upon authority of the rule stated in Mathew v. State, Fla.App.1968, 209 So.2d 234.


text:
    George Lamar JOHNSON and Stuyvesant Insurance Company, Appellants, v. Raymond LUDWIG, Jr., et al., Appellees.
    No. 75-607.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.

      Stephens, Magill, Thornton & Sevier and John E. Herndon, Jr., Miami, for appellants.
    Spencer & Taylor, Adams, George, Wood, Lee & Schulte, Howard L. Kuker, Weissenborn, Burr & Hyman, Miami, for appellees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

This appeal by George Lamar Johnson, a defendant in an action for damages for personal injuries, is from an order dismissing his crossclaim against Raymond E. Ludwig, Jr., and others for contribution.

Johnson drove an automobile (owned by and leased to him by Gables Lincoln Mercury, Inc.) into a vehicle which was standing on a highway, propelling it into another stationary car, injuring Ludwig, Sr. who was positioned between those two vehicles, one of which presumed to have been in the control of Ludwig, Jr.

Ludwig, Sr. sued Johnson and Gables and their respective insurors. By an amended complaint Ludwig, Sr. charged Johnson with causing his injuries by negligently and wantonly driving his vehicle. The plaintiff charged Gables with liability as the owner of the Johnson car. Compensatory and punitive damages were sought. The defendants answered. Johnson denied negligence. Gables admitted ownership of the car driven by Johnson and denied other allegations. The defendants pleaded assumption of risk. Gables filed a cross-claim against Johnson and his insuror for indemnification, on the ground that its liability was vicarious.

The action was compromised, by Gables or its insuror paying $85,000 to the plaintiff Ludwig, Sr., who, upon the settlement, executed a release. By stipulation Johnson and his insuror were dismissed.

Thereafter the defendant Johnson, based on his prospective obligation to indemnify Gables for the settlement amount, filed a crossclaim for contribution against Ludwig, Jr. and Katie Sue Dotson (alleged to have been in control of what has been referred to as the Ludwig, Jr. car), Task Engineering, Inc. (alleged to have been the owner thereof) and the insuror Allstate Insurance Company, alleging the.cross defendants to be joint tort feasors through negligent operation of the Ludwig, Jr. car. Those cross defendants moved to dismiss the crossclaim for failure to state a cause of action. On hearing the motion, prior to the enactment of § 768.31 Fla.Stat., F.S.A. [Ch. 75-108] and the decision of the Supreme Court in Lincenberg v. Issen, Fla. 1975, 318 So.2d 386, the trial court dismissed Johnson’s crossclaim. From that order Johnson processed this appeal.

We are required to decide this appeal on the applicable law relating thereto that is now in effect (Florida East Coast Ry. Co. v. Rouse, Fla.1967, 194 So.2d 260, 261, Opinion on Rehearing). On consideration thereof in the light of the record, briefs and argument we hold the Johnson cross-claim did not on its face show absence of a cause of action, for contribution, and that the motion to dismiss should have been denied.

Several questions were argued here, bearing on the merits of the crossclaim arising from or suggested by the presently applicable law. Those questions, not passed upon by the trial court on its consideration of the motion to dismiss prior to enactment of Ch. 75-108, should be determined by the trial court in further proceedings in the cause after remand. Included therein are whether liability of Johnson to Gables for indemnity (if it exists) would entitle him to be classified as “a tortfeasor who has paid' more than his pro rata share of the common liability”, so as to put him in position to seek contribution from another joint tort feasor “to the amount paid by him in excess of his pro rata share” (§ 768.31 (2) (b), Fla.Stat., F. S.A.); and, if so, the effect thereon of the release given by the plaintiff on the settlement, as to the cross defendants, who were not parties to the plaintiffs action (§ 768.-31 (2) (d)) ; and whether Johnson was guilty of wanton conduct causing or contributing to the injury, such as to preclude him from recovering contribution (§ 768.-31 (2) (c)); and finally, if Johnson is held to be in the position of one entitled to seek contribution from a joint tort feasor, and is not precluded therefrom by either of the circumstances referred to above, whether the counter defendants or one of them was a joint tort feasor, that is, was guilty of negligence constituting a contributing legal cause of the plaintiff’s injury (§ 768.-31(2)(a).

The order dismissing the Johnson cross-claim against Ludwig, Jr., et al, is reversed, and the cause is remanded for further proceedings.

      . In this regard the plaintiff alleged:
      “(5) That at such time and place, Defendant GEORGE LAMAR JOHNSON was driving while under the influence of alcoholic beverages with the result that his normal mental faculties were impaired and that he negligently carelessly and recklessly operated the motor vehicle owned by Defendant GABLES LINCOLN MERCURY, INC., with a wanton disregard for the rights of others, and thereby caused said motor vehicle to collide with the rear-end of another motor vehicle, thereby causing said other motor vehicle to collide with the person of Defendant RAYMOND E. LUDWIG, SR., pushing the person of Defendant RAYMOND LUDWIG, SR., into the rear portion of a third motor vehicle and causing the person of Defendant RAYMOND E. LUDWIG, SR., to be crushed between the two last-described motor vehicles.”

      . The scope of the release was as follows:
      “ * * * accepted in full compromise settlement and satisfaction of, and as sole consideration for the final release and discharge of, all actions, claims and demands whatsoever, that now exist, or may hereafter accrue, against GABLES LINCOLN MERCURY and UNIVERSAL UNDERWRITERS INSURANCE COMPANY and any other person, corporation, association or partnership charged with responsibility for injuries to the person and property of the Undersigned, and the consequences flowing therefrom, as the result of an accident, casualty or event which occurred on or about the 4th day of November, 1972 * *


text:
    Teri FERNER, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 75-387.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Dennis Koltun, Miami, for appellant.
    Talburt, Kubicki & Bradley and Robert J. Dickman, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Newman v. National Indemnity Company, Fla.App.1971, 245 So.2d 118.


author: SCHEB, Judge.

text:
    Ernest MORENO, Appellant, v. STATE of Florida, Appellee.
    No. 75-963.
    District Court of Appeal, of Florida, Second District.
    March 3, 1976.
    Ronald J. Hoffer of Hoffer & Sheffey, Zephyrhills, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

In 1970, Moreno and his co-defendants, planning to steal some money from the Dade City Post Office, took a post office official from his home and forced him to let them into the post office. They also took a coat and gun from the official during the incident.

Moreno and his co-defendants were each convicted of breaking and entering the official’s home with the intent to commit kidnapping, kidnapping, breaking and entering the post office with intent to commit a felony, and petit larceny of the gun and coat. For each defendant, separate sentences were entered on each conviction.

In 1974, appellant filed a motion under RCrP 3.850, contending that only one sentence was proper under the single transaction rule. The trial court vacated the sentence on the kidnapping charge, but refused to vacate any of the other sentences. Moreno filed this appeal from the court’s failure to vacate two of the other sentences, and the state has filed a cross assignment of error contending that the court erred in vacating the sentence for kidnapping.

The trial court was eminently correct in holding that petit larceny, breaking and entering the home of the postmaster, and breaking and entering the post office were not part of the same transaction. The fact that all crimes arose out of the same incident is not sufficient to render them facets of the same transaction. See, Estevez v. State, Fla.1975, 313 So.2d 692; Jenkins v. Wainwright, Fla.1975, 322 So.2d 477. While all the crimes here were part of the same general plan and may have been directed towards the same purpose, no one of the offenses constituted an essential element of another, rather all were distinct in nature and time, and each involved independent acts.

Furthermore, the state is correct in its contention that separate sentences for breaking and entering and for kidnapping are not barred by the same transaction rule. Estevez v. State, supra. In fairness to the trial judge, we point out that at the time of his ruling, he relied on Edmond v. State, Fla.App.2d 1973, 280 So.2d 449, in which we held that breaking and entering with intent to commit grand larceny, and grand larceny, were facets of the same transaction. Edmond was overruled by the Supreme Court in Estevez, supra, shortly after the trial judge made his ruling in this case.

Accordingly, the order of the trial court is reversed insofar as it vacated the sentence on the kidnapping charge. Otherwise, the cause is affirmed.

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

      . See also our recent opinion in State v. Peavey (Fla.App.2d 1975), 326 So.2d 461. (Opinion filed December 10, 1975), wherein Chief Judge McNulty distinguished between what constitutes a “single episode” and a “single transaction.”


text:
    Roy RODRIGUEZ, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-373.
    District Court of Appeal of Florida, Second District.
    March 3, 1976.
    Charles D. Waller, of Larkin, Larkin & Waller, Dade City, for appellant.
    Robert L. Sheviri, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The order of the trial court vacating the sentence for kidnapping is reversed; otherwise the cause is affirmed. See, Moreno v. State, Fla.App.2d 1976, 328 So.2d 38 (Opinion filed March 3, 1976.)

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


text:
    William R. URQUHART, III, Appellant, v. STATE of Florida, Appellee.
    No. 75-443.
    District Court of Appeal of Florida, Second District.
    March 3, 1976.
    Ronald J. Hoffer and Leonard J. Holton of Hoffer & Sheffey, Zephyrhills, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The order of the trial court vacating the sentence for kidnapping is reversed; otherwise the cause is affirmed. See. Moreno v. State, Fla.App.2d 1976, 328 So.2d 38 (Opinion filed March 3, 1976.)

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


author: MAGER, Judge.

text:
    In re Mary Jo TIERNEY.
    Nos. 75-774, 75-1105 and 75-1106.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.

      S. Lindsey Holland, Jr., of Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   MAGER, Judge.

This appeal presents the question of whether a news reporter has a qualified privilege to maintain the confidentiality of news sources and thereby refuse to answer questions propounded by a grand jury concluding two investigative matters initiated within.

The appellant was twice adjudged guilty of willful contempt for failure to answer questions propounded to her by the Bre-vard County Grand Jury which had been in extended session for the purpose of concluding two investigative matters initated during its original term. The matters to be considered by the grand jury during their extended term involved the investigation of two governmental agencies.

Appellant was first subpoenaed to appear before, the grand jury on April 15, 1975, which was seeking information relating to a possible violation of section 905.27, F.S., namely, a “leak” in its then continuing investigation under its extended order. The appellant, who was granted immunity from prosecution for any crime (except perjury) under investigation which might be demonstrated by the testimony sought, declined to answer certain questions which might pertain to some person or persons whose identity would likely disclose the source of the “leak” under investigation. Appellant based her denial upon the ground that her refusal to answer questions was within the right guaranteed to her under the First Amendment to the United States Constitution.

Pursuant to the appellee’s petition for a rule to show cause and the consideration of the various other pleadings filed by the parties the trial court on April 30, 1975 entered an order adjudging appellant guilty of willful contempt for her failure to answer questions propounded to her and directing that she be incarcerated for six hours in the Brevard County Jail commence-ing at 11:30 A.M. on May 13, 1975. The order of contempt contained a proviso stating, in part, that “at such time as Respondent, MARY JO TIERNEY, may reconsider and agree to answer the questions, then she will be entitled to immediate release.”

Subsequently another subpoena was issued commanding appellant to appear before the grand jury on May 6, 1975. Appellant appeared, was again granted immunity and again refused to answer questions relating to a possible violation of sec. 905.-27, on the same constitutional grounds heretofore cited. On May 30, 1975, appellant was ultimately adjudged guilty of willful contempt for failure to answer questions propounded to her in this second instance. The court directed that appellant be incarcerated for thirty days in Brevard County Jail commencing on May 30, 1975 and pay a fine in the amount of $500. The order of contempt contained the following proviso, “at such time the Respondent, MARY JO TIERNEY, may agree to answer the questions then she will be entitled to immediate release”.

The claimed qualified privilege asserted by appellant to exist in these circumstances was carefully and exhaustively examined and rejected by the United States Supreme Court in its landmark decision in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). There, Branzburg, a news reporter, had written two different articles on two separate occasions detailing his observations of marijuana activities and interviews with drug users whose identities were not revealed. As a result of these articles Branzburg was subpoenaed to appear before two different grand juries but refused to identify the individuals that were the subjects of these articles. Branzburg was unsuccessful in his efforts to have the state courts recognize the claimed adverse impact on his First Amendment rights which would result from the questions propounded by the grand jury. In the state proceeding which gave rise to review by the United States Supreme Court an order was entered protecting Branzburg from revealing “confidential sources of information” but requiring that he “answer any questions which concern or pertain to any criminal act the commission of which was actually observed by him”.

In the Branzburg decision the Supreme Court of the United States clearly recognized the significance and application of First Amendment protection to newsgath-ering without which “freedom of the press could be eviscerated”. The court, however, carefully pointed out that requiring a news reporter to appear before and answer questions propounded by a grand jury did not involve “intrusions upon speech” or a “restriction on what the press may publish” or an “express or implied command that the press publish what it prefers to withhold”. In this regard the Supreme Court observed :

“. . .No exaction or tax for the privilege of publishing, and no penalty, civil or criminal, related to the content of published material is at issue here. The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from any source by means within the law. No attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request.
“The sole issiie before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime. Citizens generally are not constitutionally immune from grand jury subpoenas; and neither the First Amendment nor any other constitutional provision protects the average citizen from disclosing to a grand jury information that he has received in confidence. The claim is, however, that reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them.
“It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. . . .” (92 S.Ct. at 2657)

The essence of the Branzburg decision (as reflected in the syllabus of that opinion) is simply that the First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford a constitutional testimonial privilege to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of a source of evidence thereof.

The Supreme Court of the United States refused to impose as a tripartite criteria for a news reporter’s response to a subpoena or to the answering of questions propounded by a grand jury that the government demonstrate: “that society’s interest is ‘immediate, substantial, and subordinating’; that there be a ‘substantial connection’ between the information desired of the witness and the interest of society in the subject matter of the investigation; ‘and that the means of obtaining the information is not more drastic than necessary to forward the asserted governmental interest.’ ” In this regard see Morgan v. State, 325 So.2d 40, Second District Court of Appeal Case No. 74-619 opinion filed December 3, 1975.

Unless it can be shown that the questions propounded were not relevant and material to a good faith grand jury investigation then no First Amendment privilege exists. This we respectfully believe the appellant has failed to demonstrate.

Measuring the instant case by the foregoing standard we are of the opinion that the questions propounded by the grand jury concerning “leaks” related directly to the sanctity and integrity of the grand jury function and hence were directly relevant and material to a possible violation of sec. 905.27. See footnote 2, supra. Moreover, the questions were relevant and material to the overall scope and purpose of the investigations then under consideration.

It should be clearly pointed out that the majority and concurring opinions in Branzburg recognized that newsgathering is not without its First Amendment protections and that “grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment.” In particular, the Supreme Court stated:

“Official harassment of the press undertaken not for purposes of • law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.” (92 S.Ct. at 2670.)

It is not, however, necessary for the state to first demonstrate that the tripartite considerations have been met before inquiry can be made of a news reporter. Rather, the burden rests with the news reporter if he “believes the grand jury investigation is not being conducted in good faith,” to seek “access to the court.”

The gist of the Branzburg decision is a recognition of the absence of any qualified or conditional privilege on behalf of news reporters subpoenaed before a grand jury and the absence of any burden upon the government to establish any condition or predicate to such subpoenaing and questioning. The Branzburg court, however, was careful to point out that the state legislatures are free “to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas” and that the court would be powerless “to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman’s privilege, either qualified or absolute”.

We are, however, persuaded by the reasons and rationale set forth in Branzburg to adhere to that court’s construction of the First Amendment application to a news reporter’s testimonial privilege recognizing as did the Supreme Court that different circumstances might “pose wholly different issues for resolution under the First Amendment” and further recognizing the authority of the Florida legislature to adopt appropriate standards.

The appellant raises two other important considerations relating to her adjudications of contempt. It is asserted that the questions propounded by the grand jury were not relevant to or within the scope of the limited matters then under investigation. As previously stated, the grand jury was functioning under an order extending its term “for the purpose of concluding the two investigative matters initiated during its original term”. We believe that the investigation of grand jury “leaks” was within the scope of the grand jury’s extension order. We also believe that the questions propounded were relevant to the specific matters embraced with the extension order.

It is within the inherent power of the grand jury in order to preserve the integrity of its own proceedings to investigate breaches of secrecy. Furthermore, such power and authority is also within the ambit of the statutory language in section 90S.095, F.S., which states in part that “a grand jury whose term has been extended as provided herein shall have the same composition and the same powers and duties as it had during its original term”. If a grand jury can investigate “leaks” during its original term certainly such power continues during an extended term even though such “leak” may not be delineated within the “specific investigative matters” outlined in the extended order. It would be ludicrous and somewhat “chilling”, if a grand jury, when convened for any lawful purpose, could not investigate matters bearing upon its own sanctity and integrity, i. e. preserving the secrecy of its own proceedings, particularly where the violation is declared to be a crime. See footnote two, supra.

The remaining point raised by appellant for consideration is somewhat perplexing and one that has caused some difficulty and confusion among various courts. Specifically, the appellant contends that the constitutional prohibition against double jeopardy precludes appellant from being adjudged in contempt twice for the same offense.

As heretofore noted, appellant was held in contempt on April 30 as a result of her refusal to answer questions propounded by the grand jury on April IS. It is clear from the pleadings and orders in the record (and without dispute by the parties) that appellant’s adjudication of contempt on May 30, as a result of her refusal to answer questions propounded by the same extended grand jury on May 6, involved the same subject matter and undoubtedly substantially the same questions for which she had been previously adjudicated in contempt on April 30.

It is axiomatic that double jeopardy attaches only to criminal offenses. See 9 Fla.Jur., Criminal Law, § 424. It would logically follow therefore that unless the adjudications of contempt can be denominated as “criminal” as distinguished from “civil” we need not consider the applicability of the constitutional prohibition against double jeopardy. In Seaboard Air Line Ry. Co. v. Tampa Southern R. Co., 101 Fla. 468, 134 So. 529 (1931), the Supreme Court discussed several of the distinctions between civil contempt and criminal contempt. The court was careful to point out that it is “not always be easy to classify a particular act as belonging to either one of these two classes” as the contempt may possess the characteristics of both.

Often the denominating factor between the two types of contempt is not the fact of the punishment imposed but rather the character and purpose of the punishment. If the character and purpose of the punishment is coercive, i. e., if it is designed for the benefit of other parties and conditional imprisonment is imposed for the obvious purpose of compelling the con-temnor to obey an order, then the contempt may be classified as “civil”. In such instance the contemnor carries “the keys of [his] prison in [his] own pockets.” Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957).

If the character and purpose of the punishment is punitive, i. e. if it is designed to vindicate the authority of the court and an unconditional imprisonment is imposed for the obvious purpose of acting as a deterrent then the contempt may be classified as “criminal”. Shillitani v. United States, supra, and Yates v. United States, supra. As the Court in Shillitani observed, “[W]hile any imprisonment, of course, has punitive and deterrent effects, it must be viewed as remedial if the court conditions release upon the contemnor’s willingness to testify.”

In the instant situation each of the orders adjudicating appellant guilty of contempt contained a conditional sentence. The appellant was entitled to immediate release if she would agree to answer the questions propounded by the grand jury— she carried the “keys” of her own prison in her pocket. It is clear from the above cited decisions that the contempts in question are “civil” contempts and not “criminal” contempts. Accordingly, the doctrine of double jeopardy is not applicable. See Yates v. United States, supra.

Although the characterization of the contempts in question as “civil” obviates any double jeopardy considerations it does not necessarily follow that multiple civil contempt penalties are permissible. In Yates petitioner refused to answer questions on the same subject of inquiry on two separate occasions for which she was held to be in civil and criminal contempt. Although rejecting any double jeopardy argument the court clearly pointed out that only one offense of contempt was committed by the petitioner’s repeated refusal to answer questions on the two different occasions. The court observed, at page 133 of Yates:

“. . . The policy of the law must be to encourage testimony; a witness willing to testify freely as to all areas of investigation but one, should not be subject to more numerous charges of contempt than a witness unwilling to give any testimony at all.
“Having once carved out an area of refusal, petitioner remained within its boundaries in all her subsequent refusals. The slight modification on June 30 of the area of refusal did not carry beyond the boundaries already established. Whereas on June 26 the witness refused to identify other persons as Communists, on June 30 she refused to do so only if those persons would be hurt by her identification. Although the latter basis is not identical to the former, the area of refusal set out by it necessarily fell within the limits drawn on June 26. We agree with petitioner that only one contempt is shown on the facts of this case.”

The court further pointed out that although only one offense of contempt was committed it was of a continuing nature; and that each refusal continued the witness’s defiance of proper authority. Although there could be a series of contemptuous acts, only one contemptuous offense occurred; so that only one penalty could be imposed. Cf. McDonald v. State, 321 So.2d 453 (Fla.App.4th 1975). The court, however, recognized the permissibility of imposing civil and criminal penalties for the same act of contempt recognizing that the civil and criminal sentences served distinct purposes — one coercive and the other punitive, further observing that “the same act may give rise to these distinct sanctions”.

Applying the foregoing to the instant situation we are of the opinion that only one punishable offense of contempt was shown by the facts of this case as reflected by the appellant’s conduct of April 15 and May 6. The contempt of April 15 was of a continuing nature as evidenced by appellant’s refusal to answer questions on May 6. Multiple acts of contempt occurred for each refusal but only one civil punishment was proper. The appellant could have been subject to criminal sanctions for her May 6 refusal to answer questions but could not be subject to additional civil sanctions.

Although we recognize the inapplicability of the privilege asserted by the appellant and the power of the court to utilize contempt as a method of enforcing compliance with grand jury proceedings, the second adjudication of contempt and sentence of May 30, 1975 is vacated and set aside for the specific reasons set forth above. Additionally, in the interests of justice and in light of Shillitani v. United States, supra, it is necessary to vacate and set aside the sentence imposed pursuant to the first adjudication of contempt of April 30, 1975. See Rule 6.16, F.A.R. As the Supreme Court of the United States observed, “once the grand jury ceases to function, the rationale for civil contempt vanishes, and the contemnor has to be released”. In the instant situation it is impossible for the appellant to purge herself of the contempt by answering questions before a grand jury whose extended term concluded on June 22, 1975. The fact of the fortuitous circumstance of the grand jury term expiring before sentence is served or completed is irrelevant. The purpose for an adjudication of civil contempt with its conditional punishment during a given grand jury term vanishes with the demise of that grand jury. It makes little difference that the sentence or punishment was prevented by the contemnor’s exercise of his right of appeal.

Accordingly, the order of April 30, 1975, adjudging appellant guilty of wilful contempt is affirmed but the sentence is vacated and set aside; the order of May 30, 1975, adjudging appellant guilty of wilful contempt and the sentence thereon are vacated and set aside. The cause is remanded to the trial court with directions that appellant be discharged.

OWEN, J., and LEE, J. CAIL, Associate Judge, concur.

      . The 1974 Fall Term of the Brevard County Grand Jury, which was impaneled on October 8, 1974, was extended on March 20, 1975 to a period ending June 22, 1975.

      . Sec. 905.27, F.S., makes it unlawful to disclose grand jury testimony with certain exceptions and provides that a violation of that section constitutes a misdemeanor.

      . The following colloquy between the special state attorney and the appellant illustrates generally the nature of the inquiry in each instance and the substance of the response in each instance:
      “Q Miss Tierney, as I had informed you the last time, this Grand Jury has authorized me to grant you immunity from prosecution for a crime concerning the contents of an answer that you would give to that question, or any other question that may be posed to you at this session. Then, with that knowledge, are you still using that same grounds, the First and the Fifth Amendments?
      “A Yes.
      “Q Miss Tierney, has any person claiming to have been a witness before this Grand Jury or actually known to you to have been a witness before this Grand Jury, giving [sic] you information as to his or her testimony given here regarding any questions that were posed to them before this Grand Jury?
      “A I won’t answer that.
      “Q Would you tell us the reason for not answering that question?
      “A The Fifth and the First Amendment.
      “Q The same grounds as you gave earlier?
      “A Yes.”

      . The instant case, unlike Branzburg, is not concerned with the publication of any news article based upon confidential sources of information. The various pleadings and orders in the record reflect that the appellant was called before the grand jury to elicit information which the grand jury apparently believed appellant to possess relating to a “leak” or information about the subject matter then - under grand jury investigation.

      . Our reading of Branzburg differs somewhat with that of the Second District. We are of the view that Branzburg does not require nor has it established the tripartite criteria applied by the court in Morgan.

      . It seems somewhat incongruous to suggest that it would be necessary for a grand jury serving during an extended term to refer the investigation of breaches of secrecy to another grand jury sitting during an original term; or even to require that order extending the grand jury to be amended to include “investigation of leaks from within”.

        . The contempt order of April 30 imposed a six-hour jail sentence; the contempt order of May 30 imposed a 30-day jail sentence and a $500 fine.

      . "We do not decide the question of whether appellant would be subject to civil contempt and sentence because of similar actions before a successor grand jury. It is clear from Yates that a criminal contempt and sentence for the same act would be permissible. We merely conclude that the sentence imposed during the extended grand jury term cannot be continued to a successor grand jury term. But see f.n. 8, Shillitani v. United States, supra.

      . Yates would seem to suggest a procedure that would obviate this occurrence, namely, “[to] first apply coercive remedies in an effort to persuade a party to obey its orders, and only make use of the more drastic criminal sanctions when the disobedience continues”. The court can either find the defendant guilty of criminal contempt at the termination of the grand jury and impose a criminal sanction which is not related to the grand jury term or it can enter an adjudication of criminal contempt at the same time as the civil contempt occurs but postpone imposition of a criminal sentence until termination of the grand jury. Cf. Aaron v. State, 284 So. 2d 678 (Fla.1973).


author: SMITH, Judge.

text:
    Robert William ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. Z-1O1.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    Rehearing Denied March 26, 1976.
    Richard W. Ervin, III, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

The trial court determined to sentence appellant to a term of twenty years rather than to the maximum ten recommended by the State pursuant to a plea bargain. At issue is whether the court erred by failing to announce his determination not to sentence in accordance with the bargain and by failing to give appellant an opportunity, in those circumstances, to withdraw his plea of guilty.

While the trial court emphasized when appellant tendered the guilty plea that the court was not bound by the prosecutor’s recommendation and that the maximum sentence was life imprisonment, at no point did the sentencing judge advise appellant that judicial concurrence with the bargain was impossible. We do not conceive that a sentencing judge may knowingly receive a plea which is the product of a bargain with the prosecutor and yet declare himself independent of the bargain, so avoiding by finesse the provisions of Rule 3.171 (c), R.Cr.P. See Thomas v. State, 327 So.2d 63 (Fla.App. 1st, 1976). Sentencing judges who wish to be free of the consequences of bargains and of the Rule should refuse to “have made known to him the agreement and reasons therefor prior to the acceptance of the plea.” Rule 3.171(c), R.Cr.P. Kurlin v. State, 302 So.2d 147 (Fla.App. 1st, 1974).

The sentence is vacated and the case is remanded so that the court may either impose sentence in accordance with the plea bargain or vacate the judgment and offer appellant an opportunity to withdraw his guilty plea.

Reversed.

RAWLS, Acting C. J., and MILLS, J., concur.


text:
    Eduardo and Hilda PEREZ, his wife, Appellants, v. LEROY’S CRANE SERVICE, and Intervenors E & G Construction Company, Inc., and Maryland Casualty Company, Appellees.
    No. 75-524.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Rehearing Denied March 23, 1976.
    Ser & Keyfetz, Miami, for appellants.
    Jerry Wilkey, James F. Eckhart, Coral Gables, for appellees.
    Before PEARSON and NATHAN, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Security Mutual Casualty Company v. Grice, Fla. App.1965, 172 So.2d 834; Luby Chevrolet, Inc. v. Foster, Fla.App.1965, 177 So.2d 510. Also see Reyes v. Banks, Fla.App.1974, 292 So.2d 39, 42-43.


text:
    Donnie M. PETERSON, as administrator of the Estate of Robert Allen Peterson, a Deceased minor, for the benefit of Donnie M. Peterson and Susan M. Peterson, Appellants, v. HIGHLANDS INSURANCE COMPANY, a foreign corporation, Appellee. Mariam WALL and Fred C. Wall, her husband, Appellants, v. HIGHLANDS INSURANCE COMPANY, a foreign corporation, Appellee.
    Nos. 75-303, 75-328.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Rehearing Denied March 3, 1976.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for Petersons.
    Leland E. Stansell, Jr., and Robert A. Glassman, Miami, for Highlands Ins. Co.
    Martin J. Schwartz, Gainesville, for Walls.
    Before BARKDULL, C. J., and HEND-RY and HAVERFIELD, JJ.
   PER CURIAM.

The point involved on this appeal is whether an ordinary homeowners insurance policy covered an injury to an infant, who was left with the homeowner who was running a nursery or babysitting service for compensation.

The trial judge found that the homeowner was engaging in a business activity and denied coverage. The policy contained the following business exclusion:

“This policy does not apply * * * to bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to non business pursuits.”

Examining this exclusion in light of the facts as found by the trial judge, we find no error in his ruling and affirm. Boulevard National Bank of Miami v. Gulf American Land Corporation, Fla.App.1968, 212 So.2d 17; Hudson Pulp & Paper Corp. v. Butler & Company, Fla.App.1974, 297 So.2d 103; Walker v. Connolly, Fla.App. 1974, 299 So.2d 67.

Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby affirmed.

Affirmed.


author: BOARDMAN, Judge.

text:
    In re ADOPTION OF Shevalda Lynette WILSON. Jimmy Davis ALLEN, Appellant, v. Willie James WILSON, Appellee.
    No. 75-1133.
    District Court of Appeal of Florida, Second District.
    March 3, 1976.

      Richard H. Mclnnis, Tampa, for appellant.
    No appearance for appellee.
   BOARDMAN, Judge.

This appeal arises out of an adoption proceeding in the trial court. Appellee/stepfather filed petition for adoption of Shevalda Lynette Wilson, approximately 10 years of age. The natural mother of Shevlada, Annie (formerly Mrs. Allen) Wilson, wife of appellee, consented to the adoption. Appellant, the natural father of the child, objected to the adoption of his daughter by appellee.

The appellant, appellee and the natural mother were the only witnesses who testified before the trial court at the final hearing. At the conclusion of all the evidence, the court entered a final judgment finding, among other things, that the appellant had abandoned his daughter; and permitting appellee to adopt the child and granting the prayer requesting that the child’s name be changed. The court did not determine either the natural father’s unfitness or the best interest of the child. Appellant timely sought review of said judgment.

The question before us is whether there is clear and convincing evidence in the record to support the trial court’s finding that appellant abandoned his child. We think not and reverse.

We are not considering a question of custody of a child but as previously indicated herein, this is an adoption proceeding wherein the ties and relationship existing between the natural parent and the child are forever severed. Indeed a harsh action and one, we submit, which should only be exercised when the standard of proof established by case law has been met. It is therefore only proper that in such cases the decisional law of this state requires that the proof of abandonment be shown by clear and convincing evidence. See Jones v. Allen, Fla.App.2d, 1973, 277 So.2d 599. In the case of Pole v. Bowen, Fla.App.1st, 1972, 269 So.2d 707, it was held that in the absence of a valid consent it must be shown by clear and convincing evidence that the parent abandoned the child or has otherwise demonstrated unfitness.

We have carefully reviewed the record, the brief filed by counsel for appellant and oral argument of said counsel. The appellee/stepfather did not favor the court with either a brief or oral argument. Considering the evidence adduced at the final hearing in the light most favorable to appellee, as we are required to do, and recognizing that an appellate court should not substitute its judgment for the judgment of the trier of the facts, we, nevertheless, conclude that the trial court, m view of the evidence adduced by appellee and his witness, erred in its finding that appellant abandoned his daughter.

On the contrary, as we read the evidence, it was the adoptee’s mother who in the first place ended the marriage relationship with appellant in 1967, taking Sheval-da with her, and began living with appel-lee. The natural mother and appellee were subsequently married in 1972 and the child sought to be adopted has lived with them since 1967. The record shows that appellant continued to reside in the Tampa area since 1967. On the other hand, the whereabouts of the mother and child were unknown to appellant part of the time since 1967. For instance, on at least four different occasions, the mother left the State of Florida and took the little girl with her, during which periods of time appellant did not know their whereabouts. Additionally, appellant did attempt to visit his daughter. The record also discloses that appellant maintained the marital place of residence for some period of time after the separation and he indicated that he would resume the marital relation with her if she would return to him. Therefore, it cannot be said, under the above recited factual circumstances, that the natural father did not have an interest in his child or that he had abandoned her.

It is true that the record clearly shows that appellant failed to pay child support payments and that the child support payments are presently in arrears in the amount of several thousand dollars. However, while that fact is certainly a relevant circumstance to be considered in granting a petition for adoption, it is not a ground, standing by itself, to justify the adoption of a child over the objection of a natural parent. See, In re Adoption of Prangley, Fla.App.2d, 1960, 122 So.2d 423.

We also point out that at the time the petition for adoption was filed the child was 10 years old. However, she was not called upon to testify by either party. Further, the record fails to disclose that any investigation was conducted by any authorized state agency. Thus, evidence of what would be in the best interest of the child is not available.

For the above stated reasons, the order appealed is set aside and the judgment of adoption is reversed.

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