text:
    DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. Georgiana CARUCCI, Appellee.
    Nos. 76-1597, 76-1803, 76-1804 and 76-1840.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 1977.
    Rehearing Denied Sept. 21, 1977.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellant.

      McCormick, Bedford & Backmeyer, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The only point presented on these consolidated appeals is whether the trial court abused its discretion in granting the plaintiff Georgiana Carucci’s motion for a new trial upon the following ground:

“. . that the Court committed harmful error prejudicial to the Plaintiff by permitting Defendant to present testimony over Plaintiff’s objections to the prior driving record of Defendant, DADE COUNTY’S employee bus driver, J. P. Williams, who was driving the Defendant’s bus in which Plaintiff was a passenger at the time of the accident.”

We hold that there has been no showing of abuse of the trial court’s discretion. See Montenegro v. Rainwater, 314 So.2d 191 (Fla.3d DCA 1975); and cf. Pepin v. Retail Discount Association, 226 So.2d 145 (Fla. 1st DCA 145).

Ordinarily, the evidence of a defendant’s past driving record should not be made a part of the jury’s considerations. There is support for this proposition and for the actions of the trial judge below in the case law of this and other jurisdictions. Cf. Powell v. Horne, 149 Fla. 240, 5 So.2d 451 (1942); and Short v. Allen, 254 So.2d 34 (Fla.3d DCA 1971). See also 8 Am.Jur.2d Automobiles and Highway Traffic § 940 (1963). Finally, it would appear from the record that the past driving record of the bus driver received undue attention in this case.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph Edward MATRASCIA and Josephina Matrascia, Appellants, v. The STATE of Florida, Appellee.
    Nos. 76-1816, 76-1874 and 76-1875.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 1977.
    Rehearing Denied Sept. 21, 1977.
    Horton, Perse & Ginsberg, Miami, for appellants.

      Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

These appeals are by Joseph and Josephina Matrascia, who were jointly tried before a jury and found guilty upon two counts for receiving stolen property and one count for the obstruction of service of execution of a search warrant. The single question presented in this consolidated appeal is: Whether the trial court erred in denying each defendant’s motion for a judgment of acquittal made at the close of the state’s case. An examination of the record in the light of the briefs and oral argument requires affirmance upon the law set forth in Lynch v. State, 293 So.2d 44 (Fla. 1974), where the court held:

“A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.”

See also Delgado v. State, 319 So.2d 610 (Fla.3d DCA 1975).

Affirmed.


author: PEARSON, Judge.

text:
    The STATE of Florida, Petitioner, v. Alykhan BANKS, Respondent.
    No. 77-705.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 1977.
    Richard E. Gerstein, State Atty., and George Volsky, Asst. State Atty., for petitioner.
    Hacker, Phelps & Matters, Miami, for respondent.

      Before PEARSON, BARKDULL and HUBBART, JJ.
   PEARSON, Judge.

The State of Florida, as petitioner, has brought this petition for writ of certiorari to review an order of the trial court excluding the testimony of a witness who repeatedly failed to appear for discovery deposition. The order stated that “ . the defendants’ Motion to Preclude is hereby granted only as to Michael Mulligan and it is further ordered that Michael Mulligan may not be presented as a witness in the trial of the above styled cause.” The order recited the fact that Mulligan, who was the victim, at least twice failed to appear, and that:

“5. The State, by and through Assistant State Attorney David I. Gilbert, is in no way responsible for the failure of Michael Mulligan to appear for the deposition.”

In State v. DeVille, 258 So.2d 492 (Fla.3d DCA 1972), we considered a case in which the trial court had excluded the testimony of a witness and we found that the court had abused its discretion in excluding such testimony. We there held:

“We therefore express the view that the trial court abused its discretion in refusing to vacate its prior oral order of July 26, 1971, excluding the testimony of the witness. Rule 3.220(f) RCPr provides that, ‘ . . .A person who refuses to obey a subpoena served upon him [under this discovery rule] may be adjudged in contempt of the court from which the subpoena issued.’ The court was punishing the state’s attorney’s office, and thereby the public for the activities of the witness; sanctions, if any, should have been imposed upon the ‘wrongdoer’ who apparently was the witness.”

Subsequently, in State v. Roig, 305 So.2d 836 (Fla.3d DCA 1974), we considered a case in which the trial court dismissed an information because the prosecution was unable to proceed without the testimony of witnesses. The testimony had been excluded because the witnesses failed to appear for deposition after being subpoenaed by the defendant. In that case, we held:

“The sole question before this court is whether the prosecution is responsible to produce the state’s witnesses for deposition pursuant to being subpoenaed by the defendant. We hold that it is not the responsibility of the state to produce state witnesses subpoenaed by the defendant for discovery purposes. Therefore, the court erred in excluding the witnesses’ testimony and dismissing the cause as a result thereof. Proper sanctions may be imposed by the court pursuant to appropriate rules of procedure. See State v. DeVille, Fla.App.1972, 258 So.2d 492; Rule 3.220, CrPR; Rule 1.380, RCP.”

In the case now before us, it affirmatively appears that the only subpoena issued for the witness was subsequently quashed by order of the court. The State volunteered on two occasions to present the witness for deposition but was unable to do so. Inasmuch as it is not the State’s duty to produce the witness for discovery, it was error to enter an order excluding the testimony at time of trial.

It should be observed that the court, proceeding under the Florida Rules of Criminal Procedure, may continue a case where discovery is not completed through no fault of the defendant. See State ex rel. Gerstein v. The Hon. N. Joseph Durant, Jr., 348 So.2d 405 (Fla.3d DCA 1977), filed July 26, 1977. In the event it appears that the discovery is not obtained even after the issuance of the subpoena for the reluctant witness, then the defendant may not be required to go to trial without the discovery and the speedy trial rule may ultimately result in the discharge of the defendant.

Aside from the remedy of the defendant where he is not afforded proper discovery, there are sanctions which may be imposed upon a witness for his failure to obey a subpoena. In a proper case, contempt of court is an appropriate remedy. See State v. DeVille, 258 So.2d 492 (Fla.3d DCA 1972).

For the reasons stated, the writ of certio-rari is granted and the order excluding the testimony of the witness is quashed.

It is so ordered.


text:
    Linda Lou CORSEY, Appellant, v. STATE of Florida, Appellee.
    No. 76-1567.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1977.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error, therefore, the judgment appealed is affirmed.

The judgment and sentence of the court recites that appellant was sentenced to fifteen years in prison “at hard labor.” To be imprisoned “at hard labor” is improper because no existing Florida statute provides for imprisonment at hard labor as a sentence for any crime. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

Remanded for striking the phrase “at hard labor” in the judgment and sentence; otherwise affirmed. Appellant need not be present for this purpose.

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


text:
    Johnny Lee KING, Appellant, v. STATE of Florida, Appellee.
    No. 76-1665.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Johnny Lee King appeals the revocation and subsequent modification of his probation, as a result of which he is now required to serve a period of incarceration as a condition for continued probation. We hold that the evidence was insufficient to support the violation of probation charged and reverse.

Appellant was arrested on June 17, 1976 for possession of a stolen automobile after the arresting officer observed appellant driving a 1965 white Plymouth Valiant and verified through the police department computer that the car had been reported stolen. The resultant probation violation charge was that appellant “was unlawfully in possession” of a stolen automobile.

It undisputedly appears that Van Bryant, the owner of the car and appellant’s cousin, had driven appellant and one Dwight to a lounge on June 2, 1976. When appellant and Bryant,left the lounge to go home, the car wouldn’t start. Another friend drove appellant and Bryant home. After dropping appellant off, Bryant and the friend stopped back at the lounge and discovered that Bryant’s car was gone. Bryant then reported the car stolen. Appellant had previously used the car with Bryant’s permission, and Bryant testified that he would have lent appellant the car if appellant had asked.

It further appears that Dwight had managed to get the car started at the lounge that night before Bryant and the other friend returned, that he had driven it home that night because he had no other way to get home from the lounge, and that he had driven it out to appellant’s house a few days later because he figured Bryant would come there looking for it. The car died after Dwight reached appellant’s house and no attempt to restart it was made at the time. Appellant let the car sit for approximately two weeks until he was able to fix it. He was unaware that his cousin had reported it stolen. He did not attempt to contact Bryant because, he testified, he had no transportation and no telephone and did not know his cousin’s phone number, although he did know where Bryant lived and where he worked. Appellant finally did get the car running by replacing the distributor. He testified that he had fixed it the very morning of his arrest and was on his way to Bryant’s house to return the car when he was arrested.

Appellant made a statement to the arresting officer at the time of his arrest. The officer testified that “he stated at some point that he didn’t steal the car. There was some fact made in mention that the car had broken down.” Bryant’s testimony as to appellant’s, explanation to him was also consistent with appellant’s testimony at the probation revocation hearing.

Although the arresting officer never asked appellant for his driver’s license, the trial judge asked appellant if he had a driver’s license. Appellant admitted his license had been “taken a long time ago.” The judge noted that appellant had been arrested nine or ten times between 1969 and 1972 for driving without a license. The judge then found appellant guilty of violating his probation as charged in the affidavit and warrant.

At the outset, we note that appellant was neither arrested for nor in any way charged with stealing or attempting to steal the automobile in question. The only statutes possibly applicable to the specific charge alleged, therefore, are Sections 812.-031, Florida Statutes (1975) (relating to receiving and concealing stolen property) and 812.041, Florida Statutes (1975) (relating to the unauthorized temporary use of a motor vehicle). The evidence before the trial court was insufficient to support either.

In order for appellant to be guilty of receiving stolen property, the automobile must first have been stolen. Youngblood v. State, 281 So.2d 230 (Fla.2d DCA 1973). Here, as in Youngblood, although the owner testified that he reported the property stolen, he never testified that it had in fact been stolen nor, under the evidence adduced, is it otherwise shown to have been “stolen.” On the contrary, it cannot even be inferred that Dwight, the original taker, took with the requisite intent permanently to deprive the owner.

With respect to the unauthorized temporary use of a motor vehicle (proscribed by Section 812.041, supra) such charge is expressly inapplicable if the vehicle is taken with the presumed consent of the owner. Section 812.041(2), Florida Statutes (1975). Here, appellant testified that, under the circumstances, he assumed his cousin would not object to his retaining custody of the car during the time he had it and, indeed, his cousin agreed. The state introduced no evidence to impeach or refute this testimony or the logical inferences arising therefrom. We think, therefore, that where appellant’s uncontradicted and unim-peached testimony explains his conduct and leaves him blameless, particularly when similarly exonerated by the “victim” of the alleged offense, the trial court is not authorized to revoke or modify his probation. See Larocco v. State, 276 So.2d 538 (Fla.4th DCA 1973).

In view whereof, it may be assumed that the trial court looked more at appellant’s having driven, without a license in making its determination of guilt than to the evidence relating to a “stolen” car or “unlawful possession” thereof. Although such conduct was clearly a violation of the law and therefore a violation of condition (4) of appellant’s probation (that he live honorably and not violate the law), appellant was not charged with this conduct. His probation could not therefore be revoked or modified on the basis thereof. Mack v. State, 342 So.2d 562 (Fla.2d DCA 1977).

Accordingly, the cause is reversed and remanded to the trial court for reinstatement of the original order placing appellant on probation.

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


text:
    Willie Lee GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 77-405.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1977.
    Jack O. Johnson, Public Defender, Bar-tow, and Douglas A. Walláce, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore the judgment appealed is affirmed.

The record is devoid of any evidence that the trial court complied with the provisions of Chapter 801 Florida Statutes, known as the Child Molester Act, prior to imposing sentence. The crime for which appellant was convicted is clearly one that falls within the purview of the act. Section 801.041 Florida Statutes (1975). The duty is on the judge, not the State or the defendant, to insure the procedures required by the act are followed. Johnson v. State, 292 So.2d 426 (Fla.2d DCA 1974). Strict compliance is mandatory. Thomas v. State, 345 So.2d 778 (Fla.2d DCA 1977).

Appellant’s sentence is therefore set aside and the cause remanded for compliance with the Child Molester Act; otherwise affirmed.

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


author: PER CURIAM. RAWLS, Judge

text:
    In re: ESTATE of Earl Tom PRIDGEON, Jr., Deceased.
    No. DD-43.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1977.

      Robert C. Parker, Jr., Tallahassee, for appellant.
    Robert A. Mick, Henry, Buchanan, Mick & English, P.A., Tallahassee, for appellee.
   PER CURIAM.

The trial court correctly construed the term “independent action” appearing in § 733.705(3), Florida Statutes, 1975, to require the filing of a separate action upon a claim against an estate to which an objection has been filed rather than the filing of a petition for payment of the claim in the probate action. We find no abuse of discretion by the trial court in extending the claimant’s time for filing such independent action.

Affirmed.

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

RAWLS, J., dissents.

RAWLS, Judge

(dissenting).

This court’s majority opinion in In Re Kemp’s Estate, 177 So.2d 757 (Fla. 1st DCA 1965), mandates a reversal of the case at bar.

Here, the trial court’s basis for finding “good cause” is:

“ . . . the Court being of the opinion that considerable confusion has been generated by transition to the new Florida Probate Code effective January 1, 1976, and that additional confusion has resulted from the adoption of Article V of the Florida Constitution effective January 1, 1973, conveying to the Circuit Court jurisdiction over administration of decedents’ estates . . . .”

and upon these grounds granted to appellee a period of 15 days to file an action.

Judge Sturgis, speaking for this court in the Kemp case, quoted at length from the landmark case of In Re Goldman’s Estate, 79 So.2d 846 (Fla.1955). The facts in Goldman are quite analogous to those in the instant case in that the attorneys for claimant alleged that confusion had resulted in their not receiving a copy of the new statute reducing the time for filing suit from one year to 60 days. The probate judge agreed with claimant and entered an order extending the time to file suit. In reversing, the Florida Supreme Court, in quoting from In Re Jeffries’ Estate, 136 Fla. 410, 181 So. 833 (1938), held:

“. . . [A] cause sufficient to authorize an extension of time for filing suit must be a ‘good cause’, by which it is meant that the ‘adjudication is to be governed by a given standard of judicial action’ . . . and not mere ‘ignorance of law, hardship on petitioner, and reliance on [another’s] advice’. . . . ”

See also Ellard v. Godwin, 77 So.2d 617 (Fla.1955); and Exchange Nat. Bank of Winter Haven v. Field, 338 So.2d 889 (Fla. 2nd DCA 1976).

      . Since the enactment of the Probate Code in 1933, the rule of law has required the filing of a separate action to enforce a claim to which an objection has been filed. No opinion upon this question remotely suggests that a petition for payment of claim would suffice. Every case reviewed reflects that a separate action from the probate proceeding must be filed. The subject statute, Sec. 733.705(3), Fla.Stat., is even more explicit than in the former in that it states “an independent action”.


author: SMITH, Judge.

text:
    Terry THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. DD-232.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1977.
    Rehearing Denied Sept. 22, 1977.
    Barry W. Beroset of Murphy & Beroset, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Thomas appeals from a judgment of conviction for attempted armed robbery, entered on a jury verdict. He urges the inadmissibility of a police officer’s testimony that a participant in the offense confidentially advised the officer in advance that a robbery would take place; the insufficiency of the evidence other than the hearsay to prove a specific intent to commit robbery; the admissibility of Thomas’ testimony concerning conversations with the informant supporting his entrapment defense; and the impropriety of the prosecutor’s jury argument concerning Thomas’ prior conviction of the crime.

On January 28, 1976, Thomas and two armed, masked confederates gained entry to a Pensacola residence. Thomas, who was not masked, rang the doorbell. When the occupant opened the door, the two masked men rushed in brandishing shotguns. They were intercepted by waiting sheriff’s deputies. One of the masked intruders was shot dead. It was he who, two days before, met with sheriff’s deputies and advised them in detail that the three intended to commit a robbery in the manner in which the episode unfolded on the night of the 28th.

The State argues that the statements made by the deceased informant to deputies on the 26th, and before that in a telephone conversation, were admissible as part of the res gestae to show the intent or state of mind of the declarant. Thus the State argues the declarations evidence the informant’s intent to take part in a robbery and may be considered as showing also the intent of his co-conspirators. We conclude, on the contrary, that the informant’s statements were inadmissible hearsay. There is no difficulty in finding from the admissible evidence that the three intruders were engaged in a conspiracy to effect some offense at the residence on the night of the 28th and that the conspiracy preceded the acts .done to effectuate it.- But the informant’s narration to the deputies was not a res gestae statement, made spontaneously in circumstances excluding the idea of design or deliberation in the statement. State v. Williams, 198 So.2d 21 (Fla.1967); State v. Snowden, 345 So.2d 856 (Fla. 1st DCA 1977). Nor was the informant’s recitation made by a co-conspirator to further the conspiracy and effectuate its objects. On the contrary, the informant’s purpose was to expose the conspiracy, and that purpose may not be attributed to others on principles of agency. See, generally, Strickland v. State, 122 Fla. 384, 165 So. 289 (1936); contrast Mercer v. State, 40 Fla. 216, 24 So. 154 (1898). Although the informant’s recitation amply and, as it turned out, accurately depicted the criminal plan, the deputy’s testimony of the recitation was hearsay which could not competently evidence the purpose of the accused survivors of the invasion. That Thomas and his confederates intended to force entry by means of weapons, and to commit some violent offense on the premises, cannot be doubted; but the dead informant’s prior accusation is not competent proof that the survivors intended robbery rather than murder, rape, or some other vicious assault. Although there was no other evidence of the specific intent required for the offense charged, the ends of justice require a new trial rather than discharge.

On the prosecutor’s objection, the trial court excluded Thomas’ testimony in support of his entrapment defense of a conversation Thomas had with the informant. On the necessary retrial, evidence of conversations between Thomas and the informant tending to support the entrapment defense should be admitted. Brown v. State, 299 So.2d 37 (Fla. 4th DCA 1974).

We find also that the prosecutor improperly argued to the jury concerning Thomas’ prior conviction of a crime:

“Did someone entrap him into the commission of the other crime? Will you tell me, some jury was inclined to disbelieve it.”

There was no evidence, nor could there have been, that Thomas was previously convicted notwithstanding an entrapment defense. Plainly, the argument invited improper speculation on a nonexistent issue.

REVERSED and REMANDED for a new trial.

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


text:
    Antonio MUINA, Appellant, v. Mittie Jean HOOD and Frank Hood, Appellees.
    No. GG-294.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1977.
    Rehearing Denied Sept. 12, 1977.
    Antonio Muina, in pro per.
    Frank A. Baker, Blountstown, for appel-lees.
   PER CURIAM.

This interlocutory appeal presents several points, including the jurisdiction of the trial court which alone is a proper matter for interlocutory appeal. On that point appellant’s argument is without substantial merit. Fla.App. Rule 4.2.c. The interlocutory appeal is

DISMISSED.

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


text:
    George V. R. MULLIGAN and Harold P. Koenig, Appellants, v. David WALLACE et al., Appellees.
    No. 76-988.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Rehearing Denied Sept. 23, 1977.

      Nicholson, Howard, Brawner & Lovett and Harry K. Bender, Miami, for appellants.
    Richard R. Booth, Miami, Burns, Jackson, Miller, Summit & Jacoby, New York City, for appellees Auerbach, Davidson, Morris, Bartram and Goodall.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, and Reginald L. Williams, Miami, Sullivan & Cromwell, New York City, for appellees Haskins and Sells.
    Before PEARSON, BARKDULL and Hubbart, JJ.
   PER CURIAM.

George V. R. Mulligan and Harold P. Koenig, plaintiffs in the trial court, appeal from that portion of a final judgment which was designated as an order on the pleadings, dismissing with prejudice Counts I and III of their amended complaint.

Harold P. Koenig, formerly president, a director, chief executive officer, and a stockholder of Ecological Science Corporation, and George Mulligan, formerly a director and some-time consultant to Ecological, filed their four-count complaint against Haskins & Sells following an intracorporate battle for management of Ecological. In Count I of the amended complaint, the plaintiffs (allegedly as third-party beneficiaries of the contract for accounting services between Ecological and Haskins & Sells, a certified public accounting firm) sued Has-kins & Sells and its individual members for breach of the said contract. Count II sued Haskins & Sells and its individual members for the negligent performance of accounting services. Counts III and IV were alleged against all defendants. Besides the aforementioned parties, the other defendants included Norman J. Davidson, McChes-ney Goodall, Mark Auerbach, Grinnell Morris, Hugo Mieth, and Renselaer Bartram. Ecological was not a named party to this litigation. Count III sued all defendants for conspiracy to force resignation and interference with employment contracts. Count IV alleged that all defendants participated in a conspiracy to defame by slander and libel. The plaintiffs appeal from dismissal with prejudice of Counts I and III.

The appellants contend the trial court erred in dismissing Count I of the amended complaint with prejudice, because officers, directors, and stockholders of a corporation, indicted as a result of a breach of contract by accountants to perform accounting services for said corporation, have standing as third party beneficiaries of said contract to sue said accountants. The intent of the parties is paramount in determining questions of liability to third party beneficiaries. The appellants contend the contract in question surely was intended to benefit the officers, directors, and stockholders of Ecological, and that mistake in a Form 10K with the Securities & Exchange Commission by Haskins & Sells led the plaintiffs to an indictment and damages. The appellants further contend the trial court erred in dismissing Count III with prejudice, because the plaintiffs, as corporate officers and directors, may recover damages against third parties for interference with their employment contracts with their corporate employer or for precipitating events leading to their resignations even though the corporate employer, Ecological, did not discharge them.

We affirm. An accountant is liable to his client (Ecological Science Corporation) only for breach of contract to provide auditing services. Officers, directors, or stockholders of the client, and others not in privity with the accountant, lack standing to maintain an action for breach of contract. Citizens National Bank of St. Petersburg v. Peters, 175 So.2d 54 (Fla.2d DCA 1965); Fried v. Easton, 293 So.2d 87 (Fla.3d DCA 1974); Dubbin v. Touche Ross & Co., 324 So.2d 128 (Fla.3d DCA 1975); Barzda v. Quality Courts Motel, Inc., 386 F.2d 417 (5th Cir. 1967). In Dubbin v. Touche Ross & Co., supra, this court stated the following:

* * * * * *
“ * * * The plaintiffs urge that the fact that they sought to have their stock registered with the Securities and Exchange Commission so that its value would be enhanced, and the fact that it was necessary for them to make their application for registration as an adjunct to the corporation’s application to register stock, made them parties to, or third party beneficiaries of, the contract between the corporation and the public accounting firm. The trial court correctly determined that the facts pleaded did not create an exception to the rule. The injury, if any, was primarily to the corporation. * * * ”
******

Plaintiffs’ resignations from their positions with Ecological bar their action for tortious interference with employment contracts. Chipley v. Atkinson, 23 Fla. 206, 1 So. 934 (1887); Anno. 84 A.L.R. 57; Anno. 26 A.L. R.2d 1227, 1249. In Chipley v. Atkinson, supra, the Supreme Court of Florida succinctly set forth the necessity that an employee be discharged by his employer in order to have a cause of action for tortious interference with employment contracts. In said opinion, the court stated:

******
“ * * * The effect of this is that if the plaintiff, knowing of the alleged conduct of Chipley, voluntarily left the service of Kehoe & Walker on account of such conduct, yet without being in fact discharged by them, that such voluntary leaving their service constituted in law a discharge of him from their service by Ke-hoe & Walker. There must, we think always be such a discharge of the plaintiff in a case like this, as amounts to a termination by his employer of the contract to the employe. * * * ”
******

Wherefore, the final order under review be and the same is hereby affirmed.


author: NATHAN, Judge.

text:
    Robert SOBEL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1034.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Rehearing Denied Sept. 30, 1977.

      Stanley M. Goldstein and Geoffrey Charles Fleck, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   NATHAN, Judge.

Appellant Robert Sobel was found guilty by a jury, convicted and sentenced on charges of sale or delivery and possession of a controlled substance, to wit: lysergic acid. Sobel had allegedly sold lysergic acid to a police informant and an undercover officer.

Two errors are argued on appeal. The first concerns the fact that Sobel was charged with the sale and possession of lysergic acid, while the proof adduced at trial was that the substance purportedly sold by the defendant was in fact lysergic acid diethylamide (LSD). Since the two substances are listed in separate schedules of the controlled substances statute, Section 893.03, Florida Statutes, the defendant argues that there was a fatal difference between the charge and the proof presented at trial which requires reversal.

Sobel next contends that he has been denied due process since the police destroyed a taped recording of the transaction which defendant argues would have corroborated his claim that he was never actively involved in the sale and that he, in fact, never even had the illegal substance in his possession.

The testimony reflects that the drug transaction took place in Sobel’s car. Sobel was driving and a friend was beside him in the front seat. The officer and informant were in the back seat. Both agree that Sobel never handled the drugs or the money that was paid for them, although they claim that Sobel took part in a discussion over the price of the pills which were purchased. Neither could remember his exact words. Appellant denies that he took part in any conversation regarding the drugs.

The undercover officer had been outfitted with an electronic transmitter which she testified was functioning when she left the police station. She wore the transmitter during the entire course of events.

Another officer had been stationed in a surveillance vehicle carrying a receiver and recording device. This latter officer is the only person who heard the tapes of the transmissions which were received. He testified that he destroyed the tapes because he could only hear indistinct sounds and static. He further testified that he had turned off the recorder when appellant’s car got out of range and that the only remotely perceptible signals received were of music and loud noises transmitted from the bar where the various parties had first met.

We feel that the trial judge should have granted appellant’s motion to dismiss because of the possible materiality of the missing tape. The case against the appellant was largely made on the basis of incul-patory remarks which he allegedly made while in the car. From the record, it appears that there is some dispute as to what was actually said. There is also conflicting testimony as to when the transmitter and recorder were working, how well they were working and what was actually received.

Given these facts, the mere possibility that the tapes could have served to corroborate appellant’s contention that he was not involved in the drug deal becomes critical. Ordinarily, where a question arises concerning the materiality of evidence which is in the State’s possession, we remand to the trial court for a determination as to whether the omitted material reflects upon the defendant’s guilt: “If there is no reasonable doubt as to the defendant’s guilt whether or not the additional evidence is considered, then no reversible error has been committed.” Briskin v. State, 341 So.2d 780 (Fla.3d DCA 1977). Here, however, there is no possibility for such an examination, since the tapes have, in fact, been destroyed. Therefore, in light of the unique factual circumstances of this case and the nature of the evidence, we find that appellant’s claimed deprivation of due process in this regard is meritorious.

Since we hold that the case against Sobel should have been dismissed, there is no need to consider the discrepancy between the charge and the evidence adduced at trial.

Reversed.

      . This other party was charged as a co-defendant. He was acquitted at a separate trial.


text:
    Robert WEISSMAN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Willie Fleming, Scarlett Marquez, and Carlos Arturo Marquez, Appellees.
    No. 76-1309.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Rehearing Denied Sept. 30, 1977.

      Horton, Perse & Ginsberg, Dunn & Johnson, Miami, for appellant.
    Kuvin, Klingensmith & Lewis, Coconut Grove, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The appellant, as plaintiff, brought a personal injury action against several defendants, sounding in negligence. There were defenses raised of contributory negligence and assumption of the risk.

The jury was charged on the doctrine of assumption of risk and also on the doctrine of comparative negligence and, over the objection of the plaintiff, the jury was submitted a special interrogatory verdict which permitted it to apportion the negligence between the respective parties [plaintiff and defendants], notwithstanding the fact that they might find the plaintiff guilty of assumption of risk. The jury returned the special form of verdicts, found that the plaintiff had assumed the risk, and then proceeded to apportion the percentage of negligence between the plaintiff and the defendants and fixed an amount of damages suffered by the plaintiff.

At the time this case was tried, there was a conflict between the several districts as to whether or not the assumption of risk still applied. Dorta v. Blackburn, 302 So.2d 450 (Fla. 3d DCA 1974); Rea v. Leadership Housing, Inc., 312 So.2d 818 (Fla. 4th DCA 1975). The trial court followed Dorta v. Blackburn, supra, out of this court and entered a judgment in favor of the defendants, upon the finding by the jury that the plaintiff had assumed the risk. This appeal ensued.

Prior to the submission of this matter to the court on oral argument, the Supreme Court of Florida quashed this court’s opinion in Dorta v. Blackburn, supra, and held that the doctrine of assumption of risk was no longer a complete bar to recovery by a plaintiff but was, in fact, merged into the defense of comparative negligence. The appellant urges that in view of the fact that the jury has already apportioned negligence in this matter, the final judgment should be reversed and the matter returned to the trial court to apply the percentage factors found by the jury to the total award made, with some contention that the parties had agreed to this procedure in the trial court.

From an examination of the record on appeal as it relates to the charge conference and the special verdict forms, it is apparent that the special verdict form was requested by the appellees, Marquez, and their insurance carrier in order to apportion contribution between the defendants in the event they were found liable as joint tort feasors. The plaintiff strenuously objected to the submission of any special verdict interrogatories, and no where during this conference do we find that the parties stipulated that they were submitting the special interrogatory form verdict for the purpose of being able to conform the verdict in the event the Dorta v. Blackburn, supra, opinion was subsequently quashed by the Supreme Court of Florida and the doctrine of assumption of risk found to be no longer applicable in this State.

Therefore, it appearing that the jury was erroneously instructed on the doctrine of assumption of risk, because we are required to apply the law as it exists at the time of the appellate decision and not as it may have existed at the time of the trial [Personnel Board of City of Miami Beach v. Majewski, 227 So.2d 498 (Fla. 3d DCA 1969); Fitzgerald v. Addison, 287 So.2d 151 (Fla. 2d DCA 1973)], the final judgment here under review be and the same is hereby reversed and the matter is returned to the trial court for a new trial.

Reversed and remanded, with directions.

      . The trial court and all parties were aware that the case of Dorta v. Blackburn, supra, was pending in the Supreme Court of Florida during the pendency of this trial.


author: PER CURIAM. PEARSON, Judge

text:
    Billee C. HOLLIMAN, Appellant, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY et al., Appellees.
    No. 76-1418.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Rehearing Denied Sept. 30, 1977.
    Hawkesworth, Schmick, Ponzoli & Was-senberg, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Raymond C. Clay, Jr., Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Billee C. Holliman appeals from an adverse summary final judgment, granted in favor of defendants in an automobile negligence action.

The accident occurred at a controlled sign intersection of N.E. 19th Avenue and Miami Gardens Drive when Holliman, who had been travelling north, attempted to make a left turn with a green light from 19th Avenue to go west on Miami Gardens Drive. A Southern Bell Telephone van was parked close to the median strip on the opposite corner and allegedly blocked her vision of traffic coming in the opposite direction. As Holliman turned in front of the van, a North Miami Beach police vehicle [driven by Nelson] coming south, also with a green light, on 19th Avenue struck Holliman’s vehicle on the right front side. Allegedly, because of the van, Nelson made a blind entry into the intersection.

The appellant contends the trial court erred in granting the defendants’ motion for a summary final judgment, because there exist genuine issues of material fact, to wit: whether or not the speed of Nelson’s car and the manner in which he operated the police car was a contributing cause of the accident. As to Southern Bell, there was an issue of fact, to wit: whether or not Southern Bell was negligent in placing the van in a position where it blocked the vision of the drivers and thus contributed to the cause of the accident.

We affirm as to Southern Bell. See: Shephard v. Azzarelli Construction Co., 294 So.2d 667 (Fla.2d DCA 1974). In reviewing Wilfork v. Associated Grocers of Florida, Inc., 343 So.2d 84 (Fla.3d DCA 1977), cited by the appellant, it appears there was an allegation the vehicle was illegally parked. Thus, that case is not applicable herein, where there was no such allegation.

We reverse as to Nelson and the City of North Miami Beach, under the holding in Cunningham v. Romano, 278 So.2d 631 (Fla.3d DCA 1973); Proctor & Gamble Dist. Co. v. McGlamery, 341 So.2d 521 (Fla.3d DCA 1976).

Therefore, the matter is returned to the trial court for further proceedings between the plaintiff and the defendants, City of North Miami Beach and Nelson.

Reversed and remanded, with directions.

PEARSON, Judge

(concurring in part and dissenting in part).

Although I concur in the holding of the court that the summary judgment should be reversed as to the City of North Miami Beach and its employee, Nelson, I would also reverse as to Southern Bell Telephone and Telegraph Company inasmuch as there appear to be no adequate refutations of the allegations of negligence and proximate cause found in paragraph six of the appellant’s amended complaint.

      . “6. That at the above time and place, an employee of SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, while working in the scope of his employment, parked one of SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY’S trucks in the middle of Northeast 19th Avenue in a negligent manner so as to cause a hazard to vehicles driving in the vicinity. The position of the truck was such that it obstructed the vision of drivers traveling on Northeast 19th Avenue and that as a direct result of the position in which the truck was parked, there was created an unreasonable risk of harm to motorists such as the Plaintiff. As a direct and proximate result of the negligence of the SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY employee in parking the truck in the position that he did, the Plaintiff was involved in an accident with a vehicle being driven south on Northeast 19th Avenue and the Plaintiff suffered injuries as more fully set forth below.”


text:
    Margaret WEEDMAN, Appellant, v. SUNLAND ROLLER RINK, INC., a Florida Corporation, Appellee.
    No. 76-1500.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.

      Ezzo & Garel and Bruce A. Saylor, Miami, for appellant.
    Preddy, Haddad, Kutner, Hardy & Josephs and Michael J. Parenti, III, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PEARSON, Judge.

The plaintiff Margaret Weedman appeals a final judgment for the defendant Sunland Roller Rink, Inc., which was entered pursuant to a jury verdict in her action for injuries received at the roller rink. A prior appeal in this case is reported at 323 So.2d 688. The factual background set out therein need not be repeated here.

The trial judge acting pursuant to the mandate and the holding of this court in Dorta v. Blackburn, 302 So.2d.450 (Fla.3d DCA 1974), instructed the jury that if they found that the plaintiff assumed the risk of Sunland’s negligent conduct, she was completely barred from recovery. The giving of the instruction was objected to by the' plaintiff. The jury returned a verdict for the defendant Sunland. Plaintiff’s motion for a new trial was denied and this appeal followed.

It is clear that the trial court acted pursuant to our view of the law as enunciated in Dorta v. Blackburn, supra. Nevertheless, it is the duty of an appellate court to apply to an appeal the law as to substantive rights at the time of the appeal. See Personnel Board of City of Miami Beach v. Majewski, 227 So.2d 498 (Fla.3d DCA 1969); and Fitzgerald v. Addison, 287 So.2d 151 (Fla.2d DCA 1973). The Supreme Court of Florida has settled the law on this subject adversely to this court’s view in Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). In that opinion, the Supreme Court held:

“. . . that the affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence enunciated in Hoffman v. Jones, [280 So.2d 431 (Fla.1973),] . . shall apply in all cases where such defense is asserted.”

Therefore, the instruction upon assumption of risk given by the trial court was reversible error. Therefore, the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    MIAMI-DADE OPTICAL DISPENSARY, INC., a Florida Corporation, and Richard Aeh, Appellants, v. FLORIDA STATE BOARD OF OPTOMETRY, a political subdivision of the State of Florida, Appellee.
    No. 76-1502.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Rehearing Denied Oct. 7, 1977.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellants.
    Harris, Liles, McConnaughhay & Weid-ner, Tallahassee, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

By this appeal the appellants, who were plaintiffs in the trial court, seek review of a summary final judgment enjoining them from practicing optometry by the fitting of contact lenses except while acting under the direct supervision of a person duly licensed as an optometrist or physician. In said summary final judgment, the following is found:

“ * * * The Court finds that it has jurisdiction of the parties and of the subject matter of this suit; that there is no dispute as to any material facts; that certain acts engaged in by defendants in adapting and fitting contact lenses constitutes, as a matter of law, the practice of optometry as defined by Florida Statutes; and that Plaintiff is, as a matter of law, entitled to a summary judgment on its complaint.
“The defendants in this suit are a corporation which dispenses optical supplies and Mr. Richard Aeh, a licensed optician. The depositions and affidavits show, without dispute as to any material facts, that the defendants received a prescription from a customer who wished to purchase contact lenses. The prescription was written by a licensed optometrist. It contained only the necessary information for the fabrication of eyeglasses but was marked “O.K. for contacts.” Mr. Aeh used a keratometer and other instruments to obtain various readings and measurements of the radius and curvature of the cornea of the human eye, and converted the original prescription from one for eyeglasses to one for contact lenses. Having done so, he ordered contacts and supplied the following information which was not on the original prescription: the right and left base curve of the lens, the prescription (power), the dize, the color, the thickness, and the outer blend of the lens for polishing. Thereafter, an employee of the defendants proceeded to fit the lenses to the customer by assisting him in the actual placement of the lenses in his eyes. The customer was also given a wearing schedule and instructions. Neither a licensed optometrist nor a physician was present during the above transactions, nor was there any contact between defendants and a licensed optometrist or physician concerning the above events from the time defendants received the prescription until the time the contacts were ultimately sold and dispensed to the customer.
“The foregoing activities, individually and collectively, are violative of the clear language of the dictates of the Supreme Court in Florida Association of Dispensing Opticians v. Florida State Board of Optometry, 238 So.2d 839 (Fla.1970):
. . . Fla.Stat. § 484.02, F.S.A. provides that a dispensing optician may prepare and dispense lenses, eyeglasses and the like only ‘on the written prescription of a physician or optometrist.’ Since the optician has neither the statutory authority nor the competence to determine the characteristics of the visual aid prescribed, it follows that he may properly fill a prescription for contact lenses only if it contains both the optical specifications and the complete lens specifications desired by the optometrist or physician prescribing the lenses. Having prepared the lenses in precise conformity with the prescription, we perceive no reason under the statutes why the optician cannot proceed to fit and adapt them under the supervision, control and direction of the optometrist or physician prescribing the lenses, if the optometrist or physician so desires.”
******

The appellant has urged several grounds for reversal, none of which do we find to have merit. World Fair Freaks and Attractions, Inc. v. Hodges, 267 So.2d 817 (Fla. 1972); Pushkin v. Lombard, 279 So.2d 79 (Fla. 3d DCA 1973); Will Ross, Inc. v. Florida State Board of Optometry, 314 So.2d 152 (Fla. 1st DCA 1975); Golden v. McCarty, 337 So.2d 388 (Fla.1976); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). It appears that the trial judge followed, explicitly, the decision of the Supreme Court of Florida in Florida Association of Dispensing Opticians v. Florida State Board of Optometry, 238 So.2d 839 (Fla.1970). Clearly mathematical notations on the prescription tendered to the optician were for eyeglasses and not for contact lenses. The facts were undisputed and we, therefore, affirm the summary final judgment under review.

Affirmed.


text:
    Betty P. HOSKIN, Appellant, v. James R. HOSKIN, Appellee.
    No. 76-1573.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Rehearing Denied Sept. 21, 1977.

      Charles J. Crowder, South Miami, for appellant.
    Abbott, Frumkes & Alhadeff & Elliott C. Abbott, Miami Beach, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

The former wife Betty Hoskin appeals a post-judgment order entered in a dissolution of marriage proceeding. The final judgment of dissolution was not appealed but the parties have been before this court on a previous appeal in a matter ancillary to the judgment of dissolution. See Hoskin v. Hoskin, 329 So.2d 19 (Fla.3d DCA 1976).

The final judgment dissolving the marriage was entered on June 4, 1974. As to the former marital residence, it provided as follows:

“8. During the marriage the parties owned as an estate by the entirety a single family resident dwelling situate at 11620 S.W. 138th Street, Miami, Florida, the legal description of which is:
Lot 7, Block 71, REPLAT OF PORTION OF RICHMOND HEIGHTS, according to the Plat thereof recorded in Plat Book 60 at page 21 of the Public Records for Dade County, Florida.
There are two mortgages encumbering the said real property, a first mortgage given to Washington Security Company, dated May 3, 1962 and subsequently assigned to Federal National Mortgage Associations the payments on which are being collected by Atico Mortgage Corp.; and a second mortgage given to First National Bank of South Miami, dated October 6, 1972. By virtue of this Final Judgment the parties shall now hold title to said property as tenants in common. The parties shall therefore share equally in all payments required on account of the two enumerated mortgages and on all Ad Valorem Taxes thereon and fire and extended coverage insurance thereon until such time as said residence is sold and upon sale of said residence the net proceeds from the sale shall be divided equally between the parties. All of the furniture, furnishings, fixtures, appliances, tools and equipment in and about the said resident dwelling shall also be owned equally by the parties and a genuine attempt shall be made by the parties upon sale of the resident dwelling, to divide such personal property among them in as nearly equal amounts as can be agreed upon. However, if no agreement can be made then the parties shall own same equally, shall dispose of same and divide the proceeds between themselves equally.
“9. Until the said resident dwelling can be sold by the parties the wife is hereby granted exclusive possession thereof to reside therein with the minor children of the parties. The Respondent shall remove himself from the said premises and vacate same on or before Saturday, June 1, 1974 turning the keys therefor over to the Petitioner or to her representative. The Respondent may remove all of his personal effects from the said resident dwelling but shall not remove any of the furniture, furnishings, fixtures or appliances, tools or equipment situate therein.”

In the final judgment of dissolution, the court retained jurisdiction of the cause in the following paragraphs:

“12. Except as to the dissolution of the marriage granted in this Judgment and alimony for the wife, this Court specifically reserves jurisdiction of the entire matter to enter any further Orders that may be equitable, appropriate and just and this Court intends to re-evaluate the question of the amount of child support at such time as the above-described single family resident dwelling is sold by the parties.
“13. Both parties are ordered to take whatever action is reasonable and necessary to, and conduct themselves in a manner conducive with, carrying out the intent and purpose of this Judgment.”

Upon perceiving a lack of cooperation by his former wife in the contemplated sale of the former marital residence, the former husband filed a partition proceeding. The trial court ordered a partition and this court reversed in Hoskin v. Hoskin, supra.

Thereafter, pursuant to a petition from the former husband, the trial court entered the order now appealed in the dissolution proceeding in which the trial judge provided as follows:

“1. The Petitioner, BETTY P. HOS-KIN, shall make every reasonable effort to sell the residence she now occupies, located at 11620 S.W. 138th Street, Miami, Florida, as provided by this Court’s Order of June 4, 1974.
“2. The parties, BETTY P. HOSKIN and JAMES R. HOSKIN, are to select a real estate broker and list said residence with said broker for the purpose of selling same at its current market value. In the event that the parties cannot agree on a real estate broker within thirty (30) days of the date hereof, the Respondent, JAMES R. HOSKIN, shall choose a real estate broker and his choice shall be binding upon the Petitioner.
“3. The Petitioner shall allow real estate brokers and their agents and salesmen to enter the above-mentioned residence for the purpose of showing same to prospective purchasers.
“4. The Petitioner shall cooperate in every manner for the expeditious sale of said home.
“5. In the event that the above-mentioned residence is not sold within six (6) months of the date of this Order, BETTY P. HOSKIN shall no longer have exclusive possession of said home and JAMES R. HOSKIN shall be given co-possession with BETTY P. HOSKIN. In addition thereto, after said six (6) months’ time period, the Respondent, JAMES R. HOS-KIN, shall no longer be required to make mortgage payments on said home.”

The former wife has again appealed urging that the trial court lacked jurisdiction to enter the order requiring her to proceed with the contemplated sale. In addition, the wife claims that the property has become her homestead property and, as such, is not subject to an order of sale.

The former wife’s first point urges that the trial court lost jurisdiction after the final judgment to order the parties to dispose of the property. She relies upon Weinstein v. Weinstein, 148 So.2d 737 (Fla.3d DCA 1963); Bailey v. Stewart, 213 So.2d 442 (Fla.4th DCA 1968); and Thomas v. Greene, 226 So.2d 143 (Fla.1st DCA 1969), in support of her position. The holdings in these cases are inapplicable to the present case. Weinstein held that a trial judge may not order property held as an estate by the entirety to be sold as part of a final judgment dissolving a marriage. In the present case, the final judgment was not appealed and is binding upon the parties. Cf. Carson v. Oldfield, 99 Fla. 862, 127 So. 851 (1930). Bailey held that a summary procedure in a post-judgment order requiring the sale of jointly-owned property was invalid where there was no provision concerning the property in the final judgment. Thomas held that the trial judge was without jurisdiction later to award to the husband jointly-held property where the final judgment did not disturb the joint ownership. See also McNaughton v. McNaughton, 332 So.2d 673 (Fla.3d DCA 1976).

In the present case, however, the trial judge expressly retained jurisdiction to enforce the contemplated sale which was a part of the final judgment dissolving the marriage. The former wife, having accepted the final judgment which clearly indi-cated the agreement to sell the property, cannot claim, at this late date, that the final judgment, the benefits of which she has accepted, is invalid. See Hunter v. Hunter, 221 So.2d 189 (Fla.3d DCA 1969). The court retains jurisdiction to enforce the executory provisions contained in a final judgment of dissolution of marriage. See Sapp v. Sapp, 275 So.2d 43 (Fla.2d DCA 1973). See also Brasch v. Brasch, 109 So.2d 584 (Fla.3d DCA 1959). No error appears upon the first point.

The same principle of law defeats appellant’s remaining points. The claimed homestead of the wife acquired by virtue of the final judgment is subject to the limitations of that judgment. Later acquired homestead rights cannot operate to defeat the provisions of the final judgment under which the former wife secured the right of possession.

Affirmed.

      . Later cases have allowed partition as a part of dissolution proceedings. See Walton v. Walton, 290 So.2d 110 (Fla.3d DCA 1974), and cases cited therein.


text:
    TAMIAMI ABSTRACT AND TITLE COMPANY, a Florida Corporation, Appellant, v. Fernando RAVELO and Yolanda Gultasca Ravelo, his wife, Appellees.
    No. 76-1616.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Fogle, Connely & Cook, Miami, for appellant.
    Knight, Peters, Hoeveler, Pickle, Niem-oeller & Flynn and Gene H. Auvil, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed. Tampa & Jacksonville Railway Company v. Catts, 79 Fla. 235, 85 So. 364 (1920); Scheuer v. Balik, 130 Fla. 255, 177 So. 731 (1937); Shaw v. Hamm, 133 Fla. 722, 183 So. 19 (1938); Matousek v. Cooper, 111 So.2d 65 (Fla.2nd D.C.A.1959); Horowitz v. United National Corporation, 324 So.2d 189 (Fla.3rd D.C.A.1975).


text:
    955 N.E. 125TH STREET CORPORATION, Appellant, v. COUNTY NATIONAL BANK OF NORTH MIAMI BEACH, and Arthur H. Patton, Jr., Appellees.
    Nos. 76-1634, 76-1701.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.

      Franklin, Ullman, Kimler & Entin, North Miami Beach, for appellant.
    Ronald S. Golub, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

955 N.E. 125th Street Corporation, the defendant in a mortgage foreclosure action, brings this appeal from a fee award to the mortgage foreclosure receiver and the receiver’s attorney.

In the mortgage foreclosure action, the appointed receiver resigned and appellee Arthur H. Patton, Jr., was appointed in his place. Patton, in turn, retained counsel with the court’s approval. The court held a hearing and, based upon the receiver’s report, entered an order which, among other things, directed the receiver to take appropriate legal action to collect past due rents, to evict nonpaying tenants or to initiate distress actions for rent.

On July 9, 1976, an application was made to the court for an Order to Show Cause why the two largest non-paying tenants should not be removed from the premises. A hearing date of July 19th was set for the disposition of this matter. At that hearing, the appellant’s trial attorney announced that he had received a commitment for a new mortgage on the building and that the purpose of the hearing was, therefore, unnecessary. Thereupon, the court continued the hearing until July 26th. At the hearing on July 26th, appellant’s counsel again stated that the closing would take place very soon thereby rendering the purpose for the hearing moot, and the trial court ordered another continuance until July 29th. The court also stated that if the closing had occurred by the 29th, then it would hold a hearing upon the “. . . reasonableness, necessity, and the amount of a reasonable receiver’s and counsel’s fee for receiver.”

The closing took place on July 28th, and the previous day (July 27th) a motion by the appellant for the continuance of the attorney’s fee hearing was hand-delivered to the receiver’s attorney. At the July 29th hearing, the continuance motion was argued and was denied. The receiver’s attorney pointed out that the fee question had arisen as early as July 16th, some thirteen days before, and that both the receiver and his attorney had at all times been available for deposition during this period. The appellant’s position was that it was being denied due process of law because there had been inadequate opportunity for discovery on the fee question. The court, however, proceeded to take testimony and determined that reasonable fees for the services of the receiver and attorney would be $9,500 and $8,000 respectively. The appellant, at this time, offered no evidence, no witnesses, and did not fully cross-examine, but relied upon its due process claim of inadequacy of opportunity to depose the receiver and attorney.

At this time, the court also granted the receiver’s motion to copy all books and records in the receiver’s possession because of the threat of contemplated litigation by one of the defendant’s officers against the receiver and his attorney. The court went on to require the appellant to post $1,000 for the cost of copying the books and records concerned. Finally, the court denied the motion of the appellant requesting the court to allow the $20,000 that the appellant had posted in the court’s registry pursuant to court order to stand as supersedeas for purposes of appeal.

The appellant has presented three points on appeal, the most important one of which is based upon an alleged deprivation of procedural due process in the trial court’s denial of the appellant’s motion for continuance and the awarding of receiver’s and attorney’s fees.

Although the record reflects that the appellant was informed of the availability of the receiver and his attorney for deposition some ten to thirteen days prior to the July 29th hearing, the record also reflects that the schedules and logs containing the time devoted by the receiver and his attorney to the foreclosure action were not prepared or offered to the appellant until just prior to the July 29th hearing. This lack of adequate opportunity prior to the hearing to review the logs and schedules constitutes the main thrust of appellant’s due process claim.

Upon review of the record and the particular facts of this case, we find ourselves in accord with the appellant’s position, and we agree that a hearing or opportunity to be heard must be such as is practicable and reasonable in the particular case, must be full and fair and not merely colorable or illusory. See the principle of law in Tomayko v. Thomas, 143 So.2d 227, 230 (Fla.3d DCA 1962); and cf. Atkins v. State, 136 Fla. 596, 187 So. 363 (1939); State ex rel. Paoli v. Baldwin, 159 Fla. 165, 31 So.2d 627 (1947); Dykes v. Dykes, 104 So.2d 598 (Fla.3d DCA 1958); and Southern Realty & Utilities Corporation v. State, 181 So.2d 552 (Fla.3d DCA 1966).

Hearings to determine receiver’s and attorney’s fees should command sufficient gravity to require that all parties be afforded a full opportunity to prepare and be heard and such hearings should not be reduced to profunctory proceedings. See Lewis v. Gramil, 94 So.2d 174 (Fla. 1957).

The amount of these fees, assessed as a part of the cost of court processes, is a matter of great importance to litigants and to the public generally. Such proceedings, therefore, should not only be clearly regular, but also should be sufficiently open and deliberate so as to refute any appearance of unfairness.

In this case, based upon the particular facts and above cited principles of law, we hold that it was error to proceed with the hearing on the application for fees because (a) the receiver’s schedules and logs were not made available to the appellant until very shortly before the fees hearing; (b) therefore, the time for preparation, in this respect, was too short; and (c) the payment of the fees was adequately secured by the appellant through the $20,000 deposit in the registry of the court,- which removed any necessity or need for haste.

In their brief and at oral argument, the appellees have acknowledged that the portion of the July 29th order requiring the appellant to post $1,000 for the cost of copying the books and records of the receiver was, in fact, unnecessary. The appellees represent that the $1,000 has not been used and will be returned to the appellant. We, therefore, reverse that portion of the order without discussing the merits thereof.

The order denying appellant’s motion for continuance is reversed, as is the order setting the receiver’s and attorney’s fees. The cause is remanded with directions to set a new date for a hearing on the motions for fees. The date set should be such that a reasonable time is allowed to the appellant for discovery and the presentation of such evidence as it may so determine.

Upon the holding that the amount of the fees must be determined at the hearing here directed, we expressly decline to consider at this time appellant’s second point claiming that the fees allowed were excessive.

Reversed and remanded for further proceedings in accordance with the views herein expressed.


text:
    PAN AMERICAN BANK OF DADE COUNTY, f/k/a Bank of Dade County, Appellant, v. CONTINENTAL CASUALTY COMPANY and Advance Industrial Security, Inc., Appellees.
    Nos. 76-1639, 76-1855.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Rehearing Denied Sept. 30, 1977.
    John A. Murray, Miami, for appellant.
    Rentz, McClellan & Haggard; Horton, Perse & Ginsberg, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. State v. Williams, 222 So.2d 477 (Fla. 3rd D.C.A. 1969); Curry Corporation v. Greenfield, 235 So.2d 49 (Fla. 3rd D.C.A. 1970); Nicholson v. Eli Lilly and Company, 285 So.2d 648 (Fla. 3rd D.C.A. 1973); Van Gorder v. Blank (R) Construction Corporation, 341 So.2d 1003 (Fla. 4th D.C.A. 1976).


text:
    Linda STANTON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1725.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.

      Hirsehhorn & Freeman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony Musto and Sidney M. Pertnoy, Asst. Attys. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Linda Stanton was found guilty by a jury of grand larceny. On this appeal, she questions the sufficiency of the evidence to constitute the crime for which she was found guilty and claims error in the trial court’s failure to require the State to produce at trial a claimed statement made by the victim. She also claims reversible error in the court’s failure to give a curative instruction or to declare a mistrial following an improper and prejudicial question by the prosecutor where an objection to the question was sustained but no curative instruction or mistrial was requested by trial counsel. We hold that none of the points presents reversible error, and we affirm.

The complainant, Jose Sanchez, was experiencing personal health and marital problems, which were further complicated by the fact that his son was suffering from anemia. After visiting several doctors without success, Sanchez, upon reading an advertisement in a local newspaper, called the appellant, Linda Stanton, a licensed spiritualist, and made an appointment.

Sanchez’s initial appointment and meeting with appellant was either on February 26th or 27th, 1976. For this initial visit and consultation, Sanchez was charged five dollars by appellant. During the course of this initial meeting, appellant advised Sanchez that her fee to help him with his problems would be twelve hundred dollars. Sanchez, upon complaining about this fee, was told that the alternative was that he could leave. Upon being told this, Sanchez agreed to the fee.

Sanchez returned that same afternoon without an appointment and gave appellant six hundred dollars — the remaining six hundred dollars to be paid when appellant’s work was completed.

From this point on, the appellant’s and the complainant’s versions of the facts are diametrically opposed. Sanchez testified that he returned the following Monday, March 1, 1976, with two eggs, which he had been told by the appellant to bring with him. The appellant performed some kind of ceremony with the eggs and then told Sanchez to get $10,000. During all this, Sanchez testified that only he and the appellant were present. Sanchez then went to the bank where he had two accounts (each being a ten thousand dollar account) and withdrew ten thousand dollars. A State’s witness, a vice president of the bank, testified that on March 1, 1976, ten thousand dollars was withdrawn from Mr. Sanchez’s account.

Sanchez then allegedly returned to appellant’s office and gave her the money— again, with no one else present. Appellant then told him to go back to the bank and get the rest of the money (the other ten thousand dollar account) and also to bring back a white chicken.

Sanchez then apparently went to the bank to withdraw the remaining ten thousand dollars and then returned to appellant’s office with the money and a chicken. The appellant went through a type of ritual with the chicken — once again, with no one else present.

According to Sanchez, appellant then put all the money under the chicken’s wing and told Sanchez that within two days, more or less, he could get his twenty thousand dollars back. Appellant told Sanchez that she was going to bury the money and chicken and get the evil out of them and they agreed he would return to her office in two days.

According to Sanchez, the next time he saw appellant was two days later, on Wednesday. At that time, the appellant told him that it was “too soon,” to which Sanchez responded that he could not wait any longer. Appellant replied that it was impossible. It was at this point that Sanchez believed there was a fraud being perpetrated upon him.

Sanchez then went to the police to press charges. Officer. Postal, with whom he spoke, told him to call appellant to see what she would say. He called and she told him to “come in on the following Wednesday,” which he did. This time he was joined by appellant and her husband, while appellant’s secretary was just outside the room’s open door. Sanchez claimed he was insulted by them and his money was not returned. This was the last time Sanchez went to appellant’s office. Since that last meeting, however, Sanchez’s health remained unchanged, his son’s improved, but his domestic difficulties increased.

Under the appellant’s first point, it is contended that where the receipt of money from another is coupled with a promise that said money would be returned some time in the future but the money is never returned, the facts are not sufficient to support a conviction of grand larceny. This contention does not present error in view of the holding of the District Court of Appeal, Fourth District, in Williams v. State, 239 So.2d 127 (Fla. 4th DCA 1970), where, under very similar facts, the court held:

♦ * * * * *
“As to the first point, we find that the evidence was sufficient to support a determination by the jury either that appellant obtained the $700.00 by fraud or trickery with the preconceived purpose of converting the money to his own use and to deprive the owner thereof, thereby vitiating any consent of the owner to the taking, Campbell v. State, 1944, 155 Fla. 359, 20 So.2d 127; Bussart v. State, 1937, 128 Fla. 891, 176 So. 32; or that the consent was not as broad as the taking in that Everett only permitted appellant to retain the money for the purpose of blessing it and returning it to Everett in a few days, yet appellant either intended at the time of receiving the money, or decided thereafter to convert it to some unauthorized use with intent to permanently deprive the owner thereof.”

See Mehr v. State, 59 So.2d 259 (Fla.1952); Padgett v. State, 82 So.2d 372 (Fla.1955), and Casso v. State, 182 So.2d 252 (Fla. 2d DCA 1966).

Appellant’s second point urges error upon the failure of the court to require the production of a statement claimed to have been made by the victim to the State prior to trial. During the progress of this appeal, the appellant moved for an order of this court remanding the cause to the trial court for a hearing on the claimed statement. An order was thereafter entered by this court remanding the cause and temporarily relinquishing the jurisdiction “. for a period of thirty (30) days for the limited purpose of determining whether or not there [was], in fact, existing at the time the victim testified, a prior, sworn statement and, if so, whether said statement should have been turned over to the defendant under the applicable Rules of Criminal Procedure and/or Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).” The trial judge conducted the hearing, and a supplemental record showing the matters before the court at that time, together with the court’s findings, have been filed in this court. The trial judge found that no statement existed at the time the victim testified. We have reviewed the record and hold that there is substantial evidence to support the trial judge’s finding of fact. We, therefore, find no error under appellant’s second point.

The third point raises the question of whether the appellant was denied a fair and impartial trial as a result of a prosecutor’s question propounded to the defendant, objected to and not answered. There is no doubt that the question was highly prejudicial and improper. We first must decide whether or not the question was so potentially prejudicial to the defendant that it constituted fundamental error so that her conviction must be reversed even though her attorney only objected and upon receiving a ruling sustaining his objection apparently was satisfied with the result at that time. We think that there is no fundamental error and that trial counsel, as a tactical matter, decided not to proceed further by request for an instruction or by motion for a mistrial.

Furthermore, we think that there is no doubt that reversible error would have been found under those cases decided by the Supreme Court of Florida prior to the decision in State v. Jones, 204 So.2d 515 (Fla.1967). See Goddard v. State, 143 Fla. 28, 196 So. 596 (1940), and Carlile v. State, 129 Fla. 860, 176 So. 862 (1937). However, in State v. Jones, the Florida Supreme Court held:

“Prior to the Gideon case the good resulting from the application of the exception over-shadowed the evil, for trial judges, notwithstanding the absence of objection, were admonished to intervene, sua sponte, and declare a mistrial thus assuring to many uninformed defendants on trial without counsel a fair and impartial trial.
“At the present time all defendants in criminal trials who are unable to engage counsel are furnished counsel without charge. Application of the exception is no longer necessary to protect those charged with crime who may be ignorant of their rights. Their rights are now well guarded by defending counsel. Under these circumstances further application of the exception will contribute nothing to the administration of justice, but rather will tend to provoke censure of the judicial process as permitting ‘the use of loopholes, technicalities and delays in the law which frequently benefit rogues at the expense of decent members of society-’
“It has been suggested that some courts today seem to be preoccupied primarily in carefully assuring that the criminal has all his rights while at the same time giving little concern to the victim. Upon the shoulders of our courts rests the obligation to recognize and maintain a middle ground which will secure to the defendant' on trial the rights afforded him by law without sacrificing protection of society. As Mr. Justice Cardozo explained in Snyder v. Commonwealth of Mass., 291 U.S. 97,122, 54 S.Ct. 330, 338, 78 L.Ed. 674, 687:
‘But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.’
“The Court now recants the statement of the exception upon which respondent relies and henceforth will review challenged argument of prosecutors only when an objection is timely made.”

The decision in State v. Jones concerned improper remarks of prosecuting counsel to the jury. The present case .concerns an improper question to the defendant. While there is a difference in the way the matter came to the jury’s ears, we think that the difference does not destroy the efficacy of the holding in State v. Jones. We, therefore, hold that upon the sustaining of defense counsel’s objection to an improper and prejudicial question, the trial court was not required to go further and admonish the jury or declare a mistrial in the absence of a motion therefor. We conclude that the attorney for .the defendant got what he asked for. and, in the absence of a motion for mistrial, might well have claimed double jeopardy if a mistrial had been declared. Cf. the principles of law in State ex rel. Larkins v. Lewis, 54 So.2d 199 (Fla.1951), and McLendon v. State, 74 So.2d 656 (Fla.1954).

Having considered each of appellant’s points and finding no reversible error, the judgment and sentence are affirmed.

Affirmed.

      . “Q. [By Mr. Eade] All right, ma’am, finally one last question.
      A. Yes, sir.
      Q. Isn’t it true in gypsy practice that it is okay to lie and cheat and steal if you can get away with it?
      A. MR. HAFT: I object to that, Your Honor. It’s the same thing as saying he would say to the blacks and the Jews. I object to that, Your Honor, as an ethnic slur.
      THE COURT: Sustained.”


text:
    Hector Manuel SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1817.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Rehearing Denied Sept. 21, 1977.
    Aschenbrenner & Cogen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Stunson v. State, 228 So.2d 294 (Fla. 3rd D.C.A. 1969); Bass v. State, 232 So.2d 25 (Fla. 1st D.C.A. 1970); Dempsey v. State, 238 So.2d 446 (Fla. 3rd D.C.A. 1970); McCoy v. State, 277 So.2d 845 (Fla. 2d D.C.A. 1973); State v. Nixon, 295 So.2d 121 (Fla. 3rd D.C.A. 1974); Warren v. State, 332 So.2d 361 (Fla. 3rd D.C.A. 1976); Austin v. State, 336 So.2d 480 (Fla. 3rd D.C.A. 1976); Sowell v. State, 342 So.2d 969 (Fla. 1977); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Sections 59.041, 924.33, Florida Statutes (1975).


text:
    Jared K. HOHENBERG, etc., et al., Appellants, v. Arthur KIRSTEIN, III, et al., Appellees.
    No. 76-1868.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Rehearing Denied Sept. 23, 1977.

      Milton Kelner, Miami, for appellants.
    Horton, Perse & Ginsberg, Miami, Pred-dy, Haddad, Kutner, Hardy & Josephs, Port Lauderdale, for appellees.
    Before PEARSON, BARKDULL and HAVERPIELD, JJ.
   PER CURIAM.

By this appeal, we are called upon to review the correctness of a trial court’s order dismissing certain counts of a second amended complaint.

The injury involved occurred when the plaintiff, Jared K. Hohenberg, and certain of the defendants were on a hunting expedition, when a shotgun owned by the driver of a vehicle was placed in the vehicle loaded and it discharged, injuring the plaintiff. The principal allegation of negligence in this regard reads as follows:

* * * * * *
“(13) Ducassi was nevertheless so grossly negligent in his operation of the truck and/or in the control of his shotgun that a cartridge was discharged therefrom * * * >>
******

We hold that this allegation is insufficient to allege a causal connection in the alleged negligent operation of the truck with the alleged negligence that caused the discharge of the shotgun. Therefore, we sustain the order of the trial court dismissing this cause of action. Tampa Electric Company v. Jones, 138 Fla. 746, 190 So. 26 (1939); Ward v. Everett, 148 Fla. 173, 3 So.2d 879 (1941); American Casualty Company v. Pearce, 101 So.2d 440 (Fla. 2d DCA 1958); Raydel, Ltd. v. Medcalfe, 178 So.2d 569 (Fla.1965).

The other points urged for reversal by the appellant, Jared K. Hohenberg, have been examined and have been found to be without merit. American District Electric Protective Company v. Seaboard Air Line Railway Company, 129 Fla. 518, 177 So. 294 (1937); Carter v. Hector Supply Company, 128 So.2d 390 (Fla.1961); Brod v. Jernigan, 188 So.2d 575 (Fla.2d D.C.A. 1966); Nicolaysen v. Flato, 204 So.2d 547 (Fla. 4th DCA 1967); Vilord v. Jenkins, 226 So.2d 245 (Fla. 2d DCA 1969); Miami Coin-O-Wash, Inc. v. McGough, 195 So .2d 227 (Fla. 3rd DCA 1967); Wood v. Camp, 284 So.2d 691 (Fla. 1973); 23 Fla.Jur., Negligence, § 9.

For the first time, on appeal, the appellant contends that he should have been permitted further amendment. We disagree. The appellant had been permitted one amendment; he did not seek any further amendment in the trial court. Usual and customary procedure requires that if a party is going to contest a trial judge’s refusal to permit an amendment he must first apply for such right in the trial court and, then, if reversed, bring the matter to the attention of the appellate court. Margolis v. Klein, 184 So.2d 205 (Fla. 3d DCA 1966); Ely v. Shuman, 233 So.2d 169 (Fla. 3d DCA 1970); Fla.R.Civ.P. 1.190(a). In Margolis v. Klein, supra, the following is found:

* * * * * *
* * * The defendants urged that the trial court erred in failing to permit leave to amend the counter and cross claim. However, we fail to find any application to the trial court in the record to allow such an amendment.
“It is elementary that before a trial judge will be held in error, he must be presented with an opportunity to rule on the matter before him. Wasserburg v. Coastal Aluminum Products Const. Co., Fla. App.1964, 167 So.2d 889; Paul v. Kanter, Fla.App.1963, 155 So.2d 402. This is clearly contemplated by Rule 1.15(a) Florida Rules of Civil Procedure, 30 F.S.A. Therefore, although the counter and cross claim might have been amendable without any application to the trial judge, we are not in a position to hold that error was committed in this regard.”

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

Affirmed.

      . In an attempt to state a cause of action against the owner of the truck, under the doctrine of vicarious liability.


text:
    H. G. WHITTON, Appellant, v. Francisco SUAREZ, Appellee.
    No. 77-80.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Rehearing Denied Sept. 30, 1977.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellant.
    W. Ronald Chaffin, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: South Florida Apartment Ass’n v. Dansyear, 347 So.2d 710 (Fla. 3d DCA 1977) and cases collected; Elmex Corp. v. Atlantic Federal Savings and Loan Ass’n of Ft. Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976); Horace v. American National Bank and Trust Co. of Ft. Lauderdale, 251 So.2d 33 (Fla. 4th DCA 1971); Odell v. Signer, 169 So.2d 851 (Fla. 3d DCA 1964).


author:
PER CURIAM.
      HUBBART, Judge,

text:
    Loretta WALLACE, etc., et al., Plaintiffs, v. Gary Robert COCHRAN et al., Defendants. Gary Robert COCHRAN, Third-party Plaintiff, v. FLORIDA POWER & LIGHT COMPANY, Third-party Defendant.
    No. 77-692.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Rehearing Denied Sept. 30, 1977.

      David S. Wieder, Miami, for Cochran. Steel, Hector & Davis, Miami, for Florida Power & Light Co.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

The Circuit Court for the Eleventh Judicial Circuit of Florida has certified two questions to this court pursuant to Florida Appellate Rule 4.6(a). They are as follows:

“The foregoing facts raise the following question for certification to the District Court of Appeal, Third District:
I. WHETHER AN EMPLOYER WHO HAS PAID BENEFITS TO THE SURVIVORS OF A DECEASED EMPLOYEE UNDER THE PROVISIONS OF THE FLORIDA WORKMEN’S COMPENSATION ACT FOR INJURIES SUFFERED BY THE EMPLOYEE DURING THE COURSE OF HIS EMPLOYMENT IS IMMUNE FROM SUIT ON AN INDEMNIFICATION, IMPLIED IN LAW CONTRACTUAL, OR CONTRIBUTION BASIS BROUGHT BY A CO-EMPLOYEE WHO HAS BEEN SUED BY THE DECEASED EMPLOYEE’S SURVIVORS FOR HIS NEGLIGENCE ALONE IN CAUSING THE INJURIES AND DEATH OF THE DECEASED EMPLOYEE WHERE:
1. THE CAUSE OF ACTION ARISES OUT OF THE SAME TRANSACTION OR OCCURRENCE FOR WHICH THE EMPLOYER HAS ALREADY PAID BENEFITS TO THE SURVIVORS OF THE DECEASED EMPLOYEE INTO THE FLORIDA WORKMEN’S COMPENSATION ACT, AND
2. A CLAIM AGAINST THE CO-EMPLOYEE DOES NOT ARISE OUT OF OR IN ANY WAY INVOLVE ALLEGATIONS REGARDING A DEFECTIVE PRODUCT OR PIECE OF EQUIPMENT.
II. IF THE ANSWER TO THE PREVIOUS QUESTION IS IN THE AFFIRMATIVE, WOULD SUCH A BAR CONSTITUTE AN UNCONSTITUTIONAL DEPRIVATION OF EQUAL PROTECTION OF THE LAWS AND DUE PROCESS TO THE CO-EMPLOYEE UNDER THE PROVISIONS OF THE UNITED STATES AND FLORIDA CONSTITUTIONS.”

The circuit court has the power to adjudicate the questions. They are not without controlling precedent. It is true that the application of the decided cases to the facts of the pending case may be difficult but their application is the initial burden of the trial judge. See Schwob Co. v. Florida Industrial Commission, 152 Fla. 203, 11 So.2d 782 (1942); and Dade County v. Philbrick, 162 So.2d 266 (Fla.1964).

We must, therefore, respectfully decline to answer the questions.

HUBBART, Judge,

concurring.

I concur in the court’s disposition of this case solely on the ground that the certified questions presented involve in part a construction of the due process and equal protection clauses of the state and federal constitutions. As such, only the Supreme Court of Florida has the jurisdiction to answer the certified questions.

The law is clear that a question certified by a trial court under Fla.App. Rule 4.6(a) must be addressed to the appellate court which would have jurisdiction to review the case on direct appeal if the trial court decided the question. Jaworski v. City of Opa Locka, 149 So.2d 33, 35 (Fla.1963). When a trial court construes a controlling provision of the state or federal constitution, the Supreme Court of Florida is invested with exclusive jurisdiction to review the case on direct appeal under Article V, Section 3(b)(1), Florida Constitution. City of Orlando v. Cameron, 264 So.2d 421 (Fla.1972); Robinson v. State, 132 So.2d 3, 5 (Fla.1961). A certified question, which if decided by the trial court would constitute a construction of a controlling provision of the state or federal constitutions, must be addressed to the Supreme Court of Florida and not to a district court of appeal. Jaworski v. City of Opa Locka, 149 So.2d 33, 35 (Fla.1963); McGuckin v. Dade County, 121 So.2d 63 (Fla.8d DCA 1960).

We do not have jurisdiction to consider the certified questions in this case because they involve in part a construction of controlling provisions of the state and federal constitutions. If the circuit court passed on these questions, the Supreme Court of Florida would have exclusive jurisdiction to review the case on direct appeal. We, accordingly, lack jurisdiction to answer the certified questions presented in this case.

      . “Jurisdiction. — The supreme court: (1) Shall hear appeals from final judgments of trial courts imposing the death penalty and from orders of trial courts and decisions of district courts of appeal initially and directly passing on the validity of a state statute or a federal statute or treaty, or construing a provision of the state or federal constitution.”


text:
    LA GRAN FAMILIA, INC., a Florida Corporation, Appellant, v. CUBA PHARMACY, INC., a Florida Corporation, Appellee.
    No. 77-875.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Taylor, Brion, Buker & Greene, Arnaldo Velez, Miami, for appellant.
    Underwood, Gillis, Karcher & Reinert and Carles E. Casuso, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

This appeal considers the propriety of a temporary injunction issued, without requiring the plaintiff to post an injunction bond. We reverse.

The matter did not arise out of a domestic relation action, but was an attempt to enjoin alleged malicious activities by the defendant. The injunction should not have been issued without requiring the plaintiff to post a bond. Belk’s Department Store, Miami, Inc. v. Scherman, 117 So.2d 845 (Fla. 3d DCA 1960); Metropolitan Dade County v. Polk Pools, Inc., 124 So.2d 737 (Fla. 3d DCA 1960); Tampa Port Authority v. Deen, 179 So.2d 416 (Fla. 2d DCA 1965); Byrne v. Rec Centers, Inc., 309 So.2d 177 (Fla. 4th D.C.A. 1975); Fla.R.Civ.P. 1.610.

Reversed and remanded.

      . Even in case of a divorce action it may be necessary to show inability to make bond to obtain a temporary injunction, without necessity of posting bond. See: Voss v. Voss, 169 So.2d 351 (Fla. 3rd DCA 1964).


text:
    STATE of Florida, Appellant, v. Littleton Lloyd DOTSON, Appellee.
    No. 77-978.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1977.
    Richard E. Gerstein, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The trial court suppressed evidence seized in execution of a search warrant, because the warrant was not executed by the deputy who made the affidavit upon which the search warrant was issued. We reverse.

By the terms of the search warrant, it could be executed by:

“IN THE NAME OF THE STATE OF FLORIDA, TO ALL AND SINGULAR:
“The Director of the Public Safety Department, Dade County, Florida, who is also known as the Sheriff of Metropolitan Dade County, Florida, or his Deputies and all Police Officers in Dade County, Florida, and the Commissioner of the Florida Department of Law Enforcement or any of his duly constituted Agents:”
* * * * * *

The evidence at the hearing on the motion to suppress showed that it was executed by an officer in the Public Safety Department of Dade County [a deputy sheriff]. Even though he was not the one who caused it to be issued, he was one of the class identified in the warrant and, therefore, it was validly executed. Byers v. State, 109 So.2d 382 (Fla. 2d D.C.A. 1959); Sharon v. State, 156 So.2d 677 (Fla. 3d D.C.A. 1963); Nofs v. State, 295 So.2d 308 (Fla. 2d D.C.A. 1974); Section 933.08, Florida Statutes (1975). There was also some contention that the return was improperly executed. If this be so, it was subject to being corrected [Nordelli v. United States, 24 F.2d 665 (9th Cir. 1928); United States v. Greene, 141 F.Supp. 856 (D.C.1956)] and the improper return should not invalidate the properly executed search warrant. State v. Featherstone, 246 So.2d 597 (Fla. 3d D.C.A. 1971); Nofs v. State, supra.

Therefore, for the reasons above stated, the order under review be and the same is hereby reversed, we having found that the warrant was validly issued and executed. However, the court may entertain, upon remand, such proceedings as it deems necessary to correct the return.

Reversed and remanded, with directions.