text:
    Larry HARVEY v. STATE.
    4 Div. 505.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Louis C. Rutland, Union Springs, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

Omitting the formal portions, the indictment in the case reads as follows:

“. . . Larry Harvey, whose name is to the Grand Jury otherwise unknown, unlawfully, and with malice aforethought, killed Joseph Singleton, by shooting him with a gun or pistol

From the evidence presented, which included a properly admitted voluntary confession by the appellant, the jury could reasonably believe the following: that the appellant and three other men robbed Joseph Singleton; that during the perpetration of the robbery one of the appellant’s companions shot Joseph Singleton; and that as a result of being shot, Joseph Singleton died. The State’s evidence presented an overwhelming case of first degree murder under the second class of Title 14, § 314, Code of Alabama 1940 as supplemented by the accomplice statute, Title 14, § 14.

I

The appellant contends that there is a fatal variance between the indictment and the proof adduced at trial. We do not agree. The first time that this alleged variance was mentioned was in a motion to exclude the State’s evidence which was made after the appellant had rested his case.

The preferable form of indictment for the second class of Title 14, § 314, supra, (felony-murder) would be to set out a brief, concise statement of the facts and elements constituting the offense. However, the appellate courts of Alabama have consistently held that an indictment sufficiently charges murder in the first degree if it follows the Code form, set out in Title 15, § 259(79). Jones v. State, 21 Ala.App. 234, 109 So. 189 (1926). Form 79, supra, has been used and approved in past felony-murder cases. King v. State, 49 Ala.App. 111, 269 So.2d 130 (1972). We have not been cited a case, nor have we found a case, which stands for the proposition that there is a fatal variance between an indictment following the language of § 259(79), supra, and proof of felony-murder. We find that no fatal variance exists here. Therefore, we need not consider the method and the timing of the objection to the alleged variance.

II

The appellant challenged several jurors for cause, and the challenges were denied by the trial judge. The appellant now contends the trial judge erred to reversal in not allowing the challenges.

Under the skillful questioning of appellant’s counsel, a few of the jurors exhibited a seemingly shallow knowledge of the presumption of innocence and of the appellant’s right to not be a witness against himself. The trial court was quick to point out to the prospective jurors that their knowledge of constitutional law was lacking. He also explained the presumptions and rights which were in the appellant’s favor. The jurors then said that they understood and would follow the trial judge’s instructions regarding the appellant’s constitutional rights. We conclude that the trial judge gave proper instructions to the jury and thus averted any error. Aaron v. State, 273 Ala. 337, 139 So.2d 309, cert. denied 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82 (1962).

Ill

The appellant’s final contention is that the trial judge erred in refusing four requested jury charges. The refused written charges were either affirmative in nature, incorrect statements of applicable law, argumentative under the evidence, confusing, or were fairly and substantially covered in the oral charge. We find that the trial judge committed no error in refusing the four charges. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353 (1974).

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    John LAWRENCE v. STATE.
    6 Div. 254.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.

      Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

No contention is made, and we think no reasonable contention can be made, that the evidence was not sufficient to support the conviction of appellant for murder in the first degree. We limit our discussion of the facts to that part of the evidence that should be considered in connection with the questions raised or presented on this appeal.

Defendant killed his sister’s husband by shooting him at close range with a single barrel shotgun. The pellets and wadding of the shell penetrated the victim’s chest. Defendant had been living at the home of the victim and his wife for some time. At times there was harmony; at other times, there was wrangling between the brothers-in-law. While the wife was away on a Sunday morning in a city in an adjacent county to launder family clothing and household laundry, the brothers-in-law indulged freely in drinking intoxicating liquor. About noon that day, while under the influence to some extent at least of intoxicating drink, the brothers-in-law, accompanied by a neighbor and a four-year-old daughter of the victim, decided to do some racing. Defendant was driving one automobile and his brother-in-law the other. In the course of rather extended races, the gas tank fell off one of the automobiles. About the middle of the afternoon the wife returned to the home; about the same time the racers returned. Arrangements had been made to bring the disabled automobile and the gasoline tank back to the neighborhood. A short while before any of them re-entered the residence, defendant while driving one of the automobiles was seen attempting to run down the victim who at the time was walking in the road. There was evidence that the victim became exceedingly angry with his brother-in-law and demanded that he leave the victim’s home. This was communicated to the victim’s wife and the wife placed defendant’s personal effects, including the shotgun, on the front porch. Each was extremely angry with the other. Defendant raised the gun, pointed it at the victim and fired. There was some evidence, consisting chiefly of a statement made by defendant, that his brother-in-law told him that he did not have enough courage to shoot the victim. Defendant remained at the side of his brother-in-law, indicated some remorse and hope that he would survive, waited while his sister called an ambulance and “the law,” and readily submitted himself to its custody. He never testified on the trial. There was no substantial evidence of self-defense.

Photographs were taken after dark of the body of deceased as it still lay on the ground. Two of such photographs were admitted in evidence. One, aided by flashbulb effect, clearly shows a gunshot wound in his left chest. The other, the second in sequence of such photographs introduced in evidence, reveals little of significance other than the hull of a shotgun shell a short distance from the deceased. There was evidence that this spent shell was fired at the deceased and that it had remained at the place shown in the photograph until after the photograph was taken. Defendant's objection to the admission in evidence of each of the photographs was overruled. When the first of the two photographs was offered, defendant objected on the ground “that it is inflammatory, it’s prejudicial, unnecessary, lacks any probative value, fails to show anything witnesses haven’t testified to.” When the second was offered, defendant objected “on the same grounds” made to the offer of the first photograph, and “In addition that is cumulative.” Other than the visible wound in the victim’s left chest, there was nothing about either of the pictures of an emotion-stirring nature. Even if the nature of either photograph were otherwise, we would not be justified in reversing the trial court as to its rulings admitting the photographs in evidence. In dealing with ghastly realities, ghastliness does not furnish a valid ground of objection to evidence that truly portrays the facts. Cook v. State, 52 Ala.App. 159, 290 So.2d 228; Snow v. State, 50 Ala.App. 381, 279 So.2d 552, cert. denied 291 Ala. 798, 279 So.2d 558; Hall v. State, 50 Ala.App. 666, 282 So.2d 104; McHugh v. State, 53 Ala.App. 473, 301 So.2d 238.

Several hulls of shotgun shells of the same gauge as the homicide weapon were found in the yard where the killing occurred. There was no contention by anyone that more than one shot was fired by anyone the afternoon of the homicide. It may well be that reference to the other empty shells in the yard should have been omitted from the testimony, but it appears that the State was attempting to clear up any possible mystery or misunderstanding that might exist by reason of the existence of the hulls in the yard immediately after the homicide. They had no direct bearing upon the issues in the case, but it seems that there was no objection by defendant to any of the testimony as to such shells or the occasion therefor, except an objection by defendant as to the offer in evidence of one of them, Exhibit 5. No ground of objection was stated by defendant. The presence of the shells in the yard was explained in the testimony, without any objection by defendant, some of it being brought out on cross-examination of State’s witnesses, which testimony showed that defendant had previously practice fired the gun in the yard. Appellant now urges that there was reversible error in the court’s admitting three of the hulls in evidence. As stated, an objection was made to one of them. No objection was made to the offer of either of the other two. There was nothing unique about the shell to which the objection was made. Defendant could not have been injured by its introduction in evidence. It was no less relevant than the other shells, not including the hull of the shell containing the fatal pellets and wadding, which apparently were in evidence with the approval of both parties. We cannot find prejudicial error in the ruling of the court in admitting the particular shell in evidence.

Immediately after the officers arrived at the scene of the killing and had taken defendant into custody, they placed him in a patrol car, explained to him his rights, reading to him from a card containing a list of them, and while doing so, defendant interrupted them by stating, “You don’t have to read me my rights,” and said “I know my rights. I killed the son of a . . .” After completion of the explanation and reading of the rights, defendant repeated what he had said. On the way to jail, he said, “Well, I know what I done,” “I shot him,” and, “I want to hurry up and get this over with, so I can build my time.” Before a witness testified as to the quoted statements made by defendant, an in camera interrogation was allowed defendant’s counsel. During the in camera proceeding, the witness stated that defendant, at the time of his statements, was intoxicated; that he had a strong odor of alcohol about him; that he was “pretty intoxicated, pretty high.” The witness also testified that at the time defendant was “coherent,” he had “good control, body control, speech control.” According to the testimony of the witness during the proceeding out of the presence of the jury, defendant was attentive to the reading of his rights to him, stated that he understood them, recognized the witness as an officer and seemed to continue to have an understanding of his whereabouts and what was happening. Before the testimony in the presence of the jury was resumed, an objection was interposed by defendant to testimony of the witness as to the statements made by defendant. The court overruled the objection, and defendant reserved an exception. In urging that the action of the court was erroneous, appellant contends that defendant was so intoxicated that his confession was inadmissible in evidence.

In holding that the trial court was not in error, we quote what was said, which has been consistently followed, by Judge Al-mon, now Mr. Justice Almon of the Supreme Court of Alabama, in Anderson v. State, 45 Ala.App. 653, 235 So.2d 902, cert. denied 285 Ala. 756, 235 So.2d 906:

“The rule is well established in this jurisdiction that intoxication short of mania or such an impairment of the will and mind as to make the person confessing unconscious of the meaning of his words will not render a confession inadmissible. Warren v. State, 44 Ala.App. 221, 205 So.2d 916, cert. denied 281 Ala. 725, 205 So.2d 920; Ray v. State, 39 Ala.App. 257, 97 So.2d 594; Smith v. State, 25 Ala.App. 297, 145 So. 504; Eskridge v. State, 25 Ala. 30.”

About five or six hours after defendant was taken into custody and while he was being processed at the county jail, he was interviewed by a deputy sheriff, who obtained a written statement from defendant after he had been fully apprised of his constitutional rights. Defendant’s statements, including his written statement, were admitted in evidence over objection of defendant. Defendant’s statements at such time do not vary materially from the statements he made while in the patrol car. Apparently appellant does not now contend that defendant’s statements made while being processed at the jail were inadmissible, but appellant says that the trial court “erred by cutting off defense counsel’s attempt to show to the jury all the facts and circumstances surrounding the confession,” in that, as urged by appellant, an attempt by defendant’s counsel to show that officers failed to use an “available intoximeter was interrupted and defense counsel had no opportunity to prove the availability of the machine and its usefulness in determining the level of intoxication.” The record shows that at one time while a State’s witness, an officer, was being re-recross-examined as to his knowledge that such a machine is used, the trial court sustained an objection on the ground that the question was repetitious. We find that ground for objection was well taken. The witness had been extensively interrogated by defendant’s counsel as to the availability and use of an intoximeter, referred to in the testimony as a PEI machine. He stated that the machine was “right next door” to where he and defendant were at the time of the witness’ interview with defendant. He further said that he did not advise defendant that there was a PEI machine and did not “suggest to him the availability of a test to determine his level of intoxication.” Immediately after the testimony just quoted was given, defendant’s counsel pursued an entirely different subject on cross-examination of the witness and did not refer to it again during the rather lengthy continuation of the cross-examination. Then, on redirect examination of the witness, the State opened up the subject again, and on recross-examination its witness was asked whether he had used any kind of test “to determine the level of intoxication” and the witness replied that he had not and further:

“Q. But you do investigate everything that you feel like is important, is that correct?
“A. Visual observation of the person, he was not very intoxicated at the time I talked to him.”

Thereupon on re-redirect examination, the witness was asked if defendant ever requested that the witness “test his level of intoxication,” and the witness replied in the negative. Then, on re-recross-examination, the following occurred:

“Q. Adolph, did you advise him that you had there in the jail the . . . (interrupted)
“MR. HARDIN: Your Honor, again we object.
“THE COURT: I am going to sustain the objection for the third time.”

Although the interjection of an objection before the question had been completed was not justified, it seems clear, and there is no contention to the contrary, that defendant’s counsel was in the process of inquiring whether the witness had advised the defendant that he had the PEI machine there in the jail at the time, which inquiry the witness had previously definitely answered. The court was not in error in not permitting the repetitious testimony.

During the concluding argument of counsel for the State, an objection was made by defendant and overruled by the court to the following:

“MR. HARDIN: What they’re really asking you to do is to look at the facts, and when you look at those facts you’re going to see that we have a clear case — a real clear case; one of the clearest cases I’ve seen of First Degree Murder. So what do they ask you to do? They say, “I’m sorry. Our man was intoxicated.” So they’re asking you to excuse this man for what he’s done because he was drunk.

That’s what they’re asking you to do.” The objection was:

“Your Honor, we’re going to object to that as being a misstatement.”

As we do not have any of the argument of defendant’s counsel, we are not in as good a position as was the trial judge to pass upon the propriety of the quoted argument. Appellant now urges in effect that counsel for the State was contending by the argument that defendant’s counsel took the position and had argued that defendant was entitled to an acquittal merely because he was drunk when he killed his brother-in-law. We doubt that such was contended by defendant. We also have doubt that the quoted argument requires the construction that defendant’s counsel had contended that mere drunkenness of defendant irrespective of the state of such intoxication, entitled defendant to an acquittal. State’s counsel had the right to argue, under the circumstances of the case, that defendant’s defense was based largely, if not solely, on the extent of defendant’s intoxication. In emphasizing such defense, it is readily understandable that State’s counsel would not be required to include the necessary state of intoxication in every sentence of his argument with reference to defendant’s intoxication and apply it to every degree of homicide included within the indictment. If none of the argument of defendant’s counsel was subject to the criticism that he was arguing that defendant’s drunkenness entitled him to a verdict of not guilty, and if such a criticism is not negated or qualified by some of the argument of counsel for the State preceding or following the quoted excerpt from his argument, defendant’s ground of objection was valid, we think. But we should not assume what was in or what was not in argument of parties that is not contained in the transcript of the proceedings. Under such circumstances, we cannot conclude that the trial court was in error in permitting State’s counsel to state arguendo, as he did, his opinion of the argument made or position taken by defendant’s counsel. Owens v. State, 291 Ala. 107, 278 So.2d 693; Sanders v. State, 260 Ala. 323, 70 So.2d 802; Barnett v. State, 52 Ala.App. 260, 291 So.2d 353.

Appellant further insists that the court’s oral charge on the subject of the state of intoxication necessary to preclude a verdict of murder or manslaughter in the first degree was to some extent erroneous and that, to the extent that it was erroneous, it had a cumulative effect upon the argument of State’s counsel to the prejudice of defendant. We find among the statements of the court in its charge to the jury on the matter of intoxication, the following:

“However, if due to excessive intoxication, a person’s ability to frame an intent to do an act, or his ability to discern the difference between right and wrong is removed to the extent that he is totally incapable of entertaining or forming the intent to kill, then he could not be convicted of murder, but only of manslaughter in the second degree at most.”

At the conclusion of the court’s oral charge, defendant’s counsel took exception to “that portion of Your Honor’s charge in which you stated that in a defense of intoxication the Defendant must be incapable of involuntarily doing anything or willing to do anything. The Defendant could be capable of doing some things, but still be incapable of forming the necessary intent, etc., as set forth by the law.” The record immediately continues as follows:

“THE COURT: (Addressing the jury) As I told you, on the defense of intoxication, ladies and gentlemen, the law is that due to intoxication a person must be — his ability to form an intent to kill must have been destroyed by the fact that he had been drinking to that excess.”

For the court to charge a jury in a trial for murder in the first degree that one’s extremely intoxicated condition would not prevent his being guilty of what otherwise would be murder or manslaughter in the first degree unless he was so intoxicated that he was “incapable of voluntarily doing anything,” would be inaccurate. The rule is that voluntary drunkenness is not a defense to a criminal charge unless it is so extreme as to render impossible some mental condition which is an essential element of the criminal act. Gautney v. State, 284 Ala. 82, 222 So.2d 175; Strong v. State, 52 Ala.App. 237, 291 So.2d 325. In charging the jury on the effect of intoxication upon the question of defendant’s guilt as to the four kinds of homicide embraced in the indictment, the court took into consideration each of the two degrees of murder and each of the two degrees of manslaughter. The court emphasized that premeditation, as well as intent and malice, is essential to murder in the first degree; that malice as well as intent, is essential to murder in the second degree; that intent is essential to manslaughter in the first degree; and that neither premeditation, nor malice, nor intent is essential to manslaughter in the second degree. Immediately after referring to the elements of premeditation, malice and intent, the court said:

“. . .it must be such as to render that person incapable of volition; that is, of willing or choosing to do an act. Incapable of voluntarily doing anything. Incapable of forming or entertaining malice and incapable of forming and doing with a purpose to do a voluntary act. If these things do not exist, that is, the ability to choose between right and wrong, or the ability to — of volition; of being able to willingly do anything, then the person could not be convicted of murder or manslaughter in the first degree, because those elements require the intent to commit the act.”

Our consideration of the court’s charge as a whole, when particular consideration of the words “Incapable of voluntarily doing anything” and their context, convinces us that the word “anything” as there used is not to be understood in its infinite sense, but as limited to the conduct of defendant as shown by the evidence. We think the jury understood from the charge of the court that if defendant was so intoxicated that he was incapable of premeditatedly killing the deceased, he was not guilty of murder in the first degree; that if he was so intoxicated that he could not have been capable of maliciously killing him, he was not guilty of murder in the second degree; that if he was so intoxicated that he could not have intentionally killed the deceased, he would not be guilty of manslaughter in the first degree. In charging the jury on the subject of voluntary drunkenness, the court was applying the instructions to the undisputed evidence, that defendant had killed his brother-in-law. The killing was the pivotal act of .reference.

In Gosa v. State, 273 Ala. 346, 350, 139 So.2d 321, 324, it was held:

“The rule is well established that where a portion of the oral charge is erroneous, the whole charge may be looked to and the entire charge must be construed together to see if there be reversible error. Wright v. State, 269 Ala. 131, 111 So.2d 596.”

The oral charge of the court, taken as a whole, was as favorable to defendant on the subject of intoxication as the authorities permit. It is to be noted that in Gosa v. State, supra, it was said:

“. . . Charge 30 was held good in Heninburg v. State, 151 Ala. 26, 43 So. 959, and Hill v. State, 9 Ala.App. 7, 64 So. 163, and later held bad in Cagle v. State, 211 Ala. 346, 100 So. 318, and Ellis v. State, supra [246 Ala. 300, 20 So.2d 512]. Charge 30 was held bad because it permits drunkenness to reduce homicide to manslaughter in the second degree, whereas the correct rule in this jurisdiction is that drunkenness may reduce the degree of the homicide from murder to manslaughter but is no defense as to either degree of manslaughter; Cagle v. State, supra; Laws v. State, 144 Ala. 118, 42 So. 40. ...”

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.

      . There was an additional ground not insisted upon on appeal, as it was based on the mistaken belief that there was no testimony that the shell had not been moved before the photograph was taken.


author: PER CURIAM.

text:
    Clarence James WILLIAMS et al., Petitioners, v. Charles L. BOWMAN and Evelyn Bowman, husband and wife, Respondents.
    No. 47916.
    Supreme Court of Florida.
    Dec. 16, 1976.
    Daniel A. Carlton of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for petitioners.
    W. Robert Mann of Mann, Fay & Price, Bradenton, for respondents.
   PER CURIAM.

This case is before the Court on a Petition for Writ of Certiorari to the District Court of Appeal, Second District.

The Court is of the opinion that the Petition for Writ of Certiorari should be and is hereby granted, the filing of briefs on the merits is dispensed with and the decision of the District Court of Appeal is hereby quashed on the authority of CNA Insurance, etc., et al. v. Minton, etc., 334 So.2d 257 (Fla.1976).

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG and ROBERTS (Retired), JJ., concur.


author: WADDELL, TOM, Jr., Associate Judge.

text:
    Michael ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 75-2025.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1976.
    Rehearing Denied Feb. 2, 1977.
    Fred Haddad of Sandstrom & Hodge, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   WADDELL, TOM, Jr., Associate Judge.

Appellant was arrested on June 6, 1974, by a City of Plantation policeman. Trial was set in Municipal Court for July 31st. On July 25th, upon appellant’s motion his case was transferred to the Broward County Court. A misdemeanor information was filed on August 6th. Trial was set for October 7th. On September 24th the state nolle prossed the misdemeanor information and the following day filed a felony information based on the June 6th episode. Appellant was arraigned and trial was set for January 20, 1975. On January 20th and March 10th appellant was granted two continuances. At a subsequent trial, appellant withdrew his not guilty plea and tendered a plea of nolo contendere to the felony charge, reserving his right to appeal an unfavorable ruling on a motion to suppress evidence. A pre-sentence investigation was ordered.

Prior to sentencing the appellant discharged the attorney who had represented him up to this point and hired new counsel. A motion to vacate and discharge was filed. At a hearing on said motion, while appellant was attempting to establish his right to relief under the 180 day rule, appellant’s attorney moved the trial judge to recuse himself. This motion was granted and the hearing terminated. Subsequently, the trial judge entered an order sua sponte vacating the recusal and setting the cause for further proceedings before himself. These proceedings were conducted over the objections of the appellant. We must reverse. Once the trial judge recused himself, further orders of his were void and of no effect (Gilmer v. Shell Oil Co., 324 So.2d 171 (Fla.2d DCA 1975)).

This cause is remanded to proceed upon trial judge’s order of recusal.

REVERSED AND REMANDED.

MAGER, C. J., and CROSS, J., concur.


author: BOYER, Chief Judge. PER CURIAM.

text:
    Robert PARKER, an Individual, and Federal Insurance Co., a Foreign Corporation, Appellants, v. MIRACLE STRIP BOAT & MOTORS HEADQUARTERS, INC., a Florida Corporation and Insurance Company of North America, a Foreign Corporation, Appellees.
    No. BB-38.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1976.
    On Rehearing Feb. 2, 1977.

      C. Richard Watson, of Isler, Higby, Brown & Smoak, Panama City, for appellants.
    J. Robert Hughes, Mayo C. Johnston, Panama City, for appellees.
   BOYER, Chief Judge.

Appellant, owner of a 28 foot Chris Craft boat called the “Keep Bailing”, filed suit after his boat sank, claiming that appellee breached its duty as bailee while in possession of appellant’s boat for the purpose of effecting repairs. After hearing all of the evidence, the trial court entered a directed verdict against appellant and instructed the jury accordingly. Appellant has appealed, asserting that the trial court erred in entering a directed verdict in favor of appellees, in refusing to allow appellant to call a former employee of appellees as an adverse witness or, in the alternative, in holding that appellant was bound by the testimony of that witness, and in refusing to allow another of appellant’s witnesses to testify as an expert witness.

Appellant took his boat in early March of 1974 to a marina owned by Miracle Strip Boat & Motors Headquarters, Inc. for repairs to the transmission. Some three weeks later, appellant was informed that his boat had sunk. According to an expert called by appellant, when the transmissions were removed from the boat, the manifold hoses which connect the transmissions to the exhaust pipes should have been tied up above the water line and stuffed with rags to prevent water from coming in. Joseph Purrington, an insurance adjuster, testified that when the boat was raised from the water, the manifolds were lying on the floor of the boat, and had no rags stuffed therein. Appellant’s counsel attempted to qualify Mr. Purrington as an expert on marine losses, but the trial court ruled to the contrary. Clifford McDuffy, the person who raised the boat from the bottom, stated that water came through the packing nut on the right shaft and that rags were stuffed in the exhaust pipes. Appellant attempted to call Charles Stump, an employee of appellee at the time the boat sank (but not at the time of trial) as an adverse witness, but the trial court refused. Mr. Stump, whom appellant initially approached to have the transmissions repaired, testified that he stuffed rags in the manifold or exhaust pipes. He also noticed that someone had stuffed rags from the outside into the exhaust ports as a further precaution against water leakage. Finally, he noted that the exhaust pipes were already supported in an elevated position in the engine compartment by a factory-installed brace. The trial court, in announcing his decision to direct a verdict in favor of appellees, noted that since appellant had called Mr. Stump as a witness, appellant would be bound by his testimony.

The first point raised by appellant concerns the propriety of the directed verdict entered against him. In a bailment situation, the plaintiff makes a prima facie case for damages when he shows that the bailed property was delivered to the bailee in good condition and that it was damaged while it was in the care, custody, and control of bailee. (Adelman v. M & S Welding Shop, Fla.App.3rd 1958, 105 So.2d 802) To overcome the resulting inference of negligence, the defendant must present evidence tending to show that he did not breach his duty of ordinary care. (See Peacock Motor Company of Marianna, Inc. v. Eubanks, Fla. App. 1st 1962, 145 So.2d 498) Sub judice appellees admit that appellant made out a prima facie case, but argue that more than enough evidence of due care was presented to negate the presumption arising in favor of appellant. According to appellees, the only possible conclusion from the evidence is that appellant’s boat sank within four or five hours of the shaft packing nut becoming so loose that it could be turned by hand. We believe, however, that a fair reading of the evidence could lead an objective observer to a different conclusion. Taking the testimony of the mechanic called by appellant as an expert witness and the testimony of Mr. Purrington, one could very well conclude that the boat sank because improper procedures had been utilized in removing the transmission from the boat. The latter conclusion may be reached only if certain aspects of Mr. Stump’s testimony are disregarded. Yet, the trial court held that appellant who unsuccessfully attempted to call Mr. Stump as an adverse witness, was bound by Mr. Stump’s testimony. Thus, as to the directed verdict issue, the testimony of Mr. Stump is crucial, and it is to that witness’ testimony to which we now turn.

In Florida, the class of persons who might be characterized as “adverse witnesses” is restricted. First, there is the “unwilling or hostile witness” who may be asked leading questions. Second, there is the “adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party” who may be interrogated by leading questions and may be contradicted and impeached in all respects. (Rule 1.450, RCP) The “unwilling or hostile witnesses” as envisioned by the rule may be asked leading questions, but may not be impeached unless the testimony of the witness is unexpected and prejudicial to the party who has called the witness. (F.S. 920.09; see also Foremost Dairies, Inc. of the South v. Cutler, Fla.App. 4th 1968, 212 So.2d 37, 40) Sub judice, appellant has conceded that the testimony of Mr. Stump was neither surprising nor unexpected.

Thus, the only category remaining under Rule 1.450 is that of the “adverse party”, which also includes an officer, director, or managing agent of a public or private corporation or a partnership or association which is an adverse party. Careful scrutiny of that portion of the rule relating to an adverse party reveals that the only possible designation under which Mr. Stump could possibly qualify would be that of a “managing agent”. The Supreme Court has delineated the criteria which a witness must meet to qualify as a “managing agent”. In Tucker Brothers, Inc. v. Menard, Sup.Ct. Fla.1956, 90 So.2d 908, the court held:

“We do not construe the expression ‘managing agent’ to require that the corporate representative be an officer or in the nature of a general manager. So far as this particular rule is concerned, it is sufficient if he is a managing representative of the corporation in connection with the particular matter under consideration * * * ” (Tucker Brothers, Inc. v. Menard, at 90 So.2d 913)

Sub judice, the record indicates that Mr. Stump was merely an agent of appellee Miracle Strip Boat & Motors Headquarters, Inc., employed by the corporation as a mechanic for inboard-outboard boats, and could not be considered a “managing agent”.

Despite our finding that the trial court properly refused to allow appellant to call Mr. Stump as an adverse witness, there remains the question of whether appellant was bound by Mr. Stump’s testimony. The overwhelming majority rule on that issue is that notwithstanding the rule that a party cannot impeach his own witness, the party may establish, by other witnesses, that the facts are otherwise than as stated by a particular witness. (81 Am.Jur.2d 633, “Witnesses”, § 626; see also 98 C.J.S. Witnesses § 630, p. 647.) It has been observed that even where a witness has not been called as an adverse witness, plaintiff is not always bound by the unfavorable testimony of such a witness. (P. & N. Investment Corporation v. REA, Fla.App. 2nd 1963, 153 So.2d 865, 867) Thus, inasmuch as appellant was not bound by the testimony of Mr. Stump, and there was sufficient evidence otherwise from which the jury could have concluded that appellant’s boat sank because appellees breached their duty of ordinary care, the directed verdict should not have been granted by the trial court at the conclusion of appellant’s case.

There remains one unresolved issue for our determination. Specifically, should the trial court have permitted insurance adjuster Joseph Purrington to testify as an expert on marine losses. After examining the transcript of trial testimony, we find that although Mr. Purrington might have been qualified under certain circumstances, appellant’s counsel failed to ask the proper questions which would have qualified him as an expert. The trial judge did not therefore err in that regard.

REVERSED AND REMANDED for a new trial.

McCORD and MILLS, JJ., concur.

ON REHEARING GRANTED

PER CURIAM.

In our original opinion we reversed, holding that the learned trial judge erred in ruling that a party is necessarily bound by unfavorable testimony adduced from his own witness. In their petition for rehearing, appellees point out certain erroneous statements of fact recited in our opinion. Specifically, appellees object to the following: “According to an expert called by appellant, when the transmissions were removed from the boat, the manifold hoses which connect the transmissions to the exhaust pipes should have been tied up above the water line and stuffed with rags to prevent water from coming in. Joseph Purrington, an insurance adjuster, testified that when the boat was raised from the water, the manifolds were lying on the floor of the boat, and had no rags stuffed therein.” [supra p. 198.]

After re-examining the record, we note that the expert called by appellant did not testify that the method described by him for preventing water leakage was the only acceptable one, but agreed that if rags were stuffed in the pipes on the inside and on the outside, and if the boat was moored so that the stern was away from the general wave action of the water, then such procedure would be proper. Further, Mr. Purrington, the record indicates, was not present at the moment that the “Keep-Bailing” was raised from the water, but arrived sometime thereafter, although the record is by no means clear as to exactly when Mr. Pur-rington did make his examination.

The issues of fact raised by appellees in their petition for rehearing are significant. Under the holdings of law in our original opinion to which we continue to adhere, appellant, notwithstanding the rule that a party cannot impeach his own witness, was entitled to establish by other witnesses that the facts were otherwise than as stated by a particular witness called by him. The record indicates, however, that appellant did not present any competent evidence to contradict the testimony of Mr. Stump who stated that rags were stuffed both inside the boat in the manifold pipes and outside the boat in the exhaust ports. Mr. Purrington, who was not present when the boat was raised, could merely testify as to what he observed several hours thereafter. Therefore, the testimony by Mr. Pur-rington did not contradict the testimony of Mr. Stump because of the period of time which had elapsed between the raising of the boat from the water and Purrington’s examination of it. Arriving at the conclusion that no rags were stuffed in the manifold pipes before the boat sank would necessitate the impermissible speculation that the condition of the boat had not changed between the time it was raised and the time it was examined by Mr. Purrington.

Thus, although the trial judge erroneously ruled that appellant was bound by the testimony of Mr. Stump, the directed verdict in favor of appellees was properly entered because of the lack of competent evidence tending to contradict that testimony and to establish negligence on the part of appellees. Accordingly, without in any manner modifying the recitations of legal concepts contained in our original opinion, we find from a re-examination of the record that the evidence adduced at trial was as urged by appellees in their petition for rehearing rather than as recited in our original opinion. We, therefore, recede from reversal and hold that the final judgment based on the directed verdict should be and is

AFFIRMED.

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


author: GOBBIE, EVELYN, Associate Judge.- BOARDMAN, Chief Judge,

text:
    Anthony Edward MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-611.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 1976.
    Concurring Opinion on Denial of Rehearing Jan. 28, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   GOBBIE, EVELYN, Associate Judge.-

This is an appeal from revocation of appellant’s probation. We hold such revocation was erroneous.

Appellant, pursuant to a plea negotiation, pled guilty to robbery. At arraignment, it was agreed that:

1. Appellant would serve no more than one year in county jail, if the presen-tence investigation proved negative as to any prior record;
2. Appellant would keep out of trouble prior to sentencing; and
3. Appellant would testify truthfully against the other persons involved.

At sentencing, appellant was placed on five years probation conditioned upon his serving one year in jail plus other conditions. However, no mention was made at that time as to his testifying for the state, nor was this condition imposed in writing.

One Mildred Ward was one of the persons involved in the robbery. At her trial, appellant refused to testify against her, although he did give evidence against a Willie Barnes, also involved. After Ward was tried, appellant was charged with violating one of the conditions of his probation by his refusal to testify against her, and a revocation hearing was held.

At the hearing, appellant told the court that his reason for not testifying against Mildred Ward was that Willie Barnes had threatened “he would kill me for making his broad go to prison.” Upon conclusion of that hearing, appellant’s probation was revoked and he was sentenced to serve from six months to life imprisonment. This appeal ensued. We reverse.

The pivotal point of any appeal from a judicial proceeding, be it civil or criminal, jury or nonjury, juvenile court or probate, is “fairness.” It is a simple word, but constitutes the very root of our judicial system. Without fairness, the system would not function and the proper administration of justice would fall by the wayside.

This court is in complete agreement with the appellee when it asserts that a court must have some recourse when a defendant violates a condition of probation. However, before such recourse becomes a reality, surely the defendant has to be put on notice as to what he must do or cannot do as special conditions of his probation. Is this not fairness? Basic justice makes this fairness mandatory. Throughout the judicial years, this concept of notice to a defendant has been well recognized as 'an essential element of “due process.”

Since appellant’s original agreement to testify was not made a condition of his probation, he had a right to assume that the requirement to testify had been abandoned, with respect to being a condition of his probation. The revocation being based upon an act not proscribed by the conditions of his probation was, therefore, improper. To hold otherwise would result in utter chaos in the criminal justice system. It is hoped that in the future, all understandings which are to be conditions of probation be expressly set forth in the probation order.

The order of revocation is vacated and probation reinstated.

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

ON PETITION FOR REHEARING

Counsel for appellee having filed in this cause a Petition for Rehearing and the same having been considered by the Court, it is

ORDERED that said Petition be and the same is hereby denied.

SCHEB, J., and GOBBIE, EVELYN, Associate Judge, concur.

BOARDMAN, C. J., concurs specially.

BOARDMAN, Chief Judge,

specially concurring.

Pursuant to the state’s request to this Court for a rehearing of this cause I have again reviewed the entire record on appeal. It is abundantly clear from the colloquy between the trial judge and appellant and from appellant’s subsequent actions that he had sufficient notice and knowledge that he was expected and obligated to testify as a state’s witness.

Nonetheless probation cannot be revoked unless a condition of probation has been violated. See White v. State, 301 So.2d 464 (Fla. 1st DCA 1974). See also Russ v. State, 313 So.2d 758 (Fla.1975). Appellant cannot be said to have violated probation since the agreement to testify was neither an implicit nor explicit condition of probation. See Croteau v. State, 334 So.2d 577 (Fla.1976). The agreement was however a term of the plea bargain. Although appellant failed to comply with the bargain he was sentenced to probation, and it would violate the constitutional guarantee against double jeopardy to resentence him to imprisonment on the original charge. Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976).

For the above-stated reasons I concur with the result reached by the majority and agree that the Petition for Rehearing should be denied.


author: ALDERMAN, Judge.

text:
    Carl SYLVESTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1652.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, and Larry S. Weaver, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks and Marsha Madorsky, Asst. Attys. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

This is another case where the prosecutor (without the necessity of establishing a predicate for the introduction into evidence of any statement of the defendant) asked the arresting officer whether the defendant made any statement after being warned of his constitutional rights and obtained a negative answer from the officer. We must reverse upon the authority of Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967); Bennett v. State, 316 So.2d 41 (Fla.1975); Farese v. State, 328 So.2d 548 (Fla. 1st DCA 1976); Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976); Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976); Shannon v. State, 335 So.2d 5 (Fla.1976); Lucas v. State, 335 So.2d 566 (Fla. 1st DCA 1976); Boyd v. State (Fla. 4th DCA, Case No. 75-624, opinion filed November 26, 1976); Williams v. State, 340 So.2d 1191 (Fla. 4th DCA 1976); Collins v. State, 340 So.2d 516 (Fla. 4th DCA 1976); Spann v. State, 340 So.2d 1215 (Fla. 4th DCA 1976); Maness v. State, 341 So.2d 246 (Fla. 4th DCA 1976).

The State concedes that the testimony in question was an improper reference to the defendant’s right to remain silent, but contends that such testimony in this case was not fundamental error. A good argument can be made that the error was harmless. The evidence of guilt of the accused was overwhelming. When the witness made the improper response, the prosecutor did not attempt to continue the dialogue with the witness or otherwise pursue the fact of appellant’s exercise of his right to remain silent. No objection to the improper response was raised by appellant at the time of trial and the prosecutor made no further reference to the improper response during the remainder of the trial. If it were constitutionally possible for us to apply the “harmless error” rule to the facts of this case we would do so. The cases cited above seem to hold that we may not; that such error requires reversal without regard to the doctrine of harmless error. However the Second and Third Districts have recently held that in certain circumstances an improper reference to a defendant’s exercise of his right to remain silent may be harmless error. Manning v. State, 336 So.2d 408 (Fla. 3d DCA 1976); Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Mansfield v. State, 338 So.2d 857 (Fla. 3d DCA 1976).

Because of this divergence of views we will, upon proper application of either party, certify as a matter of great public interest the following question to the Supreme Court of Florida:

Where the prosecutor in a criminal case (without the necessity of establishing a predicate for the introduction into evidence of any statement of the defendant) asked the arresting officer whether the defendant made any statement after being warned of his constitutional rights and obtained a negative answer from the officer, and where the evidence of guilt of the accused was overwhelming, and the prosecutor did not attempt to continue the dialogue with the witness or otherwise pursue the fact of appellant’s exercise of his right to remain silent, and no objection to the improper response was raised by the accused at the time of trial, and no further reference to the improper response was made during the remainder of the trial, may an appellate court constitutionally apply the doctrine of harmless error?

REVERSED and REMANDED for a new trial.

ANSTEAD and LETTS, JJ., concur.


text:
    Adrian JONES, Appellant, v. STATE of Florida, Appellee.
    No. 75-276.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Rehearing Denied Feb. 2, 1977.
    Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed upon authority of Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1976); Martin v. State, 334 So.2d 841 (Fla.4th DCA 1976); Bostic v. State, 332 So.2d 349 (Fla.4th DCA 1976).

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


author: DANAHY, PAUL W., Jr., Associate Judge.

text:
    Ethel Helen DAURELLE et al., Appellants, v. BEECH AIRCRAFT CORPORATION, etc., et al., Appellees. Carolyn DELGADO and Carolyn Delgado, as Executrix of the Estate of Robert E. Delgado, Deceased, Appellants, v. BEECH AIRCRAFT CORPORATION, etc., et al., Appellees.
    Nos. 75-1577, 75-1579.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Rehearing Denied Feb. 2, 1977.

      Hubert W. Williams, of Robertson, Williams, Duane & Lewis, Orlando, Daniel C. Cathcart and J. Magana, of Magana & Cathcart, Los Angeles, Cal., C. W. Abbott, of Maguire, Voorhis & Wells, Orlando, for appellants.
    Richard J. Thornton, of Walton, Lantaff, Schroeder, Carson & Wahl, Miami, and James V. Dolan, Fort Lauderdale, for ap-pellees.
   DANAHY, PAUL W., Jr., Associate Judge.

The appellants and plaintiffs in the trial court are the widows and personal representatives of two physicians who died in the crash of a Beechcraft airplane. They brought wrongful death actions against the appellees who were the defendants in the trial court. Among the orders entered by the trial court which appellants urge us to reverse is an order granting appellees’ Motion to Dismiss for lack of prosecution within one year under Rule 1.420(e), Fla.R.Civ.P.

An important issue raised by appellants is whether they took “action” which was sufficient to cause the reversal of the Order of Dismissal entered under the Rule where there was extensive behind the scenes investigation by appellants and contact between local and foreign co-counsel for appellants during the one year period, albeit there was neither contact with the court nor an adverse party.

While the record on appeal reflects much record activity below, the following chronology is essential to our determination of this issue:

Date of Filing Kind of Instrument
4-29-74 Deposition of witness filed
5-9-75 Appellees’ Motion to Dismiss for lack of prosecution
6-19-75 Order of Dismissal filed by the trial Court 6-17, 1975

In applying the Rule, the critical period, therefore, extends from April 29, 1974, to May 9, 1975.

In the action below, appellants’ Florida counsel associated lead foreign counsel and the record shows contact between them and extensive investigative efforts by them during the year in question. No pleadings were filed nor was any Order of Court entered during this period. Furthermore, during the period, it is undisputed that no counsel for appellants made any contact whatsoever with any of the appellees’ counsel.

Notwithstanding the absence of any record action by the parties or the court or any contact with an adverse party, appellants urge action “otherwise” resulted because of the extensive and complex investigation conducted by them during the year. We disagree and now hold the Rule to mean that non-record action must involve contact with an opposing party. In so holding, we align this Court with our sister Court which reached a similar result in Bakewell v. Shepard, 310 So.2d 765 (Fla.2d DCA 1975).

Upon reviewing the other orders of the trial court, we can not say there was any abuse of discretion in its finding that no good cause was shown why the action should remain pending, nor in any other manner. We have carefully considered the other arguments of counsel and the record on appeal, including the other points raised by the appellants and the point raised by the appellees and find them to be without merit.

AFFIRMED.

DOWNEY and ALDERMAN, JJ., concur.


text:
    TOMPKINS LAND CO., INC., Appellant, v. Roosevelt EDGE et al., Appellees.
    No. 75-2058.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Rehearing Denied Feb. 2, 1977.
    Robert F. Higgins of van der Berg, Gay & Burke, Orlando, for appellant.
    John A. Baldwin of Baldwin & Dikeou, Fern Park, for appellee, Roosevelt Edge.
   ALDERMAN, Judge.

This is an appeal from a final judgment in a lien foreclosure suit pursuant to Chapter 713, Florida Statutes (1973).

Tompkins Land Co., Inc., was the owner and developer of an apartment complex. Tompkins entered into a direct contract with Ramsey Construction Co., Inc., for the installation of water and sewer lines. Ramsey in turn sub-contracted with Roosevelt Edge for the installation of certain of the water and sewer lines, including fire hydrants. Edge finished his work on November 28, 1973. He billed Ramsey directly for the money remaining due under his subcontracts. Ramsey failed to pay. On February 15, 1974, Edge served a notice to owner on Tompkins and on February 22nd filed his claim of lien.

At trial it was established that Edge had failed to timely file his notice to owner and that all construction funds under the direct contract between Tompkins and Ramsey had been disbursed. Edge then claimed that he was entitled to recover part of the money due to him directly from Tompkins, on the basis of direct privity with the owner. He contended that he had come into direct privity with Tompkins during the course of his work, and therefore was not required to file a notice to owner. Edge alleged that he came into privity with the owner when Tompkins told him that he was installing a fire hydrant in the wrong place and that the hydrant would have to be relocated to the proper location. The trial court ruled that Edge had come into privity with Tompkins and consequently was not required to file a notice to owner in reference to the costs of relocating the fire hydrant. Judgment was awarded in favor of Edge against Tompkins in the amount of $1352.49, plus $800.00 for attorneys’ fee.

Tompkins filed this appeal and assigned as error the trial court’s finding that Tompkins and Edge came into privity during the course of construction, and the resulting judgment entered against Tompkins. Edge has filed a cross appeal alleging that the award of attorneys’ fee was insufficient.

Section 713.05, Florida Statutes (1973) provides in part as follows:

“. . .A lienor who, as a subcontractor, laborer or materialman not in privity with the owner, commences to furnish labor, services or material to such an improvement and who thereafter becomes in privity with the owner shall have such a lien for any money that shall be owing to him for such labor, services or materials furnished after he becomes in privity with the owner; provided, such a lienor may record one claim of lien to cover his work done both in privity with the owner and not in privity with the owner. . . ”

If Edge is able to recover directly against Tompkins, it must be under this section of the Mechanics’ Lien Law. The determinative issue is whether there was sufficient evidence to support the trial court’s finding that the sub-contractor, Edge, became in privity with the owner, Tompkins.

The Mechanics’ Lien Law, Chapter 713, does not specifically define “privity”; however, the Supreme Court, first in First National Bank of Tampa v. Southern Lumber & Supply Co., 106 Fla. 821, 145 So. 594 (1932) and again in Foley Lumber Co. v. Koester, 61 So.2d 634 (Fla.1952) said:

“The word ‘privity’ as used in the lien statute, providing for the acquisition of liens by persons in privity with the owner, against the latter’s real property, is not employed in the technical sense of the common law, but implies special knowledge showing active consent or concurrence.
******
“In order to create privity under the lien statute, there must be, in addition to knowledge of the owner that a certain person is furnishing labor or material for the contractor to be used in the execution of his contract, an express or implied assumption by the owner of a contractual obligation to pay for the labor or materials furnished. See Harper Lumber & Mfg. Co. v. Teate [98 Fla. 1055, 125 So. 21], supra. While such privity may be made out by circumstantial, as well as direct and positive, evidence, the ultimate conclusion must be made to appear that the owner voluntarily put himself in such situation toward the materialman or laborer as to make him liable on an implied agreement to pay for the labor or material furnished, not as a secondary, but as a primary debtor on the account.” 145 So. at 597.

We have carefully reviewed the testimony of the witnesses in reference to the issue of privity. There is some conflict as to just what took place between Edge and Tompkins. However, even after we resolve any conflicts in favor of the sub-contractor, the evidence as a matter of law is still insufficient to establish privity.

In Foley Lumber Co. v. Koester, supra, at 638-639, the Court enumerated the factors which in that case established privity between an owner and a materialman: the owner went to see the materialman to get a price for tile work; the owner returned later to select the tile and its colors; when the time came to install the tile, the owner phoned the materialman to tell him to install the tile according to the colors, materials, and prices previously agreed upon between them; the bill for the merchandise was made directly to the owner and not the contractor; the materialman did not know the contractors and never had any conversation or agreement with them.

In contrast, the testimony in the present case shows that Edge entered into written sub-contract agreements with the general contractor. He received payments under the sub-contract from the general contractor. He billed the general contractor, not the owner, for the amounts he claimed. He did not routinely correspond or communicate with the owner regarding his work. The discussion between Edge and Tompkins was a one time occurrence in which Tompkins pointed out that the fire hydrant was in the wrong place according to the construction plans and directed that it be moved. Edge filed one claim of lien for the total amount allegedly owed to him by both the owner and general contractor. His claim of lien recites that he furnished labor, services or material pursuant to a contract with the general contractor. Tompkins is shown as owner of the real property but no allegation of privity between Edge and Tompkins appears in the claim of lien.

Although we are reluctant to disturb a trial court’s finding of fact, where the evidence is insufficient as a matter of law to support the finding we must reverse. The evidence in this case is not sufficient to support the ultimate conclusion that the owner voluntarily put himself in such a situation toward the sub-contractor as to make him liable on an implied agreement to pay for the labor and material furnished. First National Bank of Tampa v. Southern Lumber & Supply Co., supra.

Having determined that the judgment against Tompkins must be reversed, we do not need to consider the point raised by the cross-appeal.

REMANDED with instructions that the judgment against Tompkins Land Co., Inc., be REVERSED.

MAGER, C. J., and DOWNEY, J., concur.


text:
    Zdenka SLOMOVIC, Appellant, v. Joseph PETRYK, Appellee.
    No. 76-527.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Rehearing Denied Feb. 2, 1977.

      Zdenka Slomovic, in pro. per.
    Merle Litman, Litman, Muchnick & Was-serman, Hollywood, for appellee.
   MASON, ERNEST E. (Retired), Associate Judge.

This is an appeal from a final judgment rendered by the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County. The judgment was entered in a suit at law upon a promissory note. The note was executed by the appellant, Slomo-vic, as maker, with the appellee, Petryk, as payee. The note was given as evidence of an amount due by appellant on account of the balance of the purchase price of certain land bought by appellant from appellee. Simultaneously with the execution of the note appellant gave to the appellee a mortgage deed to secure the payment of the note. The mortgage recites that it is a purchase money second mortgage given to secure the exact note sued upon in this suit and that it is to become void upon payment in full of the principal and interest of said note.

The note as executed by appellant, and as set forth verbatim in the mortgage securing it, is for $21,000.00 as principal, dated February 23rd, 1973, and payable beginning March 23rd, 1973, in installments of $200.00 each for twenty-three months “with the balance due within (2) years at 8% interest”. It provides that it may be prepaid in whole or in part at anytime without penalty. Appellant regularly paid the first twenty-three monthly installments as they accrued and appellee credited her with said payments, applying part of each monthly payment to interest due on the then balance and the remainder of such to principal. This is evidenced by appellee’s loan amortization schedule placed by him in evidence at the trial below. But at the end of the two year period from the date of execution of the note appellee demanded of appellant the remaining principal balance due on February 23rd, 1975, in the sum of $19,513.91. This amount was calculated as the amount due after crediting as against the principal and accrued interest the $200.00 monthly payments theretofore paid by appellant. Appellant refused to pay this balloon balance as demanded, claiming that under the provisions of Section 697.05, F.S. (1975), she had the right to pay this balance in monthly installments of $200.00. Thereupon, appel-lee elected to sue on the note without foreclosing the mortgage securing the same as aforesaid.

Appellant answered the complaint raising the affirmative defense that the note was given to secure a balloon mortgage executed simultaneously with the note, that both instruments were parts of one and the same transaction, and that she was not in default, claiming that because the mortgage was a balloon mortgage she was entitled to pay the balloon balance in monthly installments of $200.00. She claimed by her answer that the appellee is estopped from bringing this action because of her alleged right to pay such balance in such installments. She relies upon the provisions of F.S. 697.05 (1975), to sustain her position.

Section 697.05, F.S. (1975) provides that any conveyance given for the purpose of securing money is deemed a mortgage and that every such mortgage in which the final payment or the balance due and payable upon maturity is greater than twice the amount of the regular monthly or periodic payment of the said mortgage is a balloon mortgage. The statute further directs that the fact that such instrument is a balloon mortgage shall be printed or clearly stamped on it. Failure of the mortgagee or creditor to comply with such requirement shall automatically extend the maturity date of the mortgage in the following manner:

“The final payment of the balance due and payable is to be divided by the regular monthly or periodic payment and the quotient so secured is to be the number of months or periods the maturity date of the mortgage is extended. The mortgagor shall continue to make such monthly or periodic payments until the principal of the mortgage is paid. All such payments shall be credited to the principal only.” F.S. 697.05(3) (1975).

The statute further provides that any mortgagee or creditor violating the provisions of the same shall forfeit the entire interest charged, contracted to be charged or reserved under any such mortgage written in violation of such provisions, and that only the principal sum of such mortgage can be enforced in any court in this state, either at law or in equity. Further, that “any interest, collection charge or attorney fee that has been paid or reserved or contracted for, either directly or indirectly, shall be forfeited to the person or mortgagor presently obligated under such mortgage.” (Emphasis supplied).

It is clear from an examination of the mortgage securing the note sued upon herein that such mortgage is a balloon mortgage within the statutory definition above referred to, and that the legend required by the statute was not placed upon the mortgage. The record herein further affirms that the appellee refused to permit the appellant to pay the balloon balance in monthly installments as required by the statute but on the contrary demanded its payment in full upon the maturity date of the mortgage and note.

As stated above, appellee elected to sue on the note without foreclosing the mortgage, claiming that he had the right of election of remedies. The court below held that he had such right and entered judgment for the balloon balance of $19,513.91 as principal plus interest from February 23rd, 1975, the maturity date of the balloon balance, to the date of judgment at the rate prescribed in the note. Such interest amounted to $1,479.85. The court also awarded an attorney’s fee to appellee in the sum of $2500.00. Subsequent to the entry of such judgment, execution was issued and the Sheriff levied upon and advertised for sale the exact property covered by the mortgage. Whereupon, appellant filed notice of appeal and secured supersedeas upon the giving of appeal bond in an amount fixed by the court.

The issue to be decided by us is whether the provisions of F.S. 697.05 (1975) apply to this lawsuit or whether the appellee had the right of election to sue upon the note only, thereby seeking a general judgment against the appellant without resort to foreclosure proceedings, and thus avoid the consequences of the requirements of that statute.

It is the appellant’s position that inasmuch as the note sued upon was secured by a balloon mortgage given simultaneously with the execution of the note the appellee is bound by the provisions of the Balloon Mortgage Statute (F.S. 697.05 (1975)) and cannot avoid the penalties of the statute by separating the note from the mortgage and suing upon it only.

Appellee maintains that he has an election of remedies and may avoid the penalties of the statute by electing to sue on the note only. He cites as authority for his position the general principle of law that where a party has several remedies he may elect one and abandon the others. But he also cites as authority for his claimed right to sue only on the note in this suit a provision of the Uniform Commercial Code dealing with secured transactions (F.S. 679.-501(1)(1975)) which provides cumulative remedies in the event of default by the debtor. This statute provides that when a debtor is in default under a security agreement, a secured party may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure. It further provides that the rights and remedies enumerated in it are cumulative.

The literal effect of this provision of the Uniform Commercial Code as applied to the facts in this ease would be to permit the mortgagee to elect to sue on the secured note, secure a general judgment, levy execution of same upon the property covered by the mortgage, as was done in this case, and if the sale price upon such execution sale turned out to be less than the amount of the judgment, to levy upon and sell at execution any and all other property owned by the mortgagor until the judgment had been satisfied in full, thereby avoiding the penalties of the Balloon Mortgage Statute.

We hold that where a balloon second mortgage is given to secure a promissory note simultaneously with the execution of the note, and where the mortgagee fails at the time to comply with the provisions of F.S. 697.05(2)(a)(b)(1975) which require the printing or stamping upon the mortgage of the legend indicating that it is a balloon mortgage, and setting forth such legend in the language prescribed by such statute, the payee of the note secured by such mortgage is subjected to the penalties prescribed by the statute, and that he cannot avoid such penalties by separating the note from the mortgage and suing upon it only, as was attempted to be done in this case. To hold otherwise would be a mockery and would fly in the face of the abuse which the legislature evidently intended to correct when it enacted F.S. 697.05.

The Supreme Court of Florida in the case of Winner v. Westwood, 237 So.2d 151 (Fla.1970), in upholding the constitutionality of the balloon mortgage statute (F.S. 697.05 (1975) as against a charge that it excessively Burdened freedom of contract, stated:

“We agree that the statute is constitutional. Its purpose was to regulate the practice of drafting mortgages in terms which allowed for payment of relatively small installments for a period of time of relatively short duration, at the end of this period the balance becoming due in full. This technically legal practice became the subject of abuse, particularly when applied to second and third mortgages and the like, because of use in situations where the tentative mortgagee wished to give the illusion of ‘easy payments’, while saying little about the ultimate consequences.
“In response to this abuse, the legislature enacted the Balloon Mortgage Statute. By its terms, this statute does not condemn the practice, presumably because of the realization that parties competent to contract are assumed to know what they are doing. But the statute does require that in any mortgage in which the final payment is more than twice the amount of the regular periodic payments called for in the mortgage, a legend must be included at the top of the first page and also immediately above the signature lines, in conspicuous print at least as large as the largest print in the text of the mortgage, as follows: (Here follows the exact statutory language of the legend.)
“If the balloon mortgage does not contain the required legend . . . the mortgagee forfeits all interest received or to be received, and all collection charges and attorneys’ fees, and the life of the note is extended by as many periodic payment periods as are necessary to pay off the mortgage at the initial periodic payment rate.” (Emphasis supplied)

Thus it is evident from this decision of the Supreme Court that not only does the mortgagee suffer the penalties of loss of interest, collection charges and attorney’s fees, but also the life of the secured note is extended in the manner set forth, in those cases where the balloon mortgage requirement of the statute is not fulfilled. And this holding of the Supreme Court clearly negates the idea that the note may be separated from the mortgage and reduced to general judgment as was done in this case.

Our holding herein does not vitiate the provisions of the Uniform Commercial Code relied upon by the appellee for that particular statute is applicable to all security agreements other than balloon mortgages. This is true because of the legal principle of statutory construction that where there is apparent conflict between two statutes dealing with a general subject matter the courts will adopt a construction which comports with reason and logic and which will give validity and application to both statutes. This we have done by our holding herein.

We reverse and remand with directions to the trial court to set aside the final judgment heretofore entered herein and to enter an order extending the life of the note sued upon by as many periodic payment periods as are necessary to pay off the note at the initial periodic payment rate, without interest, collection charges and attorney’s fees which shall be declared forfeited, all in accordance with the penalty provisions of F.S. 697.05 (1975). Such extension to be conditioned upon the appellant paying within such time as shall be determined by the trial court all period installments of $200.00 each which would have accrued since February 23rd, 1975, had the appellee accepted the same as he was obligated so to do by the provisions of said statute.

Upon the entry of such order the trial court shall reserve jurisdiction to enter such other and further orders as are necessary to compel compliance with such order and the opinion herein expressed.

REVERSED and REMANDED.

CROSS, J., and SMITH, CULVER, Associate Judge, concur.


text:
    Cyndie E. SPRINGER, Petitioner, v. Robert C. GREER, III, D. O., et al., Respondents. Catherine Ann HALLMAN, Petitioner, v. Robert C. GREER, III, D. O., and Nancy H. Greer, Respondents.
    Nos. 76-709, 76-723.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Rehearing Denied Feb. 2, 1977.
    Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for petitioner Springer in No. 76-709.
    L. Martin Flanagan, of Jones, Paine & Foster, West Palm Beach, for petitioner Hallman in No. 76-723.

      Richard M. Gale and Stephens, Thornton & Schwartz, Miami, for respondents.
   PER CURIAM.

This is a petition for writ of certiorari seeking review of rulings on the plaintiff-petitioners’ attempts at obtaining discovery.

Petitioners sued respondents in two counts, one of which alleged a conspiracy to addict numerous of respondents’ patients so that respondents might become known as a ready source of drugs among drug users. In aid of discovery petitioner Springer filed a motion for leave to inspect the records of various pharmacists, in order to determine the prescriptions respondent Robert Greer had written from 1970 to 1975 for eight listed drugs. Petitioner Hallman filed subpoenas duces tecum to five pharmacists directing them to appear for depositions and to bring with them records of all prescriptions for eight listed drugs Robert Greer had written during the period 1971-1975. Interrogatories were also filed asking respondents for the names and addresses of all persons for whom eight listed drugs had been prescribed.

Initially, the trial court denied respondents’ motions for a protective order as to the depositions and denied their objections to the interrogatories. However, on Extraordinary Motion for Rehearing, the court revoked the prior order, granted a protective order as to the pharmacists’ records, and sustained the respondents’ objections to the interrogatories referred to above. We think that the orders entered pursuant to the Extraordinary Motion were erroneous and that appeals from adverse final judgments would not afford the petitioners adequate relief. 10 Fla.Jur., Discovery and Depositions, § 112, p. 491.

The authority upon which the trial court based its order denying petitioners the right to proceed with discovery, Roe v. Ingraham, 403 F.Supp. 931 (S.D.N.Y.1975), supports petitioners’ position rather than respondents’. That case involved the validity of a New York statute requiring all pharmacists and physicians who dispense certain drugs to send copies of prescription forms for those drugs to a state bureau for recording. The three judge court held that the statute in question was constitutionally offensive insofar as it required reporting of the patient’s name and address to the centralized bureau, thereby violating each patient’s right to privacy. However, the decision left intact as justifiable the statute’s requirements relative to the identification of the dispensing physician and pharmacists, noting that:

“The state prescription form program provides for issuing serially numbered prescription forms to physicians. Each doctor prescribing and each pharmacist dispensing any Schedule II drugs are given a DEA number. They, therefore, are readily identifiable. The state can promptly determine the quantity of drugs prescribed and dispensed by particular physicians and pharmacists. Over-prescribing or dispensing, forgeries and thefts can be detected." (Emphasis added.) 403 F.Supp. at 937.

We conclude that Roe v. Ingraham, supra, is authority for permitting the discovery of the number of prescriptions which Robert Greer filled out for the eight narcotics specified in petitioners’ requests for discovery, if adequate safeguards for the privacy of other patients are provided. Florida’s discovery rules grant the trial judge authority to control the manner and means of discovery in all of its aspects so as to protect against harassment, undue invasion of one’s right to privacy, and other offensive results. This authority should be adequate to enable the trial court to protect against any undue invasion of the privacy of respondents’ other patients.

Accordingly, we grant certiorari and quash the orders appealed from. We hereby remand the causes with instructions that the court: allow discovery along the lines proposed by the petitioners; designate adequate safeguards for the privacy of other patients; and place a reasonable limit upon the time periods which may be inquired into.

CERTIORARI GRANTED, with instructions.

DOWNEY and ALDERMAN, JJ., concur.

CROSS, J., dissents.

      . “The prescription form contains the name, address, telephone number and DEA (Drug Enforcement Administration) number of the prescribing physician, the date the prescription was issued, the name, age and address of the patient, the name and amount of the drug prescribed, maximum daily dosage, the signature of the physician, the prescription number issued by the pharmacy, the date the prescription was filled, the NDC (National Drug Code) number of the drug, the DEA number of the pharmacy, and the signature of the dispenser.” 403 F.Supp. at 933.

      . The court placed heavy stress on the centralization of patient’s records.
      "A name on a prescription in the files of one of many thousands of pharmacists in the state of New York is entirely different from one’s name on a form in Albany which is transferred to computerized records and stored for instant retrieval.” 403 F.Supp. at 938.


text:
    Kaden TIERNEY, Petitioner, v. Rose STUDENSKI, as Executrix of the Estate of Frank Studenski, Deceased, et al., Respondents.
    No. 76-1717.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for petitioner.
    Hubert R. Lindsey and F. Kendall Slink-man of Farish & Farish, West Palm Beach, for Respondent Studenski.
    Stephen C. McAliley, West Palm Beach, for Respondent St. Mary’s Hospital.
   PER CURIAM.

Petition for Writ of Certiorari denied.

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


author: BOARDMAN, Judge.

text:
    Jerry Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 76-171.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1976.
    Rehearing Denied Jan. 19, 1977.

      Jack 0. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and Paul J. Martin, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant/defendant pled guilty to aggravated assault in violation of Section 784.04, Florida Statutes (1973). At the hearing following the court’s colloquy with appellant establishing the voluntariness and the factual basis for acceptance of the plea the trial judge, the Honorable Harry Lee Coe, said he would withhold adjudication and defer sentence from “day to day and term to term.” The judge advised appellant that if he sincerely and honestly assisted the police as an informant that he would “get rid of the case entirely.” The judge reserved the right to sentence appellant to five years imprisonment if he did not cooperate in good faith or if he were convicted of another crime during the period the sentence was deferred.

Prior to a hearing on appellant’s performance of the agreement Judge Coe recused himself, and the case was assigned to the Honorable Herboth S. Ryder. Judge Ryder correctly found that the deferred sentence was invalid and further that the agreement fashioned by Judge Coe was “unconstitutional.” Appellant's guilty plea was withdrawn, and the case was set for trial. At a pretrial hearing held on the day of the trial evidence of appellant’s good faith performance of his end of the bargain was presented to Judge Ryder, and he found that appellant had satisfied the plea bargain and that in the interest of fairness and justice he would place appellant on probation for five years. At this juncture appellant pled guilty again but during the colloquy Judge Ryder determined that appellant had a valid defense to the charge, i. e. self-defense. The judge set aside appellant’s guilty plea and entered a plea of not guilty. Appellant was found guilty at the conclusion of a jury trial, and Judge Ryder sentenced him to five years imprisonment.

We are aware that upon vacation of an order which defers sentencing from “day to day and term to term” a defendant is amenable to imposition of a term of imprisonment. See State v. Bateh, 110 So.2d 7 (Fla.1959). Nevertheless we have no difficulty in reaching the conclusion that appellant was prejudiced by the turn of events in this case, and under these peculiar circumstances a probationary term rather than a term of imprisonment should be imposed consistent with the plea bargain. Appellant did not complain that the plea bargain was “unconstitutional,” and despite the invalidity of the sentence he had a right to specific performance of that bargain because as Judge Ryder found he had affirmatively complied with a court-sanctioned bargain. This court has previously held that a court-approved agreement was specifically enforceable if, as in this case, the accused satisfied the conditions of the agreement. State v. Davis, 188 So.2d 24 (Fla.2d DCA 1966). See also Butler v. State, 228 So.2d 421 (Fla.4th DCA 1969). The case before us is significantly different from a situation where specific performance of a plea bargain would not be required. See Barker v. State, 259 So.2d 200 (Fla.2d DCA 1972). In Barker the court tentatively agreed to a plea bargain, the defendant did not change his position by acting upon the bargain, and the court subsequently became aware of facts indicating that leniency was not appropriate.

Accordingly the judgment and sentence is reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED and REMANDED.

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

      . It is not clear what Judge Coe meant by “get rid of the case,” but he probably intended to place appellant on probation at a later time if appellant performed adequately as an informant.

      . The maximum sentence for aggravated assault was five years. §§ 775.082(4)(d), 784.04, Fla.Stat. (1973).


text:
    STATE of Florida, Appellant, v. Leslie B. BOWER, Appellee.
    No. 76-359.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Thomas A. Pobjecky, Asst. Public Defender, Bartow, for appellee.
   BOARDMAN, Judge.

Appellant, State of Florida, filed this timely appeal of an order of the trial court granting appellee’s motion to dismiss.

Appellee, Leslie B. Bower, was charged in a one-count information with obtaining property in return for a worthless check in violation of Section 832.05, Florida Statutes.

The information alleges in pertinent part that

LESLIE B. BOWER ... on the 8th day of August . . . did then and there obtain property of value belonging to Pauline and John Maliski, doing business as Pauline’s Catering, by means of the said Leslie B. Bower then and there delivering to Pauline Maliski a certain worthless order for money, commonly called a bank check which check was afterwards presented to the Madeira Beach Bank, Madeira Beach, Florida for payment and payment thereof was refused for the reason that the said Leslie B. Bower did not have sufficient funds in said bank wherewith to pay said check upon presentation; that at the time of the delivery as aforesaid of the said bank check, the said Leslie B. Bower knew that she did not have sufficient funds on deposit in or credit with said bank with which to pay the same upon presentation; contrary to Chapter 832.05, Florida Statutes. .

The applicable statute states in pertinent part that

[i]t shall be unlawful for any person, firm or corporation to draw, make, utter, issue or deliver to another any check, draft, or other written order on any bank or depository for the payment of money or its equivalent, knowing at the time of the drawing, making, uttering, issuing or delivering such check or draft that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same on presentation . [Section 832.05(2)(a)]

The information sufficiently apprises appel-lee of the offense with which she is charged as required by Fla.R.Crim.P. 3.140(d).

Appellee filed a sworn motion to dismiss attacking the information. In its disposition of a Fla.R.Crim.P. 3.190(c)(4) motion to dismiss the trial court is not restricted to a reading of the four corners of the charging instrument but may also consider the allegations presented by the motion. See State v. Giesy, 243 So.2d 635 (Fla.4th DCA 1971). The motion stated

[t]hat upon delivery of the check on August 8, 1975 by the defendant she had sufficient funds in her bank, the Bank of Madeira Beach, to cover the said check. 3. That when the check was presented to the Madeira Beach Bank on August 12, 1975 for payment by the payee there were sufficient funds in the defendant’s account to cover the check.
4. That the check was returned on August 12,1975 by the defendant’s bank due to an improper endorsement by the payee.
5. That the check was again presented to the Madeira Beach Bank on August 18, 1975 for payment and, at this time, the check was returned because of insufficient funds.
WHEREFORE, there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant for the above-styled charge.

The state pursuant to Fla.R.Crim.P. 3.190(d) responded to the motion by filing a demurrer which alleged

that the facts and other matters alleged as grounds in support of the said Motion, and each and every count or part thereof, are irrelevant, immaterial or not sufficient in law to constitute lawful grounds for dismissal of this cause.

After a hearing the trial judge granted appellee’s motion to dismiss.

The sole question presented here is whether the trial court erred in dismissing this information. We hold that it was error. Withdrawal of the funds necessary for payment of a check within a reasonable time after negotiation of that check is pri-ma facie evidence of knowledge of insufficient funds.

[A]s against the maker of drawer thereof, the withdrawing from deposit with the drawee named in the check, draft or other written order, the funds on deposit with such drawee necessary to insure payment of said check, draft or other written order upon presentation within a reasonable time after negotiation . shall be prima facie evidence of knowledge of insufficient funds in or credit with such drawee .
[Section 832.05(6), Florida Statutes].

Fla.R.Crim.P. 3.190(c)(4) states that the court may entertain a motion to dismiss where

[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

Appellee did not overcome the statutory presumption of knowledge of insufficient funds because she failed to establish by undisputed facts that she did not deplete her account within a reasonable time after negotiation of the August 8 check. Furthermore the state attorney argued that he had evidence to show that after August 13 there would not have been sufficient funds to cover the check. The court accepted the state’s proffer of this evidence.

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

REVERSED and REMANDED.

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


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Mark William BOND and Marc Steven Aune, Appellees.
    Nos. 76-1177, 76-1178.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1976.
    Rehearing Denied Jan. 10, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    E. G. Couse of Grace, Falbey & Couse, Fort Myers, for appellees.
   BOARDMAN, Acting Chief Judge.

Appellant, State of Florida, brings this timely interlocutory appeal of an order granting a motion to suppress. The trial judge found that the search warrant was fatally defective because it was not “directed to anyone.” We affirm the order of the court but find it unnecessary to consider the propriety of that finding since there was insufficient probable cause to support the issuance of the warrant.

Probable cause for issuance of a search warrant is determined solely with reference to the facts stated in the warrant and the supporting affidavit. E. g. State v. Knapp, 294 So.2d 338 (Fla.2d DCA 1974). See Section 933.18, Florida Statutes. In the case before us the affiant, a Lee County Deputy Sheriff, swore' to the following facts to show sufficient probable cause:

The affiant’s reasons for his beliefs that the laws of the State of Florida are being ciolated [sic] as stated above and the facts establishing the frounds [sic] for this Affidavit and the probable cause for believing that such facts exist, as follows: The affiant has received information from a confidential informant that said informant has seen a large quantity of marijuana in the above described premises within five days prior to the execution of the affidavit. The informant has purchased some of this marijuana and it has been checked and is Cannabis Sativa. The informant has appeared before a magistrate of this county and sworn to the truth of the statements contained in this affidavit. The affiant has checked the information through investigation and found it to be accurate.

The warrant does not independently establish other facts to support a finding of probable cause.

The affidavit rests on hearsay from an unidentified confidential informant. For hearsay evidence alone to provide sufficient probable cause there must be an indication that the informant is reliable and that the information was obtained in a reliable manner. Johnson v. State, 339 So.2d 667 (Fla.2d DCA 1976) (1976). See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). There was no showing made of the reliability of the informant in the case before us. While an affi-ant’s own knowledge or investigation may serve to corroborate the reliability of a confidential informant the affidavit before us is devoid of any details of the affiant’s “investigation.” See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), Findlay v. State, 316 So.2d 33 (Fla.1975). In State v. Collins, 317 So.2d 846 (Fla.2d DCA 1975) an affidavit was found sufficient where the named informant had sworn to the facts stated in the affidavit before the issuing magistrate. In the case before us an unnamed informant had sworn to the truth of the statement before an unnamed magistrate. The appearance of the informant before another magistrate would not enable the issuing magistrate to determine the existence of probable cause or to test the credibility of the informant.

Accordingly the order of the trial court is

AFFIRMED.

SCHEB, J., and GOBBIE, EVELYN M., Associate Judge, concur.


text:
    NATIONAL CHIROPRACTIC INSURANCE COMPANY, Appellant, v. James J. PARSONS, D.C., et al., Appellees.
    No. 75-1962.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, and Robert J. Asti, Coral Gables, for appellant.
    Abrams & Abrams, Miami, William C. Lewis, Coral Gables, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

The National Chiropractic Insurance Company insured the Chiropractic Arts Corporation against liability for malpractice. The trial court decided the issue of coverage against the insurance company and this appeal is from that judgment. We affirm.

At the time of the issuance of the policy, the Chiropractic Arts Corporation had three practicing chiropractors: Doctors Ross, May and Parsons. Doctors Ross and May were admitted to practice in Florida; Dr. Parsons was not. At the time of the application for insurance, Ross and May applied for a personal liability policy; Parsons did not. Thereafter, the insurance company informed Parsons that in order for him to be personally covered it would be necessary for him to apply for insurance and such an application was accepted although Parsons failed to pay the entire first premium payment. National Chiropractic Insurance Co. issued a policy endorsement upon Ross’s policy which stated:

* * * * * *
“Coverage A(l) — Individual Professional Liability
injury arising out of the rendering of or failure' to render, during the policy period, professional services by the individual insured, or by any person for whose acts or omissions such insured is legally responsible, except as a member of a partnership or association or a stockholder of a corporation, performed in the practice of the individual insured’s profession as a chiropractor,”
“Coverage A(2) — Partnership, Association, or Corporation Professional Liability injury arising out of the rendering of or failure to render, during the policy period, professional services in the practice of the chiropractic profession by any person for whose acts or omissions the partnership, association or corporation insured is legally responsible.”
* * * * * *

The endorsement had attached to it a page entitled “Declarations” which did not list Parsons as a chiropractor, as a member of, or employed by, the corporation. At the time of the delivery of the endorsement, the insurance company sent a letter which stated:

“Dear Dr. May:
Please note we have not included Dr. James J. Parsons on the corporation rider. We did not receive his application for membership and insurance.
If we can be of further service, please do not hesitate to contact our office.”

Even though this letter and the delivery of the endorsement occurred on May 21, 1974, the endorsement gave April 1, 1974, as its applicable date for beginning coverage.

The Chiropractic Arts Corporation has been sued for the alleged malpractice of Parsons as an employee. The date of the injury is alleged to be May 17, 1974. The trial judge held the corporate endorsement covered the liability of Chiropractic Arts Corporation. This appeal is from that judgment.

The appellant insurance company argues that there was no coverage for Parsons’s acts because (1) Parsons never procured coverage for himself and never joined the American Chiropractic Association, and (2) the endorsement was a material variation of the terms of the application. Considering the first proposed bar, we find nothing in the record to support the contention that the corporate coverage would be ineffective as to “ . . . any person for whose acts or omissions the partnership, association or corporation insured is legally responsible,” if that person had not procured coverage for himself or was not a member of the American Chiropractic Association. We, therefore, find no error on this point.

The second proposed bar to coverage says, in effect, that the insurance company did not intend to cover the corporate liability for Parsons’s acts and that the letter accompanying the policy clearly indicated that intention. It is, thereupon, argued that the acceptance of the policy with that understanding shows an agreement that corporate liability for Parsons’s acts was not covered. We reject the proposition that the expressed provisions of an insurance policy may be changed or amended by an accompanying letter. Where unambiguous, the meaning accorded a contract of insurance, like any other contract (see 18 Fla.Jur. “Insurance” § 400), should be limited to its expressed provisions. See Aetna Casualty & Surety Company v. Hanna, 224 F.2d 499, 503 (5th Cir. 1955); and Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934).

Affirmed.