author: SMITH, Judge. BOYER, Chief Judge

text:
    Frank E. NEELY and Mary L. Neely, Appellants, v. Richard BRUTEN, as Administrator D.B.N. of Estate of Curtis Bruten, Deceased, Appellee.
    No. AA-246.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1976.

      C. Allen Watts, Fogle & Watts, P. A., DeLand, for appellants.
    Edwin P. B. Sanders, Landis, Graham, French, Husfeld, Sherman & Ford, P. A., and Michael S. May, Aberts, Apgar & May, DeLand, for appellee.
   SMITH, Judge.

The Neelys appeal from an adverse summary final judgment by the circuit court holding that they have no title to Volusia County lands conveyed to them by deed of the former administratrix of the estate of Curtis Bruten, deceased. The basis for the circuit court’s judgment, urged by the present administrator of Bruten’s estate, is that the county judge having charge of the estate, after ordering the property sold to the Neelys pursuant to the former adminis-tratrix’s petition, vacated that order at the instance of an heir who claimed to have had no notice of the proposed sale. For value received, the former administratrix gave a deed to the Neelys before the order authorizing it was vacated. The Neelys were not parties to the estate proceedings and they received neither notice nor opportunity for hearing before revocation of the order authorizing sale. Still later, the former ad-ministratrix applied for confirmation of her sale to the Neelys. Again the Neelys were not made parties. The county judge denied confirmation of the sale and, on appeal by the former administratrix, we affirmed. In re Estate of Bruten, 272 So.2d 822 (Fla.App. 1st, 1973).

Finally, the Neelys appeared in the estate proceedings — now lodged in the circuit court pursuant to revised Article V of the Florida Constitution — and petitioned for reconsideration of the orders which adversely affected their deed and title. That petition was presented not to the circuit judge who as county judge had entered the orders in question, for he had become disqualified, but to Circuit Judge Blount, newly assigned to both the estate, § 38.07, F.S., and to the Neelys’ newly-filed independent action for declaratory judgment establishing their deed. Without explicitly considering the effect on the Neelys of the county judge’s critical order vacating the order on which the Neelys’ deed was based, Judge Blount (1) denied the prayer of the Neelys’ petition for reconsideration, on authority of our decision in In re Estate of Bruten, supra, and (2) entered summary judgment against the Neelys in the action for declaratory judgment because the court considered all issues were determined by confirmation of the county judge’s orders. The Neelys then appealed.

Appellants Neely acquired the property pursuant to an order for sale which, by statute then effective, was “prima facie evidence of the validity of the proceedings and of the authority of the personal representative to make a conveyance . . . .” Sec. 733.28(1), F.S.1971. While the county judge evidently determined that his order for sale was one requiring notice to the heirs, § 733.26, F.S.1971, the Neelys were never made parties to any proceeding before the county judge questioning the efficacy of the order for sale and their resulting intervening deed. Assuming that the county judge had subject matter jurisdiction to determine the latent dispute between the Neelys and the Bruten heirs— which is doubtful in the light of In re Lawrence’s Estate, 45 So.2d 344 (Fla.1950), and similar decisions — the Neelys’ substantial interests could not thus be dissolved in their absence. Prunty v. State ex rel. Williams, 226 So.2d 448 (Fla.App. 1st, 1969); Mayflower Inv. Co. v. Brill, 137 Fla. 287, 188 So. 205 (1939).

Appellants Neely filed their complaint for declaratory relief in order to put at issue the questions affecting the validity of their deed. Their entitlement to an adjudication of those matters on the merits is not prejudiced by determinations made by the probate court in proceedings to which they were not a party. The Neelys’ late and fruitless appearance in the estate before a successor judge, to ask reconsideration of prior orders of the county judge, did not conclude their action for declaratory relief. Reconsideration was there denied for no reason but that this court, on an appeal to which the Neelys were not privy, sustained the position of Bruten’s present administrator. It was error to conclude the merits of the controversy against the Nee-lys by summary judgment in which the movants did not demonstrate, by means other than adjudications in proceedings not binding on the Neelys, that there was no genuine issue as to any material fact affecting the matter in controversy.

REVERSED AND REMANDED.

MILLS, J., concurs.

BOYER, C. J., specially concurs.

BOYER, Chief Judge

(specially concurring).

I concur in reversal, but on a much narrower ground than that suggested by the majority opinion.

The Neelys were not entitled under the law to either notice or hearing in the probate proceedings. As recited in the majority opinion, the county judge denied confirmation of the sale and, on appeal, we affirmed. We may not now fault the trial court for refusing to go behind that order. Accordingly, insofar as the summary judgment now appealed may be construed as determining that the deed from the estate to the Neelys was ineffective to convey title, I would affirm. In my view, the record clearly reveals that there is no issue in that regard. However, in the complaint for declaratory relief by the Neelys against the administrator D.B.N. by which the action giving rise to the summary judgment here appealed was commenced, the plaintiffs alleged that “Plaintiffs have received in escrow deeds from the heirs of Curtis Bruten constituting more than 50% of ownership thereof, contingent upon distribution to said heirs of the proceeds of the sale to Plaintiffs”, and in the prayer of that complaint, the plaintiffs requested that the court “ * * * enter its order declaring and adjudging that Plaintiffs hold the former property of the estate free of any claims of said estate or any heirs thereof and for such other relief as the Court may think proper * * In the summary judgment here appealed, the learned trial judge recited that “ * * * FRANK E. NEELY and MARY L. NEELY, his wife, have no vested interest in the real property being and constituting the asset of the Estate of Crutis Bruten, deceased * * *.”

While agreeing that the deed from the estate to the Neelys was clearly invalid, I am not of the view that the record establishes the absence of material issues as to whether the Neelys otherwise have an interest or claim in said property.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Franklin D. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 76-763.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1976.
    Jack 0. Johnson, Public Defender, and Jon J. Hall, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged by a two-count information with (1) manslaughter while intoxicated in violation of Section 860.01, Florida Statutes, and (2) manslaughter by culpable negligence in violation of Section 782.07, Florida Statutes. He was tried by a jury which found him guilty as charged on both counts. The trial court adjudicated him guilty on both counts and sentenced him for a term of:

“. . . ten (10) years as to Count One: one (1) year as to Count Two. 195 days credit to be given for time served from date of arrest to sentencing. Sentences as to both counts to run concurrently.”

We hold that the separate counts in the information charged only a single offense by different acts for which there can be only one sentence. Accordingly, the words in the sentence:

“. . . one (1) year as to Count Two. Sentences as to both counts to run concurrently.”

are hereby vacated as surplusage. The remainder of the sentence is affirmed. Dawson v. State, 266 So.2d 116 (Fla. 1st DCA 1972); Stewart v. State, 184 So.2d 489 (Fla. 4th DCA 1966).

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


author: BOARDMAN, Acting Chief Judge.

text:
    E. W. COLE, Appellant, v. FIRST DEVELOPMENT CORPORATION OF AMERICA, a Florida Corporation, Appellee.
    No. 76-377.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1976.
    William H. Shields of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellant.
    F. Lynn Gerald, Jr. of Sheppard & Wool-slair, Fort Myers, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant/plaintiff timely appeals a summary judgment entered in favor of appel-lee/defendant finding that appellant’s action was barred by res judicata.

The complaint initiating this case sounded in tort alleging that appellee fraudulently agreed to sell a parcel of real estate which it did not own and prayed for money damages. Appellant had filed a prior suit against the same appellee, arising out of the same factual circumstances, seeking specific performance of a contract to convey that parcel. In the contract action the trial court granted a summary judgment to appellee finding that appellant had not submitted a written contract sufficient to withstand the statute of frauds.

It is not disputed that the contract and the tort actions arose from the same underlying facts. The doctrine of res judi-cata does not however bar a cause merely because the actions arose from the same factual situation. Seaboard Coast Line R. Co. v. Industrial Contracting Co., 260 So.2d 860 (Fla. 4th DCA 1972). We point out that res judicata applies only when the four identities are present (1) identity of the thing sued for, (2) identity of the cause of action, (3) identity of the persons and parties, and (4) identity of the quality or capacity of persons for or against whom the claim is made. E. g., Matthews v. Matthews, 133 So.2d 91 (Fla. 2d DCA 1961).

Identity of the causes of action is established where the facts which are required to maintain both actions are identical. Gordon v. Gordon, 160 Fla. 838, 36 So.2d 774 (1948). In the case before us the facts necessary to allege and prove the fraud and deceit action are contradictory to those necessary to sustain the contract action. This obvious difference between the facts essential to each of these two causes of action precludes the application of the doctrine of res judicata.

In addition the requirement of identity of the thing sued for is not satisfied. Appellant prayed for damages in the tort action and for specific performance in the contract action. We are aware that a difference in the relief sought does not conclusively bar operation of res judicata but where two different grounds of relief are sought pursuant to two separate and distinct causes of action it would be improper to apply the doctrine. See Seaboard Coast Line, supra.

True it may be the preferred practice to allege all of a party’s causes of action in one complaint but the Florida Rules of Civil Procedure do not require that it be done. See Fla.R.Civ.P. 1.110(g). The rules permit joinder of causes of action but they do not

prevent, nor is there any principle which precludes, the prosecution of several actions upon several causes of action. .
It makes no difference that the causes of action might be united in a single suit; the right of the party in whose favor they exist to separate suits is not affected by that circumstance. .

IB J. Moore, Federal Practice ¶ 0.410[2], at 1163 (2d ed. 1948), quoting Secor v. Sturgis, 16 N.Y. 548, 554 (1858).

REVERSED.

GRIMES and SCHEB, JJ., concur.


text:
    The STATE of Florida ex rel. the SURF CLUB, a Florida Corporation, Relator, v. The Honorable Harvie S. Du VAL, Judge of the Circuit Court, 11th Judicial Circuit for Dade County, Florida, Respondent.
    No. 76-2065.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1976.
    Rehearing Denied Dec. 20, 1976.

      Walton, Lantaff, Schroeder & Carson and James Knight, Miami, for relator.
    Sibley, Giblin, Levenson & Ward and Robert C. Ward, Miami Beach, for respondent.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Petitioner seeks a Writ of Prohibition against the respondent circuit judge, to prohibit him from performing any further acts in this cause because he resigned to run for a vacancy on the Florida Supreme Court pursuant to provisions of Florida Statutes § 99.012, the so-called Resign-to-run Act, and by virtue thereof no longer occupies the office of circuit judge. The respondent Judge’s resignation was accepted by the Governor of the State of Florida effective January 4, 1977.

The question presented here is the effective date of Judge Du Val’s resignation under the Resign-to-run Act, supra. According to this statute, his resignation became effective no later than the earliest of any one of three alternatives: (1) “the date upon which he would assume office, if elected to the office to which he seeks to qualify,” (2) “the expiration date of the term of the office which he presently holds” or (3) “the general election day at which his successor is elected.” Fla.Stat. § 99.012(2).

In this case, the earliest of these three dates would appear to be the “general election day” at which his successor was elected, inasmuch as a successor was elected to fill Judge Du Val’s office commencing January 4, 1977. However, this depends upon the definition of the phrase “general election day.” Florida Statutes § 97.021(3), which is applicable to the statute here under construction, defines a “general election” as one held “on the first Tuesday after the first Monday in November in the even numbered years, for the purpose of filling national, state and county offices.”

Circuit judges are elected at a nonpartisan election which is held concurrently with the primary elections, as provided for in Florida Statutes §§ 100.061 & 100.091. Thus it would appear that Judge Du Val’s successor was not elected during a “general election,” since she was elected during a nonpartisan election which coincided with the regular primary elections. By definition, primary elections expressly precede the “general election: 021(1). Fla.Stat. § 97.-

The question then becomes whether the phrase “general election day” as used in the Resign-to-run law can mean something other than the day on which the general election is held. By the clear meaning of the Resign-to-run law and the definition of “general election” under Florida Statutes § 97.021(3), we are of the opinion that Judge Du Val’s successor was not elected at a “general election” as the same is defined in the statute. Consequently, his resignation is' effective January 4, 1977. The Petition for Writ of Prohibition is therefore denied.

Petition denied.

NATHAN, J., concurs in the result only.

      . Nonpartisan election of judicial officers is provided for in Florida Statutes § 105.021.


author: GRIMES, Judge.

text:
    Freddie MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 76-397.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1976.
    Jack 0. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and John Robert Howes, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from a conviction of direct criminal contempt as a result of which the appellant was sentenced to six months.

The appellant was charged by information with entering a dwelling with intent to commit petit larceny. He changed his previously entered plea of not guilty to guilty. The judge accepted the plea and ordered a presentence investigation. The following colloquy then took place:

“THE DEFENDANT: What is pre-sentence investigation?
THE COURT: The Parole Board people in this State check on your background, your record, your family ties, your educational history, find out whether or not you have got a drug problem, what your juvenile record is.
THE DEFENDANT: I don’t got no juvenile record. Why can’t I just get my time today?
THE COURT: Pardon?
THE DEFENDANT: Why can’t I just get my time today?
THE COURT: Because it is the Court’s decision, Mr. Martinez, to get the pre-sen-tence investigation, and when you are ultimately sentenced, you will be given credit for all of the time spent.
THE DEFENDANT: Isn’t that one of my rights, to waive a P.S.I.?
THE COURT: Hmmn?
THE DEFENDANT: Isn’t that one of my rights, to waive the P.S.I.?
THE COURT: The P.S.I. is for the benefit of the Court. It would be totally unjust for me to pass sentence on you without finding out as much about you as I could.
THE DEFENDANT: You ain’t going to find nothing out about me but what I told you.
THE COURT: You will be surprised what they find out about people. It will be about six weeks.
THE DEFENDANT: That’s a bunch of bull shit.
THE BAILIFF: Watch your mouth, Martinez. You are in a Courtroom with a Judge.
THE COURT: Mr. Martinez, I have been rather calm with you in putting up with what I regard as a totally surly attitude. I cannot, however, put up with what I consider to be a direct affront to this Court.
THE DEFENDANT: It ain’t no affront.”

The judge then ordered the appellant to be brought back before the court to answer the charge of direct criminal contempt. At the hearing nine days later, the appellant apologized, but the judge found him in direct and willful contempt of court and sentenced him to six months in the county jail consecutive to any sentence to be received in the case in chief.

Appellant first argues that the words he used which formed the basis for his contempt conviction were constitutionally protected under the First and Fourteenth Amendments to the United States Constitution, and Sections 4 and 9 of Article I of the Constitution of the State of Florida. Thus, he contends that these words were not “fighting words” as discussed in Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), but were simply used as a “tool of communication” as explained in White v. State, 330 So.2d 3 (Fla.1976). However, the cases in which these principles were announced did not involve charges of contempt.

Our Supreme Court in Ex Parte Earman, 85 Fla. 297, 95 So. 755 (1923), defined a direct contempt as:

“. . . an insult committed in the presence of the court or of a judge when acting as such, or a resistance of or an interference with the lawful authority of the court or judge in his presence, or improper conduct so near to the court or judge acting judicially as to interrupt or hinder judicial proceedings. . .

The court went on the define a criminal contempt as:

“. . . conduct that is directed against the authority and dignity of a court or of a judge acting judicially, as in unlawfully assailing or discrediting the authority or dignity of the court or judge or in doing a duly forbidden act.”

We hold that the appellant’s conduct was such as could fall within the scope of the foregoing definitions. Therefore, he was properly subject to being held in contempt.

We do not hold that every profane utterance made in the courtroom is automatically contemptuous. By the same token, we do not hold that profanity is an essential ingredient to a conviction for contemptuous statements. The challenged statements must be viewed in the context in which they were made. If it appears that they are insulting to the judge or degrade the dignity of the court, they may be deemed contemptuous. A reduction in the authority of our courts or in the respect to which they are due is bound ultimately to have an adverse effect upon the quality of justice.

Appellant further argues that because he was tried before the court he was unlawfully deprived of a jury trial. Fla.R. Crim.P. 3.830 dealing with direct criminal contempt contemplates a trial only before the court. However, in a series of decisions, the United States Supreme Court has held that sentences in excess of six months may not be imposed for criminal contempt without guilt or innocence being determined by a jury. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974). Under the authority of these decisions, appellant’s six month sentence could be properly imposed upon conviction without a trial by jury.

However, the question is not quite so simple. In Aaron v. State, 284 So.2d 673 (Fla.1973), which was a case involving indirect criminal contempt, the Florida Supreme Court stated:

“. . . If the judge contemplates the imposition of a sentence of six months' imprisonment, or greater, he must empanel a jury to try the facts, unless the defendant has made a waiver thereof. . ” (Emphasis supplied.)

The Third District Court of Appeal has followed Aaron and reversed a contempt conviction sentence of six months for failure to hold a jury trial. Miami Health Studios, Inc. v. State ex rel. Gerstein, 294 So.2d 365 (Fla.3d DCA1974). Our court, in passing, has also cited Aaron for the proposition that a judge may not impose a sentence of six months or greater upon a judgment of contempt unless the accused has been afforded a jury trial. Barr v. State, 334 So.2d 636 (Fla.2d DCA1976).

On the other hand, we have also specifically rejected the contention that a defendant was entitled to a jury trial in contempt proceedings in which he received a six month sentence. Butler v. State, 330 So.2d 244 (Fla.2d DCA1976). Likewise, there are statements in at least three other cases which seem to sanction a sentence of up to six months for contempt without a jury trial. Jacobs v. State, 327 So.2d 896 (Fla.3d DCA1976); Speller v. State, 305 So.2d 231 (Fla.2d DCA1974); Salem v. State, 305 So.2d 23 (Fla.3d DCA1974).

Can it be said that the Florida Supreme Court was intentionally reducing the permissible sentence for conviction of criminal contempt without a jury by one day? We think not. The Aaron opinion relied extensively. upon some of the very same U.S. Supreme Court decisions on the subject. The comment of the court that a jury trial is required for a six month sentence was incidental to its decision, and, therefore, constituted obiter dictum. We believe our Supreme Court’s reference to a sentence of “six months’ imprisonment, or greater” was inadvertent and that the court intended to follow the guidelines established on this subject by the U.S. Supreme Court.

Accordingly, we hereby recede from the statement referred to above in Barr v. State, supra, and the judgment and sentence for contempt is

AFFIRMED.

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


text:
    Maria Butterworth WEST, Appellant, v. Sidney H. JESSOP and Insurance Company of North America, a corporation, Appellees.
    No. 76-426.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1976.
    William A. Patterson, Masterson, Rogers & Patterson, P.A., St. Petersburg, for appellant.
    James C. Hadaway, Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellees.
   GRIMES, Judge.

The question posed in this case is whether an employee of a corporation, who suffers an injury as a result of the negligence of that corporation’s president during working hours, can maintain an action against the president even though she is covered by the workmen’s compensation law.

Maria Butterworth West was employed by Sun State Properties, Inc. d/b/a United States Medical Training Academy. Sidney Jessop was the president and owner of all outstanding stock of the corporation.

On December 4, 1973, while at work Ms. West complained of a headache. In an attempt to relieve her pain, Jessop wrenched her heck causing permanent injury. She recovered workmen’s compensation insurance benefits for the injury.

Subsequently, she filed this negligence action against Jessop alleging that he was a co-employee, and thereby subject to a third party action for damages. The court granted Jessop a summary judgment holding that he was immune from suit as West’s employer under Section 440.11, Florida Statutes (1973).

There is no doubt that the statute would preclude a suit against the corporate employer. On the other hand, co-employees are subject to third party actions for negligent acts done during the course of employment. Frantz v. McBee Company, 77 So.2d 796 (Fla.1955). Where does Mr. Jessop stand when he is both a co-employee and, in effect, the employer by reason of his office and his ownership of all the corporate stock?

While this is an issue of first impression in Florida, it has been considered in other jurisdictions. A careful analysis of the problem is found in Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973), in which the court held that the liability of a corporate officer in a third party action must derive from acts done by him in the capacity of a co-employee and may not be predicated upon acts done by him in his capacity as a corporate officer. The court reasoned that a corporate officer becomes amenable to suit as a co-employee when he has committed an affirmative act of negligence which goes beyond the scope of the nondele-gable duty of the employer to provide his employees with a safe place to work.

This principle makes sense. To blindly hold that a corporate officer always occupies the position of a co-employee because he is a separate “entity” from the corporate employer would jeopardize the concept of workmen’s compensation which is designed to impose a certain but exclusive obligation upon employers whenever their employees suffer on-the-job injuries. A corporate employer must necessarily conduct its business through its corporate officers, and to permit in every case a third party action against these officers, particularly when they also own the corporate stock, would often reduce the protection of “exclusiveness” to only a theoretical refuge. The decision of a businessman to operate through a corporate entity should not deprive him of the reasonable protection against suits by his employees which is afforded to his competitor who is operating as a proprietorship, or even a partnership. Cf. Sonberg v. Bergere, 220 Cal.App.2d 681, 34 Cal.Rptr. 59 (1963).

On the other hand, there is no reason why a stockholding corporate officer should come under the umbrella of exclusive .protection when he negligently injures another employee through an affirmative act. In these circumstances, he should be held personally responsible for his actions in the same manner as any other employee.

2A A. Larson, Workmen’s Compensation Law, § 72.10 (1976), suggests that the majority rule holds the corporate officer to be responsible as a co-employee under all circumstances. However, an analysis of the facts of the cases cited by Larson reflects that most, if not all, of these decisions are consistent with the reasoning we have adopted.

Applying these principles to the instant case, we find that the act of negligence charged against Jessop was clearly one of affirmative action upon his part. The facts alleged in the complaint unquestionably place him in the category of a co-employee. Therefore, he would not be entitled to the cloak of immunity provided by the statute.

REVERSED.

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


author: BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. Ralph BLANCO, Appellee.
    No. 76-705.
    District Court of Appeal of Florida, Second. District.
    Dec. 1, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Bennie Lazzara, Jr., of Gonzalez & Laz-zara, Tampa, for appellee.
   BOARDMAN, Judge.

Appellant State of Florida brings this timely appeal from an order of the trial court granting appellee/defendant’s motion to suppress evidence, i. e. gambling paraphernalia. Appellee was charged by information with aiding and assisting in the conducting of a lottery.

Appellee entered a residence while it was being searched pursuant to a valid warrant issued on sufficient probable cause to believe that lottery activities were conducted on the premises. He was not named in the search warrant nor did he own or lease the premises. The arresting officer testified that appellee was a “well-known bolita man, and he’s known to carry his numbers on very thin paper in . [his] hand” and that as soon as appellee walked in he “started to bring his hand up and go for his mouth. . . . ” The officer grabbed ap-pellee’s wrist and found three gambling bets in his hand. The trial court found that the warrant did not authorize a search of appellee’s person because he had arrived after the search had begun, that there was no probable cause to believe appellee was engaged in the commission of the felony aiding and assisting in the conducting of a lottery, and that there was probable cause to believe appellee was committing the misdemeanors gambling and possession of lottery paraphernalia.

The Supreme Court of Florida in the ease of Samuel v. State, 222 So.2d 3 (Fla.1969) held that where a

judicial determination is made that there is probable cause to believe that the premises are being used for an illegal purpose, such as gambling that it is entirely reasonable and proper to search persons found on such premises when there are reasonable grounds to suspect — that is, believe — that such persons are engaged in or connected with the unlawful activities that are the subject-matter of the search.

We know of no rule of law that a person is immune from operation of a search warrant simply because he was not present on the premises when the search began. The arresting officer had reasonable grounds to believe that appellant was connected with the lottery activities based on his prior knowledge of appellant. Furthermore evidence seized incident to a proper arrest is not subject to suppression. E. g., Williams v. State, 210 So.2d 497 (Fla.2d DCA 1968). See Section 901.21, Florida Statutes. An arrest was proper in the case before us since probable cause existed to believe ap-pellee was committing a misdemeanor in the presence of an officer. Section 901.15, Florida Statutes. The evidence at issue here is admissible in the prosecution of an offense not contemplated at the time of the arrest. See generally Brown v. State, 46 So.2d 479 (Fla.1950); Farmer v. State, 208 So.2d 266 (Fla.3d DCA 1968).

Accordingly we reverse the order granting the motion to suppress evidence.

REVERSED.

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


author: SCHEB, Judge.

text:
    STATE of Florida, Petitioner, v. Lynn MOREY and King’s Gate Campers Holiday, Inc., Respondents.
    No. 76-1484.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1976.

      John J. Blair, State Atty., William J. Lambert, Jr., Asst. State Atty., and Linda Albritton, Legal Intern, Sarasota, for petitioner.
    Raymond A. Graham, Sarasota, for respondents.
   SCHEB, Judge.

In its appellate capacity, the circuit court directed its writ of certiorari to the county court in Sarasota County in respect to misdemeanor charges pending in that court. While the writ permitted the state to proceed to trial on a 200-count information charging the respondents herein, Morey and King’s Gate, with violating Sarasota County Ordinance No. 74-48, which prohibits removal of trees without a permit, it nevertheless, stipulated that “ . . .if there is a conviction and a sentence thereon, there shall be only one sentence for each convicted defendant and for only a single violation of the alleged ordinance.” The state now petitions this court for certiorari. We hold the circuit court erred in prematurely determining the charges pending against Morey and King’s Gate would constitute a single transaction for sentencing purposes. We grant the state’s petition for certiorari.

On June 18, 1976, Morey and King’s Gate were charged by a 200-count information which alleged their removal of trees was “not in compliance with the previously issued permit.” The 200 trees were all allegedly removed on the same day and in connection with the same development. Morey and King’s Gate, as defendants in county court, moved that court for dismissal of the information on the grounds that the ordinance was unconstitutionally discriminatory. When the county court denied that motion, they petitioned the circuit court for a writ of certiorari contending the county’s ordinance was unconstitutional and that the petitioners (Morey and King’s Gate) were to be subjected to a lengthy trial which would result in an enormous cost and serve no useful purpose. Further, they contended the evidence taken before the county court on their motion established they had acted properly under the permit issued to them by the County of Sarasota.

At the hearing in the circuit court, the state contended that the court should not rule on the constitutional question in advance of trial because appeal would be an adequate remedy if any convictions resulted. The circuit judge responded by asking the state whether the single transaction rule would apply to any sentence which could be imposed. The state explained that each count of the information carried the prospect of a one-year sentence and five hundred dollar fine, and that the judge of the county court would not be bound in any sentence he might impose by the single transaction rule. At this point the circuit judge stated that he would not rule on any constitutional issues, but ruled that if there was a conviction and sentence, there could be only one sentence imposed on each of the defendants.

After the circuit court entered its order holding that only a single sentence could be imposed, the state sought a writ of certiora-ri from this court contending the circuit court, in so ruling, exceeded its jurisdiction and departed from the essential requirements of the law.

We make no ruling on whether the single transaction rule should apply to the facts of this case. The single transaction rule first comes into play at time of sentence, State v. Peavey, 326 So.2d 461 (Fla.2d DCA 1975), since by its nature its applicability is dependent upon the factual context of the offenses. If an incorrect ruling on its applicability prejudices either defendant, an appeal to the circuit court will be an adequate remedy. The scope of certiorari must be confined to a limited review of the proceedings of the inferior jurisdiction whose actions are challenged. It is an original action' in the sense that the subject matter of suit or proceedings which it brings before the court- are not there reinvestigated, tried and determined upon the merits generally as upon an appeal. State v. Smith, 118 So.2d 792 (Fla.1st DCA 1960). Admittedly, Smith dealt with a post-appeal petition for certiorari; however, we think the principle of narrowness of inquiry relates also to the role of the court on certiorari pending a trial before another court. Here, Morey and King’s Gate did not raise the single transaction rule by their petition for certiorari, and the circuit court clearly departed from the essential requirements of law when it prematurely resolved the issue that if Morey and King’s Gate were convicted, the county court could only impose sentences on basis that the offenses of each defendant would constitute only a single transaction.

We must also reject contentions by Morey and King’s Gate that certiorari lies because of the rigors and expense of a trial of a cause where there is a question of constitutionality of the ordinance under which they are charged. Certiorari is not designed to serve as a writ of expediency and should not be granted merely to relieve the petitioner who seeks the writ from the expense and inconvenience of a trial, Wright v. Sterling Drugs, 287 So.2d 376 (Fla.2d DCA 1973); Smith v. State, 187 So.2d 61 (Fla.2d DCA 1966); Earnest v. State, 253 So.2d 458 (Fla.1st DCA 1971). Morey and King’s Gate did not demonstrate that the county court had exceeded its jurisdiction or departed from the essential requirements of the law or that, if convicted, that appeal would not afford each defendant a proper remedy for determining constitutionality of the ordinance. We believe, therefore, the circuit court, sitting as an appellate court, exercised sound judgment in declining to rule on the constitutionality of Ordinance 74-48, and by allowing the trial to proceed in county court.

We hold that the circuit court’s order limiting the county court, at this stage, from making a determination of whether more than a single transaction was involved was premature, beyond the scope of relief sought on certiorari, and was itself an order which departed from the essential requirements of the law, and one from which the state will have no adequate remedy by appeal.

Accordingly, so much of the circuit court’s order of September 2,1976, as states “if there is a conviction and a sentence thereon, there shall be only one sentence for each convicted Defendant and for only a single violation of the alleged ordinance.” is quashed.

BOARDMAN, A. C. J., and GRIMES, J., concur.

      . We are not unaware that in State ex rel. Christian v. Rudd, 302 So.2d 821 (Fla.1st DCA 1974), the First District, in granting a writ of certiorari in a criminal case, stated:
      “Should we now refuse to act, deferring consideration until an appeal following trial should there be a conviction, the only practical result would be the great expense of time and money incurred by the Relator as well as the public.”
      While the Supreme Court quashed portions of that decision, it wrote:
      “Under the circumstances of this particular case, we cannot say that the District Court of Appeal abuses its discretion in issuing the common law writ of certiorari.” 310 So.2d 295, 297 (Fla. 1975)
      In Rudd, the court issued its writ on the grounds that the indictment against the defendant was void. We do not think that Rudd was meant to alter the general policy of the courts of this state that certiorari will not be used to grant piecemeal review of either civil or criminal cases. We are unaware of any recent case squarely holding that the expense or inconvenience of trial are sufficient reasons to justify issuance of the writ. If certiorari is ever proper for such a purpose, it must be reserved to correct only the most flagrant abuses by the trial court.


text:
    Beatrice SCHLEIN and Philip Schlein, Appellants, v. FLORIDA EAST COAST RAILWAY CO., Appellee.
    No. 75-2030.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Rehearing Denied Dec. 21, 1976.
    Horton, Perse & Ginsberg, Freidin & Goldfarb, Miami, for appellants.
    Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiffs, Beatrice Schlein and her husband Philip Schlein, appeal from a final judgment in favor of plaintiffs pursuant to a jury verdict for injuries sustained by Beatrice Schlein when the car in which she was driving collided with defendant’s train.

The trial court propounded special interrogatories to the jury, whereupon the jury returned a verdict finding Beatrice Schlein 75% negligent and defendant 25% negligent. The total amount of her damages was found to be $25,000. The trial court reduced the damages by 75%, entering a final judgment in favor of the plaintiffs for $6,250.

Plaintiffs contend that the trial court erred in reducing the plaintiffs’ verdict by the percentage of Beatrice Schlein’s negligence after the court had instructed the jury, pursuant to the applicable Florida Standard Jury Instructions, that the jury should award the total amount of damages sustained by plaintiffs, reduced by the same proportion that Beatrice Schlein’s negligence contributed to her loss, injury or damage.

After giving the above standard jury instructions, the trial court submitted a special interrogatory form to the jury, requesting that it find the plaintiffs negligence, defendant’s negligence and the percentage of negligence of each party. With regard to damages, the special interrogatories questioned: “What is the total amount of damages, if any, you find that the plaintiff, Beatrice Schlein, has sustained as a legal result of the accident?”

Plaintiffs argue that the general verdict form under the Standard Jury Instructions mandates that the jury reduce the award and that when the trial court reduced the damage award, it amounted to a double reduction. Plaintiffs therefore urge that this court should reverse the trial court and direct it to enter judgment for $25,000, which amount plaintiffs say was initially reduced by the jury pursuant to the court’s instructions.

Defendant argues that the trial court carefully explained the special verdict form to the jury, that it was further explained by closing argument of counsel for the respective parties, and that the trial court therefore properly reduced the damages.

We do not agree with the arguments of either of the parties hereto. Unquestionably, the trial court endeavored to fully and fairly instruct the jury, as required by settled law. Yet it is not controverted that the instructions were inconsistent. In view of the inconsistent instructions, there is no way at this time to determine how the jury reached its verdict. Appellate courts must inquire whether the jury was misled or confused by jury instructions. Jones v. Bucyrus-Erie Company, 323 So.2d 633 (Fla.App.3d DCA 1975). In our opinion, the standard jury instruction as to damages together with the special interrogatories submitted to the jury may have confused or misled the jury, causing them to arrive at a conclusion which they may not otherwise have reached. Allstate Insurance Company v. Vanater, 297 So.2d 293 (Fla.1974). We therefore reverse and remand this cause for trial as to damages alone.

Reversed and remanded.

      . Florida Standard Jury Instructions 3.8 & 6.1.


author: BARKDULL, Chief Judge.

text:
    Troy PITCHFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 76-152.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Phillip A. Hubbart, Public Defender and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gem, Joel D. Rosenblatt, Asst. Atty. Gen. and Harold Rosenfield, Legal Intern, for appellee.

      Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   BARKDULL, Chief Judge.

After the appellant had pleaded guilty to a charge of forgery, he was placed on five years’ probation. He was then served with an affidavit, alleging two violations of probation which were, in words and figures, as follows:

* % * * * #
“(1) Order of probation, by failing to truthfully answer all inquiries directed by his probation supervisor, David Todd, in that on October 20, 1975, the aforesaid advised his probation supervisor that he was residing at 205 W. 65 Street, Apartment 316, Hialeah, Dade County, Florida, whereupon it was determined by said probation officer that aforesaid does not reside at said address.
“(2) By failing to make restitution of $340.00 at the rate of $50.00 per month to M & M Liquor Package Store, 794 S.E. 8 Street, Hialeah, Dade County, Florida.”
$ s{: ‡ >}c Ht

At the conclusion of the evidence as to these two charges, the court found that the probationer had not wilfully violated the terms and conditions of his probation. Thereafter, the court commenced to question the probationer and, after several questions and answers, the following occurred:

‡ ifc s(c s}: sfc sfc
“THE COURT: Yes, he is completely uncooperative. I am going to revoke his probation right now, for failing to answer questions directly and truthfully to the court.
“DEFENDANT PITCHFORD: That is the right address, you know, and I have been under pressure.
“THE COURT: Enter an adjudication. Defendant is sentenced to two years in the State Department of Corrections.
“MR. MACK: Note our objection to the Court’s ^reversing of its ruling, and we ask for a transcript of the hearing, and also appointment for appeal.
“THE COURT: The Public Defender is appointed for the appeal. The Court did not reverse its ruling. The Court based its ruling on a new violation by the defendant right before the Court.
“DEFENDANT PITCHFORD: Your Honor, may I say something?
“THE COURT: No, the Court has ruled. Your attorney is going to file an appeal.”
* * * * * *

This appeal ensued, the appellant contending that the trial court denied him minimal due process when it revoked his probation, as indicated above, without any notice to the probationer or opportunity to address the court. We concur with the appellant, and reverse the order of revocation here under review.

§ 948.06, Fla.Stat., provides the procedure to be afforded in a revocation proceeding. Said statute reads, in part, as follows:

* * Sjt Sic * *
“Whenever within the period of probation there is reasonable ground to believe that a probationer has violated his probation in a material respect, any parole or probation supervisor may arrest such probationer without warrant wherever found, and forthwith shall return him to the court granting such probation * * *. The court, upon the probationer being brought before it, shall advise him of such charge of violation and * * * if such charge is not at said time admitted by the probationer and if it is not dismissed, the court, as soon as may be practicable, shall give the probationer an opportunity to be fully heard on his behalf in person or by counsel. After such hearing, the court may revoke, modify, or continue the probation.”

This statute has been construed to require notice of the alleged violations and an opportunity to refute the charges. Hooks v. State, 207 So.2d 459 (Fla. 2d DCA 1968); Mato v. State, 278 So.2d 672 (Fla. 3rd DCA 1973); compare Haiflich v. State, 285 So.2d 57 (Fla. 3rd DCA 1973). This obviously was not done in the instant case.

Therefore, the order of revocation be and the same is hereby reversed, and the matter is returned to the trial court for further proceedings. This opinion and decision is not to be construed as barring the trial court from considering any subsequent affidavit of violation of probation which may relate to the proceedings quoted above.

Reversed and remanded, with directions.


author: PEARSON, Judge.

text:
    Lawrence HOFFKINS, Appellant, v. The CITY OF MIAMI, a Municipal Corporation, et al., Appellee.
    No. 75-722.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Rehearing Denied Dec. 21, 1976.
    Nachwalter, Christie & Falk and Steven P. Kronenberg, Miami, for appellant.
    George F. Knox, Jr., City Atty., and Margaret A. Benton, Asst. City Atty., for appel-lee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PEARSON, Judge.

Lawrence Hoffkins is a retired police officer of the City of Miami. He is receiving a disability pension under the City of Miami retirement system. He is also receiving $66.00 per week workmen’s compensation benefits. Both payments arise out of an injury incurred in the course of Officer Hoffkins’s employment as a police officer. The City of Miami under the claimed authority of City of Miami Ordinance 41-406(15) has deducted the amount of $66.00 workmen’s compensation benefit from the pension check. Hoffkins claims that the deduction is illegal and that he is entitled to his pension payment in full. In order to secure a judicial determination of his rights, he brought an action against the City of Miami for a declaratory judgment. In his complaint, Hoffkins asserted the invalidity of the City of Miami ordinance which authorized the deduction. The trial court dismissed the complaint and this appeal is from that judgment.

Ordinarily, a complaint for a declaratory judgment which states a genuine doubt as to the rights of the plaintiff will not be dismissed without a declaration of plaintiff’s rights. Cf. Safer v. City of Jacksonville, 212 So.2d 785 (Fla. 1st DCA 1968). In the present case, the court did, in fact, enter such a declaratory judgment because its order and opinion held the ordinance to be valid and to authorize the deduction. Appellant’s brief does not challenge the judgment appealed on any grounds other than the claimed invalidity of the ordinance. The points presented are: (1) The ordinance is violative of the Florida Workmen’s Compensation Act, and of the prevailing law and public policy. (2) The ordinance violates the due process clauses of the United States and Florida Constitutions.

Under his first point, plaintiff argues that the ordinance in effect forces a police officer who is on pension and is a workmen’s compensation claimant involuntarily to waive his rights to the workmen’s compensation law in contravention of Section 440.21(2), Florida Statutes, which provides: “(2) No agreement by an employee to waive his right to compensation under this chapter shall be valid.” The trial court reasoned that if the former state statute (Section 440.09(4) Laws of Florida 1953, repealed effective July 1, 1973) was valid before repeal (see City of Miami v. Graham, 138 So.2d 751 (Fla.1962), then a City ordinance providing for the same deduction was also valid. We think that the court’s reasoning is correct. This especially true in the present instance where, under the Municipal Home Rule Powers Act, Chapter 73-129, Laws of Florida 1973 (Chapter 166, Florida Statutes), municipalities are granted all powers exercisable by the state with the exception of areas expressly forbidden or preempted by the constitution, general law, county charter or certain special laws of the state.

The City of Miami offset does not go beyond its own contributions to the pension fund, and the offset is equivalent to the amount of the workmen’s compensation benefit which is totally financed by the City of Miami.

Appellant’s second point does not present error because appellant is not treated different from other workmen’s compensation claimants. He receives the compensation payment but the payment is offset under the public pension plan of which he is a member. We find that no constitutional question is involved.

Affirmed.

      . City of Miami ordinance 41-406(15):

        "Pension Offset by Compensation Benefits.

      (15) Any amounts which may be paid or payable under the provisions of any state workmen’s compensation or similar law to a member or to the dependents of a member on account of any disability or death shall be offset against and payable in lieu of any benefits payable out of funds provided by the city under the provisions of the retirement system on account of the same disability or death. In case a pension is payable under this retirement system and the present value of the total commuted benefits under such workmen’s compensation or similar law is less than the pension reserve on the benefits otherwise payable from funds provided by the city under this retirement system, the present value of the commuted payments shall be deducted from the pension reserve and such benefits as may be provided by the pension reserve so reduced shall be payable under the provisions of the retirement system.”

      . * * *
      “1. As to Count I, the Court finds that under the facts as stated in the Complaint, the Plaintiff has failed to state a cause of action. Paragraph 10 of the Complaint herein states that the Defendants permitted an offset of Plaintiff’s pension by Plaintiff’s Workmen’s Compensation benefits under Municipal Ordinance § 41-406(15). The Court finds that said Municipal Ordinance expresses the same intent as former Florida Statute § 440.09(4). Further, § 440.09(4), now repealed was valid and legal under Pur-dy v. Covert, Fla.App. (2nd) 1963, 151 So.2d 891; City of Miami v. Clark, Fla.App. (3rd) 1969, 223 So.2d 387, and City of Miami v. Graham, Fla.1962, 138 So.2d 751. Although said statute has now been repealed, no new legislation has prohibited the action that was allowed thereunder. Thus the action allowed under F.S. § 440.09(4) is still permissible under Municipal Ordinance. Therefore, the action of Plaintiff in offsetting pension by Compensation is permissible under Municipal Ordinance 41-406(15).”
      ‡ ‡ s}s ‡ % Jfi


text:
    Dolores M. RICHMOND, Appellant, v. Colin F. LUMB and P. H. Jennefer Lumb, his wife, Appellees.
    No. 76-863.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Rehearing Denied Dec. 21, 1976.
    Mark J. Feldman, Miami, for appellant.
    Frishman & Clyman, Henry Cain, Coral Gables, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

In this interlocutory appeal plaintiff seeks reversal of an order denying her attorney’s fees after prevailing in a breach of contract action.

Plaintiff, Dolores Richmond, and the defendants, Colin and Jennefer Lumb, executed a purchase and sale agreement whereby Dolores agreed to buy their townhouse and deposited $5,690 with the real estate broker. The parties never closed and Dolores, alleging that defendants were at fault, filed suit for specific performance, money damages and attorney’s fees. Defendants answered contending that Dolores was in default and counterclaimed for monetary damages and attorney’s fees. Subsequently, the real estate broker who held the deposit was interpled. During the trial, Dolores abandoned her claim for specific performance, and a directed verdict was entered against her as to this claim. The jury found for Dolores on the issue of monetary damages and against defendants on their counterclaim. She was awarded her deposit of $5,690. The issue of attorney’s fees was heard separately by the trial judge who entered the appealed order of denial. We reverse.

Implicit in the jury’s verdict for Dolores was the determination that defendants defaulted on the agreement which provides that if the sale does not close due to default on the part of the seller (i. e. the defendants), then Dolores, the purchaser, is enti-tied to attorney’s fees if she has to resort to legal proceedings for enforcement of her contract rights. Dolores, having had to resort to legal action to enforce her rights, is entitled to recovery of a reasonable attorney’s fee. See All-Dixie Insurance Agency, Inc. v. Moffatt, 212 So.2d 347 (Fla.3d DCA 1968); Carol Management Company v. Baring Industries, 257 So.2d 270 (Fla.3d DCA 1972).

Accordingly, we reverse the order of denial and remand the cause to the trial court to hold a hearing on the issue of the amount of a reasonable attorney’s fee and based on the evidence and testimony adduced therefrom to make an award to Dolores.

It is so ordered.


author: McCORD, Judge.

text:
    James E. HERTZ, Appellant, v. William FISHER, Jr., Appellee.
    No. BB-361.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1976.
    James E. Hertz, Pensacola, for appellant.
    William Fisher, Jr., Pensacola, for appel-lee.
   McCORD, Judge.

Appellee, William Fisher, Jr., obtained a judgment against appellant, James E. Hertz. Thereafter, the trial court issued a writ of garnishment against the Florida First National Bank of Pensacola to attach the bank account of Hertz. Hertz filed a petition for dissolution of the writ of garnishment which was denied, and thereafter the court entered final judgment directing the garnishee bank to pay Fisher the sum of $3,391.19, which was the amount garnishee admitted in its answer that it was indebted to Hertz, less garnishee’s attorney’s fees and the cost. The appeal is from the garnishment judgment.

In the garnishment proceeding, Hertz filed an affidavit stating that he was the head of a household as defined by the Florida Constitution and that the money in the bank account was received by him for personal services rendered. He contended in the trial court and contends here that the monies paid to him for personal labor or services and deposited in his bank account are not subject to writ of garnishment by virtue of § 222.11, Fla.Stat., which provides as follows:

“No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person.”

We disagree with appellant’s contention. Although from his affidavit it appears that he is the head of a family residing in this state and that the money in his bank account is money which was paid to him for personal services, such money is no longer due to him for personal services because it has been paid by those for whom he performed the personal services. It is not now due for personal services but is payable to him by the bank by virtue of it being held by the bank to his credit in his bank account.

AFFIRMED.

BOYER, C. J., and MILLS, J., concur.


text:
    Lawrence F. POND and Ida B. Pond, his wife, Appellants, v. Cora M. McKNIGHT et al., Appellees.
    No. 76-263.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1976.
    Richard H. Bailey of Harrison, Harllee, Porges & Mastry, Bradenton, for appellants.
    No appearance by appellees.
   PER CURIAM.

The appellants sought the removal of restrictions denying use of their property for business purposes upon the assertion that changes in the nature and character of the neighborhood had frustrated the original objectives of the restrictions. The court refused to remove the restrictions, and there was competent and substantial evidence in the record to support this result. However, the court erroneously went on to enjoin certain of the appellants from continued use of their property in violation of the restrictions when no such relief was requested by the appellees by way of counterclaim or any other pleading. Moreover, the record does not reflect that this issue was tried by consent.

Accordingly, the permanent injunction entered against the appellants must be reversed; otherwise the judgment is affirmed.

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


text:
    Donald C. EVANS, Appellant, v. James HARDCASTLE, in his official capacity as Sheriff of Sarasota County, Florida, Appellee.
    No. 76-562.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1976.
    Larry Helm Spalding and Tobey C. Hock-ett of Hockett, Silver, Spalding & Lewis, Sarasota, for appellant.
    Terry L. Demeo, South Miami, for amicus curiae, The American Civil Liberties Union.
    Larry Byrd, Jr., of Ginsburg & Byrd, Sarasota, for appellee.
   SCHEB, Judge.

Appellee Sheriff of Sarasota County dismissed appellant from serving as one of his deputies. The trial court refused to reinstate the appellant and declined to require the sheriff to afford him notice and a hearing. We affirm.

Appellant began serving as a deputy sheriff in the Sarasota County Sheriff’s Department in 1969. He was discharged from that position by appellee on October 30, 1975. The following day he received a letter from the sheriff, stating that he was dismissed because his conduct did not meet the efficiency, morale and reputation standards which the sheriff demanded. Shortly before dismissal, appellant had disclosed that he intended to run against the sheriff in the next election. Appellant contended that his announced intention to seek the office of sheriff was the real reason the sheriff terminated his services.

The trial court heard this dispute on the appellant’s amended complaint for declaratory judgment which sought injunctive relief to require the appellee sheriff to reinstate appellant as a deputy. The sheriff moved to dismiss and the parties agreed for the court to determine all legal questions in ruling on the motions before the court. The trial judge held that Sections 112.531-112.534, Florida Statutes (1975), which afford certain procedural safeguards to career law enforcement personnel, and are sometimes referred to as the Police Officers’ Bill of Rights, are not applicable to the sheriff. Further, the trial court ruled that a county civil service ordinance afforded the appellant no basis for relief since the sheriff had never certified his department pursuant to that ordinance.

Appellant’s contentions before this court are now threefold: first, that he was entitled to a hearing pursuant to Section 112.-532, Florida Statutes (1975); second, that the sheriff improperly denied him a hearing under Chapter 65-2231, Laws of Florida, which created a civil service system for Sarasota County; and third, that his right to hold office as a deputy sheriff and the stigma which will attach to his dismissal mandate a hearing irrespective of statutory authority. We reject each of the appellant’s contentions.

First, the sheriff, as a constitutional officer, does not come within the purview of Section 112.531(2), Florida Statutes (1975), wherein employing agency is defined “. . . any municipality or the state or any political subdivision thereof . . . hence, Section 112.532 (1975) is inapplicable here. See Johnson v. Wilson, 336 So.2d 651 (Fla.1st DCA, 1976).

Second, if not abrogated by the Sarasota County Home Rule Charter adopted pursuant to the Florida Constitution of 1968, Chapter 65-2231, was abrogated by Sarasota County Ordinance No. 72-85, a Civil Service Act adopted by the Board of County Commissioners in October 1972, since that ordinance effectively repealed Chapter 65-2231 as permitted by Article VIII, Sections 1(g) and 6(d) of the Florida Constitution of 1968 relating to charter government of counties. Further, Section 3 of that ordinance provides that it does not become operative until the sheriff has certified to the Board of County Commissioners and the Civil Service Board that the office of sheriff is properly and sufficiently organized and capable of functioning under the Civil Service Rules provided therein. No contention is made that there has been any such a certification by the appellee sheriff.

Third, as noted by the trial court, a deputy sheriff is not an ordinary employee but rather is an officer who holds his appointment from the sheriff and who acts for the sheriff in his name and stead. See Blackburn v. Brorein, 70 So.2d 293 (Fla.1954). The sheriff is responsible for the neglects and defaults of his deputies, Section 30.07, Florida Statutes (1975). Hence, he is given broad authority in their selection and dismissal. Appellant cites Robison v. Wichita Falls, 507 F.2d 245 (5th Cir. 1975), in support of his contention that irrespective of statute or ordinance he is entitled to a hearing. In Robison, the 5th Circuit indicated that in some instances a nontenured public employee may have a right to a hearing to clear his good name; e. g. where allegations are publicly made that he is guilty of immoral or dishonest conduct. We do not reach that issue here for there were no allegations in appellant’s amended complaint of accusations of that type concerning appellant’s discharge. It was only when the sheriff, in defense of an application for temporary injunctive relief, filed an affidavit that he cited any instances of appellant’s misconduct. Furthermore, the mere subjective expectation of continuing in the role of a deputy sheriff, as alleged by the appellant, is not a property right sufficient to invoke due process of law requirements concerning notice and hearing and termination for cause. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

Accordingly, the judgment of the trial court is affirmed.

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

      . The dismissal notice directed to appellant by the sheriff was attached as exhibit A to appellant’s complaint and stated as follows:
      This is to advise you that you are, as of this date, October 30, 1975, being terminated as a deputy sheriff with the Sarasota County Sheriff’s Department. It is my opinion that your position with the Sheriff’s Department is no longer conducive to the betterment of law enforcement with the Sheriff’s Department. It has become apparent that your responsible position in recent weeks does not meet the efficiency, morale and reputation demanded by me for a deputy sheriff with the organization. I feel that the efficiency of the Sheriff’s Department would be decreased with your continued employment with the Sheriff’s Department.

      . In its most recent decision in this issue, Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), the United States Supreme Court held that a communication made in the course of a judicial proceeding, which did not commence until after the discharged employee had suffered the injury for which he sought redress, could not provide retroactive support for his claim.


text:
    James Edward HOPSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-865.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1976.

      Jack 0. Johnson, Public Defender, Bar-tow, and A. Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

By information filed on July 15, 1962, appellant was charged with breaking and entering and grand larceny. He pleaded guilty on January 9,1964 and was placed on five years probation. On September 27, 1967, a warrant issued charging appellant with probation violation in that he left his approved residence without permission. On May 14, 1976, appellant pleaded guilty to the charge of violating probation and was sentenced to fifteen years with credit for time served.

Appellant now appeals contending his probation could not be revoked on the basis of a nine-year-old warrant. We disagree.

It is clear that upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the process of the court has been set in motion for revocation or modification of the probation pursuant to Section 948.06, Florida Statutes (1963). Carroll v. Cochran, 140 So.2d 300 (Fla.1962).

It is our opinion that the processes of the trial court had been set in motion by the warrant for appellant’s arrest which was issued within the period of probation. Thus, revocation, though late in the coming, was timely initiated. Further, the sentence is not excessive as the maximum imprisonment authorized by statute at the time of conviction was fifteen years. Section 810.-01, Florida Statutes (1961).

Accordingly, the order of the lower court is affirmed.

McNULTY, C: J., and HOBSON and BOARDMAN, JJ., concur.


author: PER CURIAM. RAWLS, Acting Chief Judge

text:
    Winnie J. ADKINS, Appellant, v. Kermit ADKINS, Appellee.
    No. AA-376.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1976.

      David H. Levin, of Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, P. A., Pensacola, and Guyte P. McCord, III, of Law Offices of Sam Spector, P. A., Tallahassee, for appellant.
    A. G. Condon, Jr., of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for ap-pellee.
   PER CURIAM.

AFFIRMED.

SMITH, J., and WILLIS, BEN C, Associate Judge, concur.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

I dissent.

Appellant-wife seeks review of an amended final judgment dissolving a twenty-one year marriage between the parties. The primary controversy now existing between the parties is the allocation of the material goods acquired during the marriage and the alimony to be paid the wife in the future.

The trial court, by its final judgment, granted the wife a generous division of the parties’ real and personal property, together with ample permanent alimony. Shortly thereafter, the husband filed an instrument entitled “Motion for Rehearing and/or New Trial” wherein he alleged, inter alia, that the trial court erred in awarding the wife permanent alimony, lump sum alimony, requiring the husband to pay the mortgage payments on the marital home and awarding same to the wife, dividing the real and personal property between the parties, and requiring the husband to pay attorney’s fees and costs for the wife. In short, the motion for rehearing and/or new trial was solely a rehash of the issues that had been joined, tried and decided by the trial court. Atlantic Coast Line R. Co. v. City of Lakeland, 94 Fla. 347, 115 So. 669 (1927).

The husband’s motion for rehearing and/or new trial did not result in an order granting a new trial or a rehearing, but resulted in the issuance of an amended final judgment without any hearing. The basis for entering the amended final judgment was recited as:

“THE COURT has considered Motion for Rehearing and/or New Trial filed by Husband and the Court has reviewed this Cause and the Final Judgment entered herein, it finds that the Final Judgment entered on September 11th, 1975, is in error and is contrary to the Law and the Evidence presented . .

Apparently the trial court, after again reviewing the factual matters adduced during trial, concluded that it had been too generous in the wife’s favor for it eliminated the cash lump sum alimony award and substantially reduced the permanent alimony and property awarded to her.

I am well aware that our role in reviewing a trial court’s order is not one to substitute our judgment for that of a trial court. However, it is my view, where the record reviewed in a non-jury case fully supports the final judgment of the trial court, which this record does, that absent additional evidence or fundamental error, the trial court is not authorized more than two months later, by the magic recitation that the final judgment is in error and is contrary to the law and evidence presented, to reweigh the evidence and alter the final judgment in every material respect.

I would reverse with directions to reinstate the Final Judgment.


author: RAWLS, Acting Chief Judge.

text:
    John Edward McNULTY, Appellant, v. STATE of Florida, Appellee.
    No. BB-338.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1976.
    Richard W. Ervin, III, Public Defender, and Douglas C. Kearney, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Pursuant to a negotiated plea, McNulty was adjudicated guilty of possession of less than five grams of cannabis. The following sentence was imposed by the trial court:

“ . . that you be imprisoned by confinement in the Leon County Jail for a term of One (1) year. But at end of 6 months, sentence stayed & Probation 2 years.”

The máximum permissible sentence for the above offense is one year. The question then arises: What is the time limit on a probationary period? McNulty argues that the probationary time may not exceed the maximum permissible time that may be imposed for sentence. The state contends that because the instant sentence falls within the terminology of a “split” sentence, that the court has unlimited discretion as to the duration of probation.

After this appeal was filed, jurisdiction was temporarily relinquished to the trial court for its consideration of appellant’s motion to correct sentence, which alleged that the probationary period could not exceed the maximum one year time for jail sentence. In denying appellant’s motion, the trial court found that a defendant placed on probation pursuant to Florida Statute 948.01(1) is not subject to the probation limitations of Florida Statute 948.-04(1).

Prior to July 1, 1974, Florida Statute 948.04 specified that a term of probation could not extend more than two years beyond the maximum permissible sentence. However, this provision was eliminated by the Legislature. In Watts v. State, 328 So.2d 223, the Second District Court of Appeal, after observing that penal statutes must be strictly construed, held that absent specific legislative grant, a trial court could not impose probation beyond the maximum permissible sentence. This view reaffirmed in Magnin v. State, 334 So.2d 638 (2 Fla. App.1976). The state, in urging this court to reject the rationale of Watts, supra, argues that Sec. 948.04(1) removes the maximum limitation of probation by providing that: “Defendants found guilty of misdemeanors who are placed on probation shall be under supervision not to exceed six months unless otherwise specified by the court. . . . ”

We do not construe the foregoing provision to authorize a trial court to place a defendant who has been adjudicated guilty of a misdemeanor upon probation for an unlimited period of time. As stated in Watts, supra:

“ . . . [T]he absence of any limit raises the possibility that a judge could direct many years of probation even for a misdemeanor, a concept which has the potential to inject further disparities into the corrective process.”

This cause is remanded to the trial court with directions that it impose a new term of probation consistent with this opinion.

MILLS and SMITH, JJ., concur.


text:
    STATE of Florida (DEPARTMENT OF TRANSPORTATION) (PARKS AND RECREATION DIVISION OF GENERAL SERVICE BUREAU), Appellant, v. GORDON BROTHERS CONCRETE, INC., a Florida Corporation, and James B. Peterson, Appellees.
    No. 76-348.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 1976.
    Robert L. Shevin, Atty. Gen., and Mary Jo Carpenter, Asst. Atty. Gen., Tallahassee, for appellant.
    Edward E. Fessenden, Jr., Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lake-land, for appellee Gordon Bros. Concrete, Inc.
   BOARDMAN, Judge.

This is an appeal from a final judgment ordering payment by appellant/garnishee State of Florida to appellee/plaintiff Gordon Brothers Concrete, Inc. (appellee). Ap-pellee holds a valid judgment against James B. Peterson a party to whom the state is indebted. A writ of garnishment was issued against the state, and the state moved to dismiss on the grounds of sovereign immunity. The sole issue for our determination is whether the doctrine of sovereign immunity is applicable to a garnishment proceeding. We hold that the state is protected in this instance by sovereign immunity and that it has not waived that protection.

It is well established that a state may not be sued absent its consent by a specific waiver of its cloak of sovereign immunity. See, e. g., State Road Department v. Tharp, 146 Fla. 745, 1 So.2d 868 (1941); Department of Natural Resources v. Circuit Court, 317 So.2d 772 (Fla.2d DCA 1975), aff’d 339 So.2d 1113 (Fla.1976). It is clear to us that garnishment proceedings are within the scope of actions or suits from which a state is immunized. We do not believe that a reasonable distinction can be reached between the state being sued as a party defendant and the state being joined as garnishee. See Weinstein, Bronfin & Heller v. LeBlanc, 249 La. 936, 192 So.2d 130 (1966). See generally Duval County v. Charleston Lumber & Mfg. Co., 45 Fla. 256, 33 So. 531 (1903). Although Article X, Section 13 of the Florida Constitution provides that the legislature may waive the state’s immunity from suit “the courts have consistently held that statutes purporting to waive the sovereign immunity must be clear and unequivocal [and that] [w]aiver will not be reached as a product of inference or implication.” Spangler v. Florida State Turnpike Authority, 106 So.2d 421, 424 (Fla.1958).

The garnishment statute cannot be said to provide statutory. authority for a waiver of sovereign immunity in garnishment proceedings.

77.01 Right to garnishment. — Every person who has sued to recover a debt or has recovered judgment in any court against any person, natural or corporate, has a right to a writ of garnishment, in the manner hereinafter provided, to subject any debt due to defendant by a third person, and any tangible or intangible personal property of defendant in the possession or control of a third person. The officers, agents and employees of any companies or corporations are third persons in regard to the companies or corporations, and as such are subject to garnishment after judgment against the companies or corporations.

Although the Florida courts have not previously treated the question of a state’s amenability to garnishment the Supreme Court of Florida has determined that a county is protected from such a proceeding. Charleston Lumber & Mfg. Co., supra. The rationale supporting the immunity of a county is certainly applicable to the state.

Accordingly the judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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


text:
    Geraldine PRAY, Appellant, v. STATE of Florida, Appellee.
    Nos. CC-148, CC-149.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1976.

      Richard W. Ervin, III, Public Defender, and Theodore E. Mack, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The judgments are AFFIRMED, but the cause is REMANDED with directions to correct the judgment and sentence forms in order to accurately reflect the defendant entered pleas of nolo contendere to the charges against her. Baxley v. State, 317 So.2d 851 (Fla.App.1st, 1975). The defendant need not be present for these proceedings.

AFFIRMED, but REMANDED to correct the record.

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


text:
    SOUTHERN GULF UTILITIES, INC., a Florida Corporation, Petitioner, v. CITY OF ORMOND BEACH, Florida, a Municipal Corporation, Respondent. SOUTHERN GULF UTILITIES, INC., a Florida Corporation, Appellant, v. CITY OF ORMOND BEACH, Florida, a Municipal Corporation, Appellee.
    Nos. DD-111, DD-120.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1976.
    David A. Burt and William E. Sherman of Landis, Graham, French, Husfeld, Sherman & Ford, DeLand, for petitioner-appellant.
    Henry P. Duffett of Duffett, Barry, Seps, Akers & Burnett, Ormond Beach, and Stanley M. Danek, Tallahassee, for respondent-appellee.
   PER CURIAM.

The order entered July 29,1976, directing disbursement to the City of registry funds in controversy is REVERSED for the reason it was entered without an evidentiary hearing as requested by Southern Gulf Utilities, Inc., petitioner and appellant. The case is REMANDED for a hearing, for determination of the amount of the registry funds which Southern Gulf reasonably contends may represent excessive charges, and for disbursement to the City of the balance.

REVERSED and REMANDED.

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


text:
    Wesley Paul PRANGLER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1383.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1976.

      Jack O. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant/defendant timely appeals the adjudication of guilt to the offense of indecent assault upon a child in violation of Section 800.04, Florida Statutes. The trial court deferred sentencing and committed appellant to the Division of Mental Health for treatment. See Section 801.251, Florida Statutes. After careful review of the record we conclude that the trial court substantially complied with the requirements of the Child Molester Act, Chapter 801, Florida Statutes.

Appellant argues that it was error for the trial judge to accept his plea of nolo contendere for two reasons. One, he was mentally incompetent at the time he entered his plea, and two, he did not voluntarily and knowingly enter the plea. Because the record on appeal does not include a transcript of a competency hearing we cannot determine whether appellant was competent at the time he pled. Appellant does not contend and we cannot discern or assume from the sparse record before us that the trial court failed to comply with a motion properly made pursuant to Fla.R. Crim.P. 3.210(a). If a motion were filed and an evidentiary hearing was not conducted as contemplated by Fla.R.Crim.P. 3.210(a) appellant has prematurely raised the issue of competency by direct appeal and the correct vehicle for such relief would be under Fla.R.Crim.P. 3.850. The second point raised by appellant is just not supported by the record. Appellant has not demonstrated that manifest injustice or prejudice resulted to him.

We affirm the judgment of the trial court without prejudice to appellant to raise the same points presented here on a motion filed in the trial court either to withdraw his plea of nolo contendere or to vacate and set aside the judgment. See Fla.R.Crim.P. 3.170(f), 3.850.

AFFIRMED.

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


text:
    STATE of Florida, Appellant, v. William E. BARNETT, Appellee.
    No. 76-795.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Robert R. Hagaman of Schryver, Haga-man & Aaron, Naples, for appellee.
   PER CURIAM.

Appellant/plaintiff appeals the dismissal of an indictment for failure to affirmatively show that the second statewide grand jury had jurisdiction to act. The indictment included four counts, three of which were nolle prossed. The remaining count charged appellee/defendant with bookmaking on January 1,1976, in Lee County. The grand jury was empanelled to investigate gambling and therefore bookmaking was within the scope of crimes of which it had authority to investigate. However the indictment did not state that the offense had occurred in two or more counties as part of a related transaction.

The purpose of a statewide grand jury is to inquire into organized criminal activity “in matters which transpire or have significance in more than one county.” The governor’s petition requesting the impaneling of a statewide grand jury must state that the broad criminal activity to be investigated is of “multicounty nature.” Section 905.33(1), Florida Statutes. The power of the jury to indict for individual offenses as a result of its investigation of multicounty criminal activity is not however restricted to crimes committed in more than one county. Section 905.34, Florida Statutes, states that the

subject matter jurisdiction of the statewide grand jury shall be limited to the offenses of bribery, burglary, criminal fraud, criminal usury, extortion, gambling, kidnapping, larceny, murder, prostitution, perjury, robbery, and crimes involving narcotic or other dangerous drugs, or any attempt, solicitation, or conspiracy to commit any violation of the crimes specifically enumerated above, when any such offense is occurring, or has occurred, in two or more counties as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more counties. The statewide grand jury may return indictments and presentments irrespective of the county or judicial circuit where the offense is committed or triable. If an indictment is returned, it shall be certified and transferred for trial to the county where the offense was committed.

A close reading of the statute leads us to conclude that an indictment issuing from a statewide grand jury would be properly directed to a crime which occurred in only one county as well as those which transpired in two or more counties. While the statute requires that the offenses to be inquired into be related it does not require that they be part of a single transaction nor does the statute require that the offenses be committed by the same person or persons. By authorizing the jury to return indictments and presentments “irrespective of the county or judicial circuit where the offense is committed or triable” and directing that the indictment be transferred “to the county where the offense was committed,” the legislature contemplated that an indictment would be addressed to a single county offense.

In order to convict appellee of the crime with which he is charged we do not believe the state must prove that his crime occurred in two or more counties as part of a related transaction or was connected with an organized criminal conspiracy affecting two or more counties. Since proof of a multicounty connection is not an essential element of the crime it was not necessary for the indictment to contain allegations of the multicounty connection. See Blair v. State, 161 So.2d 233 (Fla. 3d DCA 1964).

Appellee argues that unless the state is required to allege or prove a multicounty connection he cannot discover whether the statewide grand jury’s investigation was within the scope of its jurisdiction. In fact that avenue of attack may be foreclosed to the accused, but his position is not appreciably different from that of other defendants in Florida who are not permitted to inquire into the sufficiency of the evidence upon which the grand jury returned an indictment against them. Richardson v. State, 100 Fla. 835, 130 So. 718 (1930); Brown v. State, 111 So.2d 296 (Fla. 2d DCA 1959).

The Statewide Grand Jury Act provides many safeguards against the danger of the jury exceeding the legislative limits of its investigatory powers. First, the governor may petition for a statewide grand jury only upon good and sufficient reason to believe it to be in the public interest. Then the supreme court must enter an order empanelling the statewide grand jury. The chief justice of the supreme court designates a circuit judge to preside over the statewide grand jury and a state attorney is designated to serve as its legal advisor. We would expect the governor to act in good faith and the supreme court to enter an order only upon legal grounds. Likewise we must assume that the circuit judge will properly instruct the grand jury of its jurisdiction and that the state -attorney will advise it accordingly. In short when a duly ordered and empanelled statewide grand jury returns an indictment for one of the enumerated crimes we think it may be presumed that it conducted its investigation within the jurisdictional requirements of Section 905.34, Florida Statutes. See English v. State, 31 Fla. 340, 12 So. 689 (1893).

Furthermore even though the statute prescribes that the “subject matter” of an investigation of a statewide grand jury shall involve only multicounty offenses we believe that when in the course of such investigation the statewide grand jury finds probable cause to believe that a crime has been committed which is within the category of offenses it is empowered to investigate it can indict for such offense whether or not it finds sufficient probable cause to believe a particular offense had any multi-county relationship. Any other interpretation would frustrate the intent of the legislation. Section 905.32, Florida Statutes, states that it was the intent of the legislature in enacting this act to strengthen the grand jury system and enhance the state’s ability to detect and eliminate organized criminal activity. Section 905.32, Florida Statutes. To require an allegation and proof of multicounty involvement would diminish the state’s abilities in this regard and place it at a disadvantage with respect to any defendant indicted by a statewide grand jury because he would be in a position to attack the indictment upon grounds which would have been unavailable to him had he been indicted by a local grand jury. This would in effect relegate the statewide grand jury to second class status.

Finally Fla.R.Crim.P. 3.140(o) provides that an indictment shall not be dismissed unless it is “so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” The indictment before us tracks the language of the bookmaking statute and is not subject to dismissal under this rule.

Accordingly the order dismissing the indictment is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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


text:
    TRAVELERS INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Paul Michael DOBBS and Jolene C. Dobbs, his wife, Appellees.
    No. 76-1048.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1976.
    Benjamin H. Hill, III, and Charles P. Schropp, Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellant.
    John T. Allen, Jr., P. A., St. Petersburg, for appellees.
   PER CURIAM.

The partial summary judgment entered below is reversed upon the authority of Travelers Insurance Company v. Pac, 337 So.2d 397 (Fla.2d DCA 1976). In fairness to the trial judge, we hasten to point out that his decision predated our opinion in the Pac case.

REVERSED.

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


author: HOBSON, Acting Chief Judge.

text:
    PEOPLES GAS SYSTEM, INC., a corporation, and American Home Assurance Company, a corporation, Petitioners-Appellants, v. John ASHCRAFT, Jr., and Catherine Ashcraft, his wife, Respondents-Appellees.
    No. 76-1303.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1976.
    Clifford L. Somers of Burton, Somers & Reynolds, Tampa, for petitioners-appellants.
    E. B. Rood and John W. Boult of Rood, Hapner, Boult & Dekle, Tampa, “for respondents-appellees.
   HOBSON, Acting Chief Judge.

Petitioners filed their petition for writ of certiorari or, in the alternative, notice of appeal from an order denying a motion for summary judgment in an action at law. It is well settled that an order denying a motion for summary judgment is not reviewable by common law certiorari. Pull-

man Company v. Fleishel, 101 So.2d 188 . (Fla. DCA 1st 1958).

The order denying the motion for summary judgment is not a final order and is, therefore, not appealable.

The petition for writ of certiorari is denied and the appeal dismissed.

BOARDMAN and SCHEB, JJ., concur.


text:
    The BASTILLION DEVELOPMENT CO., INC., a Florida Corporation, Appellant, v. Ben S. GILMER et al., Appellees.
    No. Z-418.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1976.
    Arthur' C. Fulmer of Lane, Massey, Trohn, Clarke & Bertrand, Lakeland, for appellant.
    Victoria L. Hunt and Jacqueline B. What-ley of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellees.
   PER CURIAM.

AFFIRMED. Dixon v. Sharp, 276 So.2d 817 (Fla.1973); Connecticut Mutual Life Ins. Co. v. Fisher, 165 So.2d 182 (3 Fla.App. 1964); and Morgan v. Mortgage Discount Company, 100 Fla. 124, 129 So. 589 (1930).

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


author: McNULTY, Chief Judge.

text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant, v. Garland H. PRIDGEN, Appellee.
    No. 76-312.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 1976.
    Edward E. Fessenden, Jr., of Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lakeland, for appellant.
    Marvin B. Woods, Lakeland, and Jonnie M. Hutchinson, Lake Alfred, for appellee.
   McNULTY, Chief Judge.

Defendant/appellant Auto-Owners Insurance Company takes this interlocutory appeal from a summary judgment determining liability. We affirm.

Plaintiff/appellee Pridgen owned a 17-foot water-ski boat and had recently acquired a jeep-type motor vehicle to tow it. He had instructed a mechanic at his business premises to check out and wire up the tail light from the jeep to the boat trailer. When he went out to the jeep to drive it home, he noticed that the boat and trailer were up in the air (the bow up and the stern down), and that an electrical wire was still connected from the jeep to the trailer. As he was attempting to disconnect the wire while standing on a small ledge at the rear of the jeep, the boat and trailer tipped forward and came down, sandwiching his hand between the trailer and the backup light of the jeep. He testified that when he saw the boat and trailer descending he managed to get inside the jeep but did not have time to get his hand out of the way. The jeep itself did not move; only the boat and trailer moved.

At the time of the accident, Pridgen had a policy of insurance with Auto-Owners. The policy provided that Auto-Owners would pay in accordance with the Personal Injury Protection (PIP) provisions of the Florida Automobile Reparations Reform Act (the “No-Fault” Insurance Law). Essentially tracking the statute, the policy provisions are as follows:

“[Personal Injury Protection benefits will be paid] ... as a result of bodily injury, caused by an accident arising out of the ownership, maintenance, or use of a motor vehicle and sustained by:

(1) the named insured or any relative while occupying a motor vehicle or, while a pedestrian, through being struck by a motor vehicle; or
(2) any other person while occupying the insured motor vehicle or, while a pedestrian, through being struck by the insured motor vehicle.”

Auto-Owners concedes that the jeep is a defined, covered motor vehicle; that the named insured sustained the complained of injury; and that the insured was “occupying” the motor vehicle since he was standing on it or entering it at the time of the accident. It posits, however, as the narrow issue herein, whether or not the accident arose out of the “ownership, maintenance, or use” of the motor vehicle. It argues that there must be a causal connection between the “ownership, maintenance, or use” of the vehicle and the injury, and it insists that such ownership or use under the facts here had no such connection — that the sole proximate cause of the accident was the unstable equilibrium of the boat and trailer which, independently of any connection with ownership or use of the jeep, intervened directly to cause the injury. We cannot agree.

In these “no-fault” PIP cases, the motor vehicle itself need not always be the source from which emanates the forces leading to the accident. It is enough that there be some nexus between an insured’s “ownership, maintenance, or use” of an insured motor vehicle and a source of injury which arises out of such ownership, maintenance or use.

Here, Pridgen was clearly actively engaged in the maintenance of his jeep; and there was certainly a nexus between such maintenance and use and the very object thereof, to wit: the boat and trailer — the instruments causing the injury. The accident thus “arose” out of such maintenance and use so as to impose liability in favor of Pridgen against his “no-fault” insurer.

In view whereof, the partial summary judgment as to liability should be, and the same is hereby, affirmed.

BOARDMAN and SCHEB, JJ., concur.

      . Sec. 627.730, et seq., Fla.Stat.

      . See § 627.736(4)(d)(l), Fla.Stat.

      . Cf. Feltner v. Hartford Accident and Indemnity Company, 336 So.2d 142 (Fla.App.2d DCA 1976).