author: LETTS, Judge.

text:
    Robert KIRSCHGESSNER, Petitioner, v. MIAMI INTERNATIONAL HOSPITAL, Dr. Raphael Cilento, Jr., Marcos Zugeiram, Dr. Harvey A. Grable, Dr. Luna, Dr. Norman Borken, Dr. Marshall Abel, Dr. Francisco Suarez and Dr. Morton S. Corin, Respondents.
    No. 77-1167.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1977.
    Carol M. Anderson, of Anderson & Anderson, Fort Lauderdale, for petitioner.
    Richard A. Sherman, of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for respondents, Abel, Bor-kin, Corin, and Suarez.
    Mark Hicks, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for respondent, Zugueiram.
    Robert L. Koeppel, of Koeppel, Stark & Newmark, Miami, for respondent, Miami Intern. Hospital.
   LETTS, Judge.

This is a petition for certiorari arising because the trial judge continued the proceedings, under Section 768.44(3) of the Florida Statutes Supplement (1976), beyond the ten month limitation period permitted for the holding of a medical mediation procedure hearing. We grant certiorari and quash the order of the trial judge upon the authority of Perkins v. Pare, 352 So.2d 65 (Fla. 4 DCA 1977).

In that case, by way of dicta, Judge Cross interpreted this statute to mean that the final hearing on the merits must be “concluded” within the ten month period or jurisdiction would terminate.

At the time that Judge Cross prepared that opinion the Supreme Court was simultaneously adopting rules of medical procedure reported in 348 So.2d 547. The rule in question states:

Rule 20.190. TERMINATION. The clerk shall send to all parties a notice of termination of the proceedings when any of the following events has occurred: * * * * * *
(d) The final hearing has not been concluded within 10 months from the date the claim is filed.
Termination for any of the foregoing reasons terminates the jurisdiction of the panel. Such termination is final and cannot be extended, modified or reinstated by the panel, the judicial referee or by agreement of the parties. A termination for one of the foregoing reasons is automatic, and the clerk’s act or failure to act is ministerial only, (emphasis supplied).

From a reading of the above rule, there can be no question but that Judge Cross’ interpretation was correct: It is true his opinion in Perkins preceded the September 1, 1977 date on which these rules were to become effective. Nonetheless, the Supreme Court’s thinking is all too evident.

CERTIORARI GRANTED AND ORDER QUASHED.

CROSS and ANSTEAD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Richard A. GREENWALD, Respondent.
    No. 77-1509.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.
    David Bludworth, State Atty., and Joel M. Weissman, Asst. State Atty., West Palm Beach, for petitioner.
    Alan M. Medof of Duarte & Medof, P. A., Miami, for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari is denied.

CROSS, ANSTEAD and LETTS, JJ., concur.


author: ANSTEAD, Judge.

text:
    Randall PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 76-1714.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.
    Rehearing Denied March 28, 1978.

      Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and Joseph R. Atterbury, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Richard P. Zaretsky and Benedict P. Kuehne, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant, Randall Payne, seeks to reverse his convictions for conspiracy to commit robbery and armed robbery on the grounds that the state was allowed to comment on a defense witness’ prior assertion of his right to remain silent. We find no error and affirm.

Payne and Claude Ross parked Ross’ van, with the engine left running, near a drugstore. They entered the drugstore and while Payne lingered at a merchandise counter, Ross presented the druggist with a note which stated that a person to Ross’ left had a gun and that the druggist should give Ross a bottle of certain drugs. The druggist complied and Payne and Ross left the store, hurried to the van and drove away. They then changed their clothes and hid the drugs in the van.

When the van was first parked near the drugstore a neighborhood resident became suspicious and immediately after the robbery furnished the police with the license number of the van. The van was stopped shortly thereafter and Payne and Ross arrested. In addition to the above, there was also evidence that Payne helped write the note or at least was aware of the note.

At the trial Payne claimed he went innocently into the drugstore with Ross knowing nothing about the note and Ross’ plan to rob the druggist. He attributed his actions after the robbery to panic when Ross first informed him of his actions after getting back into the van. Payne called Ross as a witness in his behalf, and Ross testified in support of Payne’s innocent involvement. Ross had earlier pled guilty to the robbery. On cross examination the prosecution, over objection, was allowed to elicit the fact that Ross had not spoken out in Payne’s behalf until taking the stand at trial.

There is no question but that the prosecution is precluded from commenting on a defendant’s right to remain silent. Bennett v. State, 316 So.2d 41 (Fla.1975). However, when a defendant calls a witness, that witness is subject to the full right of cross examination by the state including inquiry into any matters which might tend to impeach the credibility of the witness. Baxter v. State, 294 So.2d 392 (Fla. 4th DCA 1974). The only prejudice to the defendant here is the possible impeachment of the testimony of one of his witnesses. That is a risk of prejudice incurred by the defendant whenever he calls any witness. The defendant has no right to be protected from such prejudice. This is entirely different from the prejudice suffered by a defendant when his assertion of his right to remain silent is used against him. He has an absolute right to be protected from that prejudice. Bennett v. State, supra. No rights of Payne were violated by eliciting the fact that Ross had remained silent about Payne’s innocence until trial, and hence Payne is in no position to complain. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

We are not faced with the situation where the prosecution calls a co-defendant as a witness knowing that the co-defendant will invoke his privilege against self incrimination in the presence of the jury. Hankerson v. State, 347 So.2d 744 (Fla. 4th DCA 1977). Here the co-defendant was intentionally called by Payne to acknowledge the co-defendant’s guilt and to support Pane’s claim of innocence. For these reasons the judgment and sentence are affirmed.

DREW, E. HARRIS (Retired), and STET-TIN, HERBERT, Associate Judges, concur.


author: MOORE, Judge.

text:
    Charles D. HYLAND, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.
    No. 76-1739.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for respondent.
   MOORE, Judge.

This is an appeal which concerns the admissibility of a tape recorded conversation of appellant and a co-defendant made without their knowledge while they were confined in a police car. Appellant and his co-defendant were arrested on a charge of burglary and placed in a police vehicle. Unbeknown to the appellant and his co-defendant was the fact that their conversation was being recorded without their express permission.

The facts of this case are identical to those which this court considered in Brown v. State, 349 So.2d 1196 (Fla. 4th DCA 1977), wherein we affirmed the admission of such a tape recording. Accordingly, the judgment and sentence imposed herein are

AFFIRMED.

DOWNEY and DAUKSCH, JJ., concur.


text:
    DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, State of Florida, Appellant, v. Lee R. FLOWERS, Jr., Appellee.
    No. GG-217.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1978.
    Rehearing Denied Feb. 9, 1978.

      L. Keith Pafford, Tallahassee, for appellant.
    Jim L. Dye and Elwin R. Thrasher of Dye & Thrasher, Tallahassee, for appellee.
   PER CURIAM.

The lower court, applying estop-pel, ordered the Department to pay retirement benefits to Appellee in accordance with an incorrect estimate that the Division of Retirement’s Benefit Calculation Section had mistakenly furnished Appellee in response to his inquiries about his prospective retirement benefits. The Department contends here that the court erred in applying estoppel against the State. We reluctantly agree and reverse. The authorities are clear that estoppel cannot be raised against the State unless there are exceptional circumstances and some positive act on the part of a state officer. Gay v. Inter-County Tel. & Tel. Co., 60 So.2d 22 (Fla.1952); Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971).

REVERSED.

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


author: DOWNEY, Judge.

text:
    DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Richard S. DENMARK et al., Appellees.
    No. 77-848.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Winifred Sheridan Smallwood and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for appellant.

      Richard V. Neill, of Neill, Griffin, Jef-fries & Lloyd, Fort Pierce, for appellees.
   DOWNEY, Judge.

The Department of Transportation seeks review of an award of attorney’s fees to counsel for the condemnee arising out of an eminent domain proceeding.

The operative facts necessary to our decision are hereinafter set forth. The Department took approximately forty-one acres of appellee’s seventy-two acre tract. The litigation involved issues of value of the land taken, the amount of severance damages, and the amount of special enhancement damages, if any, to be offset against the severance damages. The Department’s only offer for the land was $432,300.00. The trial of the cases lasted approximately six days and the jury returned a verdict for $813,000.00 for the value of the land, $192,-000.00 for severance damages and found no special enhancement. Thus, the total recovery was $1,005,000.00 plus interest of $41,799.00 for a rather substantial percentage increase over the Department’s best offer. Pursuant to Sec. 73.091 (Florida Statutes 1975) the trial court determined that a reasonable attorney’s fee for the property owner’s lawyer was $175,000.00.

The evidence adduced at the hearing on attorney’s fees showed that the owner’s counsel was experienced in condemnation matters; that the issues in the case were complex; that the case was well prepared and presented; and, that the results accomplished were very satisfactory. Counsel for the owner expended approximately 310 hours on the case. An expert witness testified for the appellee that a reasonable attorney’s fee would range from $160,000.00 to $203,000.00. The Department offered no evidence to contradict that opinion satisfying itself with whatever benefits accrued to it through cross-examination of appellee’s witnesses.

This court has recently commented in detail upon the numerous factors involved in an award of attorney’s fees in eminent domain proceedings in Division of Administration, State of Florida Department of Transportation v. Denmark, 354 So.2d 100, opinion filed January 4, 1978: (From, the style of that case it is obvious that the' parcel involved sub judice was part of - the same condemnation suit.) Much of what this court said in that opinion is applicable here, and for the sake of brevity will not be repeated. Suffice it to say that we find the fee allowed in this case is too high and that it constitutes an abuse of discretion.

Counsel spent 310 hours on the case and therefore the fee allowed equals $565.00" per hour. We, of course, are cognizant of the fact that attorneys’ fees in eminent domain cases are based upon several other factors in addition to time. However, by starting with an accepted reasonable per hour rate and then considering the other factors (counsel’s experience, reputation, and ability, the complexity of the matter, the amount involved, the results accomplished, etc.), we still feel the amount awarded here is excessive. In State of Florida, Department of Transportation v. Denmark, supra, we found a fee of $340.00 per hour very high under circumstances very similar to those at bar. On the other hand, in Manatee County v. Harbor Ventures, Inc., 305 So.2d 299 (Fla.2nd DCA 1975) the court disapproved a fee of $517.00 per hour in an eminent domain case. And in a second Oolite case the Third District Court of Appeal held $439.00 per hour to be excessive. Dade County v. Oolite Rock Company, 348 So.2d 902 (Fla.3rd DCA 1977). We cite the latter case only for comparison purposes since we do not concur totally with all of the statements made therein.

Reluctant as we are to reverse the trial judge in the exercise of his discretion in awarding attorneys’ fees, we feel compelled to do so here. We simply cannot countenance an award of this amount, albeit counsel for the property owner came up with flying colors on the statutory factors used in determining a reasonable attorney’s fee.

The Department pointed out in its brief that it is not required to adduce expert testimony on the reasonable value of the service of the property owner’s attorneys; that the condemnor can rely upon cross-ex-animation of the condemnee’s experts. We don’t gainsay that proposition. However, expert testimony is adduced for the purpose of guiding the trial court in arriving at an appropriate amount and it would seem logical that under our adversary system testimony supporting the condemnor’s view of a reasonable fee would be helpful to the court. Thus, we wonder at the frequency with which we see no evidence offered on behalf of the condemnor in cases where the parties differ widely on their estimates of the value of the services rendered.

In view of the foregoing the order awarding attorney’s fees is reversed and remanded to the trial court with instructions to redetermine the amount of attorney’s fees to which appellees are entitled in accordance with this opinion.

REVERSED AND REMANDED.

CROSS and LETTS, JJ., concur.


text:
    In re the ESTATE of Jack LIEBERMAN, Deceased.
    No. 77-1155.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    Rehearing Denied March 30, 1978.
    Malcolm H. Fromberg, Jeffrey Michael Cohen, and Fredric A. Hoffman of From-berg, Fromberg & Roth, P. A., Miami, for appellants Herbert Burstein, Isaac Levine, and Leonard Ivans.
    Bernard H. Greene of Paul, Weiss, Rif-kind, Wharton & Garrison, New York City, and Robert C. Scott of Berryhill, Avery, Williams & Scott, P. A., Fort Lauderdale, for appellee Natalie Lieberman.
   ANSTEAD, Judge.

This is an appeal from an order dismissing a petition to compel partial distribution of estate assets and to remove the personal representative. At issue is the sufficiency of the allegations to support the petition.

Section 733.802 of the Florida Statutes provides that no personal representative may be compelled to make distribution of an estate’s assets unless a petition is filed stating that the assets are not required for the payment of estate taxes, debts or expenses of administration. The petition filed herein contained no allegations that the assets would not be required for the payments listed in the statute. Without such an allegation we believe the petition does not state a cause of action to compel partial distribution.

The petition also makes numerous allegations charging the appellee, Natalie Lieberman, with the wasting or maladministration of estate assets and seeking her removal as personal representative. Many of the allegations are not artfully stated or consist of conclusions of law. However, in considering the entire petition, we believe there are sufficient allegations to state a cause of action for removal under Section 733.504(5) of the Florida Statutes.

Accordingly, the order of the trial court dismissing the petition for the partial distribution of assets is affirmed; and the order dismissing the petition for the removal of the personal representative is reversed.

AFFIRMED IN PART AND REVERSED IN PART.

DOWNEY, J., and DAKAN, STEPHEN LEE, Associate Judge, concur.


author: DAUKSCH, Judge.

text:
    Richard DAVY, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-963 and 77-964.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    Rehearing Denied March 28, 1978.
    John W. Tanner, P. A., Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a denial of a hearing sought under Fla.R.Crim.P. 3.850. Appellant has alleged he was induced to enter his pleas by his court appointed attorney with the assurances that he would receive no greater sentence than two concurrent life sentences and that he “would more than likely pull no more than five years.” Appellant had been charged with robbery and murder in the first degree. He pleaded to murder two and robbery and was sentenced to two consecutive life sentences and has probably come to understand since he reached prison that his chances of serving more than five years are quite assured.

Because appellant has barely alleged improper inducements, we must remand this matter for hearing under Fla.R.Crim.P. 3.850. Cooley v. State, Fla.App., 245 So.2d 679.

Reversed and remanded.

DOWNEY, J., and BURNSTEIN, Associate Judge, concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Donald Alan MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 77-360.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Angus M. Stephens, Jr., Coral Gables, Lawrence A. Freeman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ALDERMAN, C. J., and CROSS, J., concur.

ANSTEAD, J., dissents.

ANSTEAD, Judge,

dissenting:

The appellant’s probation was revoked after he was charged with violating a condition of probation which prohibited him from operating a motor vehicle. When the appellant was placed on probation, his driver’s license was revoked and he was forbidden to drive. Subsequently, while his conviction was being appealed, he obtained a duplicate driver’s license and rented an automobile. He testified at the revocation hearing that he only obtained the duplicate license because it was required by the car rental agency and he did not drive the car himself but had others do so for him. During this time he was a patient in a private hospital. The only testimony about not driving the vehicle was a probation officer’s hearsay statement that a rental agency employee had told him that he observed the appellant driving. I do not believe that statement was sufficient to sustain a revocation of probation. Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977).


text:
    K. C. MOORE, Petitioner, v. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Respondent.
    No. 77-2083.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Rehearing Denied March 28, 1978.

      R. Stephen Miles, Jr. of Miles & Cumbie, Kissimmee, for petitioner.
    Barry S. Sinoff of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for respondent.
   ANSTEAD, Judge.

The petitioner, K. C. Moore, is here seeking to overturn an order of the Florida Construction Industry Licensing Board suspending his contractor’s license for one year.

An administrative complaint was filed alleging that Moore allowed his license to be used on a construction project while not actively participating as a contractor on the project himself. A hearing examiner conducted a trial and concluded in his recommended order and findings of fact that Moore was not guilty. The board, in an order which made no finding as to Moore’s guilt or innocence or discussed the hearing examiner’s findings, suspended his license for one year.

The law requires that an agency in its final order either accept or reject the findings of fact of the hearing officer. Section 120.57(l)(b)(9), Florida Statutes (1975). If the findings are rejected by the agency its order must state with particularity which findings are rejected and why. Harvey v. Nuzum, 345 So.2d 1106 (Fla. 1st DCA 1977).

In his findings of fact the hearing examiner stated in part:

K. C. Moore, in accordance with the contract, applied and received the building permit, provided insurance on the construction project, inspected the project, met and discussed the progress of construction with Arduengo and guaranteed all work done for a period of one year from the completion of the residence against defects and materials and workmanship.

The examiner made other findings also indicating Moore’s active participation in the construction project in question. We can find no evidence in the record contrary to the hearing examiner’s conclusion. Since the board made no findings in its suspension order and there is no evidence in conflict with the hearing examiner’s findings, we have no alternative but to set aside the suspension order as being unsupported by competent substantial evidence. Boyette v. State Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977).

Moore has also asserted on appeal that the respondent board has acted with malice or bad faith thereby entitling him to attorney’s fees and costs under Section 120.-57(l)(b)(9), Florida Statutes (1975). However, we can find no basis in the record for this assertion.

Accordingly, the petition for writ of cer-tiorari is granted and the final order of August 29, 1977 is hereby quashed with directions that an order be entered in accordance with this decision. The petitioner’s request for attorney’s fees and costs is denied.

ALDERMAN, C. J., and MOORE, J., concur.


text:
    Leo and Sylvia LEVIN and Federal Insurance Company, as subrogee of Leo and Sylvia Levin, Appellants, v. Roger HANKS, Appellee.
    No. 76-1196.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Rehearing Denied March 30, 1978.
    Fleming, O’Bryan & Fleming, Fort Laud-erdale, for appellants.
    William M. Alper of Greene & Cooper, Miami, for appellee.
   LETTS, Judge.

An insurance company plaintiff appeals the failure of the trial court to grant a new trial because of prejudicial remarks to the jury by opposing counsel. We reverse.

This case involves a high speed off shore boat race in which the defendant below, was one of the racing participants. During the race said defendant lost control of his racing boat and crashed into an anchored marker boat. The marker boat was insured by the appellant insurance company which paid off its policyholder and brought suit, as subrogee, against the boat race driver which rammed the marker boat. The jury found the boat race driver not guilty.

The insurance company was obviously properly subrogated to the rights of its insured, and this fact had been specifically admitted to in answer to requests for admissions. Notwithstanding, counsel for the defendant boat racer repeatedly sought to argue to the jury that the insurance company was in effect trying to recover for the second time because it had previously collected premiums from the boat owner. Such argument is exemplified by the following:

1. We are going to say to you and argue to you that Mr. Levin (marker boat owner) carried insurance for damage to his hull. That his hull was damaged. He filed his claim. The insurance company paid that claim. That should be the end of it, but this insurance company is now saying to Mr. Hanks (racing boat driver), oh, it was your fault.
2. So, what have you got here? You have got a rip-off, you have got an insurance company who collected premiums from this man (marker boat owner), and a lot of other people.
MR. FITZGERALD: That is improper argument. It has been conceded the insurance company has a right to bring this action, and they are entitled to a fair trial. For him to suggest that there is some reason other than what is in evidence why this company shouldn’t prevail is totally improper argument.
THE COURT: Sustained.
3. He (the marker boat owner) is the only one that got on the stand and said it is worth $80,000.00, and therefore he is damaged, and the insurance company ought to get their money back. I don’t know which way you want to call it, but I think it is a rip-off, and that is what I will call it. They got themselves a target defendant.

These arguments are clearly improper, but appellee insists that even if that be true, they do not constitute reversible error. He also argues that the remarks were addressed to the marker boat owner, not the insurance company. While that may have been his intent, it appears to us that a contrary impression was given.

Perhaps no single one of these three arguments would be in and of itself reversible, but collectively we are of the opinion that they were highly prejudicial to the insurance company. See Southeast Zayre, Inc. v. Carswell, 348 So.2d 45 (Fla. 1st DCA 1977). It is true that the first of the three was not objected to, but the second was and the objection thereto sustained. Notwithstanding, the same argument was repeated again but a few lines later and the issue preserved for review by a timely motion for a new trial.

As we said in Harrold v. Schluep, 264 So.2d 431, 435 (Fla. 4th DCA 1972):

“Closing argument is restricted to the evidence and issues presented and the inferences which can be drawn from the evidence. Westbrook v. Bacskai, Fla.App.1958, 103 So.2d 241, a personal injury case, held that counsel can not argue facts not in evidence or not warranted by the evidence.”

In the instant case, the boat racer’s counsel had conceded in the record that the right of the insurance company to sue was not in issue. He (counsel) is able and experienced and we perceive his repeated remarks to be directed to the passions and prejudices of the jury against insurance companies. This being so, the cumulative effect of the quoted remarks denied the insurance company a fair trial. Seaboard Air Line Railroad Company v. Ford, 92 So.2d 160, 165 (Fla.1957).

Notwithstanding that the foregoing is dispositive, we would comment that we do not agree with appellants other contention that the following jury instruction should have been given:

“When a vessel is moored or anchored where she is supposed to be moored and anchored, and she is struck during daylight by a moving vessel, the presumption is that the moving vessel is at fault in colliding with the anchored vessel.”

We agree that under admiralty, this is a reasonably correct statement of the law [For example, see Skidmore v. Grueninger, 506 F.2d 716, 721 (5th Cir. 1975)]; however, we do not believe it error to refuse to give such an instruction where the anchored vessel is a willing participant in a high speed ocean boat race.

REVERSED and REMANDED.

CROSS and MOORE, JJ., concur.

      . The marker boat owner was also a plaintiff below, seeking additional damages.


text:
    Lawrence RYAN, Appellant, v. MAZDA CORPORATION, etc., Beck-Arnley Corporation of Florida, etc., d/b/a Semperit South East and Dinsmore Tire Center, Inc., etc., d/b/a Dinsmore Tire Co., Appellees.
    No. 76-2531.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Rehearing Denied March 28, 1978.
    Michael J. Ryan of Ryan & Taylor, North Palm Beach, for appellant.
    Scott A. DiSalvo of Carey, Dwyer, Cole, Selwood & Bernard, Fort Lauderdale, for appellee Mazda.
   PER CURIAM.

Appellant-plaintiff, Lawrence Ryan, appeals summary final judgment entered in favor of appellee, Mazda Corporation, in an action to recover damages for personal injuries. We reverse.

Appellant-Ryan was the owner of a 1973 automobile manufactured by Mazda Corporation. On March 20, 1974, Ryan was severely injured as a result of a one-car accident when the car he was driving, without warning flipped over several times. Subsequent investigation of the accident revealed the existence of a large hole in the side wall of the left front tire on the automobile. The tire was manufactured by third-party defendant, Semperit Aktiangesellschaft, and had been recently mounted on Ryan’s automobile by defendant, Dinsmore Tire Center, Inc. The tire was not original equipment on the automobile. Neither the manufacturer, the distributor, nor the importer, Beck-Arnley Corporation, of the tire are parties to the instant appeal.

The post-accident investigation revealed that a tie rod stud on the Mazda automobile had failed. In his amended complaint, Ryan sought recovery from Mazda based upon an allegation of defective design and/or manufacture of the tie rod stud in particular, and of the automobile in general. Ryan obtained the services of an expert witness who examined the material parts of the automobile. At deposition, Ryan’s expert witness testified that in his opinion there was no evidence of any defect in manufacture of the tie rod stud.

Subsequently, Mazda moved for summary judgment which, after hearing was granted, and summary final judgment entered in favor of Mazda. This appeal then followed.

Summary judgment may properly be granted only where the moving party has successfully met his burden of proving the absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966). In considering a motion for summary judgment, the evidence and all permissible inferences drawn therefrom must be cast in a light most favorable to the non-moving party. Holl v. Talcott, supra.

In the instant case, appellant has through his pleadings raised issues as to the design of the tie rod stud and of the automobile that have not been negated. Accordingly, the summary final judgment is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

ALDERMAN, C. J., and CROSS and MOORE, JJ., concur.


text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. Francis P. WILSON, III, etc., et al., Appellees.
    No. 77-44.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 31, 1978.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard Sherman, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Greg M. Gaebe, Miami, for appellees.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   PER CURIAM.

The thrust of this appeal is the question of coverage as between two insurance policies issued to the City of Miami, one by Appalachian Insurance Company and the other by Hartford Accident & Indemnity Company. This case stems from an automobile-pedestrian accident. The appeal is by Hartford from a final judgment in favor of the City of Miami and Appalachian, on the coverage question.

The policy issued by Appalachian to the City of Miami is a “Law Enforcement Comprehensive Professional Liability Policy.” Coverage “C” of that policy, entitled “Comprehensive Liability Coverage,” provides:

“Subject to the terms, conditions and limitations hereinafter mentioned, to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of claims for . or other claims growing out of the performance of the duties of the law enforcement officers or their employees, during the current period of this policy and occurring while in the public employment and/or in the course of the assigned duties of the named insured." (Emphasis added)

The policy issued by Hartford is a standard automobile liability policy covering the police car. The bodily injury liability clause, coverage “C,” provides:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage C. bodily injury or
Coverage D. property damage
to which this insurance applies caused by an occurrence and arising out of the operation, maintenance or use, including loading and unloading of any automobile .” (Emphasis added)

The word “occurrence” is defined in the Hartford policy as

“. . .an accident, including continuous or repeated exposure to conditions, which result in bodily injury or property damage neither expected nor intended from the standpoint of the insured . . ” (Emphasis added)

The accident from which this case arose took place on a four lane street in Miami on a rainy night in October, 1974. The car in which the minor plaintiff, Wilson, was riding, had a blowout and collided with an oncoming vehicle. It then stopped in the lane closest to the center line in the direction in which it was originally headed. The vehicle which was hit came to rest in the parking lane on the other side of the street, more than two lanes away. A City of Miami police officer arrived on the scene and instructed that the car in which Wilson was riding be moved off the roadway. The officer then parked the police car behind the car on the other side of the street, leaving on the overhead blue lights and emergency flashers. At the same time, another car was proceeding in the same direction as, and approaching the car which Wilson had been riding in, and was now helping to push off the roadway according to the officer’s instructions. The driver of this third automobile, curious about the police car’s flashing lights, became distracted and struck Wilson, injuring him.

Wilson and his mother filed a complaint for damages for the injuries he sustained in the accident. There were several defendants, including the driver of the third car, the City of Miami, Appalachian and Hartford. The complaint alleged, among other things, that the City of Miami police officer was negligent in that he failed to put out safety flares; failed to use the police car as a barricade; failed to wear luminous rain gear and station himself in sight of oncoming traffic; failed to use his traffic wand to direct traffic around the disabled car; left the disabled vehicle on the roadway; failed to warn the minor plaintiff of the danger; and told the minor plaintiff to push the disabled vehicle out of the street.

Appalachian and the City of Miami settled the plaintiffs’ claim as to all defendants, reserving the right to proceed without prejudice against Hartford on the question of applicable coverage. A non-jury trial was held on the coverage issue. The trial judge ruled that the Hartford policy applied to the automobile-pedestrian accident; that the accident and resulting injuries arose out of the use and operation of the police car; and that as both insurance policies applied to the loss, Hartford would, be liable for one-half of the settlement paid by Appalachian. This appeal ensued.

Hartford contends that the accident did not arise out of the use of the police vehicle, as it was not involved in the accident, and in fact was parked in the parking lane on the opposite side of the street when the accident occurred. Appalachian cross-appeals and contends that Hartford should be responsible for the full amount of the settlement as its policy provided primary coverage, according to the “other insurance” clauses in the respective policies.

We hold that under the facts of this case, the accident did not arise in any manner, from the “operation, maintenance or use” of the police car, as required by the Hartford policy. Therefore, we find that the trial court erred in concluding that the Hartford policy applies in this situation, and we reverse. Compare National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla.3d DCA 1971); Valdes v. Smalley, 303 So.2d 342 (Fla. 3d DCA 1974); O’Dwyer v. Manchester Insurance Company, 303 So.2d 347 (Fla. 3d DCA 1974); Watson v. Watson, 326 So.2d 48 (Fla. 2d DCA 1976); Brown v. Dilworth, 331 So.2d 379 (Fla. 3d DCA 1976); Feltner v. Hartford Accident and Indemnity Company, 336 So.2d 142 (Fla. 2d DCA 1976).

As a result of our holding in this case, the cross-appeal is without merit and need not be discussed in this opinion.

Reversed.


text:
    Burnett B. YASEEN, Appellant, v. PENNSYLVANIA SECURITIES COMPANY et al., Appellees.
    No. 77-103.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 29, 1978.
    Leo Greenfield, North Miami, for appellant.
    Arky, Freed, Stearns, Watson & Greer and Allison Miller, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed based on the rule of law states in Federated Department Stores, Inc. v. Planes, 305 So.2d 248, 248-49 (Fla. 3d DCA 1974).


text:
    Evelyn M. FIORE, etc., Appellant, v. ROYAL PAINTING CO., INC., et al., Appellees.
    Nos. 77-164 and 77-178.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 29, 1978.
    Horton, Perse & Ginsberg, Arthur Roth, Miami, for appellant.
    Virgin, Whittle & Popper and Thomas J. Morgan, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. General Accident Fire and Life Assurance Corp. v. Liberty Mutual In surance Co., 260 So.2d 249, 253 (Fla. 4th DCA 1972); Kochan v. American Fire and Casualty Co., 200 So.2d 213, 220 (Fla. 2d DCA 1967).


author: HENDRY, Judge.

text:
    Rickey HUGHES, Appellant, v. The STATE of Florida, Appellee.
    No. 77-810.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 31, 1978.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant/defendant appeals his conviction and sentence for robbery and unlawful possession of a firearm during a criminal offense.

While appellant has raised three points on appeal, the only meritorious contention is as follows:

“Whether the trial court erred in restricting defense counsel in his cross-examination of the State’s key witness, thereby depriving appellant of his sixth and fourteenth amendment rights under the United States Constitution in addition to his rights under article I, section 16, of the Florida Constitution.”

We hold that the court did so err, and reverse appellant’s conviction and sentence, and remand the cause for a new trial.

Sub judice, the state’s chief witness, the victim of the robbery, had to be both arrested and jailed in order to secure his attendance as a witness. Defense counsel’s efforts to cross-examine the witness concerning his reluctance to testify was denied by the trial judge.

The Florida courts have long held that for the purpose of discrediting a witness, a wide range of cross-examination is permitted in the area of the witness’ motives, interest, and/or animus, as they relate to the cause or the parties. Nelson v. State, 99 Fla. 1032, 128 So. 1 (1930); Kirkland v. State, 185 So.2d 5 (Fla.2d DCA 1966). In disallowing inquiry into the area of the witness’ hesitancy to testify, it is our opinion that the trial judge abused his discretion and arguably deprived the jury of influential information. McDuffie v. State, 341 So.2d 840 (Fla.2d DCA 1977); Stradtman v. State, 334 So.2d 100 (Fla.3d DCA 1976).

Accordingly, appellant’s conviction and sentence are reversed and remanded for new trial.

Reversed and remanded.


text:
    Dorothy Nell DUNCAN, Appellant, v. Tommy David DUNCAN, Sr., Appellee.
    No. HH-19.
    District Court of Appeal of Florida, First District.
    Feb. 24, 1978.
    Rehearing Denied March 31, 1978.
    Robert E. Gibson, of Williams, Gibson & Harley, Tallahassee, for appellant.
    Harold E. Regan, Tallahassee, for appel-lee.
   PER CURIAM.

This is an appeal from a final judgment and an amendment to the final judgment of dissolution. The trial court originally made alimony and child support awards to appellant/wife and awarded her the exclusive use of the marital home as long as the minor children continued to live with her unmarried. Subsequently, on its own motion, the trial court awarded husband the exclusive occupancy of another house owned by the parties in Opp, Alabama, also until the minor children reached majority. Later the court granted a Petition for Clarification filed by husband which provided that wife’s half of certain certificates of deposit awarded in the final judgment be charged with one-half of a loan against them which had financed the purchase of a truck for husband during the marriage. After a hearing, the trial court found a special equity in favor of husband and reinstated its order giving him the exclusive use of the Alabama house as long as the minor children resided with wife unmarried. The court denied wife’s request for attorney’s fees. Finally, he ordered husband to pay wife an additional $1,750 to equalize the values of the vehicles awarded in the final judgment, but reinstated his order charging wife’s part of the certificates of deposit with one-half of the loan on husband’s truck. This appeal by wife ensued.

Wife contends first that the trial court erred in awarding the exclusive use of the Alabama house to husband as long as the minor children continued to live with wife unmarried. We do not agree. The record reveals that husband drew the blueprints and laid the foundation for the house himself, and personally contracted out the carpentry, bricklaying, plumbing and wiring work on it. In addition, he made numerous weekly trips from Pensacola to Alabama over a three-month period to pay the subcontractors and otherwise supervise the construction of the house. We find this significant personal contribution to be sufficient to establish a special equity in husband in the Alabama house, at least to the extent of granting him the exclusive use of that house while wife has exclusive use of the parties’ marital home. See Ball v. Ball, 335 So.2d 5 (Fla.1976).

Wife’s second point disputes the trial court’s requirement that she be responsible for one-half of the debt on the 1972 GMC pick-up truck awarded to husband. We do not find an abuse of discretion in the disposition here. The loan secured by the certificates was undertaken during the marriage; and when the certificates were divided equally upon dissolution it was completely proper for the court to split the obligation as well. In addition, the court upon the rehearing equalized the values of the vehicles awarded by requiring husband to pay a large additional sum to wife. The point is without merit.

Finally wife contends that the court erred in failing to award her attorney’s fees. Again we do not agree. Wife was awarded substantial sums of cash in the final judgment of dissolution sufficient to pay her attorney for his services in the cause. It is improper to award attorney’s fees to a party who has the ability to pay. Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977); Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977). There was no abuse of discretion.

The judgment is AFFIRMED.

McCORD, C. J., BOYER, J., and McLANE, RALPH M., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Genevieve GRAVANO, a/k/a Genevieve Bandowsky, Appellee.
    No. 76-1321.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed on the authority of Pope v. State, 268 So.2d 173 (Fla.2d DCA 1972).

BOARDMAN, C. J., and RYDER and DANAHY, JJ., concur.


text:
    Robert HAMILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-809.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    Rehearing Denied March 31, 1978.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Robert Hamilton seeks reversal of his conviction for robbery and possession of a firearm as a result of his holding up a Chicken Unlimited Restaurant.

For his single point on appeal, Hamilton argues that the court erred in permitting the prosecution to elicit evidence of a robbery of another restaurant (Chuck’s Fried Chicken) in which he was involved because such evidence served only to infer a propensity on his part to engage in criminal conduct. We cannot agree.

Evidence revealing other crimes is admissible if relevant and if it tends to show identity, common scheme or design, guilty knowledge, intent, etc. Williams v. State, 110 So.2d 654 (Fla.1959); Drayton v. State, 292 So.2d 395 (Fla. 3d DCA 1974).

The record reflects the following similarities between the two robberies: Both chicken restaurants are fast food chains located within thirty blocks of one another on the same highway. The second robbery occurred within one day of the first, and both robberies were committed by use of a firearm placed in Hamilton’s waistband. Thus, evidence of this second robbery was admissible to show a common scheme. Cf. Christie v. State, 246 So.2d 605 (Fla. 2d DCA 1971).

Moreover, even if the evidence of the second robbery was not admissible, the error would be harmless in view of the overwhelming eyewitness testimony identifying Hamilton as the perpetrator of the instant robbery. See Keel v. State, 243 So.2d 630 (Fla. 4th DCA 1971); Gordan v. State, 288 So.2d 295 (Fla. 4th DCA 1974).

Affirmed.


author: BOOTH, Judge.

text:
    PRODUCTION CREDIT ASSOCIATIONS OF FLORIDA and Federal Land Bank Associations of Florida, Petitioners, v. The DEPARTMENT OF INSURANCE of the State of Florida, the Florida Association of Insurance Agents and the Florida Farm Bureau Federation, Respondents.
    No. FF-277.
    District Court of Appeal of Florida, First District.
    March 1, 1978.
    Rehearing Denied March 30, 1978.
    J. R. Lowry, of Lowry & Ritch, Gaines-ville, Joseph C. Jacobs and Robert J. Anger-er, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioners.
    James N. McConnaughhay, of Harris, Liles, McConnaughhay & Weidner, Edward L. Kutter and E. Harper Field, of Keen, O’Kelley & Spitz, Tallahassee, for respondents.
   BOOTH, Judge.

This cause is before the Court on Petition for Review of final agency action of the Respondent, Department of Insurance, State of Florida. The order sought to be reviewed holds that employees of Petitioners, Production Credit Associations of Florida and Federal Land Bank Associations of Florida, may not be licensed as insurance agents by Respondents due to the prohibition of Florida Statute § 626.988, providing in part as follows:

“(1) For the purpose of this section the following definitions shall apply:
(a) ‘Financial institution’ means any bank, bank holding company, savings and loan association, savings and loan association holding company, or savings and loan association service corporation or any subsidiary, affiliate, or foundation of any one of the foregoing .
(2) No insurance agent or solicitor licensed by the department of insurance under the provisions of this chapter who is associated with, under contract with, retained by, owned or controlled by, to any degree, directly or indirectly, or employed by, a financial institution shall engage in insurance agency activities as an employee, officer, director, agent, or associate of a financial institution agency. . ."

Respondent correctly determined that Petitioners are financial institutions within the meaning of the above-quoted statute and that employees of Petitioners may not be licensed as insurance agents.

Insurance is an industry affected with a public interest and subject to regulation by the States. The Legislature has determined that there is potential for abuse inherent in financial institutions being involved in the sale of insurance, and that the licensing of employees of financial institutions as insurance agents is not in the public interest. No valid basis exists, either in the terms of the statute itself, or on the facts, for distinguishing Petitioners from any other lending institution in this regard.

Accordingly, Petition for Review is DENIED.

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

      . See, 12 U.S.C. §§ 2012 & 2072, setting out powers and functions of federal land banks and intermediate credit banks.

        . Springer v. Colburn, 162 So.2d 513 (Fla.1964); 18 Fla.Jur., Insurance, § 16.

      . “McCarran Act,” 15 U.S.C. §§ 1011-1015.


author: SMITH, Judge. MELVIN, Judge,

text:
    Roy Lee ST. JOHN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. GG-227.
    District Court of Appeal of Florida, First District.
    March 1, 1978.
    Rehearing Denied March 28, 1978.

      Michael J. Minerva, Public Defender, Tal-lahássee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant pleaded nolo contendere to a charge of possession of more than five grams of marijuana, reserving the right to appeal and to assert error in the trial court’s denial of appellant’s motion to suppress evidence seized in a warrantless search of his automobile. Adjudication of guilt was withheld and appellant was placed on probation for eighteen months. Appellant appeals from the trial court’s order placing him on probation. Section 924.-06(l)(b), Fla.Stat. (1975).

At the hearing on appellant’s motion to suppress, police officer E. B. Prescott testified to the following facts: On February 5, 1977, a confidential informant told Officer Prescott that appellant had five to seven pounds of marijuana in a white over blue ’63 or ’64 Chevrolet and gave the license tag number of the car, a brief description of appellant, and appellant’s address. Officer Prescott testified that he had known the informant for several years and knew him to be reliable, but did not ask how or when he had received the information.

Three to four hours later, at 12:40 a. m., Officer Prescott saw appellant sitting in an automobile in front of the address supplied by the informant. The automobile matched the informant’s description. Solely on the basis of the informant’s tip, Officer Prescott pulled up beside appellant’s ear and asked him to step out and show his identification. With appellant out of the car, Officer Prescott put his head into the automobile, through an open window or door, and smelled marijuana. He then searched the trunk, finding nothing, and the interior of the car, finding marijuana in a paper sack on the right front floorboard. Officer Prescott did not see or smell marijuana from outside the automobile. The trial judge found that the search of the car’s interior was reasonable, and denied the motion to suppress. We reverse.

As the trial judge noted, Officer Prescott had a duty to investigate the information given him by the informant, because it gave rise at least to a well-founded suspicion that appellant was committing a crime. On that basis, Officer Prescott properly detained the appellant, asked him to identify himself, and was authorized to search to the extent necessary to disclose the presence of a weapon. Section 901.151, Fla.Stat. (1975); Williams v. State, 294 So.2d 37 (Fla. 3d DCA 1974, cert. denied, 299 So.2d 602 (Fla.1974). A general search of the automobile for contraband, however, was impermissible as incident to the lawful detention. Harris v. State, 352 So.2d 1269 (Fla. 2d DCA 1977).

To escape suppression, the contraband must have been in plain view, State v. Ashby, 245 So.2d 225 (Fla.1971), or the informant’s tip must have been legally sufficient to give the police officer probable cause to believe that the automobile contained contraband, Davis v. State, 350 So.2d 834 (Fla. 2d DCA 1977). It is not a search for an officer to observe contraband in plain view, or as here, to detect the odor of marijuana from a place where he has a right to be. State v. Ashby, supra; McGowan v. State, 351 So.2d 1116 (Fla. 4th DCA 1977). In this ease, however, the police officer testified that he did not see or smell marijuana until he put his head inside the car, where the officer did not have a right to be without probable cause to believe that the automobile contained contraband.

Although the contraband was not in plain view, the warrantless search of the automobile was permissible if the trial court could verify that the informant’s tip gave rise to probable cause for the police officer to believe that the automobile contained contraband. Davis v. State, 350 So.2d 834 (Fla. 2d DCA 1977). In this case, since probable cause was based on an informant’s tip, the trial court was required to make factual findings that the informant was reliable and the information credible. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Lee, 313 So.2d 441 (Fla. 2d DCA 1975); Samuels v. State, 318 So.2d 190 (Fla. 2d DCA 1975), cert. denied, 330 So.2d 21 (Fla.1976). The trial court made no such findings and the record is inadequate with respect to the reliability of the informant.

Therefore, the order of the trial court placing appellant on probation is REVERSED and the case is REMANDED for further proceedings, which may include a hearing and determination of whether the informant was reliable and the information credible at the time the information was given.

MILLS, Acting C. J., concurs.

MELVIN, J., dissents.

MELVIN, Judge,

dissenting.

I dissent. It is my view that the informant’s tip was legally sufficient to give the officer probable cause to believe, and the officer, based thereon, did believe, that the automobile contained the contraband which he later found in a paper sack on the right front floorboard.


author: MILLS, Acting Chief Judge.

text:
    In the Interest of W. H., a minor child. Glenn and Nancy HEDSPETH, and Vernell Costa Finch, Appellants, v. L. W. and Pam ALBRITTON, Appellees.
    No. FF-94.
    District Court of Appeal of Florida, First District.
    March 7, 1978.
    Rehearing Denied April 4, 1978.

      Walter Carfora, Atlantic Beach, for appellants.
    Bruce Robinson of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appel-lees.
   MILLS, Acting Chief Judge.

Nell Finch, formerly Nell Costa, grandmother of W. H., a minor child, seeks reversal of an order removing temporary custody of W. H. from her and granting temporary custody to Mr. and Mrs. L. W. Albritton.

In November 1973, W. H., a minor child, and her three minor brothers were adjudged to be dependent children. They were placed in the temporary custody of their grandmother. At this time W. H. was eight months of age and undernourished. Although the grandmother was suffering from high blood pressure, she was required to work long and irregular hours. As a result, Mrs. Finch frequently employed babysitters to stay with W. H.

In April 1974, the Albrittons began babysitting with W. H. and spent a great deal of time with her. In June 1975, W. H. began staying full time with the Albrittons. In October, the grandmother signed the following document:

“Due to my irregular working hours and the progress this child has made during her stay with the Albrittons, I am voluntarily giving my consent for L. W. and Pam Albritton to accept full responsibility for the care and well-being of [W. H.], with me, Nell Costa, retaining custody of this child.”

In August 1976, W. H. went to visit with her grandmother, who had married and moved to Orange County, and her brothers. The grandmother decided it was to the best interest of W. H. that she remain with her rather than return to the Albrittons. In October, the Albrittons filed an amended petition seeking custody of W. H. W. H. remained in the Finch home until 16 January 1977 when she was returned to the Albrittons by court order. She remained with them until 31 January when she was returned to her grandmother with court approval. On 1 March, the order appealed was entered by the trial court.

At the hearing, it was developed that the grandmother was 46 and her husband 40. The grandmother was in good health but had past cardio-vascular problems. Her husband was employed, earning $8,500 yearly plus National Guard pay. The Finches lived in a three-bedroom trailer. The grandmother was a high school graduate and attended business college. She was active in her church. The minor brothers of W. H. live with the Finches. The Division of Family Services found the grandmother to be fit, ready, willing and able to have temporary custody of W. H. W. H. wanted to live with her grandmother.

Mr. Albritton was 21 and Mrs. Albritton was 18. They had been married for three years and had a four-month-old child. Neither had a high school education. Mr. Al-britton was employed, earning $200 a week. The Albrittons lived in a three-bedroom home owned by Mr. Albritton’s father. The Albrittons attended church. The Division of Family Services found them to be fit persons to have temporary custody of W. H.

We reverse. In determining who should be granted custody of a minor child who has been removed from his or her home, the controlling consideration is what is best for the welfare of the child. In Re the Interest of R. J. C., 300 So.2d 54 (Fla. 1st DCA 1974). But in all cases where the parents of the child are found unfit, the court should award custody of the child to a close relative, if there be one, who is fit, ready, able and willing to be awarded custody. Section 39.10(6), Florida Statutes (1975). To warrant a modification or change of a child custody order, the burden is on the movant to prove a substantial and material change in the conditions and circumstances of the parties and that the welfare of the child will be promoted by a change of custody. Avery v. Avery, 314 So.2d 198 (Fla. 1st DCA 1975). Children in a family should not be separated from each other and distributed to different homes except for the most compelling reason. Arons v. Arons, 94 So.2d 849 (Fla.1957).

Mrs. Finch is the grandmother of W. H. She had been awarded temporary custody in November 1973. In January 1977, the Division of Family Services found Mrs. Finch to be fit, ready, willing and able to be granted custody of her granddaughter. The record before the trial court supports the Division’s finding. Mrs. Finch has custody of W. H.’s two minor brothers. By granting her custody of W. H., the brothers and sister will be raised together. The record fails to show a substantial and material change in circumstances between November 1973 and January 1977 that would permit a change of custody of W. H. from her grandmother to the Albrittons. In fact, the record shows that the conditions pertaining to the grandmother became better between November 1973 and January 1977. Under the facts of this case, the granting of custody to the grandmother would be best for the welfare of W. H.

In all fairness to the Albrittons, the record reflects that they are fit persons to have custody of W. H. but because of the above reasons cannot be awarded custody of her. They are to be commended, for the love and care they have bestowed upon W. H. We are sure that their efforts have not been in vain because they helped another human being when help was needed.

The order appealed is reversed and this case is remanded with instructions to enter an order granting custody of W. H. to her grandmother, Mrs. Finch.

SMITH and ERVIN, JJ., concur.


author: SMITH, Acting Chief Judge.

text:
    Robert SILVERTHORNE et al., Appellants, v. CITY OF PORT ORANGE, Florida et al., Appellees.
    No. GG-356.
    District Court of Appeal of Florida, First District.
    March 7, 1978.
    Rehearing Denied April 4, 1978.

      S. LaRue Williams and Thomas S. Hart of Kinsey, Vincent, Pyle & Williams, Dayto-na Beach, for appellants.
    Wayne L. Hogeboom of Becks & Becks, Daytona Beach, for appellees.
   SMITH, Acting Chief Judge.

Plaintiffs appeal from a final judgment dismissing their complaint for a declaration of the invalidity of an annexation ordinance adopted by the City of Port Orange. The ordinance was adopted pursuant to Section 171.044, Florida Statutes (1975), authorizing municipalities to annex contiguous property upon the voluntary petition of the owners. These plaintiffs were among the petitioners for annexation. The trial court held:

By virtue of Plaintiffs having initiated the adoption of Ordinance 1-30 by joining in the petition for voluntary annexation and by virtue of Plaintiffs’ failure to object to the passage of said ordinance at public hearings concerning said ordinance, and in light of the fact that the City of Port Orange and all petitioners other than Plaintiffs would be unduly prejudiced by Plaintiffs’ failure to object prior to the passage of the ordinance. Plaintiffs are estopped to contest the validity of said ordinance on the alleged grounds of injury to the Plaintiffs.

The judgment is supported by substantial competent evidence received in the non-jury trial. Estoppel may defeat a landowner’s attack on an annexation ordinance. State ex rel. Landis v. City of Coral Gables, 120 Fla. 492, 163 So. 308 (1935); Malley v. Clay County Zoning Comm’n, 225 So.2d 555 (Fla. 1st DCA 1969); MacKinlay v. City of Stuart, 321 So.2d 620 (Fla. 4th DCA 1975); 2 E. McQuillin, Municipal Corporations § 7.42 (3d ed. 1966). No error appears in the trial court’s application of estoppel principles to the facts in this case. No question was raised in this case concerning the propriety of plaintiffs’ choice of remedy in the circuit court. See § 171.081, Fla.Stat. (1975); State ex rel. City of Casselberry v. Mager, 356 So.2d 267, (1978).

AFFIRMED.

ERVIN and BOOTH, JJ., concur.


text:
    Maria Josefa JIMENEZ, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    No. 76-1968.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Rehearing Denied April 7, 1978.
    McCain & Browd, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Bruce M. Stanley, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Griffin v. Stonewell Ins. Co., 346 So.2d 97 (Fla. 3d DCA 1977).


author: PEARSON, Judge.

text:
    Frieda EDELSTEIN and William Edelstein, her husband, Appellants, v. Harry ROSKIN and Federal Insurance Company, Appellees.
    No. 77-161.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Rehearing Denied April 7, 1978.
    Grover, Ciment, Weinstein & Stauber, Miami Beach, for appellants.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

The controlling question on this appeal is whether the trial judge committed reversible error when he failed to answer a question presented to him by the jury during its deliberation.

This case involves an automobile accident which occurred at the intersection of Northeast 19th Avenue and Northeast 185th Street, North Miami Beach, Florida, when an automobile being driven by plaintiff-appellant, Frieda Edelstein, collided with an automobile being operated by defendant-appellee, Harry Roskin. As a result of the accident, plaintiff Frieda Edelstein filed a personal injury action against Harry Ros-kin, his insurer, Federal Insurance Company, Inc., and the owner of the car, H. Ros-kin Motor Service, Inc. The case was tried before a jury.

During the voir dire, plaintiffs’ attorney asked the jurors whether any of them lived near the intersection where the accident occurred or whether any of the jurors were familiar with the intersection. One of the jurors, Mr. Stone, stated that he was familiar with the intersection and that he lived eight miles west of it. Plaintiff then asked the jurors whether anybody else was familiar with the intersection. The rest of the jurors said no. No further questions were asked by plaintiffs’ counsel concerning the juror’s familiarity with the intersection, but plaintiff’s counsel did ask whether all of the members of the jury would abide by the court’s instruction to decide the case upon the evidence presented. Counsel did not use any of his peremptory challenges, nor was Mr. Stone challenged for cause.

During their deliberations, the jury requested the court to answer a question, as follows:

“ . . . if a juror is familiar with the intersection in question, can he tell other jurors his views with respect to the visibility and structures at the intersection?”

In reply to the question, the court instructed the jury:

“I’m going to answer that question in this way. This accident took place in the complaint, February 24th, 1973.
“I have previously charged this jury with the facts that you as a jury shall consider all of the evidence in the light of all of the evidence, and in light of your experience and common sense, your own experience and common sense.
“If you as a jury should become a deadlocked jury, I would read you this charge.
“Members of the jury, it is your duty to agree upon a verdict, if you can do so without violating conscientiously held convictions that are based on the evidence.
“No juror, from mere pride of opinion hastily formed or expressed, should refuse to agree.
“Yet, no juror, simply for the purpose of terminating the ease, should acquiesce in a conclusion that is contrary to his own conscientiously held view of the evidence.
“You should listen to each other’s views, talk over your differences of opinion in a spirit of fairness and candor, and if possible, resolve your differences and come to a common conclusion, so that a verdict may be reached and this case may be disposed of.
“If that satisfies your question, you can be excused.”

The jury rendered its verdict finding that there was no negligence on the part of the defendant.

Plaintiffs filed a motion to interview jurors and a motion for new trial, which were denied. This appeal followed.

There is no doubt that in evaluating the evidence, the jury should confine its considerations to the facts in evidence as weighed and interpreted in the light of common knowledge. Jurors must not act on special or independent facts which were not received in evidence. Russ v. State, 95 So.2d 594 (Fla.1957). It is equally true that it is not necessary for a juror to have no knowledge other than that which he receives in the courtroom. See Marshall v. State, 54 Fla. 66, 44 So. 742 (1907). Cf. Florida Standard Jury Instructions No. 2.2.

The question asked of the trial judge in this case was not whether the juror who had a certain familiarity with the scene of the accident would be required to disabuse his mind of all such knowledge. The question particularly asked was whether a juror might become a witness in the jury room. It was the duty of the trial judge to answer this question in the negative and, in so doing, he could properly have reread the Florida Standard Jury Instruction No. 2.2, above referred to.

Reversed and remanded with directions to grant the plaintiffs’ motion for a new trial.


author: KEHOE, Judge.

text:
    Louis RABIN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-251.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.

      Kogen & Kogan and Alan S. Ross, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction and sentence entered by the trial court pursuant to a jury verdict for grand larceny and attempted grand larceny. We have reviewed all of the points raised by appellant on appeal and find them to be without merit. Therefore, the judgment of conviction and sentence appealed are affirmed. See Johnson v. State, 225 So.2d 440 (Fla. 1st DCA 1969); and Zide v. State, 225 So.2d 349 (Fla. 1st DCA 1969).

We note that the criminal charges against appellant arose under Section 811.-021, Florida Statutes (1973). Appellant, in one of his points on appeal, contends that the trial court erred by not giving the jury instructions which he requested in regard to these charges; instead, it gave the Florida Standard Jury Instructions in Criminal Cases § 2.06. Although, as the Florida Supreme Court stated in State v. Bryan, 287 So.2d 73, 75 (Fla.1973), it was not intended that Florida Standard Jury Instructions in Criminal Cases be “iron clad,” they may be used by the trial judges of this State in charging the jury in criminal cases, unless the trial judge determines that the instructions are erroneous or inadequate under the circumstances of a particular case. Also see Frazier v. State, 294 So.2d 691 (Fla. 1st DCA 1974). In the instant case, appellant urged the trial court to employ certain instructions based upon the principles espoused in Ex parte Stirrup, 155 Fla. 173, 19 So.2d 712 (1944). However, in that case the defendant was charged with a crime under Section 817.01, Florida Statutes (1941). Further, that Section has now been held to be repealed by Section 811.021, Florida Statutes (1973), under which appellant was charged here. Anglin v. Mayo, 88 So.2d 918 (Fla.1956); and see Thomas v. State, 216 So.2d 780 (Fla. 3d DCA 1968). Section 811.-021 is a comprehensive revision of Section 817.01, as well as other pre-existing statutes. As such, Section 811.021 now clearly sets forth the elements necessary for its offense. We have carefully reviewed the disputed instructions given in the instant case, i. e. the Florida Standard Jury Instructions in Criminal Cases § 2.06, and have concluded that the subject matter with which they were concerned, i. e., Section 811.021, Florida Statutes (1973), as charged against appellant under the circumstances of this case, was sufficiently and properly covered. See State v. Bryan, 287 So.2d 73 (Fla.1973). Because appellant has failed to show any inadequacy of the instructions actually given, we are of the opinion that his contentions in regard to this point on appeal are without merit. See, e. g., Askew v. State, 118 So.2d 219 (Fla.1960); Cruz v. State, 310 So.2d 360 (Fla. 3d DCA 1975); and Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971). Likewise, each of the other points raised by appellant are without merit and require no discussion. Therefore, the judgment and sentence appealed are affirmed.


author: BOYER, Judge.

text:
    Thomas R. “Blue” FULFORD et al., Appellants, v. Reubin O’D. ASKEW, Governor, et al., Appellees.
    No. FF-49.
    District Court of Appeal of Florida, First District.
    March 8, 1978.
    Rehearing Denied April 4, 1978.

      Daniel S. Dearing, Tallahassee, for appellants.
    Robert L. Shevin, Atty. Gen., Tom Beenck, Asst. Atty. Gen., Ernest Marshall, Bradenton, and Stephen B. Calvert, Stuart, for appellees.
   BOYER, Judge.

This appeal is from a final judgment entered by the trial court in an action brought by several individual fishermen and the Organized Fishermen of Florida against the Governor and Cabinet, as head of the Department of Natural Resources and various lower level administrators of the Department of Natural Resources, the Division of Marine Resources and the Marine Patrol, by which action the complainants attacked the constitutionality of 102 local acts or special acts of the legislature, seeking declaratory and injunctive relief. The challenged acts are, with the exception of Chapter 370, F.S., local laws or special acts of county-wide application, which purport to regulate the type, size and use of fishing nets and the regulation of certain fishing areas, all within the three-mile limit along the Atlantic coast and in the Florida Keys and out to 10.6 miles in the Gulf of Mexico. The primary thrust of plaintiffs’ attack is that such local acts constitute an unreasonable interference with interstate commerce and that they are an unconstitutional exercise of police power. The learned trial judge, noting that acts of the legislature are presumed constitutional, held that the plaintiffs had failed to carry their burden of proving to the contrary.

Careful reading of the final judgment reveals that the trial court did not pass directly upon the validity of the subject statutes, but only held that the plaintiffs had failed to meet their burden of proving them to be unconstitutional. Accordingly this court, and not the Supreme Court, has jurisdiction (Fla.App.Rules 2.1(5)(a) and 2.2(a)(4) and Art. V, Sec. 5(3), Constitution of Florida).

It is axiomatic that legislative acts are presumed valid and that the burden is upon the party who assails an act to prove invalidity. Sub judice 102 acts were assaulted. A reading of the record reveals that most of the plaintiffs’ (appellants here) evidence was directed toward the acts in mass although it is apparent that some of that evidence could not have applied to some of the specific acts under attack. The burden was upon the plaintiffs to establish the invalidity of each act separately. Accordingly, we agree with the finding of the trial judge that the plaintiffs failed to meet their burden of proof. We do not construe the final judgment here appealed to be a holding that the subject acts are constitutional and that the final judgment is therefore res adjudicata to any further attack upon their validity.

In summary, we affirm that the plaintiffs failed to meet their burden of proof as to each individual act assailed.

AFFIRMED.

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


text:
    Ruth B. YOUNG, Appellant, v. Barbara SHELTON, Appellee.
    No. GG-131.
    District Court of Appeal of Florida, First District.
    March 8, 1978.
    Rehearing Denied March 28, 1978.
    Sidney E. Lewis of Goldman, Presser, Lewis & Nussbaum, Jacksonville, for appellant.
    Delbridge L. Gibbs of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellee.
   BOYER, Judge.

Appellant obtained a judgment against appellee in the State of California and then filed a complaint in the Circuit Court of Duval County, Florida seeking to enforce the California judgment. Appellee asserted invalidity of the California judgment because of lack of in personam jurisdiction. Both parties moved for summary judgment. The learned trial judge entered summary final judgment in favor of appellee, finding that she did not have sufficient minimal contact with the State of California to render her amenable to in personam jurisdiction in that state and that the exercise of such jurisdiction over appellee by the State of California was in contravention of the Fourteenth Amendment of the Constitution of the United States.

The real issue here, and the only material issue, is whether there were such minimal contacts by appellee with the State of California as to meet federal constitution standards. Unquestionably we, in the State of Florida, must lend full faith and credit to a valid judgment rendered in a sister state: However, validity requires not only compliance with the law of the rendering state but also with the requirements of the Constitution of the United States. A party may not require a state (in this instance, Florida) to pay heed to the Full Faith and Credit Clause of the United States Constitution while denying the right and duty of that state to require heed to another clause in the same constitution. There were not sufficient contacts between appellee and the State of California to allow that state to assert in personam jurisdiction over her.

AFFIRMED.

McCORD, C. J., and MELVIN, J., concur.


text:
    J. A. JONES CONSTRUCTION COMPANY, Electric Machinery, Inc., and Honeywell, Inc., Petitioners, v. DEPARTMENT OF GENERAL SERVICES, an agency of the State of Florida, Respondent.
    No. GG-286.
    District Court of Appeal of Florida, First District.
    March 8, 1978.
    Rehearing Denied April 5, 1978.
    Robert R. Feagin, Jr., of Holland & Knight, Lakeland, William J. Terry, Tampa, Woodie A. Liles, Tallahassee, and Patrick G. Emmanuel of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for petitioners.
    Robert L. Shevin, Atty. Gen., Bernard S. McLendon, Asst. Atty. Gen., and Thomas R. Brown, for respondent.
   PER CURIAM.

Petitioners are contractors and suppliers for the new capitol construction project. They interpret their construction contract specifications as requiring they receive additional payment for work done by them on the capitol building security system. Schedule 16707 of that contract details the sophisticated security system to be used in the capitol. Petitioners, however, argue alternate bid number seven, which was rejected by the state, contemplated that additional work be done for the building monitoring system for both fire and security. The petitioners contended, and the hearing officer in the Section 120.57 hearing agreed, subsection (c) of the alternate bid was ambiguous and should be interpreted so as to exclude items in the building security subsystem found in schedule 16707, such ambiguity being construed against the drafter of the contract, the state. The Governor and Cabinet, sitting as agency head, rejected the recommended order of the hearing officer.

The final order held, and we agree, alternate bid number seven is not ambiguous; the petitioners were unreasonable in interpreting that clause to exclude any work item described in schedule 16707, and additional compensation should not be paid for the work in dispute. The agency head’s interpretation of the contract, being one of law and not of fact, did not reject or modify the findings of fact of the hearing officer. A review of the complete record was not necessary, nor need the final order of the reviewing agency state that the findings of fact in the recommended order were not based upon competent substantial evidence, or that the proceedings did not comply with the essential requirements of law, as required by Section 120.57(l)(b)9, Florida Statutes (Supp.1976). Cf. McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The petition for review is

DENIED.

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


author: RYDER, Judge.

text:
    Michael MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1454.
    District Court of Appeal of Florida, Second District.
    March 8, 1978.
    Rehearing Denied April 3, 1978.
    Jack 0. Johnson, Public Defender and Paul J. Martin, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant’s sole assignment of error is that the trial court erred in denying his motion for a new trial. However, he has failed to provide this court with a transcript of the hearing on that motion. Consequently, since we must presume that a trial court’s order is correct unless the record otherwise demonstrates, we affirm appellant’s conviction. Abascal v. State, 345 So.2d 397 (Fla. 3d DCA 1977); Savage v. State, 156 So.2d 566 (Fla. 1st DCA 1963).

BOARDMAN, C. J., and DANAHY, J., concur.


text:
    Joseph BELGHAUS, Appellant, v. Mary Ann POLCAR, Appellee.
    No. 77-1704.
    District Court of Appeal of Florida, Second District.
    March 8, 1978.
    Mark I. Shames of Shames & Greenstein, St. Petersburg, for appellant.
    W. Furman Betts, Jr., Madeira Beach, and John N. Samaha, St. Petersburg, for appellee.
   PER CURIAM.

Appellant, Joseph Belghaus, appeals a final summary judgment in favor of appellee, Mary Ann Polcar.

After review of the record, including the complaint, deposition, exhibits, and affidavits filed in this case, we find a genuine issue of material fact to exist with respect to whether appellant has a claim for an equitable lien on the real property owned by appellee. See Wagner v. Roberts, 320 So.2d 408 (Fla. 2d DCA 1975). The movant has failed to conclusively resolve this question in his favor since it appears that there are reasonable inferences which may be drawn in favor of the nonmoving party. Consequently, the trial court erred in granting appellee’s motion for summary judgment. Florida Power Corp. v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976); Fla.R.Civ.P. 1.510(c).

Accordingly, the final summary judgment is reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

BOARDMAN, C. J., and RYDER and DANAHY, JJ., concur.


author: OTT, Judge.

text:
    Donald Gene MEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1768.
    District Court of Appeal of Florida, Second District.
    March 8, 1978.
    Rehearing Denied April 5, 1978.
    Jack 0. Johnson, Public Defender, and Susan G. Sexton, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

This is an appeal from the denial of a motion to suppress evidence. We agree with appellant that the seizure of marijuana from his person was illegal and reverse.

At the hearing on the motion, Officer Byrd testified that at about 10:45 one evening he and another officer spotted appellant and two companions standing in the middle of a dark alley in the business district of Frostproof. The officers stopped the two and following standard procedure frisked them.

As Officer Byrd patted appellant’s pockets he felt a lump approximately five inches long by three inches wide. Thereupon, he reached into appellant’s pocket and pulled out a plastic bag of marijuana. He testified that he never thought the lump was a weapon but that he believed it was a plastic bag which probably contained marijuana.

After hearing the officer’s testimony and argument of counsel, the trial court denied the motion to suppress the bag of marijuana. We believe he erred in so doing. While we have some question about the right of the officers to stop appellant in the first place, we will assume for the purposes of this opinion that the stop was proper because there is another more compelling reason for finding the seizure to be improper.

Section 901.151, Florida Statutes (1975) is based on the holding in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and lays out the procedure by which police officers may stop and frisk people suspected of wrongdoing. Under that statute, if the officer has properly stopped someone and believes that the person may be armed with a dangerous weapon, “he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon.”

Our reading of the Terry decision and cases from other jurisdictions which have interpreted Terry leads us to believe that the language we have quoted means that an officer in a stop and frisk situation may not extend his search beyond a pat down of a suspect’s outer clothing unless that pat down or other circumstances leads the officer to conclude that the suspect has a weapon on his person. State v. Handspike, 142 Ga.App. 104, 235 S.E.2d 568 (1977); People v. Collins, 1 Cal.3d 658, 83 Cal.Rptr. 179, 463 P.2d 403 (1970); People v. Mosher, 1 Cal.3d 379, 82 Cal.Rptr. 379, 461 P.2d 659 (1969). Clearly then, since Officer Byrd knew the lump in appellant’s pocket was not a weapon he could not legally reach into the pocket and pull out the plastic bag.

In view of what we have said we vacate the judgment and order placing appellant on probation, and reverse the order denying appellant’s motion to suppress and remand the case for proceedings consistent with this opinion.

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


text:
    Lawrence WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1313.
    District Court of Appeal of Florida, Second District.
    March 10, 1978.

      Jack 0. Johnson, Public Defender, David S. Bergdoll, Asst. Public Defender and Susan G. Sexton, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Lawrence Williams appeals his conviction and sentence for sale of heroin, contending that the trial court improperly refused his request for a jury instruction on entrapment. We agree and reverse.

The State’s evidence revealed that an undercover detective went to appellant’s home and asked appellant if he could supply the undercover detective with a $100.00 “piece.” Appellant replied, “No way, man.” The detective pressed appellant further, however, with a request for purchase of ten “dime bags.” The subject matter of each request, although understandably in the vernacular, referred to heroin. The undercover agent asked appellant to purchase the heroin for him three times before appellant acceded to the officer’s entreaties. The officer testified that all through the period in which he made overtures to appellant, the officer was rubbing his arms and squirming, such conduct was represented as that which an addict might display as the effects of heroin wear off.

The -undercover officer also related he promised appellant a portion of the heroin if he would buy the heroin and deliver same to the officer.

The appellant, thereafter, left his home, purchased heroin for the officer, returned home, kept one bag for himself, and returned some of the officer’s money to the detective as he had not been able to buy as much heroin as requested.

After the close of the State’s case, appellant took the stand and testified in his own behalf. He admitted purchasing the heroin for the officer. He admitted delivering the heroin to the officer and keeping a bag for himself. But, he contended he consented to make the purchase only because he was told, and from the officer’s actions believed, the detective was sick and in need of a fix.

Thus, in admitting the commission of the act charged and as appellant was clearly proceeding on an entrapment theory of defense, the issue of whether he was, in reality, entrapped was a jury question. See Smith v. State, 320 So.2d 420 (Fla.2d DCA 1975), cert. denied, 334 So.2d 608 (Fla.1976). A defendant is entitled to have the jury instructed on the law applicable to his theory of defense if there is any evidence introduced to support the instruction. Laythe v. State, 330 So.2d 113 (Fla.3d DCA 1976), cert. denied, 339 So.2d 1172 (Fla.1976).

We hasten to note that we are fully aware of the problems confronting law enforcement agencies, especially in this area, and the reader should in no way interpret this opinion as holding that this officer’s activity did, in fact, amount to entrapment. However, it does appear from the record that there is evidence to support appellant’s defense of entrapment and therefore, it is a question for the jury to decide. Accordingly, appellant’s conviction and sentence are reversed and the cause is remanded for a new trial.

We find no reversible error in any of the other points raised by appellant.

REVERSED and REMANDED.

BOARDMAN, C. J., and DANAHY, J., concur.


text:
    Thomas BLOUNT, Appellant, v. STATE of Florida, Appellee.
    No. 77-1878.
    District Court of Appeal of Florida, Second District.
    March 10, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephannie L. Da Costa, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen. Tampa, for appellee.
   PER CURIAM.

The judgment and sentence appealed is affirmed, but this case is remanded for correction of the form of the judgment. The present judgment recites that appellant entered a plea of guilty to the offense charged, when he was actually tried and found guilty as charged. Appellant need not be present for this purpose.

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


text:
    Robert R. McMILLON, Appellant, v. STATE of Florida, Appellee.
    Nos. CC-188, DD-382 and EE-399.
    District Court of Appeal of Florida, First District.
    March 13, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Jeanne Dawes Schartz and Michael H. Davidson, . Asst. Attys. Gen., for appellee.
   PER CURIAM.

By the route of a “Hollingshead appeal”, we review the judgment and sentence imposed upon the appellant-defendant for the crime of burglary of a structure, such judgment and sentence being based upon a jury verdict.

The only point that merits discussion is the failure of the trial court to grant defendant credit for the 192 days he was detained in jail awaiting trial. The State concedes that the defendant is entitled to such credit and such is the law.

The judgment appealed from is affirmed and the cause is remanded to the trial court for the purpose of entering a sentence correction granting credit for the 192 days referred to. It will not be necessary for the defendant to be present upon the entry of such sentence correction.

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


author: MILLS, Judge.

text:
    W. J. W., a juvenile, Appellant, v. STATE of Florida, Appellee.
    No. FF-35.
    District Court of Appeal of Florida, First District.
    March 13, 1978.

      Michael J. Minerva, Public Defender, Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

W. J. W., a 14-year-old juvenile, was charged with being a delinquent because he was upon a street, alley, park or other public place, between the hours of 11:00 P.M. and 5:00 A.M., not being accompanied by his parent or guardian, contrary to Pensacola Code 122.14. He moved to dismiss the charge on the ground that the ordinance was unconstitutional. The court denied the motion and W. J. W. pled nolo contendere reserving the right to appeal the denial of his motion. The court withheld adjudication and committed W. J. W. to Youth Services. W. J. W. appeals. The sole issue raised by this appeal is whether Pensacola Code 122.14 is constitutional.

The curfew ordinance provides:

“§ 122.14. Curfew for minors.
During the nighttime between the hours of 11:00 p. m. and 5:00 a. m. of the next succeeding day, in each and every day of the year, no child under the age of sixteen (16), unless accompanied by his parent or guardian, shall be in or upon any street, alley, park or other public place or shall attend any public entertainment or amusement. All children under the age of sixteen (16) regularly employed in a gainful occupation shall be exempt from the provisions of this section upon the production of credentials satisfactorily, in the opinion of the chief of police of the city, certifying to the employment of such minor child, provided such employment is in conformity with the laws of the state relating to the employment of children. It shall be unlawful for the parent or guardian of any child under the age of sixteen (16) years to allow or negligently suffer such child to violate any provisions of this section.”

The obvious purpose of the ordinance is to control the activities of children under the age of sixteen during the late hours of the night. But to accomplish this purpose the ordinance prohibits children under the age of sixteen from participating in school, recreational and church activities, to name a few, because in going to or coming from the activities, the child would be upon a street, alley, park or other public place. The ordinance would make many activities unlawful which otherwise would be lawful. The general right of every person to engage in lawful activity, while subject to reasonable restriction, cannot be completely taken away under the guise of police regulation. An ordinance to the contrary is an arbitrary invasion of the inherent personal liberties of all citizens. Thus, since it cannot be said that prohibition against the mere presence of a child under the age of sixteen on a street or park or other public place between 11:00 P.M. and 5:00 A.M. for a purpose other than required by his occupation or unless accompanied by his parent or guardian has any real relationship to the primary purpose of the statute, it therefore constitutes an invasion of personal rights and liberties and for that reason is unconstitutional. Alves v. Justice Court of Chico Judicial District, 148 Cal.App.2d 419, 306 P.2d 601 (Cal.3d DCA 1957).

Restraining children under the age of sixteen years from freely walking upon the streets or other public places when no emergency exists is incompatible with the freedoms of speech, association, peaceful assembly and religion secured to all citizens of Florida by Article I of the Florida Constitution. People v. Chambers, 32 Ill.App.3d 444, 335 N.E.2d 612 (Ill.2d DAC 1975). The ordinance before us fails to mention an emergency situation nor does the record show such a situation.

We hold Pensacola Code 122.14 to be unconstitutional. The courts in the Alves and Chambers cases held almost identical ordinances to be unconstitutional. See also Ex Parte McCarver, 39 Tex.Cr.R. 448, 46 S.W. 936 (Tex.Crim.1898).

The order of adjudication disposition is reversed because it is based on an unconstitutional ordinance.

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


text:
    Herbert FEINMAN, Appellant, v. The CITY OF JACKSONVILLE, etc., Appellee.
    No. GG-300.
    District Court of Appeal of Florida, First District.
    March 13, 1978.

      Richard E. Gentry, Jacksonville, for appellant.
    John R. Saalfield, Jacksonville, for appel-lee.
   BOYER, Judge.

Appellant, plaintiff in the trial court, seeks review of a summary final judgment entered in favor of the defendant, appellee here.

The record on appeal contains a complaint, an answer, an order setting the ease for trial, a motion for leave to file an amended answer, an order granting the latter motion, an order amending the answer, a motion for summary final judgment and the summary final judgment here appealed. None of the foregoing are under oath. Fla. App. Rule 3.6 1. provides that:

“Unless the record shows to the contrary, it shall be presumed, upon appellate proceedings, that the record transmitted to the Court contains all proceedings in the lower court material to the points presented for decision in the Court.”

We must presume therefore that the record before us is complete.

Plaintiffs complaint alleged that the defendant city negligently maintained a roadway permitting a dangerous condition to exist in that a palm tree was located in the middle of the roadway without markings, signs, lights or notice. Plaintiff alleged that he was injured when he struck the palm tree while operating his automobile. The defendant filed no motion to dismiss but instead filed an answer denying negligence and alleging contributory negligence. An order was entered setting the ease for trial. Eleven days prior to the scheduled trial the defendant City filed a motion for permission to amend its answer to include the affirmative defense of sovereign immunity. The trial court struck the case from the trial calendar and permitted the amended answer. Both briefs allege, though the record does not reveal, that the trial judge directed the filing of a motion for summary judgment. In any event such a motion was filed and was granted. The briefs both argue that the basis of the summary judgment was sovereign immunity which the defendant alleges to be jurisdictional. There is, however, no stipulation to that effect and the record is silent.

Appellant’s first point is that the trial judge erred in permitting amendment of the answer to allege the defense of sovereign immunity. A trial judge has a very broad discretion with reference to permitting amendments to pleadings. The case was removed from the trial calendar and the plaintiff was afforded time to further plead had he so desired. Plaintiff was neither surprised nor prejudiced. We affirm on that point.

Appellant’s second point relates to propriety of the summary judgment. As above recited, none of the pleadings were under oath. Under that circumstance the allegations of the complaint have as much efficacy as the allegations of the answer. Fla.Civ.Proc. Rule 1.510(c) provides, in material part:

“ * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * ”

The judgment here reviewed is not a judgment on the pleadings nor a final order of dismissal in response to a motion to dismiss. There is a difference. (Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla. 1st DCA 1975)) Neither does it appear that the learned trial judge considered the effect, if any, of F.S. 768.28, which became effective on January 1, 1975, long before the date of the subject accident as alleged in the complaint. The law applicable to entry summary judgments has been recited by this court on numerous occasions, and no useful purpose will be accomplished by repetition here. (See, for example, Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975), cert. dism. 336 So.2d 105 (Fla.1976); Graff v. McNeil, 322 So.2d 40 (Fla. 1st DCA 1975), and cases therein cited.)

Whether or not appellant has a valid claim or whether appellee has a valid defense we do not here determine: Nor do we determine whether or not a summary final judgment may ultimately be properly entered. We do find, however, that the summary final judgment here appealed was prematurely entered on a record inadequate to support its entry.

Reversed and remanded for further proceedings consistent herewith.

McCORD, C. J., and McLANE, RALPH, M., Associate Judge, concur.