text:
    The KELLY-SPRINGFIELD TIRE COMPANY, a Foreign Corporation, Appellant, v. Noreene MOORE, etc., et al., Appellees.
    No. 77-1191.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Rehearing Denied March 17, 1978.

      Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellant.
    Headley & Sudduth, Sam Daniels, Miami, for appellees.
    Before HAVERFIELD, C. J., HENDRY, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

This is an interlocutory appeal by appellant/defendant Kelly-Springfield Tire Company, from an order in a wrongful death action denying its motion for change of venue.

Appellee/plaintiff, Noreene Moore, as personal representative of her deceased husband’s estate, filed a wrongful death action against appellant in Dade County Circuit Court. The complaint alleged that appellee’s husband was killed when a tire manufactured by appellant exploded while the deceased, a City of Sebring police officer, was driving a city police cruiser on State Road 25, one-tenth of a mile north of Sebring.

Appellant filed a “motion for change of venue or for transfer of cause” contending that “the 10th Judicial Circuit in Sebring, Florida, is the proper venue and most convenient venue for disposition of this cause.” The trial judge denied the motion and this interlocutory appeal was taken.

The sole issue for our determination in this appeal is whether, pursuant to Section 47.122, Florida Statute (1975), the court abused its discretion in denying appellant’s motion for a change of venue. Based upon the facts that are set forth below, it is our opinion that the court did abuse its discretion, warranting our reversal of the order appealed from.

Section 47.122, Florida Statutes (1975) provides that:

“For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.”

With the above statute in mind, the facts reveal that the fatal accident occurred outside the City of Sebring; that the alleged defective tire was sold and mounted on the police cruiser by Yarbrough Tire Service of Sebring; that appellees, and all parties represented by appellees, are presently residents of Sebring; and that the material witnesses to the accident (rescue squad personnel, treating physicians; investigative police officers, etc.) are residents of Se-bring. As such, it is our opinion that in the interest of justice and for the convenience of the parties and witnesses, venue is more properly suited in the Tenth Judicial Circuit in and for Highland County and the court abused its discretion in denying the motion for change of venue. Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975); Hertz Corporation v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976). See also Tankel v. Seiberling Rubber Co., 95 F.Supp. 987 (N.D.Cal., S.D.1951) construing the Federal forum non-conveniens statute, 28 U.S.C. § 1404(a).

Accordingly, the order appealed from is reversed and remanded with directions to transfer the cause to the Circuit Court of the Tenth Judicial Circuit.

Reversed and remanded with directions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stanley STURMAN, Appellant, v. The CITY OF GOLDEN BEACH, Richard Granata and Ronald Carlson, Appellees.
    No. 76-1995.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Rehearing Denied March 17, 1978.
    Goldstein & Goldstein, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Appellant/plaintiff, Stanley Sturman, appeals from three final judgments. The first judgment was rendered in favor of appel-lee/defendant City of Golden Beach, pursuant to a directed verdict. The second and third judgments were rendered in favor of appellee/defendants Ronald Carlson and Richard Granata, both employees (police officers) of the City of Golden Beach, pursuant to jury verdicts. The three final judgments appealed from arose out of tort litigation in which appellant sought damages from appellees for false arrest and assault and battery.

The salient facts which follow amount to a rather bizarre scenario. On November 17, 1974, Officer Granata, an employee of the City of Golden Beach, a Dade County municipality, was making his usual rounds when he observed an automobile with New York State license plates pass him in the opposite direction. Believing that the vehicle had an expired registration decal, Gra-nata turned his police cruiser around and, with siren blaring, followed the New York automobile. The New York vehicle, driven by a Mr. Polizzi, came to a halt after a short-lived pursuit approximately one block over the Broward County line, in the City of Hallandale. Upon discovering that the vehicle did, in fact, have a current decal, the officer and driver proceeded to have a friendly chat.

At this time, appellant’s wife happened to be driving by and saw fit to stop her automobile next to where Granata was standing, talking to Polizzi. Rolling down the window of her vehicle, Mrs. Sturman began yelling at the New York driver, advising him to drive away, as the Golden Beach officer was in Hallandale and had no authority to either stop or arrest him.

Mrs. Sturman continued to offer the above advice to Polizzi, suggesting that he pay no attention to the officer and instructing the officer to get out of Hallandale.

After a bit, Granata told Mrs. Sturman to move on, a request which appellant’s wife ignored. Thereupon, the officer informed Mrs. Sturman that she was under arrest and ordered her to pull her vehicle over. Mrs. Sturman obeyed the command and pulled her vehicle off the highway, and, having done so, promptly jumped out of her car and ran inside a nearby building where she called her husband Stanley, appellant.

A few minutes later, Stanley and his son walked down the street and joined Mrs. Sturman and together, the three started yelling and heaping abuse upon appellee Granata. The entire Sturman family loudly advised Granata that he had no jurisdiction in Hallandale and demanded that he leave their city. The family also advised Polizzi to ignore the officer and drive away. At this point, Granata called for a back-up unit and, a few moments later, appellee Officer Carlson arrived at the scene.

Upon the arrival of Carlson, appellant Stanley directed his wife to get in her car and drive away. Accepting her husband’s advice, Mrs. Sturman walked over and got into her automobile. Granata thereupon approached the vehicle and removed the key from the ignition, preventing Mrs. Sturman from leaving.

The above act of Granata infuriated appellant. In a rage, Stanley ran over to the officer and jumped upon his back in an attempt to wrestle him down. Stanley was shortly thereafter subdued by appellee Gra-nata. Upon seeing the officer prevail over her husband in their wrestling match, Mrs. Sturman ran over and proceeded to pull on Officer Granata’s hair. In what can only be described as a true, though unlawful, outward manifestation of family solidarity, the Sturman’s son entered the “ring” and unsuccessfully attempted to grab Granata’s service revolver.

Finally, Officer Carlson restrained Mrs. Sturman and Officer Granata got Mr. Stur-man under control and escorted the latter by the arm over to one of the police vehicles. By this time, the various “performers” had an impromptu audience of condominium dwellers, who had assembled from their nearby homes to witness the show after hearing the raucous events from the street below.

While appellant was being led to the police vehicle, City of Hallandale police arrived at the scene. Officers Granata and Carlson went to talk with their Hallandale counterparts and left Sturman standing alone, for a moment. Excited by the crowds and with an obvious flair for the dramatic, appellant fell to the ground, clutched his heart and announced that he was having a heart attack. Officer Carlson ran to his police cruiser, retrieved an oxygen resuscitator from within the vehicle and brought it back to the supine appellant. In an outburst of patriotic fervor, Sturman refused the aid saying, “I’m on Hallandale soil. I want a Hallandale ambulance and I want Hallandale oxygen.”

Both appellee officers then went back to talking with the Hallandale police. A few seconds later appellant raised himself from the ground and announced to all that the officers were acting like the Gestapo and that they could not do this, for this was not Nazi Germany, — this was Hallandale. Having thus completed his recitation, appellant resumed his position on the ground and continued his heart attack.

Subsequently, relief arrived in the form of (1) a Dade County ambulance, (2) a Randall-Eastern ambulance, (3) a Hallandale rescue unit and (4) a Hallandale ambulance. Having previously displayed his loyalty, appellant chose a Hallandale unit in which he was rushed to a nearby hospital, examined, and released. The attack had miraculously dissipated.

The two officers arrested Stanley and his wife, charging them with assault and battery, obstructing justice, and resisting an officer without violence. Both Mr. and Mrs. Sturman were placed in the custody of City of Hallandale police officers, at the request of Hallandale authorities, with the end result being that formal charges were never filed against the couple by the Golden Beach officers, nor were they ever brought to trial on the above charges.

Appellant, on the other hand, did file suit against Officers Granata and Carlson, and the City of Golden Beach, for damages (physical and mental) alleged to have occurred when the officers assaulted and battered appellant and falsely arrested him. After extensive discovery, the case proceeded to jury trial whereupon, at the conclusion of appellant’s case, the trial judge granted a motion for directed verdict in favor of the City of Golden Beach. At the conclusion of the trial, the jury returned verdicts in favor of both Carlson and Gra-nata. Final judgments were entered upon the verdicts and this appeal ensued.

As far as the City of Golden Beach is concerned, it is our opinion that the trial judge was correct in directing a verdict in the City’s favor. The case proceeded to trial against the City based upon the doctrine of respondeat superior. Pursuant to Section 901.25, Florida Statutes (1975), the Golden Beach officers had no authority to cross county lines and arrest someone in Broward County. Section 901.25 provides that:

“Municipal officer, arrest outside corporate limits in fresh pursuit. — A police officer of a municipality, when necessary to make an arrest, may make a fresh pursuit of a person from within the municipality to any point in the county in which the municipality is located when the person pursued has violated a city ordinance or committed a misdemeanor within the municipality, or the officer reasonably believes that the person has committed or is committing a felony.” [Emphasis supplied.]

Sub judice, the arrest of appellant occurred in a county not in which the City of Golden Beach is located, i. e., Broward County. As such, the actions of appellees, in their official capacity as employees of the City of Golden Beach, went beyond the limits of the above statute and were ultra vires acts, relieving the city of liability. City of Coral Gables v. Giblin, 127 So.2d 914 (Fla. 3d DCA 1961); Hand v. City of North Miami, 211 So.2d 36 (Fla. 3d DCA 1968).

Dealing now with appellees Carlson and Granata, we are of the opinion that no error was committed by the trial judge in instructing the jury on “citizen’s arrest.” As was pointed out above, appellees had no authority to arrest appellant in their official capacity as police officers. Nevertheless, they did possess a common-law right, as private individuals, to arrest any person who commits a misdemeanor in their presence when said misdemeanor amounts to a breach of the peace. 3 Fla.Jur. Arrest, § 24 (1955): Op. Att’y Gen. 072-285 (1972) and 073-59 (1973). See Marden v. State, 203 So.2d 638 (Fla. 3d DCA 1967), but compare Schachter v. State, 338 So.2d 269 (Fla. 3d DCA 1976) wherein this court ruled that a private citizen had no right to arrest a person for a traffic infraction. There is no doubt that appellant’s peculiar behavior amounted to a breach of the peace entitling appellees to exercise their common law right and arrest appellant.

Accordingly, after carefully reviewing the record, all points in the briefs and arguments of counsel, the final judgments appealed from are hereby affirmed.

Any other points raised by appellant which are neither directly or impliedly discussed herein are deemed to be without merit.

Affirmed.


author: KEHOE, Judge.

text:
    DOWNTOWN DEVELOPMENT AUTHORITY, Appellant, v. Pauline SNEDIKER, Appellee.
    No. 76-1938.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Rehearing Denied March 17, 1978.
    Aronovitz & Weksler, Miami, for appellant.
    Martin M. Dernis, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, Downtown Development Authority, one of the defendants below, brings this appeal from a final judgment dated July 1, 1976, rendered against it for money damages in favor of appellee, the plaintiff below. Appellant’s two primary points on appeal are (1) that the action was barred by the statute of limitations, and (2) that ap-pellee failed to prove negligence on the part of appellant. Predicated upon our conclusion that appellant’s second point is correct, although its first point is without merit, the final judgment appealed is reversed.

Appellee brought an action against appellant and others alleging, among other things, that appellant negligently and improperly maintained a sidewalk area near 127 West Flagler Street, Dade County, Florida, so as to cause appellee to trip and fall, resulting in personal injuries to her. The cause proceeded to a jury trial against appellant and one other defendant. The jury returned a verdict against appellant for $20,000 and a verdict in favor of the other defendant. From the ensuing final judgment entered by the trial court incorporating the verdict, appellant brings this appeal.

Appellant contends (1) that the 12 month statute of limitations on actions for personal injuries against cities set forth in Section 95.24, Florida Statutes (1973), barred appel-lee’s action, and (2) that the trial court erred in entering a final judgment in favor of appellee because appellee failed to prove negligence on the part of appellant.

In regard to appellant’s first point on appeal, we are of the opinion that appel-lee’s action against appellant was not barred by Section 95.24, Florida Statutes (1973). That Section, by its terms, is applicable only to cities or villages. The record in this case clearly shows that appellant Downtown Development Authority is an autonomous body separate and distinct from the City of Miami through which it claims status under Section 95.24. Although appellant’s functional relationship to the City of Miami is a close one, this relationship does not confer the status of a “city” or “village,” as those terms are used in Section 95.24, on appellant. Accordingly, the period of limitation set forth in Section 95.24 is not applicable to appellant and this point on appeal is without merit.

In regard to appellant’s second point on appeal, we are of the opinion that appel-lee failed to show appellant had any duty to maintain or repair the sidewalk area which allegedly caused appellee’s injuries. In the absence of the proof of such a duty, an essential element of a cause of action for negligence, appellee’s cause of action against appellant must fail. See, e. g., Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967); and Yaeger v. Tolin, 277 So.2d 61 (Fla. 3d DCA 1973). The record shows, as appellant contends, that the evidence was insufficient to show the requisite element of a duty on the part of appellant to appellee. This conclusion is reached only after a careful consideration of all the evidence in its most favorable aspect to appellee. See, e. g., Manufacturers Nat. Bank v. Canmont Internat’l, Inc., 322 So.2d 565 (Fla. 3d DCA 1975); Madden v. Gorum, 250 So.2d 342 (Fla. 1st DCA 1971); and Food Fair Stores of Florida, Inc. v. Sommer, 111 So.2d 743 (Fla. 3d DCA 1959).

For the reasons set forth above, the final money judgment appealed is reversed.

Reversed.


author: PEARSON, Judge.

text:
    TITAN AGENCIES, INC., Appellant, v. S. KORNREICH & SONS, INC., a New York Corporation, Appellee.
    No. 76-2299.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Rehearing Denied March 17, 1978.

      Mamber, Gopman, Epstein & Foosaner and Craig D. Savage, North Miami Beach, for appellant.
    Arky, Freed, Stearns, Watson & Greer and Alison Miller, Miami, for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PEARSON, Judge.

The plaintiff, Titan Agencies, Inc., appeals a summary final judgment for the defendant, S. Kornreich & Sons, Inc. The trial court entered its judgment upon a finding as follows:

* # # # # ft
. . . the Court reviewed the pleadings, Answers to Interrogatories, affidavits, depositions and exhibits thereto, as contained in the record hereof, and the Court finding that there is no genuine issue of material fact in connection with the third affirmative defense of Defendant, that the oral guaranty sued upon is as a matter of law within the Statute of Frauds, and that therefore Defendant is entitled to a Summary Judgment herein, it is, therefore,”
H¡ Hi H: Hi Hi Hi

The pleadings, answers to interrogatories, affidavits and exhibits in the record viewed with inferences for the party moved against show, in general, that:

In December of 1971, Titan, acting through its President, Earl Lipnick, entered into an oral agreement with Kornreich, acting through its President, Matthew Korn-reich. Kornreich had only a non-resident insurance agent's license in Florida and under Florida law was required to issue policies on properties in the state only in cooperation with a Florida resident agent. Titan was such an agent.

The agreement was oral. It provided that the commissions on the policies would be split between the two agencies. Under the arrangement between the agencies, Kornreich, which had the business moving into Florida, would supply the insureds. Billing would only be made through Korn-reich to the insureds. The Florida resident agent would not deal directly with the insureds, an arrangement that was designed to protect Kornreich from losing its valuable clients.

Under typical circumstances, Kornreich would telephonically advise Titan that a client needed certain insurance policies in the State of Florida in connection with its Florida properties. It was Titan’s responsibility to find an insurer to write the policy, to secure the proper coverages, to obtain the issuance of the policy and to assist the insurance company in securing whatever information necessary to write the risk. Further, Titan had the responsibility of notifying Kornreich when premiums would become due and to forward to the insurers premium payments collected by and remitted to it by Kornreich. In addition to supplying business, Kornreich billed the insured, collected and remitted to Titan. Titan would send Kornreich its split of commission if Kornreich had not already deducted it upon remitting.

Upon the agreements between Titan and the insurers issuing the policies of insurance, Titan was billed for the policies and, typically, after a 45 day period, Titan became obligated to the insurer regardless of whether the premium had been collected. Titan could cancel the policy prior to such a 45 day period.

One of the clients of Kornreich was Howard Garfinkel, who acquired several major hotel and apartment properties in the State of Florida in 1971 and 1972. Gradually, after about one and- one-half years, he and the entities he controlled began to get behind in paying premiums. Titan, relying upon assurances of Kornreich that Garfink-el’s interests were “good,” allowed the 45 day period to pass and became obligated to pay premiums due to various insurers. When the Garfinkel entities began going under, Titan sued Kornreich.

Kornreich claimed that the arrangement was one of guaranty and that the debt was of the insured and, therefore, it was barred by the statute of frauds.

It is apparent from our review of the record that this is not a case where the nature of the promise can be determined with clarity. The promise that controls is the promise of Kornreich made in return for Titan’s promise to perform the services. Was it conditioned upon payment by the insured or was it an independent promise? There are portions of the record which support appellee Kornreich’s interpretation that the promise was one in the nature of a guaranty and that the debt was that of the insured. On the other hand, there are portions of this record which strongly support appellant Titan’s position that the promise of Kornreich was not conditional at all but was simply a promise to pay Titan amounts to be determined based upon the commissions payable. Under these circumstances, we conclude that the trial judge was premature in his application of the principle of law upon which he based his conclusion that Titan could not recover. It is clear that in order to apply the statute of frauds to deprive the plaintiff of a remedy, it is essential to establish which party was to be charged as the primary obligor and if that party has made a direct and unconditional promise to pay, the statute does not apply. See Troup Brothers, Inc. v. State, 135 So.2d 755 (Fla. 2d DCA 1961). Where the evidence before the trial court is susceptible of more than one inference, one of which will support the plaintiff’s view of the facts, then summary judgment for the defendant should not be entered. See Pan American Distributing Co. v. Sav-a-Stop, Inc., 124 So.2d 753 (Fla. 1st DCA 1960).

The judgment appealed is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

      . Section 725.01, Florida Statutes (1973), provides in part:
      “725.01 Promise to pay another’s debt, etc. No action shall be brought . . . whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person . . unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.”


author: HUBBART, Judge.

text:
    STATE of Florida ex rel. Kimberly Anne POWERS, Relator, v. The Honorable Alan SCHWARTZ, Judge of the Eleventh Judicial Circuit in and for Dade County, Florida, and Jack Sandstrom, Director of the Dade County Department of Corrections and Rehabilitations, Respondents.
    No. 77-2666.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Philip Carlton, Jr., Miami, for relator.
    Janet Reno, State’s Atty., Leonard Hel-fand, Staff Atty., Div. of Health and Rehabilitative Services, Coral Gables, for respondents.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

This is an original petition for a writ of mandamus which involves a question of whether a juvenile has been properly incarcerated pending trial as an adult for an offense punishable by life imprisonment. We have jurisdiction to entertain the petition. Article V, Section 4(b)(3), Florida Constitution. We therefore issued a rule to show cause why an alternative writ of mandamus should not issue against the named respondents. Fla.App. Rule 4.6(b)(3). A return has subsequently been filed by the respondents along with briefs prepared by all parties. Full argument on the petition and return has been heard by the court. Upon further reflection and study, it is our view that a writ of mandamus does not properly lie in this cause and, accordingly, we dismiss the petition herein.

The issue presented for review is whether a circuit court judge has a non-discretionary duty to incarcerate a juvenile in a juvenile detention facility on a pre-trial basis where the juvenile has been indicted by a grand jury and is not otherwise eligible for pre-trial bail or release. We hold that the trial judge has no such non-discretionary duty, but, indeed, has a duty under Section 39.02(5)(c), Florida Statutes (1975), to incarcerate such an indicted juvenile not otherwise eligible for bail or pre-trial release in an adult detention facility.

It appears without dispute that on September 30, 1977, the petitioner Kimberly Anne Powers who is a 16 year old girl was arrested by the police and charged with several robberies in Dade County, Florida. She was initially incarcerated in a juvenile detention facility at the Juvenile Justice Detention Center, commonly known as the Dade County Youth Hall. Subsequent thereto, the Dade County Grand Jury indicted the petitioner on the several robberies for which she was originally arrested. The case was assigned to the respondent Alan Schwartz as a judge of the Dade County Circuit Court, Criminal Division.

On November 29, 1977, the Florida Department of Health and Rehabilitative Services as administrator of the Dade County Youth Hall made a motion before Judge Schwartz to transfer the petitioner to an adult detention facility pending trial, to wit: the Dade County Women’s Detention Center. Judge Schwartz heard and entered an order granting the motion on the ground that Section 39.05(5)(e), Florida Statutes (1975), leaves the court no discretion but to treat the indicted juvenile as an adult in all respects pending trial. Accordingly, the petitioner was transferred to the Dade County Women’s Detention Center which the respondent Jack Sandstrom administers as Director of the Dade County Department of Corrections and Rehabilitation. The petitioner has subsequently challenged this order by filing the instant petition for writ of mandamus against the respondents Schwartz and Sandstrom herein.

The petitioner contends that Judge Schwartz had a non-discretionary duty to keep the petitioner in the Dade County Youth Hall in view of the alleged cruel and unusual imprisonment conditions at the Dade County Women’s Detention Center to ' which the petitioner is presently subjected. The respondents have denied that any such confinement conditions exist and, accordingly, we cannot consider or resolve such disputed issues of fact on the instant petition for writ of mandamus. Fla.App. Rule 4.5(a)(2). We do not preclude the petitioner, however, from bringing such alleged conditions to the attention of Judge Schwartz by a proper motion as hereinafter discussed.

Section 39.02(5)(c) provides as follows: “A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set out in s. 39.06(7) unless and until an indictment on such charge is returned by the grand jury, in which event and at which time the court shall be divested of jurisdiction under this statute and the charge shall be made and the child shall be handled in every respect as if he were an adult.”

The above statute needs no elaborate interpretation; it means exactly what it says. A circuit court is without authority to treat an indicted juvenile under the protective provisions of Chapter 39, Florida Statutes (1975). Such a juvenile must be treated pre-trial as an adult in every respect including the setting of terms for bail or release or confinement.

One note of caution must be added. As is true of an adult, if the indicted juvenile’s health and safety is so endangered at a pre-trial adult detention facility that his or her constitutional right to be free from cruel and unusual punishment is being violated, the trial judge has a duty to enter whatever orders are necessary to assure proper confinement conditions which meet minimum constitutional standards. See: Miller v. Carson, 392 F.Supp. 515 (M.D.Fla. 1975) and authorities cited therein. In that respect, we cannot foreclose transfer of the juvenile to another available confinement facility as a possible option in discharging that duty.

Writ denied.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Dorothy Mae BEASLEY and Ralph J. Beasley, her husband, Appellants, v. Gladys D. CLEGHORN, Allstate Insurance Company, Adams R. Hanson, Florida Farm Bureau Insurance Company and Aetna Casualty Surety Company, Appellees.
    No. 76-2649.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    James C. Fisher and Harvey J. Garod of Fisher & Matthews, Altamonte Springs, for appellants.
    Jeffrey D. Keiner of Akerman, Senterfitt & Eidson, Orlando, for appellees.
   PER CURIAM.

Affirmed.

ANSTEAD and MOORE, JJ., concur.

DAUKSCH, J., concurs specially.

DAUKSCH, Judge,

concurring specially.

While I agree with the affirmance of this matter, I am compelled to note the appellants in their brief alleged the trial court erred in refusing to allow the husband to claim loss of wages on account of his having to take time from work to attend to his wife while she was in the hospital. Appellants cite some law from other jurisdictions which support a claim for loss of wages by a spouse of an injured person.

Perhaps given the proper vehicle an appellate court might agree with appellants’ claim.

Appellants do not cite any particular page in the transcript where appellant was denied sought for relief and did not allege in the complaint anything to permit any evidence of his lost wages. No allegata, no probata.


author: GRIMES, Acting Chief Judge.

text:
    Roy Francis CURRY, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 77-1100.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1978.
    Rehearing Denied March 20, 1978.

      Lawrence D. Martin of Vega, Brown & Nichols, P. A., Naples, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The appellant attacks his conviction of possession of heroin and conspiracy to possess heroin on two grounds. We find that both points are well taken.

First, the appellant contends that the court erroneously denied his motion to suppress evidence seized in a warrantless search for lack of standing without giving him the opportunity to testify concerning his right to contest the search. A statement of particulars alleged that both offenses were committed during the period of July 20 to July 23, 1976. The search of a motel room in which the appellant was not present and which resulted in the seizure of heroin took place on July 24, 1976. The court concluded that appellant had no standing to complain because the appellant was not charged with having committed a crime on the date of the search. Relying upon State v. Dycus, 238 So.2d 493 (Fla. App. 2d DCA 1970), the court reasoned that the appellant’s testimony would be irrelevant. When the court refused to permit appellant to testify, his counsel proffered that he would testify that he had paid for the motel room and had free access to and from the room. Counsel concluded the proffer by stating that the appellant would testify consistent with the facts of State v. Leveson, 151 So.2d 283 (Fla.1963).

To understand Dycus, it is necessary to consider the earlier case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In Jones, the U. S. Supreme Court held that when the prosecution alleges possession as the gravamen of the offense charged, it is estopped from denying possession as a predicate for standing to attack the seizure of the evidence allegedly possessed. To put it another way, if the prosecution is relying upon the seizure to prove a charge of possession, the person charged automatically has standing to contest the legality of the search regardless of whether he had a possessory interest in the premises searched. Thus, Jones was a departure from earlier cases which had held that one must have a possessory interest in the premises being searched in order to have standing to attack the search.

In Dycus, our court distinguished Jones on the basis that the defendant was charged with sale and possession of narcotic drugs on the day before the search took place. Because the state was not charging the defendant with the illegal possession of the evidence seized or with the perpetration of another offense at the time of the seizure, the court held that he lacked standing to complain. Significantly, however, we pointed out in Dycus that the defendant had never been on the premises, that he had no right, title or interest therein, and that he had no right of entry into or of possession of the premises. This distinguishes Dycus from the instant case. The rationale of Dycus precludes the appellant from asserting standing on the principle of Jones because he was charged for crimes which occurred prior to the date of the search and seizure. Yet, he still has the right to contest the, search under traditional rules of standing if he can demonstrate that he had a possessory interest in the premises searched. This is what the appellant was precluded from trying to do.

In the case of State v. Leveson, supra, referred to by appellant’s counsel, our supreme court held that a married man who had negotiated a lease of an apartment in the name of his girlfriend, had paid the rent, had enjoyed a complete and unrestricted access to the apartment, and had occupied it from time to time had a posses-sory interest sufficient to confer standing to contest the search of the apartment. If the appellant can prove facts of this nature, he would have standing to contest the search, and the state would be required to carry its burden of proving entitlement to conduct a warrantless search. Mann v. State, 292 So.2d 432 (Fla.App. 2d DCA 1974). In the proceedings below, the state never presented any testimony because the court considered such testimony unnecessary in view of its erroneous position on standing.

The second point relates to the introduction of certain testimony purporting to fall within the rationale of the “Williams rule.” The state called Susan Maria Ryan to testify that on July 9, 1976, she had talked with appellant at a restaurant, and he had told her that he could get her drugs because he was behind most of the dope deals that occur in Naples. On cross-examination the witness conceded that the appellant might just have been “pulling her leg.” In response to redirect examination she testified that the appellant said that he was “fixing to do a THC deal in Fort Myers.”

We are unable to see how this evidence was relevant to any of the essential or material issues framed within the charges being tried. Duncan v. State, 291 So.2d 241 (Fla.App. 2d DCA 1974). The testimony did nothing more than tend to prove criminal propensity, which cannot be a basis for its admission. Roche v. State, 326 So.2d 448 (Fla.App. 2d DCA 1976). The prejudicial effect of the evidence is obvious.

The judgment is reversed, and the case is remanded for further proceedings below at which a new hearing on the motion to suppress may be held according to the principles set forth in this opinion.

OTT and DANAHY, JJ., concur.


text:
    Thomas J. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. HH-77.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., and Doris E. Jenkins, Legal Asst., for appellee.
   PER CURIAM.

Appellant was adjudged to be a mentally-disordered sex offender pursuant to Chapter 917, Florida Statutes (1975), on November 10, 1975. After the committing court was notified that the treatment of the appellant had been completed, a hearing was held May 23, 1977, to determine whether the appellant met the criteria for release as specified in Section 917.20, Florida Statutes. We think the court erred in its determination that the department had exhausted all treatment for the appellant.

The testimony at the hearing clearly revealed that treatment which might be beneficial to the appellant was available within the Department of Health and Rehabilitative Services, although such treatment would require the transfer of the appellant to another facility. Thus the testimony showed that the department had not exhausted all treatment for the appellant, and therefore the appellant did not meet the statutory criteria for discharge. Under these circumstances, the trial court was required to recommit the appellant pursuant to Section 917.20, Florida Statutes.

Therefore, the sentence imposed by the trial court is vacated and the cause is remanded for further proceedings consistent with this opinion.

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

      . The court by an order dated July 22, 1977, found the appellant met the criteria for release under Section 917.20, as amended by § 19 of Chapter 77-312, Laws of Florida, (effective July 1, 1977), because although the appellant remained a present threat to others, the Department had exhausted all treatment for the offender.


author:
HUBBART, Judge.
      KEHOE, Judge

text:
    Joseph P. HINKLE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-1110 and 76-1111.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.

      Eugene P. Spellman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

This is a criminal prosecution for nine counts of grand larceny before the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant was convicted as charged and appeals.

The controlling issue presented by this appeal is whether the co-owner of a joint bank account can be held guilty of larceny for the withdrawal of funds contained in the joint account. We hold that such a co-owner cannot be so held criminally responsible for larceny and reverse.

The critical facts in this case are undisputed. On July 28, 1972, and subsequent thereto, Gladys B. Casper and the defendant held as joint tenants two certificates of deposit at the Dade Federal Savings & Loan Association and one certificate of deposit at the Financial Federal Savings & Loan Association in Dade County, Florida. The joint tenancy in these certificates is reflected by three written documents signed by Gladys B. Casper and the defendant, all three of which provided in part as follows:

“Gladys B. Casper and Joseph P. Hinkle as joint tenants with right of survivorship . , the undersigned hereby apply for savings account in the [Dade] [Financial] Federal Savings and Loan Association . . . and for issuance of evidence thereof in their joint names described as aforesaid. * * * It is agreed by the signatory parties with each other and by the parties with you that any funds placed in or added to the account by any one of the parties are and shall be conclusively intended to be a gift at that time of such funds to the other signatory party or parties to the extent of his or their pro-rata interest in the account.”

The money contained in the certificates was contributed solely by Gladys B. Casper. Such joint bank certificates or accounts represent one of the most common types of joint tenancies in personal property. 2 American Law of Property 16 (1952).

Subsequent to the creation of the joint tenancy in the savings certificates, the defendant made nine withdrawals therefrom over a period of approximately seven months from September 1972, to April 1973. The principals, who were romantically involved, thereafter had an apparent falling out in which Gladys B. Casper claimed that she never intended the defendant to make withdrawals from the above savings certificates during her lifetime, that she intended the said certificates to be a testamentary disposition to the defendant for later distribution to her children, and that she so informed the defendant of her intent prior to such withdrawals. She thereupon consulted counsel and accused the defendant of larceny of the joint certificate funds which led to the defendant’s arrest and prosecution herein.

On March 6, 1974, the defendant was charged by information filed before the Circuit Court for the Eleventh Judicial Circuit of Florida with nine counts of grand larceny based on the nine savings account withdrawals. The defendant entered a plea of not guilty and at trial moved for a judgment of acquittal at the close of all the evidence in the case. The trial court denied the motion. The defendant was thereupon convicted as charged and sentenced to a total of seven years in the state penitentiary. This appeal follows.

It is the established law of this state that a co-owner of property cannot be held guilty of larceny of said property. This is true because the co-owner is in lawful possession of the joint property and cannot be guilty of (1) taking the property (2)of another, two of the essential elements of larceny. The only exception to his rule is in the very unique situation where an owner takes his own goods from one who has a special property right in them and a legal right to withhold them from the owner. As a general rule, however, one cannot steal his own goods. In particular, a co-owner of a joint bank account cannot be guilty of larceny of funds held in the joint account. Addison v. State, 95 Fla. 737, 116 So. 629 (1928); Escobar v. State, 181 So.2d 193 (Fla. 3d DCA 1966). See: Perkins on Criminal Law 244 (2d ed. 1969); Wharton’s Criminal Law and Procedure 499 (Anderson ed. 1957); 2 W. Burdick, Law of Crime 283 (1946); 1 F. Inbau, J. Thompson & C. Soule, Cases and Comments on Criminal Justice 564 (1968); Annot., 17 A.L.R.3d 1394 (1968).

The state contends that the defendant was never a co-owner in the joint bank certificates because Gladys B. Casper never intended to make a gift of the money therein to the defendant. This is conclusively refuted by the written agreement she signed with the defendant making the defendant a joint tenant in the savings certificates. For criminal liability purposes, she had no special property right in these certificates superior to the defendant and possessed no legal right to withhold the monies therein from him. See Annot., 58 A.L.R. 330 (1929).

We express no opinion as to the civil consequences which may arise from these joint savings certificates and the subsequent withdrawals therefrom as they relate to Gladys B. Casper and the defendant or their respective estates because such issues are not before us. We deal solely with the criminal liability of the defendant for larceny based upon his withdrawals from the joint savings certificates herein. For that reason, cases concerning the civil consequences attendant upon the creation of joint bank accounts, including whether such accounts constitute invalid testamentary dispositions, are inapplicable to this case. The trial court erroneously based part of its instructions to the jury on such cases and both parties have mistakenly relied on such authorities before this court. For similar reasons, the parol evidence rule applicable in civil actions involving a contract or other written instrument and relied on by the defendant herein is equally inapplicable to this case as the state has accurately observed in its brief. See Wise v. Quina, 174 So.2d 590 (Fla. 1st DCA 1965).

In view of our disposition of this case, it is unnecessary to consider the other point raised by the appellant on this appeal. The larceny convictions herein are reversed for failure of the trial court to enter a judgment of acquittal upon motion of the defendant at the conclusion of all the evidence at trial. The cause is remanded to the trial court with directions to discharge the defendant.

Reversed and defendant discharged.

KEHOE, Judge

(dissenting).

The underlying' theory of appellant’s defense in the trial court was that by the creation of the certificates of deposit he became a co-owner with the alleged victim of the funds which he withdrew and, as such, could not be guilty of larceny. Appellant correctly argues that, if he were a co-owner of the funds, generally, he could not be found guilty of larceny. See Escobar v. State, 181 So.2d 193 (Fla. 3d DCA 1966); Annot., 17 A.L.R.3d 1394 (1968); and Section 811.021, Florida Statutes (1971). At the close of the case, the jury was instructed, inter alia, as follows:

“The Court further instructs you a joint owner or co-owner of personal property cannot be held guilty of larceny by taking or appropriating to his own use the whole or any part of the joint property, however fraudulent or felonious in fact may be his intent. So, if you find from the evidence in this case the Defendant Hinkle [appellant herein] was a joint owner or co-owner in the savings certificates or savings account from which money was taken, such could not be larceny and you must find the defendant not guilty.
“The Court further charges you that once a joint bank account with right of survivorship is established with the funds of one person, a gift of funds is presumed. This presumption of a gift in creating a joint bank account is rebut-table but it must be overcome by clear and convincing evidence. I instruct you, therefore, by virtue of a joint bank account with right of survivorship being established in this case, that you must presume that a gift occurred and that such presumption continues until such time such presumption is overcome by clear and convincing evidence that such a gift was not intended; and that if you do not find from clear and convincing evidence that such presumption is overcome, you must find that a gift did occur and that the defendant is therefore not guilty of the crime as charged.
“For the purpose of this case, an agreement between the bank and the depositors is not conclusive as between the depositors. The jury will consider all evidence as to their intention and, notwithstanding the form of the deposit, a joint tenancy is not created where the account was made joint purely for convenience and without the intent to create any property interest.”

For the purpose of determining ownership upon which to negate or predicate criminal liability, I believe that these instructions contain a correct statement of the law in Florida. See, e. g., Spark v. Canny, 88 So.2d 307 (Fla.1956); Maier v. Bean, 189 So.2d 380 (Fla. 2d DCA 1966); Williams v. Williams, 177 So.2d 865 (Fla. 3d DCA 1965); McGillen v. Gumpman, 171 So.2d 69 (Fla. 3d DCA 1965); Demps v. Graham, 157 So.2d 534 (Fla. 1st DCA 1963); North Shore Bank v. Shea, 148 So.2d 60 (Fla. 2d DCA 1963); Josephson v. Kuhner, 139 So.2d 440 (Fla. 1st DCA 1962); Durden v. Durden, 137 So.2d 29 (Fla. 2d DCA 1962); Sullivan v. Chase Federal Savings and Loan Ass’n, 119 So.2d 78 (Fla. 3d DCA 1960); Helfritz v. Riegle, 24 Fla.Supp. 95 (Cir.Ct.1965); and 41 Fla. Bar J. 246 (1967).

Subsequently, the jury returned its verdict of guilty against appellant for nine counts of grand larceny. This verdict necessarily implied that the jury, pursuant to the instructions it received, must have found, by clear and convincing evidence, that the presumption of a gift of the funds to appellant was rebutted and that no joint tenancy of the funds was created between appellant and the alleged victim when the certificates of deposit were created. Once a jury has made such a factual determination, it is our function to review the record for the purpose of determining if it contains substantial competent evidence which, if believed, will support such a finding. In performing this function we must assume that the jury believed the credible testimony and evidence most damaging to appellant and drew from the facts established those reasonable conclusions most unfavorable to him. See, e. g., Heineman v. State, 327 So.2d 898 (Fla. 3d DCA 1976); Starling v. State, 263 So.2d 645 (Fla. 3d DCA 1972); Dreger v. State, 228 So.2d 431 (Fla. 3d DCA 1969); and Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968). See generally 2 Fla. Jur., Appeals §§ 308, 322, 340-15 (1963). I am of the opinion that, in the instant case, the record reflects substantial competent evidence from which the jury could have found that the certificates of deposit were established purely for the convenience of the alleged victim without the intent to create any property interest in appellant. Therefore, because appellant never acquired any ownership interest in the funds which he withdrew, he could properly be found guilty of larceny of the funds. See, e. g., Spark v. Canny, 88 So.2d 307 (Fla.1956); Maier v. Bean, 189 So.2d 380 (Fla. 2d DCA 1966); Williams v. Williams, 177 So.2d 865 (Fla. 3d DCA 1965); McGillen v. Gumpman, 171 So.2d 69 (Fla. 3d DCA 1965); Demps v. Graham, 157 So.2d 534 (Fla. 1st DCA 1963); Josephson v. Kuhner, 139 So.2d 440 (Fla. 1st DCA 1962); and Sullivan v. Chase Federal Savings and Loan Ass’n, 119 So.2d 78 (Fla. 3d DCA 1960).

Appellant also contends on appeal that the trial court erred by allowed parol evidence to be admitted in regard to the question of the joint tenancy because such evidence would vary the unambiguous terms of the documents creating the certificates of deposit. As set forth in the jury instructions above, the agreements entered into between the savings and loan associations and appellant and the alleged victim were not conclusive as between appellant and the alleged victim. Under these circumstances, I believe that parol evidence was properly admissible to show whether a joint tenancy was created between appellant and the alleged victim, notwithstanding the form of the agreements between them and the savings and loan associations. See Murray v. Gadsden, 91 U.S.App.D.C. 38, 197 F.2d 194 (1952); Spark v. Canny, 88 So.2d 307 (Fla.1956); D. S. H. v. State, 323 So.2d 292 (Fla. DCA 1975); 10 Am.Jur.2d Banks § 389 (1963); 48 C.J.S. Joint Tenancy § 3 (1947); and Annot., 33 A.L.R.2d 569 (1954).

Additionally, appellant contends that certain statements made by the prosecutor in his closing argument constituted a comment on the failure of appellant to take the stand in his own behalf. In my opinion, the state- • ments complained of in the instant case, taken in their full context and in the light of the surrounding circumstances, did not constitute such a comment. See Johnsen v. State, 332 So.2d 69 (Fla.1976); State v. Jones, 204 So.2d 515 (Fla.1967); Woodside v. State, 206 So.2d 426 (Fla. 3d DCA 1968); and Parks v. State, 206 So.2d 431 (Fla. 3d DCA 1968).

Based on the authorities and the reasons set forth above, I have concluded that there was substantial competent evidence to support the jury verdict and that the prosecutor’s statements made during his closing argument did not constitute a comment on the failure of appellant to take the stand in his own behalf. Accordingly, the judgment and sentence appealed should be affirmed.

      . See: Chase Federal Savings & Loan Ass’n v. Sullivan, 127 So.2d 112 (Fla.1960); Spark v. Canny, 88 So.2d 307 (Fla.1956); North Shore Bank v. Shea, 148 So.2d 60 (Fla. 2d DCA 1963); Maier v. Bean, 189 So.2d 380 (Fla. 2d DCA 1966); Williams v. Williams, 177 So.2d 865 (Fla. 3d DCA 1965); McGillen v. Gumpman, 171 So.2d 69 (Fla. 3d DCA 1965); Demps v. Graham, 157 So.2d 534 (Fla. 1st DCA 1963); Josephson v. Kuhner, 139 So.2d 440 (Fla. 1st DCA 1962); Durden v. Durden, 137 So.2d 29 (Fla. 2d DCA 1962).

      . Although not cited by appellant or appellee, I note § 665.271, Fla.Stat. (Supp.1977) and find it inapplicable to the facts of instant appeal. Compare § 659.291 Fla.Stat. (Supp.1977).

      . The Instant case should be distinguished from Escobar v. State, 181 So.2d 193 (Fla. 3d DCA 1966); Annot., 17 A.L.R.3d 1394 (1968). In Escobar, the defendant was a co-owner of a joint bank account and, absent a special property interest therein of another co-owner superior to that of the defendant, could not be held guilty of larceny for withdrawing the funds in the joint account. In the instant case, the jury determined that the defendant never became a co-owner of the funds represented by the certificates of deposit. Therefore, because the jury must have necessarily determined that the alleged victim had a superior possessory interest in the funds,- the defendant could properly be found guilty of larceny. See § 811.021, Fla. Stat. (1971).


text:
    S. R. C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-244.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Appellant, S.R.C., a juvenile seeks reversal of his adjudication of delinquency for receiving, retaining, disposing of or aiding in the concealment of stolen property (a Honda motorcycle) in violation of Section 812.031, Florida Statutes (1975). Appellant contends that the evidence presented at the delinquency hearing tended to prove that he was a principal in the theft of the motorcycle and, therefore, under established case law could not be adjudicated delinquent on the above ground as alleged in the delinquency petition. We cannot agree.

We find there was sufficient evidence contained in the record to establish appellant’s possession of the stolen motorcycle and, therefore, affirm the delinquency adjudication.

Affirmed.

KEHOE, J., dissents.

      . See e. g., E. C. v. State, 280 So.2d 492 (Fla.3d DCA 1973).


text:
    KENDALL EAST ESTATES, INC., Appellant, v. McKINNEY SUPPLY COMPANY et al., Appellees.
    No. 77-828.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 17, 1978.
    Krongold, Bass & Rosen, Coral Gables, for appellant.
    Adams, George, Schulte & Ward and Amy Shield Levine, Laurence F. Valle, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Barth v. Florida State Constructors Service, Inc., 327 So.2d 13 (Fla.1976); Loiselle v. Gladfelter, 160 So.2d 740 (Fla.3d DCA 1964); Fla.R.Civ.P. 1.430(d).


text:
    HYCO MANUFACTURING COMPANY, City Welding & Manufacturing Company and Dade Truck Sales, Inc., a Florida Corporation, Appellants, v. ROTEX INTERNATIONAL CORPORATION, a Florida Corporation and Juan Jose Villaseca, et al., Appellees.
    Nos. 77-1064 and 77-1169.
    District Court of Appeal of Florida, Third District,
    Feb. 21, 1978.

      Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appellants.
    Anthony R. Silva, Alberto R. Cardenas, Coral Gables, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

These interlocutory appeals are by two out-of-state corporate defendants from orders denying their motions to quash service of process under the long arm statutes and denying their motion to be dismissed from the cause for lack of jurisdiction over their persons. The appeals were consolidated for all appellate purposes. We hold that the plaintiffs did not properly plead in the complaint the basis for jurisdiction and failed to carry their burden of presenting facts clearly justifying the applicability of the statute involved.

The factual basis out of which this cause arose, as alleged in plaintiffs’ complaint, is as follows: The plaintiffs were damaged when a dump trailer turned over while being used on a job in Ecuador, South America. The accident occurred because of an allegedly defective hoist attached to the dump trailer, which failed to support the load. The plaintiff, Rotex International Corporation, had purchased the dump trailer with the hoist attached, in Florida, from defendant-seller, Dade Truck Sales, Inc. Dade Truck Sales, Inc., in turn, had purchased the dump trailer from out-of-state defendant City Welding & Manufacturing Company. City Welding had manufactured the dump trailer and had purchased the hoist from out-of-state defendant Hyco Manufacturing Company. The tractor-trailer was manufactured in Pennsylvania and was one of several sold to defendant Dade Truck Sales.

DEFENDANT CITY WELDING AND MANUFACTURING COMPANY

In addition to stating the above facts, the complaint alleges, with regard to jurisdiction over defendant City Welding, that:

7. Defendant, CITY WELDING & MANUFACTURING COMPANY, a Pennsylvania corporation, licensed to. or doing business in the State of Florida, is the manufacturer and assembler of that certain 1974 dump trailer which they sold outright or by consignment to Defendant, DADE TRUCK SALES INCORPORATED. This Court has jurisdiction over Defendant CITY WELDING & MANUFACTURING COMPANY, pursuant to F.S.A. Section 48.193 and other applicable Florida Statutes.”

Plaintiff-appellee Rotex International Corporation does not specify in its brief any applicable statute, but contents itself with the statement that the facts of the case bring defendant City Welding within the purview of the “Florida Long Arm Statute.” We must examine the section cited in the complaint.

In order to bring an out-of-state defendant within the jurisdiction of the courts of this state, the plaintiff must make sufficient allegations in the complaint to provide a basis for the exercise of jurisdiction. See Nichols v. Seabreeze Properties, Inc., 302 So.2d 139 (Fla. 3d DCA 1974). See also Pan Americana Television Los Angeles, Inc. v. Latin Media Consultants, Corp., 300 So.2d 780 (Fla. 3d DCA 1974); and cf. Zirin v. Charles Pfizer & Co., 128 So.2d 594, 599-600 (Fla.1961). It is incumbent upon the plaintiffs to make the grounds for jurisdiction appear. The portion of the complaint quoted gives no fact except that the manufacturer sold the dump trailer to Dade Truck Sales. Such an allegation is not a sufficient basis for jurisdiction over a foreign defendant.

Under one of the provisions of Section 48.193, Florida Statutes (1975), the activities of City Welding outside of the state may subject it to the jurisdiction of the Florida courts where such acts cause injury to persons or property within the state. It is clear on the face of the complaint that the injury and/or damage herein occurred in the country of Ecuador on December 16, 1974.

A complaint that alleges a sufficient factual basis for the acquisition of jurisdiction requires the defendant who wishes to controvert the jurisdiction to come forward not only with a motion to dismiss, but also with proof to the court of facts which show that the allegations of the complaint concerning jurisdiction over the defendant are untrue. Atlas Aircraft Corporation v. Buckingham, 302 So.2d 163 (Fla. 4th DCA 1974).

City Welding came forward with the affidavit of its president that:

1. City Welding is a corporation organized and existing under the laws of the State of Pennsylvania, with offices and plants in New Castle, Pennsylvania, and manufacturing operations conducted there.

2. At all times material to this litigation, and to date, City Welding is not and has not been authorized to engage in business in the State of Florida, does not and has not maintained any offices within the State of Florida, does not and has not employed any business agents operating within the State of Florida, does not and has not maintained a mailing address within the State of Florida, and has had no assets, real or personal, within the State of Florida, and does not and has not maintained any telephone listing within the State of Florida.

We think that this affidavit was sufficient to shift to the plaintiffs the burden of going forward with evidence on the question of jurisdiction. In an attempt to meet this burden, the plaintiffs filed an affidavit of the president of defendant Dade Truck Sales. That affidavit, in pertinent part, is as follows:

“2. That commencing in the year 1972 and continuing through the present, Dade Truck Sales Inc. has maintained an open account with City Welding and Manufacturing Company of New Castle, Pennsylvania, for the purchase, sale and distribution in Florida of products manufactured, assembled, distributed and/or sold by City Welding and Manufacturing Company.
“3. That such products consist of trailers, dumps and component and maintenance parts manufactured by City Welding and Manufacturing Company and/or other manufacturers, including Hyco Manufacturing Company of Cleveland, Ohio.
“4. That an analysis of the records of Dade Truck Sales Inc. discloses that from May 1972 through December 1975, City Welding and Manufacturing Company sold to Dade Truck Sales Inc. a total of 86 trailers and three dumps, for a total value of $650,072.73.”

This affidavit is insufficient to carry the plaintiffs’ burden of proving facts which clearly justify the application of the statute. The plaintiffs, as appellees, rely upon Youngblood v. Citrus Associates of New York Cotton Exchange, Inc., 276 So.2d 505 (Fla. 4th DCA 1973), for a holding that because the affidavit shows that City Welding received substantial money from its interstate transaction with codefendant Dade Truck Sales, therefore, City Welding was “doing business in the State of Florida.” We think that the cited case does not so hold. The fact that over an extended period City Welding sold many of its products to a codefendant in this state does not of itself constitute “doing business” in the state. It is not some mechanical test that controls in such instance, but rather the quality and nature of the activity involved. See Phillips v. Hooker Chemical Corporation, 375 F.2d 189 (5th Cir. 1967); and Dooly v. Payne, 326 F.2d 941 (5th Cir. 1964). The statement in the affidavit that the products of City Welding were purchased upon open account is also unavailing. It is, however, stated that products were purchased from City Welding “for sale and distribution in Florida.” A defendant that maintains an agent and/or distributor in Florida is subject to the jurisdiction of the courts of this state. See Bradbery v. Frank L. Savage, Inc., 190 So.2d 183 (Fla. 4th DCA 1966). But the statements of this affidavit are entirely too sketchy to justify jurisdiction pn the ground that Dade Truck Sales was the agent-distributor of the manufacturer, City Welding. The obligation of the plaintiff is not simply to raise a possibility of jurisdiction, but rather to establish jurisdiction with affidavits, testimony or documents. See Nichols v. Seabreeze Properties, Inc., 302 So.2d 139 (Fla. 3d DCA 1974).

The plaintiff, having failed to meet its burden of alleging in the complaint, and subsequently proving, facts to establish jurisdiction over City Welding, the trial court committed error when it denied that defendant’s motion to dismiss.

DEFENDANT HYCO MANUFACTURING COMPANY

The complaint alleges, with regard to jurisdiction over defendant Hyco Manufacturing, that:

“8. Defendant, HYCO MANUFACTURING COMPANY, is an Ohio corporation, licensed to or doing business in the State of Florida, pursuant to F.S.A. 48.-193 and applicable case law thereunder, this Court has jurisdiction over it. HYCO MANUFACTURING COMPANY is the manufacturer of the hoist supporting the trailer sold to Plaintiff by DADE TRUCK SALES INCORPORATED, and which, as hereinafter set forth, caused in whole or in part, the property damage incurred by Plaintiff.”

The record establishes that the only contact Hyco Manufacturing, an Ohio corporation, had with Florida is that one of its hoists manufactured in Ohio and sold to City Welding, a Pennsylvania corporation, was installed in a trailer and sold to Dade Truck Sales, a Florida corporation. Dade Truck Sales, in turn, sold the hoist to Rotex International, who shipped it to Ecuador where the accident occurred. This single transaction with no substantial connection with the forum state is insufficient to subject Hyco Manufacturing to the jurisdiction of a Florida court.

It has been consistently held that an isolated act will not subject a foreign corporation or a non-resident to the jurisdiction of a Florida court. In the case of Lyster v. Round, 276 So.2d 186 (Fla. 1st DCA 1973), the court held that an isolated act which, from any objective viewpoint, could not be held to constitute the operation, conduct, engagement in or carrying on a business or business venture, is not sufficient to activate the provisions of Section 48.181, Florida Statutes (1975).

We hold that for this reason, the trial court erred in denying defendant Hyco Manufacturing’s motion to dismiss.

We further note that the record submitted does not show service, pursuant to the statute, of the process issued for either defendant-appellant.

Thereupon, the orders appealed are reversed and the cause remanded with directions to enter an order dismissing the appellants from the cause.

Reversed and remanded with directions.

      . It should be noted that inasmuch as this motion goes to the jurisdiction of the court, it may be renewed at any stage of the proceedings if it has been Initially made pursuant to Fla.R.Civ.P. 1.140(b),


author: GRIMES, Judge.

text:
    CITY OF PINELLAS PARK, Appellant, v. Ray MATTHEWS and Gloria A. Matthews, his wife, Appellees.
    No. 77-1730.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1978.
    Edward D. Foreman, Jeffrey L. Myers and Thomas E. Reynolds of Foreman & Myers, St. Petersburg, for appellant.

      Brian E. Johnson, Clearwater, and Carle-ton L. Weidemeyer of Wightman, Weide-meyer, Jones, Turnbull & Cobb, Clearwater, for appellees.
   GRIMES, Judge.

This is an interlocutory appeal from an order denying a motion to dismiss a complaint for declaratory judgment.

According to the complaint Mr. and Mrs. Curley gave a deed to the City of Pinellas Park in 1958 which contained the following description:

The north 15 feet and the east 15 feet of
Farm B, north of ditch # 2, Pinellas
Farms, Section 32-30-S-16-E for street purposes only.

The appellees alleged that in 1970 they acquired from Mr. and Mrs. Earns a parcel of property which included the land covered by the deed to the city. Appellees sought to have the deed to the city declared void on the theory that the deed affirmatively stated that it had been made for no consideration.

The city moved to dismiss for lack of standing on the part of the appellees to bring the suit and for failure to join the Curleys and the Earns as indispensable parties. We find it necessary only to address the question of standing.

As authority for a suit for declaratory judgment concerning a deed, Section 86.021, Florida Statutes (1975), states that “[a]ny person claiming to be interested or who may be in doubt about his rights under a deed ... or whose rights, status, or other equitable or legal relations are affected by a . . . deed . . . may have determined any question of construction or validity arising under such . deed . . . and obtain a declaration of rights, status or other equitable or legal relations thereunder.” As we read it, before a party can bring suit under this statute he must claim some rights under the deed which he seeks to have construed. In this case, while the deed in question may affect property in which the appellees have an interest, they are claiming no rights under that deed.

The case is similar in many respects to Bowden v. Seaboard Air Line R.R. Co., 47 So.2d 786 (Fla.1950). In that case the plaintiff brought a suit for declaratory judgment against the railroad seeking a determination of the width of a right of way the railroad had obtained across lands later acquired by the plaintiff. In affirming a dismissal of the complaint, our supreme court said:

When boiled down to its essence, it is crystal clear that in and by his bill for declaratory decree appellant seeks construction of an instrument to which he was not a party and by virtue of which he, therefore, has never had any rights which could be declared thereunder. .
. In order to invoke jurisdiction under the provisions of the Declaratory Decree Statute for the purpose of having the court construe any instrument, it is essential that the movant allege facts which show that he is in doubt concerning his rights under said instrument — not that he has clear or definite rights under another and different instrument which might conflict with rights of some other person under the instrument sought to be construed.

As the city suggests, appellees’ remedy may be in a suit for quiet title. In any event, appellees have no standing to bring this suit for declaratory judgment.

REVERSED.

BOARDMAN, C. J., and SCHEB, J., concur.


author: MILLS, Judge.

text:
    Tony WADDY, Appellant, v. STATE of Florida, Appellee.
    No. EE-311.
    District Court of Appeal of Florida, First District.
    Feb. 24, 1978.
    Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury convicted Waddy of a charge of aggravated child abuse occurring on 2 May 1976. He appeals contending the trial court committed numerous errors, among them being: application of the Williams Rule, admitting evidence adduced at a prior trial based on a charge of subsequent child abuse, admitting into evidence a transcript of a tape recorded statement made by him, failing to strike the testimony of witness Barnhill, denying his motion for a mistrial, allowing the State to exhibit the victim to the jury, and denying his motions for judgment of acquittal.

Evidence was adduced by the State at the trial that Waddy, who was living with the child’s mother, committed a number of acts of battery on the child on 2 May. He hit her in the chest and stomach with his fist, he threw her on the couch several times, he threw her against the mobile home wall, he kicked her and he threw a lamp on her. As a result, the child was bruised and her lip was cut. Testimony was permitted of many other batteries which occurred prior to and subsequent to 2 May.

Waddy, the child and her mother left Marion County for Holmes County on 14 May to avoid investigation by the Department of Family Services. On 15 May, Wad-dy was arrested and charged with aggravated child abuse in Washington County. At his trial there, which took place before the one in Marion County, the jury found Wad-dy guilty of the lesser included offense of simple assault.

While in jail in Washington County, a deputy there took a tape recorded statement from Waddy which was transcribed by an unidentified stenographer. There were numerous asterisks and underlinings on the statement. The deputy stated that he placed the underlinings on the statement and had a stenographer correct those portions of the statement after transcription. Over Waddy’s objection, the transcript of the statement was admitted into evidence and taken by the jury into the jury room during its deliberations. The deputy took photographs of the child while she was in the hospital in Holmes County on 15 May. Over Waddy’s objection, they were received into evidence. The mother of the child used the child to point out to the jury where the child had bruises before leaving Marion County for Holmes County. Waddy’s objection because the child had three unrelated scars on her face was overruled. The court instructed the jury to disregard the scars. Later during oral argument, the assistant state attorney commended upon the scars.

The testimony of witness Barnhill which was rambling and unresponsive was not relevant and the court should have granted Waddy’s motion to strike. The witness’ testimony concerning injury to another child’s face had no relevancy or materiality to the crime charged. All it could do was to prejudice Waddy. He was not charged with child abuse as to this child.

The mother of the child abused was granted immunity in this case, as well as the Washington County case, in exchange for her testimony against Waddy. She testified that Waddy committed the batteries upon her child on 2 May and then was permitted to relate numerous other batteries which occurred both before and after 2 May for which Waddy was not charged. There were eyewitnesses to Waddy’s acts. We fail to see the necessity of the similar fact evidence to prove an element of the crime charged, identity of Waddy or common scheme or plan. The similar fact evidence was irrelevant. As we view it, this evidence was introduced to show Waddy was of bad character and propensities. In Williams v. State, 110 So.2d 654 (Fla.1959), our Supreme Court held that such evidence was inadmissible.

The court erred in allowing the transcription of Waddy’s tape recorded statement into evidence and in permitting the jury to take it into the jury room during its deliberations. The best evidence was the tape recording. Duggan v. State, 189 So.2d 890 (Fla. 1st DCA 1966). If the transcript had been properly authenticated, which it was not, it could have been read to the jury. Grimes v. State, 244 So.2d 130 (Fla.1971). But even then, it should not have been admitted into evidence nor should the jury have been permitted to take it into the jury room for use during its deliberations. Grimes, supra.

The court did not err in allowing the State to exhibit the victim to the jury. The mother was permitted to do no more than point out the bruises resulting from the alleged abuse occurring on 2 May. The child had three large scars on her face which were unrelated to the charge, however, the court instructed the jury to disregard the evidence of the scars. Although the assistant state attorney commented on the scars during his closing argument, Wad-dy did not object.

In view of the above holdings and the reversal of this case for a new trial, it is unnecessary for us to discuss the trial court’s refusal to grant Waddy’s motion for a mistrial and motions for judgment of acquittal. We have not discussed Waddy’s contention that the court erred in admitting evidence adduced at the Washington County trial based on a charge of subsequent child abuse because the trial court did not have the benefit of the trial transcript of the Washington County proceedings nor do we. This matter can be properly urged and presented upon the retrial of this case.

Let the writer of this opinion say that to him child abuse is one of the most heinous of crimes. But let the writer of this opinion also say that the most despicable wretch that walks the face of the earth is presumed innocent until proved guilty and is entitled to a fair trial.

The judgment and sentence are reversed and this case is remanded for a new trial.

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


author: BOYER, Judge.

text:
    Joe W. CORDELL, George S. Taff, and Hugh E. Williams, Jr., Appellants, v. WORLD INSURANCE COMPANY, Appellee.
    Nos. GG-398, GG-399.
    District Court of Appeal of Florida, First District.
    Feb. 24, 1978.
    Robert M. Ervin and Dean Bunch, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.
    J. Marshall Conrad, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.
   BOYER, Judge.

This is the second appearance of these consolidated appeals before this court. (See Cordell v. World Insurance Company, 352 So.2d 108 (Fla. 1st DCA 1977)) The primary issue now presented for our determination is whether or not the order here appealed was prematurely entered. We hold that it was.

Appellants, who were plaintiffs in the trial court, filed a class action seeking, inter alia, a declaratory judgment. The complaint alleges that the plaintiffs are holders of insurance policies for business and professional income protection. The policy in question provides that the insurer (defendant in the trial court and appellee here) may decline to renew the policy for nonpayment of the premium; if the insured ceases to be a member of the named profession; or “if all renewals are declined on all policies of this series which have been issued to those in the profession or occupation named in the policy schedule in the state of residence of the insured”. The insurer notified the individual plaintiffs by letter that it had declined “to renew all like policies”. The complaint further alleges that the insurer did not comply with the non-renewal term of the policy in that it refused to renew only a portion of those policies specified. Plaintiffs claim to be in doubt as to the meaning of the term “this series” as contained in the reservation of right of non-renewal and which is not defined in the policy. The class is defined in the complaint as being all insureds of similar policies issued by defendant who had had their policies wrongfully canceled. Discovery in the form of interrogatories was commenced for the purpose of determining, inter alia, the meaning of the term “this series” and the identity of other policy holders. The defendant filed a motion to dismiss which the trial court granted, as to class action status, allowing the individual plaintiffs an opportunity to amend. The order of dismissal was entered prior to the expiration of the time for the answering of the interrogatories and prior to the answers having been filed.

Fla.R.Civ.P. 1.220 provides:

“When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.”

The purpose of class actions was succinctly summarized by the late Justice Glenn Terrell of the Supreme Court of Florida in Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (Fla.1942), wherein he stated:

“The very purpose of a class suit is to save a multiplicity of suits, to reduce the expense of litigation, to make legal processes more effective and expeditious, and to make available a remedy that would not otherwise exist. The Chancellor had jurisdiction of the parties to the cause and the subject matter of the litigation. When this is the case, those of the class for whose benefit the suit is brought are in effect parties plaintiff. Wheelock v. First Presbyterian Church of Los Angeles, 119 Cal. 477, 51 P. 841; Whiting v. Elmira Industrial Ass’n, 45 App.Div. 349, 61 N.Y.S. 27. If this is not the case and the subject matter of the litigation cannot be held to respond to its necessary cost, then the advantage to be derived from a class suit is nullified. To have required 232 separate suits here would have been prohibitive and ridiculous and would have deprived many of a remedy.” (11 So.2d at 189)

The Supreme Court of Florida, citing Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla. 2nd DCA 1963), has also succinctly summarized the requisites of a class action, saying:

“The standards which must be met in order properly to plead a class action have been stated many times, but are perhaps set out best in Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla.App.2d 1963). As noted there, a complaint in a class action suit must:
(1) show the necessity for bringing the action as a class suit;
(2) show plaintiff’s right to represent the class;
(3) allege that plaintiff brought suit on behalf of himself and all others similarly situated;
(4) allege the existence of a class, described with some degree of certainty;
(5) allege that the members of the class were so numerous as to make it impracticable to bring them all before the court;
(6) make it clear that plaintiff adequately represents the class; and

(7) show that the interests of the plaintiff were co-extensive with the interests of the other members of the class.” (Harrell v. Hess Oil and Chemical Corporation, 287 So.2d 291, 293-294 (Fla.1973).

Appellee relies heavily upon another opinion from the Supreme Court of Florida, Osceola Groves v. Wiley, 78 So.2d 700 (Fla. 1955). However the holding of that case has been severely restricted by a subsequent decision of the same court, Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976) wherein the Supreme Court said:

“ * * * Since the complaint in the instant case does not allege fraud, we have no occasion to consider the desirability of continued adherence to the fraud class action adopted in Osceola Groves, supra. “We must examine, however, the misapplication of the Osceola Groves fraud rule by the district courts to class actions wherein fraud has not been alleged since as noted above it was not our intent that the Osceola Groves ‘fraud rule’ be given general application to class actions, * * ” (340 So.2d at page 468)

Osceola Groves v. Wiley is distinguishable on yet another ground: In that opinion the late Justice Harris Drew, speaking for the court, explained that one of the reasons for their holding a class action inappropriate was that “it does not appear that in these contracts was any provision showing a cooperative enterprise or any showing that any purchaser had a pecuniary interest in any development of lands other than those covered by his own contract * * * ” (78 So.2d at page 702). It is clear, on the other hand, that in the case sub judiee the rights of mandatory renewal of the several insureds are dependent upon the renewal of other policies in the same “series”. The rights of the policy holders are therefore, unlike the rights involved in the Osceola case, intertwined. Clearly, the insurer has reserved the right to refuse to renew all policies of the same series issued to those in the profession or occupation named in the policy schedule in the state of residence of the insured.

A declaratory judgment may properly be sought in a class action. (Frankel v. City of Miami Beach, supra)

As also stated by the Supreme Court in Frankel v. City of Miami Beach, supra:

“ * * * In the average class action the information needed to satisfy the requirements of the rule as enunciated in Harrell, supra, at 293-94, can only be obtained through discovery. Consequently, trial courts should reserve ruling on a motion to dismiss until the party seeking to represent or maintain an action against a class has had the opportunity to employ sufficient discovery to ascertain the necessary information that must be plead. Thus, the rules of civil procedure must be liberally construed in permitting the amendment of pleadings.
% * % * * *
“The Third District in affirming the trial court’s dismissal also cited Eisen v. Car-lisle and Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). In Eisen, supra, 94 S.Ct. at 2151, the Supreme Court held that procedural due process in class actions requires that
‘. . . individual notice must be provided to those class members who are identifiable through reasonable effort.’
“Applying the Eisen due process rule to the instant case, we find that the class Frankel seeks to represent is readily identifiable through reasonable effort. The members of the plaintiff class may be ascertained through discovery. As an example only, individual notice given to the class members by a notice inserted in the defendant’s regular monthly billing to its water users might be found to be adequate. Once notice to the class members has been effected, the Eisen mandate will be satisfied.” (340 So.2d at pages 469-470)

Further following the example set by the Supreme Court of Florida in the Frankel case, we do not here determine whether or not the complaint sub judiee properly alleged a class action, nor do we determine whether or not plaintiffs will ultimately be able to do so. We only hold that neither the plaintiffs, the trial court . nor this court have, at this stage of the proceedings, sufficient information to make that determination and that the learned trial judge prematurely dismissed the class action with prejudice. As above quoted from the Frankel case, “trial courts should reserve ruling on a motion to dismiss until the party seeking to represent or maintain an action against a class has had the opportunity to employ sufficient discovery to ascertain the necessary information that must be plead.”

Our holding, as above recited, renders it unnecessary for us to further discuss the other points presented in the briefs.

Reversed and remanded for further proceedings consistent herewith.

McCORD, C. J. and MASON, ERNEST E., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Russell Wayne FLINT, Appellee.
    No. 76-1954.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    Law Offices of James R. Long, Fort Myers, for appellee.
   PER CURIAM.

Appellant contends the trial court erred in relieving Flint’s surety from forfeiture of an appearance bond. We agree and reverse.

Criminal charges were brought against Russell Flint in Lee County. He posted a surety bond to guarantee his appearance. The surety was directed to produce Flint for arraignment on March 10, 1975, in accordance'with Section 903.26(l)(b), Florida Statutes (1973). On the appointed day Flint did not appear in court but his bondsman Neil Wroblewski did. Instead of declaring the bond estreated at that time, the trial judge orally instructed the bondsman to produce Flint on April 7, 1975, and arraignment was continued until that date. The trial court did not order the clerk of the court to send, nor did the clerk cause to be sent, written notice to the surety that Flint had to appear on April 7. See Section 903.26(l)(b), Florida Statutes (1973). When Flint did not appear on that date the trial judge ordered the bond estreated. The record reflects that Flint was subsequently located and transported to Lee County by the Lee County Sheriff’s Office. The record further reflects Flint was tried by jury and acquitted of the charges against him.

In November 1976, Flint’s surety filed a motion to cancel the forfeiture and discharge the bond. At the hearing on the motion the state argued that since more than one year had passed since the bond was forfeited, the surety was not entitled to a remission of the forfeiture pursuant to Section 903.28(1), Florida Statutes (1973). The court ruled that by failing to issue the statutorily required notice to the surety to produce Flint for arraignment on April 7, 1975, when the bond was estreated, it was an invalid estreature and, as such, the one year time limitation embodied within Section 903.28(1), Florida Statutes (1973), did not apply. The trial court granted the surety’s motion and ordered the county commission to issue a check to the surety representing the forfeiture previously paid by the surety, less the cost incurred by the sheriff’s department in transporting Flint back to Lee County.

The state argues that the trial court’s oral instruction to the surety on March 10 to produce Flint for arraignment on April 7 satisfied the notice requirement of Section 903.26(l)(b), Florida Statutes (1973), thereby validating the forfeiture of the bond and making the one year time limitation of Section 903.28(1) Florida Statutes (1973), applicable to the surety. We feel the State’s position is well taken.

Section 903.26(l)(b), Florida Statutes (1973), is silent with respect to the form of notice required or the manner in which it is to be served. It merely provides that the clerk of the court give the surety notice of the defendant’s required appearance, except under stated conditions not applicable to the instant case. In Bailey v. State, 282 So.2d 32, 34 (Fla.1st DCA 1973), the court stated that the surety was entitled to “the highest form of notice,” and cited with approval the following rule expressed in Johnson Service Co. v. Climate Control Contr., Inc., 478 S.W.2d 643, 645 (Tex.Civ.App.1972):

It is settled that when the Legislature requires the giving of notice, but does not expressly direct the manner of giving notice, the person to be informed must receive actual notice before it will be effective. (Emphasis supplied.)

Here it is uncontroverted that when Flint failed to. appear on March 10, as required by law and the bond he had posted, the surety was orally instructed by the trial judge to produce Flint for arraignment on April 7. The surety was thereby placed upon actual notice to produce the defendant on April 7. We hold that, under these circumstances, the notice requirement of Section 903.-26(l)(b), Florida Statutes (1973), was satisfied.

Appellant’s reliance on dicta in Ramsey v. State, 225 So.2d 182 (Fla.2d DCA 1969), that the notice under Section 903.26 must be in writing is misplaced. Ramsey did not involve a situation, as we have here, where the bondsman himself was before the court and received actual notice to produce the defendant at a stated time.

Reversed and remanded for proceedings consistent with this opinion.

HOBSON, A. C. J., and GRIMES and SCHEB, JJ., concur.

      . Forfeiture of the bond; when and how directed; discharge; how and when made; effect of payment. — (1) A bail bond shall not be forfeited unless:
      * * * * * })«
      (b) The clerk of court gave the surety at least seventy-two hours’ notice, exclusive of Saturdays, Sundays, and holidays, before the time of the required appearance of the defendant. Notice shall not be necessary if the time for appearance is within seventy-two hours from the time of arrest or if the time is stated on the bond.

      . Remission of forfeiture; conditions. — (1) Within one year after forfeiture, the court may direct a partial or complete remission for reasonable cause. On application within one year from forfeiture, the court shall order remission if it determines that there was no breach of the bond. If the surety apprehends and surrenders the defendant within one year from forfeiture, the court shall order the forfeiture remitted unless the delay has thwarted the proper prosecution of the defendant.


author: OTT, Judge.

text:
    Gregory Lee NEWSOME, Appellant, v. STATE of Florida, Appellee.
    No. 76-1960.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1978.

      Jack 0. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender, and Charles M. Johnston, Research Asst., Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant Newsome was convicted of burglary of a dwelling with assault upon a person therein and aggravated assault. He complains that the trial court improperly restricted him to six peremptory challenges and refused to give a requested jury instruction on circumstantial evidence. We hold these actions constituted error and reverse. He also complains concerning the admission of certain Williams rules testimony of a previous crime. We find no merit to this contention but believe it helpful to treat it in view of our reversal on the other two grounds.

Burglary is defined as entering a structure with the intent to commit an offense therein. Section 810.02, Florida Statutes (1975). The intended offense with which appellant was charged was sexual battery.

Aggravated assault is alternatively defined as an assault (a) with a deadly weapon or (b) with an intent to commit a felony. Section 784.021(1), Florida Statutes (1975). Appellant was charged under the latter alternative, and the intended felony charged was sexual battery.

His intent to commit sexual battery was thus an essential element of both offenses with which he was charged.

The state’s evidence showed that appellant broke a window and entered Jean Lang’s bedroom at about midnight on August 21, 1976. Hearing the sound of glass shattering, Ms. Lang entered the bedroom to investigate. When she saw appellant, she turned to flee, but appellant caught her. Holding her arms behind her, he forced her to the living room couch and sat down beside her. When she told him her son would be back shortly, he said “Get up and get out” several times and forced her to accompany him outside. Once outside, however, appellant tripped and fell and Ms. Lang was able to break free. She ran to a neighbor’s house and banged on the door, but before the neighbor could let her in, appellant caught her and grabbed her again. The police arrived shortly thereafter, having seen the struggle between the appellant and Ms. Lang while on routine patrol.

Appellant neither made any sexual attack on Ms. Lang nor said anything to her other than “Get up and get out.” The state introduced evidence that appellant had broken into Ms. Lang’s bedroom on February 17, 1975 and raped her at gunpoint. This evidence was properly admitted, since it was relevant to appellant’s intent. Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Whiteman v. State, 343 So.2d 1340 (Fla. 2d DCA 1977). The trial judge did, however, endeavor to curtail this testimony lest it become a feature of the trial, which is impermissible. Williams v. State, 117 So.2d 473 (Fla.1960); Green v. State, 228 So.2d 397 (Fla. 2d DCA 1969). We think he succeeded in this endeavor. Appellant’s complaint in this regard is not well taken.

We nevertheless find a new trial necessary in this case. When appellant’s counsel attempted to exercise a seventh peremptory challenge, the trial court ruled that he was entitled to only six peremptory challenges and refused to excuse the challenged juror. Fla.R.Crim.P. 3.350 provides that each party shall be allowed ten peremptory challenges if the offense charged is punishable by death or imprisonment for life. One of the crimes with which appellant was charged, a burglary in the course of which the offender commits an assault upon any person, is punishable by imprisonment for a term of years not exceeding life imprisonment. Section 810.02(2), Florida Statutes (1975). In Bell v. State, 338 So.2d 1328 (Fla. 2d DCA 1976), we held that the defendants, who were charged with robbery, a felony punishable by imprisonment for life or any lesser term of years, were entitled to ten peremptory challenges. We further held that restricting them to six constituted reversible error.

We think Bell is controlling here and mandates reversal. The state contends that the reasoning of Harris v. State, 349 So.2d 854 (Fla. 2d DCA 1977), applies, rendering the error in the instant case harmless. We find Harris inapplicable. The holding in that case turned on the fact that Harris was convicted of only a lesser-included offense which, had he been initially charged with it, would have entitled him to only six peremptory challenges. Appellant here was convicted as charged on the burglary count.

The trial court also erred in refusing to give the standard jury instruction on circumstantial evidence as requested by appellant. The state relied substantially upon circumstantial evidence to prove that appellant’s entry into Ms. Lang’s house and his assault upon her were done with the fully-formed conscious intent to commit sexual battery. The requisite intent to commit a felony in connection with a burglary or an aggravated assault may be proved by circumstantial evidence. See Griffin v. State, 276 So.2d 842 (Fla. 4th DCA 1973); Whitehead v. State, 273 So.2d 146 (Fla. 2d DCA 1973). However, where, as here, the prosecution relies solely or substantially upon circumstantial evidence to prove an element of the offense charged, a proper charge on circumstantial evidence should be given by the trial court. Leavine v. State, 109 Fla. 447, 147 So. 897 (1933); Jackson v. State, 107 So.2d 247 (Fla. 2d DCA 1958). A refusal to do so upon request constitutes reversible error. McCall v. State, 116 Fla. 179, 156 So. 325 (1934).

We find it unnecessary to deal with the other points raised by appellant.

Appellant’s judgments and sentences are hereby vacated, and the cause is remanded for a new trial.

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

      . In fairness to the trial judge, it should be pointed out that the decision in Bell was not available to him at the time of appellant’s trial.


author: BOARDMAN, Chief Judge.

text:
    RICHARD NASRALLAH HOMES, INC., a Florida Corporation, Appellant/Cross-Appellee, v. Carl G. RASSLER and Amarilys G. Rassler, his wife, Appellees/Cross-Appellants.
    No. 77-1038.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1978.
    Paul T. Marks, Tampa, for appellant/cross-appellee.
    Carl G. Rassler, pro se, for appel-lees/cross-appellants.
   BOARDMAN, Chief Judge.

By this appeal we review the amended final judgment rendered pursuant to a jury verdict in a suit brought by appellant/cross-appellee/plaintiff, Richard Nasrallah Homes, Inc., against appellees/cross-appel-lants/defendants, Carl G. and Amarilys G. Rassler, to foreclose a mechanic’s lien.

After a review of the evidence in its entirety, consideration of the briefs, and after hearing oral arguments, we hold that there was sufficient, competent evidence to support the jury verdicts. We cannot, however, sustain the award of the trial court of prejudgment interest in the sum of $531.36 to appellant. See, e. g., Newcombe v. South Florida Business Negotiators, Inc., 340 So.2d 1192 (Fla. 2d DCA 1976). We, therefore, direct the trial court to delete that item from the amended final judgment. In all other respects the judgment is affirmed.

AFFIRMED as modified with directions.

OTT and DANAHY, JJ., concur.