text:
    STATE of Florida, DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Petitioner, v. Stephen A. HENDERSON and the Career Service Commission of Florida, Respondents.
    No. W-33.
    District Court of Appeal of Florida, First District.
    March 20, 1975.
    Kenneth H. Hart, Jr., Daniel F. Turn-bull, Jr., Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Stephen F. Dean, Asst. Atty. Gen., Nancy T. Richardson, Pensacola, for respondents.
   ON MOTION FOR LEAVE TO FILE EXTRAORDINARY PETITION FOR REHEARING

PER CURIAM.

Petitioner has filed an instrument entitled “Motion for Leave to File Extraordinary Petition for Rehearing” stating therein that the “. . . decisions in Henderson and Crumbie, while coming so close in time, are so incompatible in result as to suggest a mistake or oversight exists and Petitioner respectfully so requests to the Court.”

This Court rendered its opinion denying certiorari in the instant (Henderson) case on December 12, 1974. Petitioner did not see fit to file a petition for rehearing. The instant motion, being filed some seventy-six (76) days after our opinion was rendered, is not cognizable by this Court, and same is hereby denied.

RAWLS, C. J., and JOHNSON and MILLS, JJ., concur.


source: Caselaw Access Project

author: BOYER, Chief Judge.

license: Public Domain

text:
    DIVISION OF FAMILY SERVICES et al., Appellants, v. STATE of Florida, Appellee.
    No. X-102.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1975.
    Rehearing Denied Oct. 22, 1975.

      Chester G. Senf, Eve Dunkerley Peck, and Duane N. Ivester, Jacksonville, for appellants.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., and Don Peters, Sp. Public Defender, for appellee.
   BOYER, Chief Judge.

The primary issue presented by this appeal relates to the authority of a Circuit Judge, presiding in a juvenile proceeding, to impose conditions, restrictions or requirements incident to or as a part of an order providing for temporary detention and care in the Division of Family Services pending a hearing to adjudicate delinquency, dependency, or need of supervision.

The record reveals that on August 21, 1974 a petition was filed by an Assistant State Attorney of the Eighth Judicial Circuit in and for Alachua County, Florida alleging that five children, residents of that county, were dependent within the intent and meaning of Chapter 39, Florida Statutes, “in that said children have not proper parental support, maintenance, care and guardianship and are living in a condition or environment such as to injure them or endanger their welfare.” On that same day a detention hearing was held. At the conclusion of that hearing the Circuit Judge, apparently at the request of the father of the subject children, entered an order removing custody of said children from their parents and committing them to the temporary care, custody and control of the Division of Family Services “pending a hearing on the dependency petition filed herein, said commitments not to exceed 30 days from the date of this order.” Said order further provided that “all five children are to be placed in the same foster home.” At the time of the entry of said order one of the agents of the Division of Family Services who had attended the hearing advised the Judge that arrangements had been made to place the five children in the same foster home and they were initially so placed. However, within 24 hours after entry of the order other agents and employees of the Division of Family Services divided the children into three separate placements without receiving permission of the court and without advising the court. That action resulted in the entry of an order of contempt against the Department of Health and Rehabilitative Services, Division of Family Services, the Director and five other employees and supervisors as officials of the agency.

Numerous points have been raised but inasmuch as the appellee, in briefs and oral argument, has candidly conceded that requisite procedures were not followed incident to entry of the order of contempt, the only point remaining for our determination is the issue first above stated.

The appellee vigorously urges that the trial judge in juvenile cases has statutory and inherent authority to impose reasonable restrictions, conditions and requirements incident to issuance of its custodial orders, in proceedings pursuant to Chapter 39 Florida Statutes. The Department of Health and Rehabilitative Services, Division of Family Services, on the other hand, contends that once an agency is granted legal custody, whether temporary or permanent, the court has no further authority in the matter and has no authority to impose any restrictions, conditions or requirements on the granting of such custody. However, the issue in this particular case is even narrower, because here we are only concerned with a temporary order providing for custody in the agency pending an “adjudicatory hearing” to determine and adjudicate delinquency, dependency or need of supervision.

Florida Statutes, Chapter 39, provides no clear specific definitive answer to the issue here presented. However, a careful reading of that chapter makes it abundantly clear that the legislature intended that the court and not the agency have primary responsibility in custody matters. Indeed, virtually every section of that chapter refers to the “court”, its powers, duties and responsibilities.

F.S. 39.02(1) provides in material part:

“The circuit court shall have exclusive original jurisdiction of proceedings in which a child is alleged to be dependent, delinquent, or in need of supervision. * * * ” (Emphasis added)

F.S. 39.02(6) provides that:

“Nothing in this chapter shall be deemed to take away from the court any jurisdiction or duties conferred upon the court by general law.”

F.S. 39.06(7) provides that:

“The jurisdiction of the court shall attach to the child and the case when the summons is served upon the child, a parent, or legal or actual custodian of the child or when the child is taken into custody with or without service of summons and before or after filing of a petition, whichever first occurs, arid thereafter the court may control the child and case in accordance with this chapter.” (Underlining added)

Referring to the last above quoted provision, F.S. 39.02(3) (b) provides:

“The jurisdiction to be exercised by the court when a child is taken into custody before the filing of a petition as provided in § 39.06(7) shall be exercised by the circuit court for the county in which the child is taken into custody. This court shall control the child and the case in accordance with this chapter. Upon the filing of a petition in the appropriate court, the court exercising this original jurisdiction shall, if the child has been detained or placed in shelter care, transfer the child to the appropriate detention home, shelter, or other placement directed by the receiving court within the circuit of such court, and thereafter the court in which the petition is filed shall control the child and the case in accordance with this chapter.” (Underlining added)

Appellant seeks to rely on that portion of F.S. 39.01(9) which provides that:

“An agency granted legal custody shall have the right to determine where and with whom the child shall live, but an individual granted legal custody shall exercise all rights and duties personally unless otherwise ordered by the court.”

A careful reading of that provision, in context with the rest of the chapter, clearly reveals that it was the legislative intent to grant the custodial agency discretion, in the absence of a court order to the contrary, in placing the child or children committed to its custody. It clearly was not intended that the agency have unfettered discretion nor was it intended that the agency be permitted to flaunt or ignore specific provisions contained in the custodial order. Such interpretation and construction is fortified by the frequent reference in Chapter 39 to the court, the provision for the exclusive original jurisdiction in the court and the declared purposes of the chapter as expressed in F.S. 39.001, viz:

“39.001 Purposes. — The purposes of this chapter are:
“(1) To protect society more effectively by substituting for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of children who violate the laws;
“(2) To assure to all children brought to the attention of the courts, either as a result of their misconduct or because of neglect or mistreatment by those responsible for their care, the care, guidance and control, preferably in each child’s own home, which will conduce to the child’s welfare and the best interest of the state;
“(3) To assure that a child removed from the control of the child’s parent shall receive care, custody, and discipline as nearly as possible equivalent to that which should have been given to the child by the parent and, in all cases in which a child must be permanently removed from the custody of his parents, that the child be placed in an approved family home and be made a member of the family by adoption; and
“(4) To provide procedures through which the provisions of the law are executed and enforced which will assure the 'parties fair hearings at which their rights as citizens are recognized and protected.
“It is the expressed intent of the legislature that this chapter be liberally interpreted and construed in conformity with its declared purposes.”

It is axiomatic that in custody proceedings the welfare and best interests of the child or children are of paramount importance. The welfare of the child overrides all other considerations. In determining the issue of the child’s welfare and best interests the trial court is vested with broad discretionary powers. Courts lack the physical ability to efficiently carry out custodial functions at all stages of dependency proceedings, particularly at their inception. In recognition of this fact the legislature gave the courts the prerogative to divest themselves of the actual physical care of children alleged or adjudicated to be dependent while still maintaining the exclusive original jurisdiction of the courts. All powers not expressly divested by the court are retained by it.

It is a generally accepted principle of administrative law that an agency, being a creature of statute, has only those powers given to it by the legislature. The authority of appellant, Division of Family Services, sub judice, can come from only two sources. First, it can come from a court order divesting its “exclusive original jurisdiction” under F.S. 39.02(1). Obviously such a divestiture was not intended in the case sub judice because the grant of emergency fosterage was expressly conditioned on the order that the five siblings be placed together. The second source of agency authority is its enabling act, Chapter 409, Florida Statutes, which creates generally the authority and responsibilities of the Division of Family Services: But no such broad grant as is here contended is vested by that chapter. Indeed, appellant sub judice bases its statutory claim to exclusive authority on F.S. 39,11 (2) (c), which incorporates F.S. 39.01(9), already above discussed. However, even were we to construe F.S. 39.01(9) as contended by appellant, rather than as above treated, it could have no application by virtue of F.S. 39.11 (2) (c) because the initial sentence of that section specifically conditions its applicability wherein the child or children shall have been adjudicated by a court to be dependent. Sub judice there has been no such adjudication.

Appellant’s reliance on Department of Health & Rehabilitative Services v. Owens, is also misplaced. That case involves an entirely different statutory provision, Chapter 393 Florida Statutes. Nothing in that chapter, for instance, explicitly vests the Circuit Court with exclusive original jurisdiction as is the case sub judice.

In keeping with the welfare and best interests of the child or children being the dominant or controlling consideration in all custody proceedings we may not overlook the probabilities that instances may occur wherein the best interests of the child and of the agency may be divergent. Indeed, in the case sub judice, one of the agents of the Division of Family Services testified that there were agency fears that their foster home or shelter would be lost if the agency insisted that the five children remain there together. We recognize the validity of the agency’s concern for the loss of a facility but that fear, though a legitimate interest of the agency, may not be permitted to interfere with the best interests of the subject children.

In summary, confining our present holding to the exact issue presented in the case sub judice, we hold that a Circuit Judge may, incident to proceedings under Chapter 39 Florida Statutes, impose restrictions, conditions and requirements on custodial detention orders entered pending an adjudicatory hearing. Needless to say, the judge’s order in such regard must be reasonable under the circumstances and is reviewable as are other orders involving discretionary matters.

As to the order relative to custody and requiring that the five subject children be placed in the same foster home, we affirm. As to the order finding appellants in contempt we reverse and remand.

It is so ordered.

McCORl) and MILLS, JJ., concur.

      . Please see F.S. 39.01(17) and F.S. 39.01 (25).

      . Please see F.S. 39.01(25).

      . See F.S. 39.01(27).

      . See F.S. 39.01(25).

      . F.S. 39.02(1).

      . See In re R.J.C., Fla.App.1st 1974, 300 So.2d 54.

      . See for example Williams v. Florida Real Estate Commission, Fla.App.4th 1970, 232 So.2d 239.

      . Fla.App.1st 1974, 305 So.2d 314.

      . F.S. 39.02(1).

      . See In re R.J.C., supra. For cases holding that it is generally for the best interest of children to maintain siblings together see Arons v. Arons, Sup.Ct.Fla.1957, 94 So.2d 849; Brooks v. McCutcheon, Fla.App.1st 1970, 244 So.2d 515 and Reinhart v. Reinhart, Fla.App.1st 1974, 291 So.2d 103.


author: BOYER, Chief Judge. McCORD, Judge

text:
    In the Interest of F. B. et al., Appellants, v. STATE of Florida, Appellee.
    No. X-39.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1975.
    Rehearing Denied Oct. 22, 1975.

      Duane N. Ivester, Chester G. Senf, and Eve Dunkerley Peck, Jacksonville, for appellants.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., and Don Peters, Special Public Defender, for appel-lee.
   BOYER, Chief Judge.

This case involves an issue very similar to that resolved by us in Division of Family Services v. State of Florida, Fla.App., 319 So.2d 72, 1975. The facts too are similar though a different group of children are involved.

On August 21, 1974, the Juvenile Department of the Circuit Court of Alachua County entered an order placing five allegedly dependent children in the custody of the Division of Family Services and specified that all five children be placed in the same foster home. The children were initially placed in accordance with that order, but were thereafter separated and placed in the homes of separate and different foster parents. On September 20, 1974 the children were adjudicated dependent and placed in the temporary custody of the Division of Family Services with the same placement restrictions. The order stated: “That for consistency’s sake with the same provisions, the children shall be placed in the same foster home. Custody is reserved to the court to the extent of implementing that order.” On September 24, 1974 the court entered another order permitting certain of the children to be separated from the others. Three children were ordered to be placed together in the same foster home and the other two in another foster home, the order providing that upon a showing of necessity the children could be further divided and separated. On October 4, 1974 a final order of disposition was entered incorporating the provisions of the previous order.

The Division of Family Services maintains by this appeal that the trial court exceeded its authority and jurisdiction when it granted custody to the Division but restricted the Division’s choice of where and with whom the children would live by specifying the manner in which the children could be placed together or separated in foster homes. The Division of Family Services further maintains that the trial court erred when it granted custody to the Division while also reserving custody unto itself.

In Division of Family Services v. State of Florida, supra, we carefully restricted our holding to the period that the children were in temporary detention and care pending an adjudicatory hearing. Here, we are faced with the next step in the proceeding.

Upon again examining Chapter 39, Florida Statutes, we conclude that a Circuit Judge, in proceedings under Chapter 39, Florida Statutes, has the discretionary power and authority to impose restrictions, conditions and requirements on custodial detention orders entered following' an adjudicatory hearing. Our reasoning in Division of Family Services v. State of Florida, supra, is equally applicable here. In that case the appellant based its statutory claim to exclusive authority on F.S. 39.-11(2) (c), which incorporated F.S. 39.01(9). We there held that a careful reading of that provision, in context with the rest of the chapter, clearly reveals that it was the legislative intent to grant the custodial agency discretion, in the absence of a court order to the contrary, in placing the child or children committed to its custody, and that it was not intended that the agency have unfettered discretion nor was it intended that the agency be permitted to flaunt nor ignore specific provisions contained in the custodial order. Sub judice appellant makes the same contention. In addition to our holding in the last above mentioned case, we here observe that the true thrust of F.S. 39.01(9) is the personal exercise of custody. The last sentence requires that a person given custody exercise that custody personally unless the court orders otherwise. An agency, which is a legal organization and not a living person, must exercise its custody through a delegation. The legislature gave the agency the power to make that delegation and determine where and with whom the child should live, meaning the particular institution or foster care facility in which the child should be placed. This facility selection power is all the authority that this statute confers. The lower court did not infringe on that power. It did not order the Division to place the subject children in any particular foster care facility. The Division remained free to place the children anywhere so long as they were placed in the sibling composition as required by the court order. It will be noted that F.S. 39.01(9) refers to a “child” and not to “children”. Placing a child obviously involves no consideration of sibling composition. Placing of children does. There are important psychological interests which deserve recognition and protection when children are removed from their parental home as a sibling group. The court’s authority to recognize and protect those interests is of paramount importance.

Finding no error, we

Affirm.

MILLS, J., concurs and McCORD, J., concurs specially.

McCORD, Judge

(concurring specially).

I agree that upon adjudicating the five brothers and sisters to be dependent children and committing them to the Division of Family Services pursuant to Ch. 39, Florida Statutes, the Circuit Court had the power and authority to direct that they all be placed in the same foster home. § 39.02(4), Florida Statutes, provides:

“When jurisdiction of any child shall have been obtained, the court shall retain jurisdiction, unless relinquished by order, until the child reaches twenty-one years of age, . . .”

§ 39.001, Florida Statutes, lists, among other purposes of the chapter, the following:

“(3) To assure that a child removed from the control of the child’s parent shall receive care, custody, and discipline as nearly as possible equivalent to that which should have been given to the child by the parent and, in all cases in which a child must be permanently removed from the custody of his parents, that the child be placed in an approved family home and be made a member of the family by adoption
* % % ‡ *
“It is the expressed intent of the legislature that this chapter be liberally interpreted and construed in conformity with its declared purposes.”

Keeping a family unit of children together is certainly a desired goal in carrying out the expressed intent of the chapter. Under normal circumstances, they would be raised by a parent as a family group. Should circumstances arise which would render such a restriction detrimental to the children or should it develop that a foster home is not available to take such a large family of children, the trial judge’s order could, of course, be modified. I find no unreasonable invasion of the authority of the Division of Family Services by the court’s order.


author: GRIMES, Acting Chief Judge.

text:
    Fred WEIR, Appellant, v. STATE of Florida, Appellee.
    No. 75-697.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
    Fred Haddad, of Sandstrom & Hodge, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The appellant was adjudged guilty of grand larceny on March 30, 1943, and he was sentenced to prison for a period of three years and six months. On March 11, 1975, appellant filed a “motion to. vacate judgment and expunge record” in which he asserted under oath that at the time of the entry of the judgment and sentence he was a youth of twenty years of age, uneducated in the law and without any funds with which to obtain legal assistance in his defense. Appellant further swore that the court failed to ascertain his financial condition and failed to advise him that as an indigent the court would provide him legal counsel to assist in his defense. He asserts that he was unconstitutionally denied the assistance of counsel and seeks to have the judgment vacated and his arrest record expunged. The lower court denied the motion without requiring an evidentiary hearing.

The landmark case of Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, made it clear that an indigent person is entitled to have counsel appointed for him by the state in felony prosecutions. The right was later extended to include all crimes where any sentence of imprisonment is contemplated. Argersinger v. Hamlin, 1972, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. There is no doubt that Gideon is retroactive in application. Loper v. Beto, 1972, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374; Arsenault v. Massachusetts, 1968, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5. Therefore, the only arguable point on this appeal is whether appellant is entitled to seek relief in view of the fact that his sentence has long since expired and he is no longer in custody.

The customary vehicle for post-conviction relief is Rule 3.850, RCrP. By its terms, this rule is applicable only to persons in custody. The custody required by the rule need not be under the sentence being attacked where the movant contends the sentence he is serving was enhanced by the conviction he seeks to have set aside.

State v. Reynolds, Fla.1970, 238 So.2d 598; Wilcox v. State, Fla.App. 1st, 1972, 267 So.2d 15. But no Florida court has held that a person not .in custody is entitled to relief under Rule 3.850, RCrP.

Judge Barns’ opinion in Tolar v. State, Fla.App. 4th, 1967, 196 So.2d 1, suggests the possibility of treating the motion as being filed under Rule 1.540, RCP. Yet, the only arguable ground for relief under this rule is that the judgment was void. This position would be difficult to sustain since the sentencing court obviously had jurisdiction over the subject matter and the appellant. See Varnes v. Kirk, Fla.App. 1st, 1971, 251 So.2d 324; but see Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

Does this mean that appellant has no vehicle to attack his conviction since he is no longer in jail? Once you admit that Gideon is retroactive, it is hard to make a distinction between a person attacking his conviction on Gideon grounds who is still in custody and one making the same attack who has already served his term. While a person in custody normally has a more vital interest in seeking to void his judgment and sentence, the stigma and disabilities incident to a felony conviction continue to be substantial detriments even after the sentence is served.

The federal courts have faced a similar question because the federal post-conviction relief statute is also limited to persons in custody. Even though writs of coram nobis were purportedly abolished by Federal Civil Rule 60 (as in Rule 1.540, RCP), this extraordinary writ may still be issued by the sentencing court with respect to criminal convictions under the federal “All Writs” statute. Grene v. United States, 5th Cir. 1971, 448 F.2d 720; United States v. Norman, 6th Cir. 1968, 391 F.2d 212; Owensby v. United States, 10th Cir. 1965, 353 F.2d 412. Since our constitution grants the circuit court comparable “all writs” authority, the same reasoning appears applicable to Florida.

Appellant’s motion should be treated as an application for a writ of coram nobis. The issues raised by the motion shall include those presented by a Gideon motion under Rule 3.850, RCrP. See Howard v. State, Fla.App. 4th, 1973, 280 So.2d 705. The state’s .argument of laches may also be considered by the court below. However, the mere passage of time, standing by itself, would not constitute the prejudice necessary to support a finding of laches. See 62 A.L.R.2d 432. Should the judgment be vacated, Fla.Stat. § 901.33 (1974) controls the procedure to be followed in expunging the arrest records.

The order is reversed, and the case is remanded with directions to hold an eviden-tiary hearing in accordance with this opinion.

Reversed and remanded.

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

      . Fla.Const. art. V, § 5.

      . Our court suggested this result in Grant v. State, Fla.App. 2d, 1964, 166 So.2d 503, but declined to pass on the question since the mov-ant in that case was in custody.


author: PEARSON, Judge.

text:
    AETNA LIFE & CASUALTY COMPANY, Appellant, v. Margaret M. THORN and her son, Stephen Thorn, a minor, by and through his mother and natural guardian, Margaret Thorn, Appellees.
    No. 74-1630.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
    Stephens, Magill, Thornton & Sevier, Miami, for appellant.

      Sepler & Sussman and Irma V. Hernandez, Hialeah, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PEARSON, Judge.

The question to be decided here is whether a judgment should be set aside when it appears after judgment that the trial judge should not have tried the case because of an affinity of relationship. We hold that the judgment should be set aside where no substantial injustice will result by reason of the delay and it appears that the defect was made the basis of a motion as soon as discovered.

The appellant, Aetna Life & Casualty Company, was the plaintiff, in the trial court. It suffered an adverse judgment in a cause tried by the court without jury. After final judgment, the judge revealed that he was related within the third degree to the wife of a counsel for the defendant and that he had lately become aware that by failing to disqualify himself in the case, he had violated Canon 3, subd. C(1) (d) (ii) of the Code of Judicial Conduct, see In Re The Florida Bar—Code of Judicial Conduct, Fla.1973, 281 So.2d 21; and F.S.A. Vol. 32, Jud.Conduct Canon 3 (1975-1976 Supp., p. 134). For general background on the Code in Florida, see 46 Fla.Bar Journal 268 and 270 (1972); for background on the predecessor to the Canons of Judicial Conduct, see Opinions on the Canons of Professional Ethics and Canons of Judicial Ethics (The American Bar Association 1967), at 206; and for a discussion of ethical problems of the judiciary, see Breitel, Ethical Problems in the Performance of the Judicial Function, Conference on Judicial Ethics, no. 19 (U. Chicago Law School, Oct. 22, 1964), 64 at 75 et seq.

The plaintiff, pursuant to RCP 1.540, filed a motion in which the circumstances above enumerated are set forth and wherein Aetna alleged that it did not know that the judge was related in the third degree of relationship to the wife of counsel for the defendant until the judge revealed the fact. Aetna moved the court to set aside the final judgment entered in the cause. The presiding judge referred the motion to another circuit judge for his decision. This latter judge denied the motion, holding that he could not determine bias or lack of bias against a fellow judge. This appeal followed.

We heartily concur in the conclusion of the assignee judge that he should not be called upon to review the actions of a fellow judge to determine whether bias appeared in the record. Nevertheless, we are of the opinion that he committed error in failing to hear evidence in support of the motion and in failing to act accordingly upon its merits.

The burden is upon the individual judge to determine his qualification to sit on a particular case. In the instances of relationship to the parties or their attorneys, it is not the existence of a partiality that a judge must reveal but rather, in terms of the canon, a proceeding in which his impartiality" might reasonably be questioned . . .” A judge occupies such a particular position in the affairs of other men that not only must he be free of evil intent but he must also avoid the appearance of evil. Cf. the rule stated in Anderson v. State, Fla.App.1973, 287 So.2d 322.

The gist of a motion in the instant circumstance is not to determine the existence of bias, but rather to determine whether the facts alleged in the motion are true. If the facts are found to be true, then there is no doubt that a mistake was made by the trial judge. It follows that upon such terms as are just, the court may upon proper motion relieve a party or his legal representative of a judgment.

This cause must, therefore, be remanded to the trial judge who heard the motion for his determination of whether the allegation of mistake and the prompt action by the movant are true. We have already indicated that they appear to be true from the record before us. Having made this first determination, the trial judge must then determine whether the justice of this cause allows for relief from the judgment. In the present case, if such relief is granted, of course, a new trial must then ensue.

Appellee urges that Fla.Stat. § 38.02 provides the exclusive remedy for the disqualification of a judge. We must reject this argument because the section by its very terms limits its applicability to those cases in which a final judgment has not been entered. Thus, it has no application to this case. Indeed, the remedies provided by § 38.01 et seq., are aimed at bias by a judge. The remedy sought here does not proceed from any conscious prejudice or bias. It is a party’s right to have a judge free from any obvious source of possible unconscious bias.

For the reasons set out, we reverse the order denying appellant’s motion for relief from judgment and we remand the cause to the trial court with directions to proceed to a hearing upon that motion under the guidelines set forth herein.

Reversed and remanded.

      . For general considerations, see 50 A.L.R.2d 143. For purposes of clarification, we hasten to point out that the Honorable Harold It. Vann, from whose court this appeal was ultimately taken, is not the judge whose “affinity of relationship” is at issue here.

      . * * * % *
      “THE COURT: Gentlemen: Before we proceed and as I have indicated to you off the record informally before we got on the record, one of the attorneys involved is related to me by marriage and there may be some question as to the propriety of me hearing the matter unless everybody agrees that they have no objection to it.
      “So, I throw that fourth to you.
      “MR. SEVIER: Your Honor, as counsel for the plaintiff, Aetna Life & Casualty, this was not known to me at the trial and just became known to me now.
      “I would like to make a motion for the court to recuse itself.
      “THE COURT: I would be glad to do so.
      “As I have indicated before we went on the record, at the time the trial took place in this matter I was not aware of any provision in the Judicial Code that might have questioned the propriety of me presiding at the trial. Otherwise, I would have mentioned it at that time.
      “Since that time I have checked and discussed the matter with Judge Crawford, our Chief Judge and Judge DuVal, our administrative Judge, and they have indicated that perhaps I should call this matter to the attention of the lawyers involved in any future case before me in which Mr. Sussman is involved and let the lawyers determine whether they want me to stay in the case or step out of it.
      “I am sorry, but as of that time I didn’t call it to your attention. It is just a lack of knowledge of the provisions of the canon that I have since checked as of that time.
      “MR. SEVIER: Will the court reassign this case to Judge DuVal for reassignment to another Judge?
      “THE COURT: Yes.”
      * % H< >jc

      . “C. Disqualification.
      “(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
      * * * * *
      “(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
      Sfc ‡ ifc Sfc *
      “(ii) is acting as a lawyer in the proceeding;”

      . “Jud.Conduct Canon 3, subd. 0 (3).
      (3) For the purposes of this section :
      (a) the degree of relationship is calculated according to the civil law system;
      “Commentary
      According to the civil law system, the third degree of relationship test would, for example, disqualify the judge if his or his spouse’s father, grandfather, uncle, brother or niece’s husband were a party or lawyer in the proceeding, but would not disqualify him if a cousin were a party or lawyer in the proceeding.”

      . RCP 1.540
      “ (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or Ms legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect

      .“38.02 Suggestion of disqualification ; grounds; proceedings on suggestion and effect
      “In any cause in any of the courts of this state any party to said cause, or any person or corporation interested in the subject matter of such litigation, may at any time before final judgment, if the case be one at law, and at any time before final decree, if the case be one in chancery, show by a suggestion filed in the cause that the judge before whom the cause is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto, or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in said cause by consanguinity or affinity within the third degree, . . . ” [Emphasis added]


author: GRIMES, Judge.

text:
    Wilbur P. BOLIUS, Appellant, v. STATE of Florida, Appellee.
    No. 75-22.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
    James A. Gardner, Public Defender, Sarasota, and Harold H. Moore, Asst. Public Defender, Bradenton, and Richard J. Cole, II, Legal Intern, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was originally charged with three counts of robbery, two counts of rape, one count of assault with intent to commit murder in the first degree and one count of using a firearm in the commission of a felony. At first, he pled not guilty to all offenses. Then, as part of a plea bargain, the charge of using a firearm in the commission of a felony was dropped and he entered a guilty plea to all other charges. He was sentenced to five concurrent 25-year terms and one concurrent 15-year term. No appeals were taken from these judgments. Thereafter, appellant filed a petition for writ of habeas corpus in the trial court which was treated as a motion for post-conviction relief under Rule 3.850, RCrP. This is an appeal from the denial of that motion.

At the time the charges were pending against him, appellant moved for a sanity inquisition. This motion was denied. However, shortly thereafter the court entered an order directing that Dr. Meadows conduct an examination of appellant’s mental condition. This psychiatrist reported that “even without being under the influence of marijuana and wine, I would consider Mr. Bolius incompetent to stand trial or assist in his defense. . . . ” At the time appellant entered his negotiated pleas, his counsel made the following statement:

“There is one announcement I should make for the Court’s benefit and for the record. In the preparation of the defense in this case, we had Dr. Meadows examine Mr. Bolius. His report, I believe, is in the file, because we did file a notice of intention possibly to rely on the defense of insanity.
“Dr. Meadows indicates that Mr. Bol-ius may be incompetent presently and he may have been incompetent at the time of the offense. However, Dr. Merin has also examined Mr. Bolius, and my information is that he has found him competent presently to enter this plea, and also his opinion is that he was competent at the time of these offenses.
“I talked again to Wilbur, and he understands if he enters these pleas and they will be accepted by the Court, that he will be waiving the possible defense of insanity.”

The court then conducted a comprehensive interrogation of the appellant directed toward determining whether his pleas were being voluntarily entered with a full understanding of their significance. Part of the colloquy included the following questions and answers:

“Q. Specifically, do you understand that you are giving up any possible defense that you would have relative to insanity or not knowing what you were doing or anything else at the time of the offense?
“A. Yes, sir.
“Q. And you discussed that fully with Mr. Myers?
“A. Yes, sir, I have.”

Appellant stated that he had never been treated for any type of mental illness or mental disability. The court ultimately accepted the pleas and sentenced the appellant in accordance with the plea bargain.

The thrust • of appellant’s motion for post-trial relief is that where the record reflected doubt as to his competency to stand trial, the court erred in failing to conduct a formal insanity hearing pursuant to Rule 3.210(a), RCrP, prior to accepting the guilty pleas. Appellant argues that absent a determination that he was competent to stand trial, his pleas were a nullity.

In Fowler v. State, Fla.1971, 255 So.2d 513, the defendant filed a “motion for appointment of expert witnesses” in which he requested a hearing under Rule 1.210(a), RCrP (now Rule 3.210(a)). In response to the motion, the court appointed two psychiatrists who both submitted written reports to the effect that the defendant was not competent to stand trial. The state then obtained the appointment of a third expert who concluded that defendant was competent to stand trial. The court then entered an order in the presence of counsel finding defendant competent to stand trial, but no formal hearing was held prior to the entry of the order. The Supreme Court held that the trial judge should have held a hearing pursuant to Rule 1.210(a), RCrP, because the two medical reports clearly constituted reasonable grounds to believe the defendant insane. However, the court went on to say:

“Our decision on this issue is not to be construed as making the hearing requirement non-waivable, even in situations where reasonable grounds to believe defendant insane exist. In the recent case of Brown v. State, 245 So. 2d 68, 70 (Fla.1971), involving a similar situation, this Court, speaking through Justice Adkins, stated:
‘Defendant then requested further examination by experts. The Court, in entering an order finding the Defendant sane and capable of standing trial, recited that the reports of the experts previously appointed to examine the Defendant had been examined, and that the attorney for Defendant had announced that he had no testimony to offer and did not wish to cross-examine the experts who rendered the written reports. The Court in its order also found that no useful purpose could be served by any further examination.’
“We concur that where the parties and the judge agree, the trial Court may decide the issue of competency on the basis of the written reports alone. But where, as here, there are reasonable grounds to believe defendant insane, and defense counsel requests a hearing, it is error not to provide such a hearing.”

In the case sub judice, while Dr. Meadows’ report provided reasonable grounds to believe the defendant insane, defense counsel did not request a formal hearing and took a position totally inconsistent with the need for having such a hearing. Under these circumstances, the requirement of a formal sanity hearing at which the doctors would appear was waived.

The existence of the medical report questioning appellant’s sanity made it incumbent upon the judge to particularly ascertain appellant’s mental capacity to enter a plea. He was assisted in this regard by the fact that appellant was personally present throughout the proceeding. The record amply supports the determination to permit the plea to be made.

Appellant’s conclusionary allegations of incompetence of counsel are without merit. The mere fact that appellant’s counsel participated in the entering of the pleas cannot be said to reflect incompetence. While presumably' Dr. Meadows would have testified that appellant was insane, there was a difference of medical opinion upon this question, and the appellant was obtaining some benefits by virtue of entering into the plea bargain.

Affirmed.

McNULTY, C. J., and SCHEB, J„ concur.

      . While Dr. Merin’s report is not included in the record, we think it may be presumed that he was of the opinion that appellant was competent to stand trial.


author: SCHEB, Judge.

text:
    Arno PRATT and Ernestine Pratt, his wife, Appellants, v. William Whitney LAVENDER, Jr., and William Whitney Lavender, Appellees.
    No. 75-811.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
    Paul Ritter, Winter Haven, for appellants.
    David E. Cauthen of Ford, Cauthen & Robuck, Tavares, for appellees.
   SCHEB, Judge.

The trial court entered a summary judgment in favor of appellee/plaintiff William Whitney Lavender, Jr. in a suit wherein the plaintiff sought to declare a constructive trust against real estate owned by the appellants/defendants. We reverse.

The essential facts are: the plaintiff’s grandmother, who died in 1959, established a testamentary trust with her son, the plaintiff’s father, as trustee. The trustee, as an individual, was given an undivided one-half interest in the land, and held the other half in trust for the benefit of the plaintiff, a minor born in 1947. In 1965, while the plaintiff was still a minor, the trustee transferred the property to defendants, the grantor having been designated as “William Whitney Lavender, a widower, individually, and as trustee for William Whitney Lavender, Jr.” The consideration paid by defendants was cancellation of a $6,000 personal debt which the trustee owed to defendants, as well as assumption by them of $20,000 in mortgages against the property. The plaintiff learned of the sale a few weeks after it occurred. He attained his majority (then age 21) in May, 1968; however, he did not file this suit until November 26, 1973. The plaintiff’s father who had served as trustee was named as a defendant but no relief was asked against him. Instead, plaintiff asked for a one-half interest in the property, either through a constructive trust against the defendants’ real estate or through reformation of the deed to defendants.

The gravamen of the plaintiff’s complaint is that the defendants conspired with the trustee to acquire trust property in a manner to defraud the plaintiff. In summary judgment posture, the record is devoid of evidence of any such conspiracy; hence, there was no predicate for the court to have entered a summary judgment on that basis. A summary judgment is a procedural device for disposition of actions only where there is no genuine issues as to any material fact and the moving party is entitled to a judgment as a matter of law. Stringfellow v. State Farm Fire & Casualty Co., Fla.App.2d 1974, 295 So.2d 686; Rule 1.510 RCP.

Patently the case was not eligible for’ summary judgment on basis of the plaintiff having established the elements of his cause of action. The trial judge must have been convinced, however, that since the defendants had purchased the property from a trustee, they were charged with knowledge of the limits of the trustee’s authority, and were under a duty to determine the trustee was acting for the benefit of the trust; and since the defendants satisfied a personal obligation of the trustee by accepting the conveyance, that this was equivalent to the defendants’ participating in a fraudulent scheme to compromise the plaintiff’s interest under the trust.

Not so. The defendants purchased the real estate in question from a trustee under a testamentary trust which expressly authorized sales of real property without court order. Moreover, the trust provisions excused the purchasers from inquiring as to the validity of conveyances or seeing to the application of any purchase money. It- would be improper to equate, as a matter of law, satisfaction of the trustee’s personal obligation with participation by the defendants in any conspiracy to defraud the plaintiff. The trustee owned a one-half interest in the property in his own right. Clearly he had every right to convey such interest.

The trial court supported its entry of a summary judgment on basis of Connelly v. Florida National Bank, Fla.App.2d 1960, 120 So.2d 647. The court sub judice held the defendants were not even entitled to invoke the defense of laches, since this is an action by a trust beneficiary. Con-nelly was tried on an issue of fraud and conversion on the part of the executor Gwynn, with the knowledge and participation of the defendant Connelly. There, this court held that one who participates in a breach of trust should not be allowed to profit by it, and is thereby barred from asserting the statute of limitations as a defense. While Connelly may become applicable at trial if the evidence establishes fraudulent conspiracy, here a decision to enter a summary judgment on basis of Connelly, was premature for the reasons outlined above.

Finally, we find no merit to plaintiff’s contention that failure on the part of the trustee to have qualified under Ch. 737, Fla.Stat., rendered the trustee’s conveyance void. Chapter 737 sets out certain consequences for failure to comply therewith, but is completely silent as to noncompliance by the trustee affecting the rights of third parties dealing with the trust. While research has not disclosed any Florida cases on this point, other courts have held that a conveyance by a noncomplying trustee is valid, in the absence of express statutory language to the contrary. In Lentz v. Lentz, 1969, 5 N.C.App. 309, 168 S.E.2d 437, the court wrote:

An otherwise valid conveyance by a testamentary trustee is not made void by reason of his failure to first qualify as now required by G.S. § 28-53. The statute does not so provide. A trustee derives his title, powers, and duties from the instrument creating the trust which names him trustee and conveys title to the trust properties to him. See 2 Wiggins, Wills and Administration of Estates in North Carolina, §§ 293, 300. His legal existence is derived from the instrument creating the trust, not from adminicular proceedings relating to qualification, posting bond, etc. “(T)he trustee takes his position by virtue of the donative act of the grantor and not from the authority of the court.” In re Neill’s Estate, 195 Misc. 690, 89 N.Y.S.2d 394; see also, Bogert, Trusts and Trustees 2d, § 151.

Accordingly, the summary judgment is vacated and the cause remanded for proceedings consistent with this opinion.

McNULTY, C. J., and HOBSON, J., concur.


author: PER CURIAM.

text:
    Ivin BALLEN and Rose Ballen, his wife, Appellants, v. PLAZA DEL PRADO CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 75-71.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
    Rehearing Denied Oct. 15, 1975.
    Caidin, Rothenberg, Kogan, Kornblum & Benjamin, Miami, for appellants.
    Weissenborn, Burr & Hyman and Gary M. Carman, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Two points are presented in this appeal by a defendant from a judgment of foreclosure. There is no showing in the briefs or the record that either question was ever presented to the trial court. Therefore, the judgment is affirmed upon the rule stated in Caldwell v. Peoples Bank of San ford, 1917, 73 Fla. 1165, 75 So. 848. See also Lee County Oil Company v. Marshall, Fla.App.1957, 98 So.2d 510, and the cases cited therein.

Affirmed.


author: MAGER, Justice.

text:
    STATE of Florida, Appellant, v. Leo JENKINS, Appellee.
    No. 75-498.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.

      David H. Bludworth, State’s Atty., and Jerome Davis, Asst. State’s Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Sp. Asst. Public Defender, West Palm Beach, for ap-pellee.
   MAGER, Justice.

This is an appeal by the state from an order granting defendant’s motion to suppress certain evidence found during a search of the defendant’s vehicle.

The record reflects that on August 26, 1974, at 3:00 A.M. a police officer stopped the defendant’s vehicle for a routine traffic violation, i. e. making an improper U-turn on a highway. The defendant was unable to produce a driver’s license; however, he did produce the motor vehicle registration which was located in the trunk of the automobile. (The registration which was produced was in another person’s name.) While the trunk remained open the officer saw that it contained a shotgun. At that point the defendant was placed under arrest for failure to exercise due care (in the operation of a motor vehicle) and for failure to have a valid driver’s license.

At or about the same time the defendant was placed under arrest the officer received information from a computer check that the defendant did not have a valid license. The arresting officer advised the defendant that it would be necessary for the defendant to be taken into custody in order to post a bond and that defendant’s vehicle would have to be towed. The testimony in the record indicates that the arresting officer had intended to permit the defendant to drive his car to the police station and post the bond; however, he later realized that a person without a driver’s license could not operate a motor vehicle thereby necessitating that it be towed.

Within 10 or 15 minutes another officer arrived at the scene and proceeded to conduct an inventory search of the vehicle prior to its being towed. The arresting officer testified that it was standard police procedúre that whenever an individual was taken into custody the automobile is impounded (towed away) and the contents inventoried. The record reflects that defendant was the sole occupant of the automobile and that no indication was given to the officer of any other individual that might be available to secure the vehicle. The record further reflects that defendant offered no protest to the inventory search; however, no permission to conduct the inventory was obtained from the defendant. The inventory search conducted on the scene led to the discovery of some 216 grams of marijuana resulting in the defendant’s additional arrest for the possession of marijuana.

The order granting defendant’s motion to suppress does not contain any findings or reasons therefor. A review of the transcript of the proceedings on defendant’s motion reveals that the court determined the search to be illegal because it was an “exploratory search”. The trial court, seemingly, was of the view that in order to conduct a search of a vehicle it is first necessary to tow the vehicle and secure a search warrant or for some probable cause to exist upon which to predicate such search.

Although some of the observations made by the trial court correctly reflect certain instances where a search of a vehicle is permissible, we are of the opinion that the trial court overlooked the circumstance of the “inventory search” and misconceived the legal effect of the evidence in connection therewith.

As a general proposition a war-rantless search is illegal; however, the search of an automobile (as distinguished from a house) has produced two recognized exceptions: (1) a search incident to a lawful arrest, and (2) a search based upon probable cause. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Neither of these exceptions is applicable to the instant situation. Instead, what we have is a third exception to the warrantless search, namely, the “inventory search”. The often-stated purpose for conducting an inventory of the contents of an automobile lawfully taken into custody is to protect the defendant’s property and safeguard the police from unfounded claims for lost possessions. United States v. Kelehar, 470 F.2d 176 (5 Cir. 1972); 48 A.L.R.3d 547, Inventory Search of Impounded Vehicle.

Regardless of the resort to a play on semantics suggesting that a distinction exists between an “inventory” and a “search” an “inventory” search is a “search” within the Fourth Amendment prohibition against unreasonable searches and seizures — A rose by any other name would smell as sweet — Shakespeare. See Gagnon v. State, Fla.App.1968, 212 So.2d 337; Knight v. State, Fla.App.1968, 212 So.2d 900; Godbee v. State, Fla.App.1969, 224 So.2d 441; Urquhart v. State, Fla.App.1971, 261 So.2d 535; State v. Volk, Fla.App.1974, 291 So.2d 643; State v. Ruggles, Fla.App.1971, 245 So.2d 692; 48 A.L.R.3d 537, 548, supra. See also Cady v. Dombrowski, supra.

The foregoing cases support the proposition that a search conducted for the purpose of making an inventory of the contents of an automobile is not “unreasonable” within the proscription of the Fourth Amendment if the totality of the circumstances demonstrate that the search is a bona fide inventory made in the ordinary course of police procedures. The general standard to be applied is reasonableness. Cady v. Dombrowski, supra. An “inventory” search will be unreasonable if it is utilized as a pretext to conduct an “exploratory” search in order to hunt for incriminating evidence. Whether or not an inventory search is unreasonable and has been misused will depend upon the particular facts and circumstances of each case.

Utilizing the standard of reasonableness and recognizing the existence of exceptions to the search warrant requirement the Supreme Court of the United States has recognized the warrantless inventory or care-taking search. Cady v. Dombrowski, supra. See also footnotes 1 and 2, supra. In United States v. Ducker, 5 Cir. 1974, 491 F.2d 1190, 1192, the Fifth Circuit Court specifically upheld inventory searches “where it is clear that the procedure used is a valid inventory and is not merely a pretext for a search, whether or not there is some suspicion that contraband or other evidence may be found.” See United States v. Lawson, 8 Cir. 1973, 487 F.2d 468; State v. Volk, supra. See also State v. Gwinn, Del.Supr.1972, 301 A.2d 291.

A review of the evidence in the instant case reflects that (1) a minor traffic violation occurred; (2) the arresting officer had no suspicion that the automobile contained contraband (although even the presence of such suspicion might not vitiate an inventory search, United States v. Ducker, supra); (3) the arrest of the defendant was for a valid and lawful purpose; (4) the defendant did not possess a valid driver’s license and was precluded from driving his vehicle; (5) the nature of the traffic violation was such as to require the defendant to post a bond; (6) the defendant did not produce a registration reflecting his ownership of the vehicle in question; (7) the incident occurred at three o’clock in the morning; (8) the defendant was the sole occupant, did not protest and offered no other alternative method of securing the vehicle; (9) police procedures which provided for a vehicle to be impounded when an individual is taken into custody were not per se unreasonable in light of the particular factual circumstances; (10) the inventory of the vehicle prior to being towed was not unreasonable under the particular factual circumstances.

In recognizing the validity of the “inventory search” in the instant situation we are not unmindful of the profound concern reflected in the numerous judicial decisions and legal treatises. We would therefore note that the mere fact that many cases have upheld “inventory searches” should not be interpreted as judicial approval of a method to circumvent the protections of the Fourth Amendment. An inventory search in its limited sphere of operation, when properly utilized consistent with its intended purpose, is permissible. The totality of the factual circumstances in each case will determine whether or not an illegal inventory search has occurred. Cf. In re 1972 Porsche 2 Dr., ‘74 Fla. Lic. Tag 1 D 91780, Fla.App.1975, 307 So.2d 451.

To minimize the chances of potential abuse of inventory searches while at the same time recognizing its legitimate field of operation, we might suggest that consideration be given to different alternative procedures when it becomes necessary to take an individual into custody (who is either operating an automobile or has possession or control). Absent the heretofore mentioned circumstances of a search incident to a lawful arrest or a search based upon probable cause and absent the impounding of the vehicle as evidence or pursuant to a forfeiture, the impounding and towing of an automobile and its concomitant inventory search is of questionable validity where the location of the automobile does not create a traffic hazard or nuisance and the owner or operator chooses not to have his car impounded. The individual in custody should be advised of and given the choice of leaving the car in its location, contacting someone else to take charge of the car or having it impounded. An individual who is taken into custody ought not to have his vehicle impounded, inventoried and towed away under such circumstances where alternative steps can be taken to secure the vehicle and the individual is willing to accept the responsibility for the safekeeping of the contents of such vehicle.

We are of the opinion, based upon the particular facts of the instant case, that the inventory search did not constitute an unreasonable or illegal search. Accordingly, the order granting the motion to suppress is vacated and set aside and the cause remanded for further proceedings consistent herewith.

OWEN and DOWNEY, JJ., concur.

      . Additional exceptions to tlie warrant requirement is the seizure of the evidence “in plain view” (in reality, not a search) and a search in connection with the seizure of an automobile for purposes of forfeiture proceedings. Cady v. Dombrowski, supra.

      . In Cady, supra, the Supreme Court citing its earlier decision in Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), upheld the validity of a warrantless search of an automobile, the justification being “to guarantee the safety of the custodians”, i. e. the police having properly impounded the automobile had the right for their own protection to search it. Additionally, the Supreme Court recognized that the inventory search of the trunk of an automobile pursuant to “standard police procedure” which revealed the existence of a revolver was “constitutionally reasonable” and justified on the basis that “concern for the safety of the general public who might be endangered if an intruder removed the revolver from the trunk of the vehicle”. The car in question had been towed by the police to a private lot several miles from the police station.


author: HAVERFIELD, Judge.

text:
    DUMOR AVIONICS, INC., Appellant, v. HANGAR ONE, INC., Appellee.
    No. 74-1690.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    Rehearing Denied Oct. 15, 1975.
    Palmer & Lazar, Miami, for appellant.

      Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Defendant tenant seeks review of an amended final judgment in an action for unlawful detention and damages. Plaintiff landlord cross-appeals therefrom. The relevant facts are as follows:

On October 31, 1968 Hangar One, Inc. as landlord, appellee herein, and Dumor Avionics, Inc. as tenant, appellant herein, executed a lease agreement for certain space at Opa Locka Airport. The terms of the lease, commencing November 1, 1968, were for 60 months (S years) at a rental of $595 per month with an option for an additional 60 months at $432 per month rent. The lease provided that the “filing of petition by the Tenant under any section of the National Bankruptcy Act, or similar laws of the United States or any State thereof” shall constitute default by the tenant under the lease.

On November 1, 1968 Dumor Avionics, Inc. went into possession of the leased premises and continues in possession up to the present.

On June 10, 1971 Dumor Avionics, Inc. filed a petition for an arrangement under Chapter XI of the National Bankruptcy Act. Upon being informed thereof, Hangar One, Inc. allegedly orally notified Du-mor Avionics, Inc. that it considered the lease in default, but would permit Dumor to remain on the leased premises as a tenant at will from month to month. In June 1972 Hangar One, Inc. notified Dumor Avionics, Inc. that the monthly rental was being increased from $595 to $750. We note that it is unclear from the record whether Dumor actually paid the increased rental from June 1972 through October 1973. However, the trial judge determined that Dumor in fact did pay the increase.

On October 1, 1973 Hangar One, Inc. sent to Dumor Avionics, Inc. the following letter:

“Pursuant to our conversation regarding a lease with Dumor Avionics and Hangar One, Inc., Hangar One will not enter into negotiation with Dumor until all back rent and one month’s rent is paid in advance, and until there is indication that this monthly rent advancement will be sustained.
“Dumor will continue on a month to month payment basis until such lease is negotiated and signed. Rent for the same will remain at $750.00 per month. Under the previous lease there was provision for a rent reduction after the first sixty months, however, that lease was voided by Dumor’s entering into Chapter Eleven under the National Bankruptcy Act.”

On October 31, 1973 Dumor Avionics, Inc. advised Hangar One, Inc. in writing of its intention to exercise its option under the October 1968 lease agreement for an additional 60 months at $432 per month and enclosed in its letter a rent check for this amount for the month of November 1973. Dumor continued to pay $432 per month rent through June 1974. On the other hand, Hangar One demanded $750 per month. This controversy culminated in Hangar One giving notice to Dumor to vacate.

Dumor having refused to quit the leased premises, Hangar One on June 21, 1974 filed the instant action for unlawful detention. The complaint prayed for possession of the leased premises and damages consisting of the difference between the $432 monthly rental tendered by Dumor and the $750 per month rental claimed to be due by Hangar One. In response thereto, Dumor filed an answer and counterclaim wherein it sought to have the trial court determine that the October 1968 lease was in full force and effect and it was lawfully entitled to possession of the leased premises. The cause was tried non-jury and thereafter the trial judge entered a final judgment, and on November 18, 1974 the following amended final judgment:

“ORDERED AND ADJUDGED that final judgment be and the same is resolved in favor of the plaintiff, Hangar One, Inc., and against the defendant herein, Dumor Avionics, Inc., as follows:
“1. That the plaintiff, Hangar One, Inc., does have judgment against the defendant, Dumor Avionics, Inc., in the total amount of $5,765.76, for which let execution issue;
“2. That attorney’s fees be and the same are hereby awarded to the plaintiff, Hangar One, Inc., in the amount of $950.00, to be forthwith paid by the defendant, Dumor Avionics, Inc., to the plaintiff’s attorney Henry W. Krystow, for which let execution issue;
“3. That costs are hereby assessed in favor of the plaintiff, Hangar One, Inc., and against and to be paid by Dumor Avionics, Inc., the defendant, forthwith, in the amount of $114.00, for also which let execution issue;
“4. Henceforth the defendant, Dumor Avionics, Inc., is to continue to pay $750.00 monthly rent to the plaintiff, Hangar One, Inc., commencing October 1, 1974, and it is to have one more year of rental commencing January 1, 1975.”

Dumor Avionics, Inc. appeals therefrom and Hangar One, Inc. filed a cross-appeal.

Dumor basically contends that Hangar One waived any default occasioned by Du-mor s bankruptcy by Hangar One’s acceptance of rent after the default and with full knowledge thereof. We cannot agree.

The question of waiver usually is one of fact to be tried on the issues properly defined by the pleadings. Davis v. Davis, Fla.App.1960, 123 So.2d 377; Chaikin v. Skolnick, Fla.App.1967, 201 So.2d 588.

Implicit in the trial judge’s ruling as appears in the record and in the amended final judgment is the determination (based upon the conflicting testimony) by the judge, the trier of the facts in the case at bar, that Hangar One, Inc. did not waive any default by permitting Dumor to continue in possession of the leased premises and accepting the rent. There is substantial competent evidence in the record reflecting that Hangar One orally notified Dumor that because of the bankruptcy proceedings, the October 1968 lease was null and void; but Dumor, nevertheless, could continue in possession as a tenant from month to month. Thus, we will not disturb this finding of the trial judge on appeal.

Hangar One, Inc. cross-appeals and argues that the trial judge erred in refusing to award possession of the premises to it. We find this point meritorious.

In light of the trial judge’s determination that the 1968 lease was in default and, therefore, Dumor was a tenant from month to month and Hangar One did have the right to increase the monthly rental, then it follows that Hangar One, upon giving proper notice to Dumor to vacate the leased premises, was entitled to possession thereof. Dumor being a tenant at will from month to month, the trial judge erred in refusing to grant plaintiff, Hangar One, a writ of possession as requested and further erred in permitting Dumor to remain in possession of the leased premises until December 31, 1975. In effect, the trial judge attempted to rewrite the lease agreement which is not authorized. See City of Tampa v. City of Port Tampa, Fla.App.1961, 127 So.2d 119; Florida East Coast Railway Co. v. Atlantic Coast Line Railroad Co., Fla.App.1966, 193 So.2d 666.

Accordingly, we remand the cause to the trial court with directions to strike paragraph 4 of the amended final judgment and to grant plaintiff, Hangar One, Inc., a writ of possession. In all other respects the judgment is affirmed.

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

      . “THE COURT: All right, gentlemen, I am ready to rule.
      * * * * *
      “Also, the testimony is clear the $750 was paid by the tenant, and that wasn’t challenged. The bookkeeper came down here.”


text:
    SCHOOL BOARD OF BROWARD COUNTY, a political subdivision of the State of Florida, et al., Petitioners, v. Jeryl CHETKIN, a minor, by and through her father and next friend, Seymour Chetkin, et al., Respondents.
    No. 75-758.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
    G. William Allen, Jr., and William S. Gardella, of Walton, Lantaff, Schroeder, Carson & Wahl, Fort Lauderdale, for petitioners-School Board of Broward County and Pacific Indemnity Co.
    Carey, Dwyer, Austin, Cole & Selwood, Fort Lauderdale, for petitioner-Continental Cas. Co.
    Stephen F. Rossman and Charles H. Baumberger, of Rossman & Baumberger, Miami, and Robert Orseck, of Podhurst, Orseck & Parks, P. A., Miami, for respondents.
   PER CURIAM.

The Petition for Writ of Certiorari is denied without prejudice to petitioners’ right to raise the issues involved on plenary appeal.

WALDEN, C. and OWEN and DOWNEY, JJ., concur.


author: PER CURIAM. WALDEN, Chief Judge

text:
    F. Donald WING and Thomas H. Daly, Appellants, v. NORTON COMPANY, Appellee.
    No. 75-359.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
    Paul B. Erickson, of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellant-Wing.
    Earl L. Maxwell, Jr., of Farish & Farish, West Palm Beach, for appellant-Daly.
    Will A. Nason, Nason, Gildan & Yeager, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and OWEN, JJ., concur.

WALDEN, C. J., dissents with opinion.

WALDEN, Chief Judge

(dissenting):

Under the facts of this case it is my opinion that Norton Company was involved with interstate and intrastate transactions so that the state is empowered to require Norton to qualify to do business. I would reverse upon authority of Eli Lilly and Company v. Sav-On-Drugs, Inc., 366 U.S. 276, 81 S.Ct. 1316, 6 L.Ed.2d 288 (1961).

I do, therefore, dissent.


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    RESERVE INSURANCE COMPANY, Appellant, v. Beverly HARGROVE, a minor, by and through her mother and next friend, Annie Pearl Holmes and Annie Pearl Holmes, Individually, Appellees.
    No. 74-11.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    J. Richard Caldwell, Jr., of Pitts, Eu-banks, Ross & Rumberger, Orlando, for appellant.
    Robert B. Alford of Whitaker & Koepke & Associates, Orlando, for appellees.
   PER CURIAM.

This is an appeal of the trial court’s order denying appellant-insurer the right to any reimbursement for personal injury protection benefits paid to the plaintiff below and for equitable distribution under the provisions of the Florida Automobile Reparations Reform Act. We reverse upon authority of Herrera v. Gosnell, Fla.App.1974, 297 So.2d 876; Reyes v. Banks, Fla.App.1974, 292 So.2d 39 and American Fire and Casualty Company v. Oller, Fla.App.1975, 313 So.2d 67.

The order appealed from is reversed and this cause remanded for further consideration in light of the principles announced in the cases above referred to.

Reversed and remanded.

WALDEN, C. J., OWEN, J., and YAWN, THERON A., Jr., Associate Judge, concur.


text:
    Karle WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-687.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
    Karle White, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


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    Samuel Alan MORTON, Appellant, v. Richard BROOKS, a/k/a Tony Brooks, et al., Appellees.
    No. 74-1700.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    William F. Mackey of Chesley V. Morton & Associates, Fort Lauderdale, for appellant.
    Tracy E. Stafford, Fort Lauderdale, for appellees.
   PER CURIAM.

We have reviewed the briefs and record in this cause and find that under the circumstances presented to the trial court the appellant has failed to show the trial court abused his broad discretion in vacating the default judgment. We note that the order appealed from was based not only upon ap-pellees’ written motion to vacate but also upon testimony taken at the hearing on said motion, which testimony is not contained in the record on appeal.

Affirmed.

CROSS, OWEN and DOWNEY, JJ., concur.