author: HATCHETT, Justice.

text:
    Harold BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 48243.
    Supreme Court of Florida.
    July 28, 1976.

      Richard W. Ervin, III, Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for respondent.
   HATCHETT, Justice.

Petitioner Baker and another were convicted of robbery. After the trial, the wife and mother-in-law of one J. E. Johnson came forward with the report that Johnson had told them that Baker was innocent. The mother-in-law, Mrs. Brown, said Johnson admitted committing the crime himself, to her and in her daughter’s presence. The wife did not go so far as to testify that Johnson confessed, but recounted his assertion of Baker’s innocence. When motion for new trial came on for hearing, Johnson was nowhere to be found, but transcriptions of statements, which Mrs. Brown and Mrs. Johnson had given under oath, were offered in support of the motion. The trial judge granted the motion for new trial as to Baker. On appeal to the District Court of Appeal, First District, Baker’s conviction was affirmed, and the order granting a new trial was reversed. 319 So.2d 609.

The District Court reasoned that the testimony of Johnson’s wife and mother-in-law would not be admissible at a new trial, because admissions against penal interest have not been recognized as an exception to the hearsay rule in the First District, Francis v. State, 308 So.2d 174 (Fla.App.1st 1975); Pitts v. State, 307 So.2d 473 (Fla. App.1st 1975) cert. dismissed, 423 U.S. 918, 96 S.Ct. 302, 46 L.Ed.2d 273 (1975), and concluded, “If the proferred [sic] evidence cannot be admitted, it cannot affect the result of the trial.” 319 So.2d at 610.

Petitioner alleges a conflict between the District Court’s decision in this case and the decision in State v. Brown, 177 So.2d 532 (Fla.App.2d 1965). As in the present case, the prosecution in State v. Brown, supra, appealed an order granting a new trial, after a robbery conviction. There as here the new trial was ordered on the basis of newly discovered evidence. The evidence adduced on motion for new trial in Brown consisted of the results of three polygraph tests, two procured by the defense and one procured by the prosecution. The court' noted that “[s]uch tests are generally not admissible in evidence and should be excluded upon the objection of any party,” 177 So.2d at 533, but affirmed the order granting a new trial because, in the absence of an objection at the hearing on motion for new trial, “the parties stipulated, in effect, that the court could consider on a motion for new trial the so-called Tie detector or polygraph test.’ ” Id. At the hearing on the motion in the present case, the prosecutor never objected to the admission of the newly discovered witnesses’ statements, or to the trial court’s considering the statements in deciding the motion for new trial. See generally Annot., 79 ALR 2d 890, 897 (1961) (“the general rule, supported by the overwhelming weight of authority, [is] that where inadmissible hearsay evidence is admitted without objection, it may properly be considered. . . . ”) Nevertheless the District Court reversed the grant of a new trial in this case. Even on the District Court’s assumption that the newly discovered evidence would prove inadmissible at trial, therefore, the decision below conflicts with the decision in Brown where evidence was likewise deemed inadmissible over objection at trial, but was held properly considered on motion for new trial, absent objection. We have jurisdiction. Article Y, Section 3(b)(3), Florida Constitution.

The District Court’s conclusion that the trial court erred in considering the statements of Mrs. Johnson and Mrs. Brown, rests on the premise that the newly found witnesses’ testimony would not be admitted, if objected to at a new trial. Unquestionably such testimony is hearsay, and Mrs. Johnson’s testimony would clearly be inadmissible over objection at trial, but there is a division of authority as to whether testimony like Mrs. Brown’s falls within the declaration against interest exception to the rule excluding hearsay. The District Court of Appeal, First District, has decided that “a statement against interest, otherwise hearsay, would be admissible only if shown to be against the pecuniary or proprietary interest of the declarant.” Francis v. State, supra at 176. Outside the First District, Florida authority is scant, and the question whether declarations against penal interest constitute an exception to the prohibition against hearsay is apparently one of first impression in this Court.

At early common law, declarations against interest were admitted in evidence, without regard to the nature of the interest compromised. In the 1844 Sussex Peerage case, however, the House of Lords narrowed the exception to declarations against pecuniary or proprietary interest, and ruled inadmissible a written confession of criminal activity. This “barbarous doctrine” became firmly embedded in English law and gained wide acceptance in the United States as well, even though legal commentators have criticized the Sussex Peerage Rule almost unanimously, ever since its inception. At least until the decision in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), however, a majority of American jurisdictions adhered to this limitation on the declaration against interest exception.

But even before Chambers, several American jurisdictions included statements creating criminal liability within the declaration against interest hearsay exception. Some States did so by statute, while others which gave lip service to the Sussex Peerage Rule nonetheless admitted declarations against penal interest in order to prevent obvious injustice in individual cases. Still other jurisdictions proceeded on the theory that a confession to a crime is usually also an admission of tort liability and thus admissible as a declaration against pecuniary interest. Finally, some courts simply extended the hearsay exception by judicial decision to cover declarations against penal interest. See álso Rule 804(b)(3), Federal Rules of Evidence. In People v. Spriggs, for example, the defendant was charged with possession of heroin. At trial he sought to elicit from the arresting officer testimony to the effect that a companion hád declared at the time of Spriggs’ arrest that the drug in question belonged to her, not to him. The trial judge sustained a hearsay objection, and the defendant was convicted. The California Supreme Court reversed, per Tray-nor, J., holding declarations against penal interest admissible on the ground that they are as likely to be reliable as the other types of hearsay which California exempts from exclusion.

The accused in People v. Brown sought to show self-defense, claiming that the murder victim had a pistol drawn at the time he was shot. Only one of several witnesses at trial supported the defense version of events, and police officers testified they found no gun. A man named Seals had previously admitted, both to police and to Brown’s counsel, that he had picked up a gun lying near the corpse, which he said he later used to commit a robbery. At Brown’s trial, Seals declined to repeat these statements on constitutional grounds. The court sustained objections to defense efforts to prove Seals’ out-of-court declarations by other witnesses, and Brown was convicted of murder. The Court of Appeals reversed, establishing the declaration against penal interest exception in New York.

Federal constitutional implications of excluding declarations against penal interest as hearsay were explored in Chambers v. Mississippi, supra. In that case, a man was killed by gunfire coming from a crowd, and Chambers was prosecuted for murder. One McDonald had confessed to firing the fatal shots, once in writing and other times orally to various persons. The defense called McDonald as a witness, and moved that McDonald be declared adverse. This motion was denied, so that defense counsel was unable to cross-examine McDonald, when he repudiated the written confession. Testimony of the persons who had heard the oral confessions was excluded because Mississippi did not recognize the declaration against penal interest exception. On petition for writ of certiorari, the United States Supreme Court reversed, saying that “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” 410 U.S. at 302, 93 S.Ct. at 1049. In dissent, Mr. Justice Rehnquist lamented “the Court’s further constitutionalization of the intricacies of the common law of evidence,” 410 U.S. at 308, 93 S.Ct. at 1052, but the majority disavowed any intention to “establish . . . new principles of constitutional law.” 410 U.S. at 302, 93 S.Ct. at 1049.

Its opponents argue that the declaration against penal interest exception opens the door to perjurious narrations of apocryphal admissions, and also allows in evidence truthful and convincing testimony from gullible persons who have heard false confessions. The risk of perjury inheres in testimony of all kinds, however, and the objection that an out of court declaration might be calculated to mislead applies to any exception to the hearsay rule.

Like many other jurisdictions, see e. g., United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), Florida does recognize the declaration against penal interest exception when the question is whether there is probable cause for a search. State v. Patterson, 309 So.2d 555 (Fla.App.2d 1975). If a declaration against penal interest affords a sufficiently trustworthy basis for the authorities to enter an unwilling citizen’s home and search, such a declaration must likewise be sufficiently trustworthy for a jury at least to consider, when offered by an accused attempting to establish his innocence of criminal charges. The rationale for the declaration against interest exception was early stated in Gibblehouse v. Stong, 3 Rawle 437 (Pa.1832):

The principle is founded on a knowledge of human nature. Self-interest induces men to be cautious in saying anything against themselves, but free to speak in their own favor. We can safely trust a man when he speaks against his own interest. At 438.

It is inconceivable that a man would be more cautious in conceding a five dollar debt than in confessing a murder.

More is involved here than doctrinal incongruities. Law courts depend for such effectiveness as they have on the cooperation of the wider community, and trials must be conducted in a way that will earn the cooperation and support of people of good will in every walk of life. Excluding from one man’s trial another man’s confession to the offense charged is no means to that end. Dissenting in Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913), Mr. Justice Holmes wrote:

The confession of [another] that he committed the murder for which [Donnelly] was tried [and convicted] coupled with circumstances pointing to its truth, would have a very strong tendency to make anyone outside of a court of justice believe that Donnelly did not commit the crime.
228 U.S. at 277, 33 S.Ct. at 461.

When people come from “outside of a court of justice” to sit as jurors and decide a fellow citizen’s fate, depriving them of information so clearly appropriate to their task, solely on the basis of an historical quiddity — an English case over a century old — is to insult their good intentions and to invite their disaffection. Wigmore is right in railing against a doctrine

which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession, made on the very gallows, by the true culprit now beyond the reach of justice. Those who watched (in 1899) with self-righteous indignation the course of proceedings in Captain Dreyfus’ trial should remember that, if that trial had occurred in our own courts, the spectacle would have been no less shameful if we, following our own supposed precedents, had refused to admit what the French court never for a moment hesitated to admit — the authenticated confession of the absconded Major Esterhazy, avowing himself the guilty author of the treason there charged, and now known beyond a doubt to have been the real traitor. 5 Wigmore, Evidence § 1477 (Chadbourn rev. 1974).

In short, we reject for Florida any “materialistic limitation on the declaration-against-interest hearsay exception.” Chambers v. Mississippi, supra, 410 U.S. at 299, 93 S.Ct. at 1048.

There remains the question of the propriety of a new trial. Generally, “courts look with disfavor and distrust on applications for a new trial . . . [lest they] encourage counsel to neglect to gather all available evidence for a first trial.” 23 Fla.Jur. New Trial § 64 (1959). See Smith v. State, 117 Fla. 458, 158 So. 91 (1934); Herndon v. State, 73 Fla. 451, 74 So. 511 (1917); Mitchell v. State, 43 Fla. 584, 31 So. 242 (1901). The State makes no argument here, however, that defense counsel’s belated discovery of evidence was attributable to a lack of diligence. In this respect, the present case resembles Keaton v. State, 273 So.2d 385 (Fla.1973) and Douth v. State, 85 So.2d 550 (Fla.1956), and should be distinguished from cases like Harvey v. State, 87 So.2d 582 (Fla.1956), and Luster v. State, 262 So.2d 910 (Fla.App.3d 1972).

In Florida, as elsewhere, “the rule is that the ‘confession’ of a third person is grounds for a motion for new trial, but does not compel the trial judge to grant a new trial.” Fast v. State, 221 So.2d 203, 205 (Fla.App.3d 1969); Walden v. State, 284 So.2d 440 (Fla.App.3d 1973); DeBinder v. United States, 112 U.S.App.D.C. 343, 303 F.2d 203 (1962). Because we have concluded that admissions against interest need not be excluded as hearsay, testimony of persons who have heard a confession should be considered on motion for new trial, when the person confessing is unavailable to testify himself.

In deciding a motion for new trial on the ground of newly discovered evidence, the trial judge must weigh both the evidence adduced at the first trial, and the evidence offered on the motion, in order to determine whether the newly discovered evidence “if introduced at the trial would probably have changed the verdict.” Rule 3.600(a)(3), RCrP. Accordingly, the “trial judge has a wide discretion in the matter of granting or denying [motions for new trial] which we will not overthrow unless some abuse is shown.” State v. Sears, 148 Fla. 89, 3 So.2d 721, 722 (1941). State v. Strickland, 172 So.2d 260 (Fla.App.2d 1965). Only very rarely should the trial court’s determination be disturbed, see Hicks v. State, 127 Fla. 669, 173 So. 815 (1937); Solis v. State, 262 So.2d 9 (Fla.App.2d 1972) cert. den., 265 So.2d 372 (Fla.1972); Douth v. State, supra, and especially is this so if the trial court grants a new trial in a criminal case on the basis of newly discovered evidence, because “[c]ourts . . . are sometimes indulgent in their requirements as to a showing of newly discovered evidence, if they are impressed with the conviction that there has been a miscarriage of justice . . ” Edwards v. People, 73 Colo. 377, 215 P. 855, 862 (1923).

The learned District Judge applied these principles to the present case, when he wrote:

The trial court’s order granting a new trial is entitled to a strong presumption of correctness . . . . That rule is especially applicable in a criminal case such as this, in which the trial court obviously had reservations about the strength of the State’s identification testimony. 319 So.2d at 610.

We are unable to conclude that the trial judge abused his discretion in granting a new trial in the present case.

The decision of the District Court of Appeal, First District, is quashed and the cause is remanded, with directions that the order granting a new trial be reinstated.

OVERTON, C. J., and ADKINS, BOYD and SUNDBERG, JJ., concur.

      . The trial court acted pursuant to Rules 3.580-3.600, RCrP. Rule 3.600, RCrP, provides, in part, as follows:
      (a) The court shall grant a new trial if any of the following grounds is established:

      (3) That new and material evidence, that if introduced at the trial would probably have changed the verdict or finding of the court, and that the defendant could not with reasonable diligence have discovered and produced upon the trial, has been discovered.
      (b) The court shall grant a new trial if any of the following grounds is established, providing substantial rights of the defendant were prejudiced thereby:
      * * * * * *
      (6) That the court erred in the decision of any matter of law arising during the course of the trial;
      ******
      (8) That, for any other cause not due to the defendant’s own fault, he did not receive a fair and impartial trial.
      (c)When a motion for new trial calls for a decision on any question of fact, the court may consider evidence on such motion by affidavit or otherwise.

      . In Mrs. Johnson’s transcribed statement, she does not say that her husband confessed the crime, only that he said Baker did not commit the crime. This is not a declaration against interest. See Dempsey v. Meighen, 251 Minn. 562, 571, 90 N.W.2d 178, 184 (1958); Doe v. Langfield, 16 Mees. & W. 514 (1847); Doe v. Burton, 9 Car. & P 254 (1840). Johnson’s statements to his wife were not privileged, because they were made in Mrs. Brown’s presence. In order for the marital privilege to apply, “the communication in question must have been made in confidence.” Proffitt v. State, 315 So.2d 461, 464 (Fla.1975) cert. granted, 423 U.S. 1082, 96 S.Ct. 1090, 47 L.Ed.2d 94 (1976).

      . See 5 Wigmore, Evidence, § 1476 nn. 5 & 8 (Chadbourn rev. 1974).

      . 11 Cl. & F. 85, 8 Eng.Rep. 1034 (1844). The date of this decision is significant because Florida has adopted the common law of England only “down to the 4th day of July, 1776.” Section 2.01, Florida Statutes (1975). Cf. Donnelly v. United States, 228 U.S. 243, 278, 33 S.Ct. 449, 57 L.Ed. 820 (1913) (Holmes, J., dissenting; “the English cases since the separation of the two countries do not bind us”).

      . 5 Wigmore, supra note 3, § 1477 at 360.

      . E. g., 5 Wigmore, supra note 3, § 1477; Morgan, Declarations Against Interest, 5 Vand.L.Rev. 451, 473-75 (1952); Prince, The Hearsay Rule and the Proposed Rules of Evidence, 25 Record of N.Y.C.B.A. 531, 538 (1970).

      . See Cal.Evid.Code § 1230 (1966); Kan.Stat. § 60-4600) (1964); N.J.Evid.Rule 63(10) (1967); Wis.R.Evid. §§ 908.03(3), 908.045(4) (1974).

      . See, e. g., People v. Lettrich, 413 Ill. 172, 108 N.E.2d 488 (1952); Brennan v. State, 151 Md. 265, 134 A. 148 (1926); Thomas v. State, 186 Md. 446, 47 A.2d 43 (1966).

      . E. g., Weber v. Chicago, R. I. & P. Ry. Co., 175 Iowa 358, 151 N.W. 852 (1915); Aetna Life Ins. Co. v. Strauch, 179 Okl. 617, 67 P.2d 452 (1937). This rationale has been called “a plausible ground of escape from the.results of.a settled foolish rule.” Morgan, supra note 6, at 475.

        .E. g., People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377 (1964); State v. Leong, 51 Haw. 581, 465 P.2d 560 (1970); People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16 (1970).

      .60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377 (1964).

      . Id. at 874-75, 36 Cal.Rptr. at 845, 389 P.2d at 381.

      . 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16 (1970). See generally 34 Albany L.Rev. 720 (1970).

      . See Donnelly v. United States, 228 U.S. 243, 273, 33 S.Ct. 449, 57 L.Ed. 820 (1913); Davis v. State, 8 Okl.Cr. 515, 128 P. 1097 (1913).

      . Although it has been said that the “rules regulating the granting of new trials on the ground of newly discovered evidence ... are not inflexible, and must sometimes bend in order to meet the ends of justice.” Adams v. State, 55 Fla. 1, 46 So. 152, 154 (1908), there is no occasion for bending any of the rules in the present case.


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant (Defendant), v. UNIVERSITY SQUARE, INC., et al., Appellee (Plaintiff).
    No. BB-96.
    District Court of Appeal of Florida, First District.
    June 15, 1976.
    Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., for appellant.
    Marvin E. Barkin, Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for ap-pellee.
   MILLS, Judge.

This interlocutory appeal is from an order denying the Department’s motion to dismiss University’s complaint for lack of subject matter jurisdiction. The issue which is determinative of this appeal is whether the circuit court has jurisdiction of a declaratory judgment action contesting the legality of a documentary tax assessment by the Department of Revenue.

The Department assessed a documentary tax and penalty against University. After informal unsuccessful efforts to resolve the assessment, the Department issued a tax warrant and execution. University immediately filed a declaratory judgment action which resulted in this appeal.

The allegations of the complaint, together with the attached exhibits, sufficiently show final agency action by the Department.

Article V, Section 20, Constitution of the State of Florida, provides that until changed by general law, circuit courts shall have exclusive original jurisdiction in all cases involving legality of any tax assessment.

Under Section 26.012, Florida Statutes, circuit courts have exclusive original jurisdiction in all cases in equity and in all cases involving legality of any tax assessment.

Section 68.01, Florida Statutes, provides that when an assessment is made against a corporation and payment is refused because it is alleged that the assessment is illegal, the corporation may file an action in equity setting forth the alleged illegality, and the court has jurisdiction to decide the issue.

Section 120.73, Florida Statutes, provides that nothing in Chapter 120, Florida Statutes, shall be construed to repeal any provision of Florida Statutes which grants the right to a proceeding in a circuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of Chapter 86 Florida Statutes.

Section 120.73, Florida Statutes, clearly expresses the intent of the Legislature that circuit courts retain jurisdiction to determine the legality of contested documentary tax assessments by way of declaratory judgment actions.

In response to the Department’s argument, it is our opinion that there are no provisions in Chapter 120, Florida Statutes, which directly or by implication divest the circuit courts of their historical jurisdiction to determine the issues in contested documentary tax assessment actions. We are confident that had the Legislature intended to do this, it would have said so in specific language, and would have expressly repealed the inconsistent laws.

The interlocutory appeal is dismissed.

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


author: PER CURIAM.

text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant, v. H. J. McDONALD, Jr., Appellee.
    No. AA-462.
    District Court of Appeal of Florida, First District.
    June 15, 1976.
    Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., Tallahassee, for appellant.
    Gregory E. Tucci, Blowers, Walkup, Berk & Tucci, Ocala, for appellee.
   PER CURIAM.

This interlocutory appeal, being governed by the court’s decision in Department of Revenue v. University Square, Inc., 336 So.2d 371 (Fla.App. 1st, 1976), is found to be without substantial merit and is

DISMISSED. Rule 4.2 c, F.A.R.

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


text:
    WARTH PAINT COMPANY, INC., Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    No. 75-1632.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Rehearing Denied Aug. 31, 1976.
    Alfred D. Bieley, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas E. Scott, Jr., Dixon, Dixon, Lane & Mitchell, Miami, for appellee.
    Before PEARSON and HENDRY, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

The plaintiff and defendant Government Employees Insurance Company stipulated that the trial court should determine the issue of the coverage upon the record before the court at that time. The court found that there was no further coverage under the policy sued upon and discharged the insurance company. Appellant has failed to show that the finding of the trial court is not based upon factual considerations reasonably supported by the record or that the trial judge did not correctly apply applicable rules of law.

Affirmed.


author: BARKDULL, Chief Judge.

text:
    Patricia E. FREEDMAN, Appellant, v. TRANSWORLD AIRLINES, INC., Appellee.
    Nos. 75-1146, 75-1373.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Rehearing Denied Aug. 31, 1976.
    Milton M. Ferrell, Miami, for appellant.
    Walton, Lantaff, Schroeder, Carson & Wahl and Richard J. Thornton, Miami, for appellee.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Chief Judge.

Plaintiff, Patricia E. Freedman, appeals from a directed verdict for the defendant, Transworld Airlines, Inc.

Patricia E. Freedman (a/k/a Deering) decided to fly to Washington, D.C., and take along four of her dogs. She paid extra and flew by way of St. Louis just to have the right to take some of the dogs into the passenger compartment. At Miami International Airport, two of the dogs were put in the baggage compartment and two were taken on board by Patricia. In fact, TWA regulations allow only one dog in tourist and one in first class. When the plane made a stop at Tampa, TWA personnel attempted to persuade Patricia (who was flying tourist) to allow one of the dogs to be transferred from the passenger compartment to the baggage compartment. Patricia adamantly refused. The pilot of the plane begged her to at least sit in the front row of the tourist section with one dog and allow the other to be placed just across the boundary in the first class section. Patricia said that would be “committing murder”. She told the pilot her dogs “had never been separated in all their lives, and to separate the two dogs now one would surely die of a broken heart before they got to St. Louis”. Meanwhile 80 to 100 angry passengers were being held up from boarding the plane. Finally, Patricia. became hysterical and started screaming: “I will violate regulations and I am not going to get off this airplane”. A volley of profanity followed. A customs agent was summoned to remedy the situation. When he was unable to do so, he called U.S. Marshals and Patricia, cursing and kicking the marshals, was removed from the plane. She screamed over and over: “You goddamned sons of bitches, I am going to sue you.” After being booked for disturbing the peace, she was put on an • Eastern Air Lines flight by TWA, and proceeded on her way to Washington. The Tampa charge was dismissed.

Patricia sued TWA for false arrest, false imprisonment, etc. After hearing the evidence, the trial judge said: “I find no evidence on which I can let this go to the jury.” He granted a motion for directed verdict and entered judgment for TWA. The appellant contends there was sufficient evidence to go to the jury on theories of assault, battery, false arrest, false imprisonment, and malicious prosecution; that the trial judge made unfair comments in eighteen separate instances. The appellant also contends that the trial judge refused a request to let the case go to the jury and then rule n.o.v. if necessary, and that this court should establish a new principle of law that the trial judge must let it go to the jury in this situation. The appellant also contends it was error to award costs against her.

We affirm under the best view of the evidence and reasonable inferences therefrom most favorable to the appellant, which is the posture we must take the record in reviewing an order granting a directed verdict. Wolk v. Lamar Life Insurance Company, Fla.App.1967, 202 So.2d 617; Courtney v. American Oil Company, Fla.App. 1968, 220 So.2d 675; Clemente v. Tundidor, Fla.App.1973, 284 So.2d 31. Even if the captain of the airplane had indicated he wanted her removed, this verbal assault alone was not actionable. Gelhaus v. Eastern Air Lines, Inc., 5th Cir. 1952, 194 F.2d 774 ; 3 Fla.Jur., Assault and Battery, § 5; 6 Am.Jur.2d, Assault and Battery, § 112. And, the reporting of the incident to the proper authorities was not actionable. Florida East Coast R. Co. v. Groves, 55 Fla. 436, 40 So. 294; Mitchell v. Time Finance Service, Inc., Fla.App. 1958, 102 So,2d 733. The fact that the proper law enforcement officials, in furtherance of their responsibilities, removed her because of actions committed in their presence [which actions constituted a breach of the peace] this did not constitute an actionable charge against the carrier. South Florida R. Co. v. Rhoads, 25 Fla. 40, 5 So. 633; Campe v. Silas, 113 Fla. 323, 151 So. 706; S. H. Kress and Co. v. Powell, 132 Fla. 471, 180 So. 757; City of Miami v. Albro, Fla.App.1960, 120 So.2d 23; Freedman v. Crabro Motors, Inc., Fla.App. 1967, 199 So.2d 745; Williams v. Trans World Airlines, Inc., S.D.N.Y.1974, 369 F.Supp. 797; Gregory v. Chicago & N.W. Ry. Co., 100 Iowa 345, 69 N.W. 532.

Therefore, the final judgment here under review be and the same is hereby affirmed.

Affirmed.


author: MELVIN, Woodrow M., Associate Judge..

text:
    Rogert L. DOWST, Appellant, v. STATE of Florida, Appellee.
    No. X-503.
    District Court of Appeal of Florida, First District.
    March 19, 1976.
    Rehearing Denied May 19, 1976.
    John W. Tanner, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   MELVIN, Woodrow M., Associate Judge..

We review a timely appeal from a judgment and sentence on three counts of grand larceny.

The primary issue presented here for determination is whether the trial judge erred in refusing to suppress tape recorded statements of Appellant, typewritten transcriptions of the same, and testimony concerning such statements.

Upon the arrest of the Defendant, he was transported to the Sheriff’s Office where it was confirmed that he was sixteen years old. The investigating officer called the Division of Youth Services. The officer was advised by the Division of Youth Services that the Defendant was an escapee from the State training school and was requested to hold him in custody. Prior to any questioning of the Defendant and before he gave the alleged tape recorded confessions, he asked the officer if he could call his parents. He was not permitted to make the telephone call until sometime after he gave the statements in question.. Proper and timely objections were made to the introduction in evidence of all the tapes, transcriptions, and conversations relative thereto. Nevertheless, they were admitted in evidence and presented as the major thrust of the State’s case against the Defendant.

We are not here concerned with the Defendant’s argument that the statements should have been excluded because he was under the influence of some drug. The trial judge heard evidence pro and con on this issue, and the record is sufficient to support his finding in this regard.

The duty of an arresting officer or the interrogating officer, who in this case is the same person, is clearly set forth in Section 39.03(3) (a), Floria Statutes as follows:

“If the person taking the child into custody determines, pursuant to paragraph (c), that the child should be detained or placed in shelter care, he shall immediately notify the parents or legal custodians of the child . . .” (emphasis ours)

With full knowledge that he held in custody a youth of sixteen years and suspected of the commission of a serious felony, he was mandated by the provisions of the Statute to immediately notify his parents, or permit the boy to do so. It is not sufficient for the State to argue that notification of the Division of Youth Services satisfied the Statute since the Defendant was an escapee. All that call resulted in was a direction that the Defendant be placed in custody.

The purpose of the Statute is too clear to call for interpretation or construction. The Legislature has commanded with clear words that a juvenile’s parents shall he notified immediately, and it is not left to the discretion of the arresting or interrogating officer to suspend the operation of this legislative mandate until after he obtains confessions from the youth. In such posture, the giving of the Miranda rights to the Defendant was to no avail.

We hold that when the Defendant, sixteen years of age, requested to speak to his parents and was denied, such request constituted a continuous assertion of his privilege against self incrimination and that any confession given by him before either (1) he is granted the right to make such call, or (2) the officer makes a good faith effort to so advise his parents, is inadmissible in evidence. See Arnold v. State, 265 So.2d 64 (Fla.App. 3rd, 1972); In re: A. J. A., 248 So.2d 690 (Fla.App. 3rd, 1971) and Roberts v. State, 285 So. 2d 385 (Fla.1973).

The second point urged relates to alleged variances in allegation and proof of ownership of the money in question. When the evidence was presented, no objection was made as to alleged variance. The issue was not properly presented until after verdict. That timing of objection is out of season.

The third point on appeal relates to the refusal of the trial court to charge the jury as to the provisions of Section 39.-03(3) (a). The point is without merit.

The judgments and sentences are reversed with direction to grant the Defendant a new trial.

RAWLS, Acting C. J., and BARK-DULL, Thomas H., Jr., Associate Judge, concur.


text:
    STATE of Florida ex rel. Grady Richard VOLKERS, Relator, v. The Honorable Uriel BLOUNT, Jr., as Circuit Judge of the Seventh Judicial Circuit of the State of Florida, Respondent.
    No. BB-180.
    District Court of Appeal of Florida, First District.
    April 30, 1976.
    John W. Tanner, Holly Hill, for relator.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for respondent.
   MILLS, Judge.

Volkers has filed a suggestion seeking a writ prohibiting the trial court from permitting the further prosecution of him for the sale of marijuana.

Volkers was arrested for the. sale of marijuana to Deputy Grier. Subsequently, an information was filed charging him with the sale of marijuana to a confidential informant. Volkers moved to dismiss the information, because of the danger of double jeopardy. In addition, by motion for a statement of particulars, he sought the name and address of the confidential informant. At the hearing on the motions, the State advised the court that the confidential informant did not relate to the charge against Volkers. Both motions were denied.

The trial commenced. At the conclusion of the State’s case, the court granted a judgment of acquittal in favor of Volkers, because the State proved a sale to Deputy Grier, but not to the confidential informant.

Subsequently, the State filed another information charging Volkers with the sale of marijuana to Deputy Grier. Volkers moved to dismiss this information, because of former case was for the identical offense gave a deposition that the prosecution of the former case was for the indentical offense for which he was now being prosecuted, and that the words “confidential informant” were merely typographical or administrative error. In his deposition, Deputy Grier admitted that his former testimony would be identical in every material aspect, and would involve the same transaction. Vol-kers’ motion was denied and he filed the suggestion for a writ of prohibition.

Under the facts in this case, the court erred in refusing to dismiss the second information on the ground of former jeopardy. When it is made to appear that there was a former prosecution in the same state for the same offense; that the same person was in jeopardy on the first prosecution; that the parties are identical in the same prosecution; and that the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar, double jeopardy has been proved. State v. Beamon, 298 So.2d 376 (Fla.1974).

The facts in the case before us are distinguishable from those in State v. Beamon, and State v. Bentley, 81 So.2d 750 (Fla.1955), which the State relies upon. In this case, the defendant was arrested for sale of marijuana to Deputy Grier. Although the State knew or should have known this, it informed against Volkers for a sale to a confidential informant. To compound the error, the State informed the court that the confidential informant did not relate to the charge against Volkers. Nevertheless, the State failed to amend its information, but proceeded to trial where the court correctly directed a judgment of acquittal when the State proved that the sale was made to Deputy Grier, not to a confidential informant. Not only was Volk-ers placed in double j eopardy by the second information, but we cannot permit the gross injustice which would result under the facts of this case by permitting the State to prosecute him a second time.

The suggestion is granted, and the writ of prohibition is issued and made absolute prohibiting further prosecution of Volkers for the sale of marijuana to Deputy Grier on 12 July 1975.

RAWLS, Acting C. J., and McCORD, J., concur.


author: RAWLS, Acting Chief Judge.

text:
    George Willie HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. Y-196.
    District Court of Appeal of Florida, First District.
    May 18, 1976.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

Appellant, George Hampton, was found guilty by a jury of assault with intent to commit robbery and, under a charge of assault with intent to commit murder in the first degree, guilty of the lesser and included offense of assault with intent to commit murder in the second degree. By way of this appeal, appellant complains of the insufficiency of the evidence and the court’s imposition of two concurrent sentences for offenses which appellant insists arose from the “same criminal transaction”.

It is undisputed that the appellant accompanied by his brother, Leonard, and one Hillman Arnold arrived at Fred Coles’ Store for the purpose of robbing Coles. Appellant, armed with a rifle, positioned himself outside of the store to act as a lookout while Leonard and Hillman entered the store, confronted Coles with a shotgun, and demanded Coles turn over to them the proceeds from the cash register. When Coles pointed to the empty cash drawer and stated that there was no money, Leonard fired the shotgun and wounded Coles, who retaliated with a shot that felled Hillman. Leonard threw the shotgun at Coles and ran out the door, leaving Hillman on the floor. Before escaping with Leonard, appellant fired a rifle shot through the window into a table near Coles.

There is no doubt that appellant was a willing participant in the attempted robbery. The evidence sustains the judgment of appellant’s guilt of assault with intent to commit robbery. He was present aiding and abetting agents who threatened Coles with a shotgun intending to take money from him forcibly.

Next, we consider appellant’s contention that the evidence is insufficient to sustain his conviction of assault with intent to commit murder in the second degree. It has always been the law of this state that where several persons combine to commit an unlawful act, each is criminally responsible for the actions of his associates committed in furtherance or prosecution of a common design. The key is whether the extra criminal act done by one’s confederate is in furtherance or prosecution of the initial common criminal design. This is a factual question which must be resolved on a case-by-case basis.

Of significance in this case is the fact that the shooting of Coles occurred during the course of a robbery. The legislature has decreed that one who kills another during the course of a robbery is guilty of murder in the first degree. All that is necessary to establish the requisite intent to kill is to show that the killing occurred during the course of a robbery.

In Pope v. State the Florida Supreme Court specifically and in detail addressed itself to the question of whether an accomplice is guilty pursuant to Florida Statute 776.011 of murder in the first degree when a confederate kills a person during the course of a robbery. The facts in Pope are in several respects strikingly similar to the instant case. Pope and one Rawlins, the perpetrator of the actual murder, planned together the robbery. Their agreement was that Rawlins would take a gun (given to him by Pope) and go to the Palace Theater and rob the manager, Mr. Hickman. Pope was to wait several blocks away from the scene in a getaway car with the engine running. The twosome did not contemplate the murder of Hickman, and there was evidence adduced at trial to the accord that Rawlins’ gun, during the course of the robbery, accidentally discharged resulting in Hickman’s death. While the robbery murder was taking place, Pope was waiting several blocks away in the getaway car. In holding that Pope, as a principal to the robbery, was guilty of murder in the first degree, the Florida Supreme Court stated:

‘‘It was an ‘unlawful killing’ while committing a robbery that had been planned, and such a result should reasonably have been contemplated as probable, because the pistol was furnished and carried to the scene of the robbery. And whether the shooting was actually contemplated or intended or not, it grew out of the unlawful conspiracy and preparation to rob, and the principals in the robbery are guilty of the resulting homicide in the degree defined by the statute.”

The Supreme Court has placed to rest the question of whether an accomplice in a robbery is guilty of murder in the first degree if his confederate kills a person during the course of the robbery. The only remaining question is whether an accomplice in a robbery is guilty of assault with intent to commit murder if the shooting victim is fortunate enough to live. An excellent discussion on this question has been undertaken by our sister court of appeal in Michigan in People v. Poplar

In Poplar, appellant Poplar was charged with breaking and entering and with assault with intent to commit murder. Appellant and his two confederates planned the breaking and entering of a warehouse. Pursuant to these plans, the two confederates entered the warehouse while Poplar positioned himself across the street to act as lookout. Upon being discovered, one of Poplar’s confederates shot the warehouse watchman in the face wounding him. In upholding Poplar’s conviction of both breaking and entering and assault with intent to commit murder, the Michigan court stated:

“There was no evidence that defendant harbored any intent to commit murder. Therefore, ‘knowledge of the intent of Hill [Williams] to kill the deceased is a necessary element to constitute him [defendant] a principal. This, however, may be established either by direct or circumstantial evidence from which knowledge of the intent may be inferred.’
“Whether the crime committed was fairly within the scope of the common unlawful enterprise is a question of fact for the jury.
“In our opinion the jury could reasonably infer from the defendant’s knowledge of the fact that a shotgun was in the car that he was aware of the fact that his companions might use the gun if they were discovered committing the burglary or in making their escape. . . .If the jury drew that inference, then it could properly conclude that the use of the gun was fairly within the scope of the common unlawful enterprise and that the defendant was criminally responsible for the use by his confederates of the gun in effectuating their escape.”

This Court has, as recently as 1969, held that after a robbery was complete an accomplice who was driving a getaway car was guilty of assault with intent to commit murder when his confederate shot and wounded their hostage. In addition, the Florida Supreme Court has held that, where if the victim had died the defendant would have been held guilty of murder, the defendant may be held for assault with intent to commit murder if the victim lives.

The facts of this case clearly show that appellant was a willing participant in a robbery in which he and his brother both employed and used firearms to accomplish their common mission. Sufficient evidence was presented to the jury from which they could infer that appellant knew Leonard might use his shotgun in attempting to accomplish the planned robbery and, in so doing, kill or wound an innocent citizen. In drawing this inference, it was proper for the jury to conclude that the use of the shotgun by Leonard resulting in Coles’ wounds was fairly within the common unlawful enterprise and that the appellant was criminally responsible for the use by his confederates of the gun in effectuating their planned robbery. Appellant’s conviction of assault with intent to commit second degree murder is affirmed.

Appellant’s contention that the assault with intent to commit robbery and the assault with intent to commit murder are part of the same criminal transaction, and the court can impose only one sentence, is without merit.

AFFIRMED.

MILLS and SMITH, JJ., concur.

      . Appellant also challenges certain portions of the trial court’s charge to the jury, but this contention is without merit and does not warrant further discussion.

      . Florida Statutes 784.06 and 776.011 (1973). McNeal v. State, 303 So.2d 698 (3 Fla.App. 1974).

      . Buie v. State, 68 Fla. 320, 67 So. 102 (1914), and Henry v. State, 81 Fla. 763, 89 So. 136 (1921).

      . Hutchinson v. State, 309 So.2d 184 ( (Fla.App.1975), and Ryals v. State, 112 Fla. 4, 150 So. 132 (1933).

      . Hutchinson v. State, supra and State v. Roby, 246 So.2d 566 (Fla.1971).

      . Florida Statute 782.04(1) (a) (2).

      . Pope v. State, 84 Fla. 428, 94 So. 865 (1922).

      . Florida Statute 776.011 (1973) was in effect and controlling on December 15, 1974, when the instant criminal episode took place.

      . While appellant was charged with the substantive crime of assault with intent to commit murder pursuant to Florida Statute 784.-06, it has long been the law of this state that it is immaterial whether the indictment or information alleges that the defendant committed the crime or was merely aiding and abetting in its commission, as long as the proof establishes that he was guilty of either one of the acts prescribed by the statute. Jacobs v. State, 184 So.2d 711 (Fla.App. 1st 1966), and State v. Roby, 246 So.2d 566 (Fla.1971).

        .People v. Poplar, 20 Mich.App. 132, 173 N.W.2d 732 (1969). See also Walton v. State, 57 Ala.App. 317, 307 So.2d 713 (1975), and Johnson v. State, 9 Md.App. 37, 262 A.2d 325 (1970).

      . Wilson v. State, 221 So.2d 1 (Fla.App. 1st 1969).

      . Phillips v. State, 120 Fla. 134, 162 So. 346 (1935).

        .Meeks v. State, 289 So.2d 479 (Fla.App. 3rd 1974); Tarpley v. State, 258 So.2d 301 Fla.App. 3rd 1972), and Wade v. Wainwright, 266 So.2d 378 (Fla.App. 4th 1972).


text:
    STATE of Florida, Appellant, v. Arthur William WIDINSKI, Appellee.
    No. 75-1414.
    District Court of Appeal of Florida, Second District.
    April 7, 1976.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Richard Barest, Lakeland, for appellee.
   PER CURIAM.

Affirmed on the authority of Singletary v. State (Fla.1975), 322 So.2d 551.

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


text:
    SILVER SPRINGS SHORES, INC., a Florida Corporation, Petitioner, v. DEPARTMENT OF REVENUE, an Agency of the State of Florida, Respondent.
    No. BB-314.
    District Court of Appeal of Florida, First District.
    April 19, 1976.
    John Montgomery Greene, Ocala, for petitioner.
    J. E. Straughn, Executive Director, Tallahassee, for respondent.
   PER CURIAM.

Respondent has filed herein a Motion to Strike Petitioner’s Brief for failure to comply with the Florida Appellate Rules. We have repeatedly admonished counsel of the importance of complying with Rule 3.7, FAR pertaining to the form and content of appellate briefs. (See American Baseball Cap, Inc. v. Duzinski, Fla.App. 1st 1975, 308 So.2d 639; Okaloosa Island L. Ass’n, Inc. v. Okaloosa Island A., Fla.App. 1st, 1975, 308 So.2d 120; Davis v. Sails, Fla.App. 1st 1975, 306 So.2d 615, and Smith v. Smith, Fla.App. 1st 1975, 309 So.2d 615) Failure to substantially comply with the requirements of that rule will result in this Court, either upon motion of the opposing party or of its own volition, striking such brief.

Examination of petitioner’s brief reveals that petitioner has not substantially complied with the above mentioned rule. Accordingly, respondent’s motion to strike is granted and petitioner’s brief is hereby stricken. Petitioner is allowed 15 days from date hereof within which to file and serve an amended brief, complying with the Florida Appellate Rules.

IT IS SO ORDERED.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: BY THE COURT.

text:
    John C. RITCH, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-284.
    District Court of Appeal of Florida, First District.
    April 22, 1976.
    Larry G. Turner of Goldin & Turner, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

MILLS, Acting C. J., SMITH, J., and CAWTHON, VICTOR M., Associate Judge, concur.


author: SMITH, Judge.

text:
    RILEY-FIELD CO., a Florida Corporation, Petitioner, v. Reubin O’D. ASKEW et al., Respondents. CITY OF NORTH KEY LARGO BEACH, Florida, Petitioner, v. Reubin O’D. ASKEW et al., Respondents.
    Nos. BB-493, BB-494.
    District Court of Appeal of Florida, First District.
    July 19, 1976.
    Rehearing Denied Sept. 1, 1976.

      A. N. Spence and John P. McNutt and L. Grant Peeples, of Peeples, Earl & Blank, P.A., Miami, for petitioners.
    Robert L. Shevin, Atty. Gen., Thomas A. Harris and Donna H. Stinson, Asst. Attys. Gen., Tallahassee, for respondents.
   SMITH, Judge.

In accordance with certiorari procedures made applicable by Yamaha Int’l Corp. v. Ehrman, 318 So.2d 196 (Fla.App. 1st, 1975), petitioners seek review of Fla. Admin. Code Rule 22F-13 which the Administration Commission of the Department of Administration adopted March 9, 1976 and filed in the office of the Secretary of State on March 10, designating much of Monroe county as an area of critical state concern. Secs. 120.68, 380.-05(1)(b), F.S.1975. Because the petitions for certiorari were not filed within 30 days after the rule’s adoption and filing, respondents moved to dismiss the petitions as untimely filed, invoking Rule 4.5c, F.A.R. :

“(1) . . . Application for writ of certiorari shall be by petition filed in the Court within 30 days from the rendition of the decision, order, judgment or decree sought to be reviewed.”

An agency rule such as Rule 22F-13 is not strictly a “decision, order, judgment or decree” within the contemplation of appellate Rule 4.5c(l), and it is not “rendered” in the same way or with the same effect. Because appellate Rule 4.5c(l) was not designed particularly for review of chapter 120 proceedings, we ftiay and, in the absence of constraints in the Rule, should adjust it to better fit the circumstances of administrative review.

It is evident from an examination of the rulemaking process of the Administrative Procedure Act that it will often be premature for this Court to review an agency rule immediately upon its adoption. For, while an agency’s “adoption” of a proposed rule and its filing with the Department of State might otherwise seem roughly equivalent to “rendition” of a judicial “decision, order, judgment or decree” for purposes of opening the period to seek judicial review, closer inspection of the statute reveals that administrative action on the proposed rule may yet be incomplete. The legislative scheme delays the effectiveness of agency rulemaking action in order to allow objections by the Administrative Procedures Committee and their resolution by agency modification or withdrawal of the proposed rule. Sec. 120.54(10), (11), (12), F.S. 1975.

Florida’s appellate courts have no need to review agency orders which, though adopted, may never become effective, nor to assume jurisdiction for that purpose. We therefore construe appellate Rule 4.5c in this context as requiring the filing of a petition for review within 30 days after the effective date of an agency rule, whether it becomes effective on a date required by statute, or by the expiration of 20 days after its filing in the Department of State, or otherwise by operation of § 120.54, F.S.1975.

The complexities of § 120.54(10), (11) and (12) which fix the effective date of an agency rule may seem a stumbling block to the lawyer, wary of the doctrines of rendition and finality, who hopes to petition for certiorari review neither too soon nor too late for jurisdictional purposes. While such exactitude has been required in other contexts, here no embarrassment arises in the Constitution, statutes or rules from premature filing of a petition for review after an agency has adopted and filed a proposed rule but before it becomes effective. We will regard such a filing as preserving our jurisdiction “in limbo” until the agency’s proposed rule becomes effective and perfects our jurisdiction to review by certiorari. Compare Williams v. State, 324 So.2d 74, 79 (Fla.1975).

The petitions for review here were filed within 30 days after Rule 22F-13 became effective by the passage of 20 days after its filing with the Department of State. Sec. 120.54(11), F.S.1975. The petitions were timely. The motion to dismiss is denied.

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


text:
    Daniel F. BLAUVELT, Appellant, v. STATE of Florida, Appellee.
    No. 75-1500.
    District Court of Appeal of Florida, Second District.
    April 9, 1976.
    Jack O. Johnson, Public Defender, and Dennis P. Maloney, Asst. Public Defender, and David S. Bergdoll, Research Asst., Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed upon the rationale set forth in Young v. State, Fla.App.2d 1976, 327 So.2d 127.

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


author: BOYER, Chief Judge.

text:
    Joseph KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. BB-158.
    District Court of Appeal of Florida, First District.
    Nov. 5, 1976.

      Louis K. Rosenbloum and Leo A. Thomas of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   BOYER, Chief Judge.

Appellant challenges the order of forfeiture of his automobile rendered by the trial court pursuant to the Florida Uniform Contraband Transportation Act (F.S. Sections 943.41-943.44). He urges reversal because he claims that his automobile was not seized for the crime alleged in the State’s motion for forfeiture, no proof of ownership of the automobile was produced at trial, and that he was not convicted of the crime giving rise to the seizure of his car.

The State’s motion for forfeiture alleged that appellant’s 1975 Thunderbird was seized on July 4, 1975, after discovery therein of more than five grams of marijuana. The arresting officers in their affidavit related the details of appellant’s July 4 arrest and asserted that appellant at that time displayed receipts for purchase of the automobile. At the forfeiture hearing, Deputy Phillips added that appellant’s automobile was driven to the sheriff’s office but was subsequently released. Although the officer testified that the car was released to appellant’s mother, appellant testified that the officers returned the car directly to him on July 4, and that he was arrested on a different charge on August 14, 1975, at which time his car was again seized but was not returned. Defense counsel represented to the trial court at the forfeiture hearing that appellant was tried for a charge based on the August 14 arrest and was found not guilty by reason of insanity. The record indicates that some six months after the forfeiture hearing, appellant was tried on the charges based on the July 4 arrest and was found guilty by a jury of possession of marijuana and carrying a concealed weapon and not guilty by reason of insanity of aggravated assault. The record does not reveal an adjudication of guilt nor sentence. (See Ellis v. State, 1930, 100 Fla. 27, 129 So. 106).

Appellant first argues that his automobile was not seized after the July 4 arrest as claimed in the State’s motion, but was returned to him, claiming that his vehicle was not seized until after the August 14 arrest. It would be unjust, according to appellant, to seize an automobile for a subsequent crime, and then to forfeit that automobile by reason of facts alleged for a previous crime.

The language of the statute refutes appellant’s argument. F.S. § 943.43 provides, in pertinent part:

“Any vessel, motor vehicle, or aircraft which has been or is being used in violation of any provision of s. 943.42 or in, upon, or by means of which any violation of said section has taken or is taking place shall be seized and may be forfeited. * * * ” (emphasis supplied)

The statute clearly contemplates that proof of past violations of the act may provide the basis for forfeiture.

Appellant’s argument that no proof of ownership was adduced at trial is also without merit.

Finally, appellant contends that the State did not prove that he had been convicted of the crime giving rise to the seizure. To resolve that issue, we must determine what effect, if any, conviction or acquittal of a criminal charge arising out of conduct declared by F.S. 943.42 to be unlawful has on forfeiture proceedings under the act. (F.S. 943.41-943.44)

In an early case, Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886), the Supreme Court of the United States held that acquittal of a criminal charge for the same conduct resulting in a subsequent forfeiture proceeding was “conclusive” and that forfeiture would not be permitted. However, subsequent cases have, while paying lip service to the Coffey case, arrived at opposite conclusions. (See One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972 and United States v. One 1969 Buick Riviera Automobile, 493 F.2d 553, 5th Cir., Fla., 1974). It is not necessary though for us to attempt to reconcile those cases, because the issue has been resolved, we believe, by the Supreme Court of Florida, to which we look for guidance, in State v. Dubose, 1943, 152 Fla. 304, 11 So.2d 477.

In the Dubose case, Justice Chapman speaking for the court, citing numerous texts and cases from other jurisdictions, and various Federal decisions, held in a forfeiture proceeding under F.S. 562.39-562.40, F.S.1941, similar to our present Florida Uniform Contraband Transportation Act, that acquittal of a criminal charge based on conduct alleged to form the foundation of a subsequent forfeiture proceeding does not bar a civil action arising out of the same facts and conduct, and that neither the record nor judgment in the criminal action were admissible in the subsequent civil action seeking forfeiture.

It is clear that forfeiture proceedings pursuant to F.S. 943.44, are civil in nature. The Dubose case is therefore controlling. A fortiori if the record and judgment in the criminal action are not admissible in the civil forfeiture proceeding, neither conviction nor acquittal in the criminal action can have any effect on the forfeiture proceeding.

AFFIRMED.

RAWLS and SMI.TH, JJ., concur.


text:
    James H. HALL and H. E. Garrett, Appellants, v. Jack ROSS and LSL Corporation, Appellees.
    No. 75-1124.
    District Court of Appeal of Florida, Second District.
    July 21, 1976.
    Rehearing Denied Sept. 10, 1976.
    Harry M. Hobbs, Tampa, for appellants.
    Charles F. Clark and! Thomas B. Mimms, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee Jack Ross.
    Thomas C. MacDonald, Jr., and Donald A. Gifford, of Shackleford, Farrior, Stal-lings & Evans, Tampa, for appellee LSL Corp.
   PER CURIAM.

After careful consideration of the voluminous trial record, the briefs, the order appealed, and the oral arguments of counsel, it is our judgment that the directed verdict rendered by the trial court in favor of the appellees/defendants, entered at the conclusion of the appellants’/plaintiffs’ case, is

AFFIRMED.

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


text:
    In re the ESTATE of Mary Rebecca MACKEY, Deceased.
    No. 75-1472.
    District Court of Appeal of Florida, Second District.
    April 9, 1976.
    Calvin J. Faucett and David Kerben, Orlando, for appellants Mrs. James B. Mackey and Robert B. Mackey.
    Frank V. Arpaia, Bradenton, for appellants Ruth C. Mackey and Jean O’Donovan.
    Richard J. McCrory of Owen & McCrory, St. Petersburg, for appellee Mrs. Pauline Moyer.
   PER CURIAM.

Affirmed. See In re Estate of Gallop, Fla.App. 4th, 1971, 248 So.2d 686.

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


text:
    Nathaniel Duvantz McDANIEL, Appellant, v. STATE of Florida, Appellee.
    No. U-447.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
   ORDER VACATING OPINION

Notice of appeal was filed in this case on December 13, 1973, seeking review of an alleged order of the trial court by which that court refused to grant a defense motion to suppress evidence allegedly obtained as a result of an illegal search and seizure. The briefs and arguments of both the appellant and appellee were devoted to the sole issue of the legality of the search and seizure by which the evidence sought to be suppressed was obtained. Neither party suggested to this Court any lack of jurisdiction or other insufficiency in the record. We filed our opinion on October 10, 1974, and in due course the opinion was published: McDaniel v. State, Fla.App. 1st, 1974, 301 So.2d 141. We subsequently discovered that the judgment and sentence forming the basis of the appeal was not rendered until November 4, 1974, subsequent to the filing of our said opinion and the issuance of our mandate, We thereupon issued an Order to Show Cause directing the parties, through their attorneys of record, to appear before us and show cause why our said opinion should not be vacated and set aside and our mandate withdrawn. At the hearing on said Order to Show Cause it was made to appear that a Petition for Writ of Certiorari had been filed in the Supreme Court of Florida and that one of the points raised there by appellant related to the jurisdiction of this Court. We thereupon filed a formal request in the Supreme Court of Florida requesting that jurisdiction be relinquished by that court so that we might properly consider whether or not jurisdiction had ever been lodged in this Court. By order dated May 12, 1975, our request was granted and 'jurisdiction was relinquished by the Supreme Court of Florida. Appellant thereafter, prior to our resolution of the matter, voluntarily dismissed his appeal. (All of said proceedings preceded Williams v. State, Fla.1975, 324 So.2d 74). In consideration of the foregoing it is

Ordered that this Court’s opinion in McDaniel v. State, reported at 301 So.2d 141, and our subsequent mandate be and they are hereby withdrawn and vacated.

BOYER, C. J., and RAWLS and Mc-CORD, TJ., concur.


text:
    George Allister MERRIN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1954.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    George Allister Merrin, in pro. per. Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Sharon OWENS a/k/a Barbara Price, Appellant, v. The STATE of Florida, Appellee.
    No. 76-237.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Sharon Owens a/k/a Barbara Price, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This court, proceeding in the manner out- ' lined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted and the order or judgment appealed is hereby affirmed.


author: PER CURIAM. PEARSON, Judge

text:
    James C. JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1683.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Rehearing Denied Sept. 3, 1976.

      Pollack, Tunkey, Robbins & Leen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant was charged with involuntary sexual battery by use of a deadly weapon in violation of Section 794.011(3) F.S.A. He was found guilty by a jury of involuntary sexual battery by threat of violence.

The sole point on appeal is whether the trial court erred in failing to charge the jury as to the offenses of aggravated assault, assault and battery, and bare assault.

We have carefully considered the point on appeal in the light of the record, briefs and arguments of counsel and have concluded that reversible error has not been shown. See Gilford v. State, Fla.1975, 313 So.2d 729; Mitchell v. State, Fla.App.1975, 321 So.2d 108; Hanna v. State, Fla.App.1975, 319 So.2d 586; Mizell v. State, Fla.App. 1975, 310 So.2d 747.

Therefore the judgment and sentence are affirmed.

Affirmed.

PEARSON, Judge

(dissenting).

I am convinced that a careful reading of Brown v. State, Fla.1968, 206 So.2d 377; State v. Anderson, Fla.1972, 270 So.2d 353; and Gilford v. State, Fla.1975, 313 So.2d 729, requires reversal of this cause for a new trial. The jury manifested a desire to find the defendant guilty of a lesser included offense by not finding the defendant guilty as charged. The offense of aggravated assault was, in my view of the evidence, both a necessarily included offense and one supported by the evidence.


author: CROSS, Judge.

text:
    In the Interest of S. L. M., a child.
    No. 75-1345.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1976.
    Rehearing Denied Sept. 3, 1976.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler and Mitchell J. Beers, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellant, S.L.M., a child, appeals an order withholding adjudication of delinquency and detaining appellant pending disposi-tional hearing.

On March 26, 1975, a complaint was filed with the intake office of the Florida Department of Health and Rehabilitative Services, Division of Youth Services, alleging that appellant stole a bicycle. After reviewing the matters alleged in the complaint, the intake officer filed a recommendation with the state attorney that a delinquency petition be filed in the circuit court. On May 20, 1975 the state attorney, acting upon said recommendation, filed a petition in the circuit court alleging that appellant was a delinquent child.

Appellant thereafter moved to dismiss the petition on the ground that said petition was not filed in the circuit court within thirty days from the date the complaint was referred to the intake office. Said motion was denied by order of the circuit court. An adjudicatory hearing was held, after which the circuit court entered an order withholding adjudication of delinquency and detaining appellant pending disposi-tional hearing. It is from this order that appellant takes her appeal.

Appellant’s sole contention on appeal is that the circuit court erred in denying her motion to dismiss.

Section 39.05(7), Florida Statutes 1975, provides:

“On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 30 days from the date the complaint was referred to the intake office.”

Rule 8.020(b)(5), Fla. RJP (1975), however, provides:

“On motions by or in behalf of a child, a petition alleging delinquency or need of supervision may be dismissed with prejudice if it is not filed within thirty days from the date the complaint was received by the Intake Officer.”

We recognize conflict exists between Section 39.05(7), Florida Statutes, and Rule 8.020(b)(5), Florida Rules of Juvenile Procedure.

Substantive law prescribes duties and rights under our system of government. It is enacted by the legislature. Procedural law concerns the means and method to apply and enforce those duties and rights, and in Florida is promulgated by the Florida Supreme Court.

In the instant case we determine Section 39.05(7), Florida Statutes, relating to filing of the petition, to be substantive law and therefore supersedes Rule 8.020(b)(5), Florida Rules of Juvenile Procedure.

Accordingly, the order entered by the circuit court withholding adjudication of delinquency and detaining appellant pending dis-positional hearing is reversed, and the cause is remanded with directions to discharge appellant.

Reversed and remanded, with directions.

DOWNEY and ALDERMAN, JJ., concur.


text:
    Jane W. WILLSON, Appellant, v. Howard T. WILLSON, Appellee.
    No. 75-1362.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1976.
    Rehearings Denied Sept. 3, 1976.
    Philip J. Gouze, of Law Offices of James P. O’Flarity, Palm Beach, for appellant.

      Ronald E. Jones, West Palm Beach, for appellee.
   PER CURIAM.

Appellant-respondent, Jane W. Willson, appeals an order modifying the final judgment dissolving the marriage of appellant and appellee-petitioner, Howard T. Willson.

Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we determine that the trial court abused its discretion in reducing the appel-lee’s alimony obligation to three hundred fifty dollars per month. Therefore, the order herein appealed is modified by deleting paragraphs two and three thereof. In all other respects, the order modifying the final judgment dissolving the marriage of the parties is affirmed.

Affirmed as modified.

MAGER, C. J., CROSS, J., and PAR-HAM, HARRY C., Associate Judge, concur.


text:
    William Gregg BLANCHARD, III, Appellant, v. Darlene Myers BLANCHARD, Appellee.
    No. 76-857.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    John L. Chaves and James L. Wall, Miami, for appellant.
    Joel Hirsehhorn and Yale T. Freeman, Miami, for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Affirmed.


author: PEARSON, Judge.

text:
    Mary M. DEAN, Administratrix of the Estate of Avery Marion, a Deceased minor, Appellant, v. BENNETT M. LIFTER, INC., a Florida Corporation, Appellee.
    Nos. 75-1506, 76-419.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Sept. 1, 1976.

      Robyn Greene, Sams, Anderson, Post & Ward, Miami, for appellant.
    Sam Daniels, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PEARSON, Judge.

These consolidated appeals are from a final summary judgment for the defendant Bennett M. Lifter, Inc. The plaintiff, Mary M. Dean, administratrix of the estate of Avery Marion is the appellant in each appeal. The single question presented is whether a genuine issue of material fact existed to preclude the summary judgment.

George E. Hermetet, alleged to be an employee of the defendant Lifter, negligently operated his automobile and caused it to strike Avery Marion, a minor pedestrian. The injury resulted in her death. Her-metet was insured by the Gateway Insurance Company. The plaintiff began settlement negotiations with Hermetet and his insurer. While these negotiations were in progress, plaintiff filed suit against defendant Lifter. Several weeks later, she settled her claim with Hermetet and Gateway for $10,000, which amount was Gateway’s policy limit. Pursuant to the settlement, the plaintiff executed a standard form release which included the following language:

“Know All Men By These Presents, that the Undersigned do(es) hereby acknowledge receipt of a draft for_Ten Thousand and no/100- Dollars ($10,000.00) which draft is accepted in full compromise settlement and satisfaction of, and as sole consideration for the final release and discharge of, all actions, claims and demands whatsoever, that now exist, or may hereafter accrue, against GEORGE HERMETET and GATEWAY INSURANCE COMPANY and any other person, corporation, association or partnership charged with responsibility for injuries to the person and property of the Undersigned, and the consequences flowing therefrom, as the result of an accident, casualty or event which occurred on or about the First day of June, 1973 at or near on private property at 2050-N.W. 204 Street and N.W. 21 Avenue, Miramar, Dade County, Florida, resulting in the death of Avery Marion, a minor.”
* * * * * *

In support of its motion for summary judgment, defendant Lifter submitted the release and an affidavit of John Parker, an attorney, in which Mr. Parker stated that he was the attorney responsible for preparing the release and that when the settlement was being negotiated, he and Mr. Donald Post, the plaintiff’s attorney, discussed the fact that investigations conducted by Gateway revealed that Hermetet was an independent contractor and not an employee of defendant Lifter. Plaintiff submitted an affidavit of Mr. Post stating that he determined that Mr. Hermetet had a $10,000 insurance policy with Gateway and that after receiving a letter from Mr. Parker in which he stated “[t]he purpose of the settlement is to effect a discharge of all liability or potential liability of Gateway’s insured, Mr. Hermetet,” that he submitted the release to his client with the assurance that the settlement was merely with Mr. Hermetet and that the lawsuit against the corporation was still pending. Mr. Post’s affidavit adds that at no time during the settlement negotiations was a release of defendant Lifter discussed.

The trial judge entered an order granting summary judgment for the defendant in which he stated:

“Upon consideration of the Motion, the release, and the record in this cause, the Court finds that plaintiffs suit is barred by the release.”

Thus, the simple question presented is whether a party who has given a general release to one of two possible tortfeasors which release expressly, by its terms, releases all parties from liability for the occurrence may, thereafter, maintain a suit against the other claimed tortfeasor upon the allegation that the intention of the plaintiff was that only one of the tort-feasors be released. We think that the decision on this appeal is governed by the holding of the District Court of Appeal, Second District, in Hester v. Gatlin, Fla.App.1976, 332 So.2d 660, in which that court dealt with a similar factual situation and held:

******
“The fact that the consideration for this release only flowed from Frank and Gilchrist did not prevent [Gatlin] from obtaining its benefits as a third party beneficiary. See Albert’s Shoes v. Crabtree Construction Co., Fla.1956, 89 So.2d 491. The inclusion of the italicized language in the release was also beneficial to Frank and Gilchrist, if for no other reason than to be available as an additional defense to a claim for contribution such as is being made by Hester in this case.”
******

In the best appellate tradition, the appellant has cited the Hester decision and has attempted to distinguish it. He points out that Hester was a third party claimant for indemnification or contribution against the parties who had received the release and that, therefore, the issue of the intent of the parties to the release did not arise.

The issue of the intent of the parties to the release does not govern this appeal. What the plaintiff is saying is that she made a unilateral mistake. The clear and unambiguous terms of a release may not be changed upon a claim of unilateral mistake where that mistake results solely from the want of due care and diligence exercised by persons of reasonable prudence under the same circumstances. See Moore v. Wesley E. Garrison, Inc., 148 Fla. 653, 5 So.2d 259 (1941). When Hermetet, who is not a party to this action, paid the $10,000, he secured the release for himself and bought the possible right to proceed against any other joint tortfeasors for contribution. See Lincenberg v. Issen, Fla.1975, 318 So.2d 386.

Having reached the decision that this judgment must be affirmed, we do not consider Lifter’s contention that the summary judgment should be affirmed upon the ground that Hermetet was conclusively shown to have been an independent contractor.

Affirmed.


text:
    STATE of Florida, Appellant, v. Prince Albert LEWIS et al., Appellees.
    No. 76-186.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.

      David H. Bludworth, State’s Atty., and William B. King, Asst. State’s Atty., West Palm Beach, for appellant.
    Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for appellee, Lewis.
    Nelson E. Bailey, of Bailey & Brown, West Palm Beach, for appellee, Youman.
    Richard L. Jorandby, Public Defender, and Henry Prettyman, Sp. Asst. Public Defender, West Palm Beach, for appellee, Reed.
    Franklin G. Callas, of O’Connor, Baylor, Callas & Elliott, Palm Beach, for appellee, Jenkins.
   PER CURIAM.

The order suppressing the evidence which the State seeks to review was based upon the trial court’s consideration of a search warrant predicated upon personal observations of the affiant and a confidential informant in a “controlled buy” circumstance. Under the recent decision of the Florida Supreme Court in State v. Gieseke, 328 So.2d 16 (Fla.1976), which was not available to the trial court at the time of the entry of the order under review, we are of the opinion that the affidavit in question contained sufficient allegations to establish probable cause for the search in question. Accordingly, the order of suppression entered on January 16, 1976 in Case Nos. 75-1870 CF and 75-1877 CF is vacated and set aside and the cause remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

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

      . Implicit in this decision is the proposition that the affiant is not required to allege a continued existence of contraband on the premises but, rather, that a controlled buy is a sufficient factual premise from which it can be concluded that additional contraband remained on the premises. The decision in Gerardi v. State, 307 So.2d 853 (Fla.App. 4th 1975) is factually distinguishable and hence inapplicable.


text:
    Ann MASON and Norma L. Brown, d/b/a the Odds and Ends Executive Restaurant and Lounge, jointly and severally, Appellants, v. Richard MARTINO, Appellee.
    No. 75-1664.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Sept. 3, 1976.

      Burdick & Donahoe and Christopher B. Knox, Ft. Lauderdale, for appellants.
    Gus Efthimiou, Jr., Miami, for appellee.
    Before PEARSON and HENDRY, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

This action was brought by Richard Mar-tino seeking damages for the breach of a written contract between the parties. The case was tried before the court without a jury and, on July 15,1975, the court entered a final judgment for the defendants. On July 22, 1975, the plaintiff served a motion for rehearing and the court granted the rehearing. The parties stipulated that no further evidence would be tendered and re-argued the case before the court. Thereafter, the trial judge entered a final judgment in favor of the plaintiff for damages in the amount of $14,000.

Defendant’s first point urges the application of RCP 1.530(f) because of the alleged error of the trial court in not setting forth its reasons for granting a petition for rehearing. The rule is not applicable. In this instance, the trial judge heard only the re-argument of the legal points involved. The trial judge has jurisdiction to alter or amend a final judgment upon the granting of a timely motion for rehearing or reconsideration. See State ex rel. Owens v. Pearson, Fla.1963, 156 So.2d 4.

Appellant’s remaining points are directed to the sufficiency of the evidence to support the finding of liability and damages. The record reveals that there is conflicting evidence on almost every point involved. An appellate court will not substitute its judgment for that of the trial court when there is sufficient evidence to support the judgment entered. See Lubrano v. Macauley, Fla.App.1961, 125 So.2d 911.

Affirmed.


author: HENDRY, Judge.

text:
    FOUNTAINHEAD MOTEL, INC., Appellant, v. Dorothy MASSEY, Appellee.
    No. 75-961.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Sept. 1, 1976.

      Horton, Perse & Ginsberg, Joseph C. Brannen, Miami, for appellant.
    Philip M. Gerson, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Appellant, defendant below, appeals an adverse final judgment entered by the trial court, pursuant to a jury verdict, awarding appellee, plaintiff below, $35,000 in damages for injuries sustained by her in a slip and fall case.

Appellant contends that the trial court erred in denying its motions for a directed verdict and in ultimately entering judgment for appellee because the evidence was totally lacking in proof that appellant had actual or constructive knowledge or notice of the existence of the substance on its premises, which caused appellee to slip and fall, for a length of time sufficient to remedy the situation.

Appellee alleged in her complaint that she suffered serious personal injuries as a result of the negligence of appellant in maintaining and operating its motel. Ap-pellee’s allegation of negligence was predicated upon the following three theories: first, appellee contended that appellant was negligent by allowing the lights, which should have illuminated the staircase where she slipped and fell, to remain burned out for a period of one to two weeks prior to her accident; second, appellee contended that appellant was negligent in failing to provide appropriate facilities, supervision, rules, and regulations for pets staying at its motel (the testimony showed that the cause of appellee’s slip and resulting fall was dog fecal matter on the staircase); and, third, appellee contended that, because appellant advertised that pets were acceptable at its motels, it created a foreseeable need for adequate facilities, supervision, and rules which appellant failed to provide.

It has been consistently held that motions for directed verdicts should be cautiously granted by a trial court, and only when, after viewing the evidence and testimony in a light most favorable to the non-moving party, the court concludes that the jury could not reasonably differ as to the existence of a material fact or inference and that the movant is entitled to a judgment as a matter of law. See Chowning v. Pierce, 174 So.2d 42 (Fla.3d DCA 1965), and Deese v. White Belt Dairy Farms, Inc., 160 So.2d 543 (Fla.2d DCA 1964). Further, it is not the function of an appellate court to substitute its judgment for that of the jury on disputed questions of fact. On appeal from an adverse judgment after a jury verdict, an appellate court must view the record and all reasonable inferences therefrom in the light most favorable to the appellee. See Graves v. Wiggins, 257 So.2d 268 (Fla.3d DCA 1972), and Krasny v. Richter, 211 So.2d 612 (Fla.3d DCA 1968); and 2 Fla.Jur., Appeals § 308.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated in the instant appeal. In our opinion, appellant’s motions for directed verdicts ^were properly denied and the final judgment entered by the trial court pursuant to the jury verdict was correct. Accordingly, appellant’s petition for a new trial was also properly denied. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is affirmed.

Affirmed.


text:
    VENETIAN SHORES HOME AND PROPERTY OWNERS and other Adverse Interested Parties, Petitioners, v. Henry C. RUZAKAWSKI and the Department of Transportation, State of Florida, Respondents.
    No. 76-166.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Aug. 31, 1976.
    Wolf & Schoninger, Miami, for petitioners.
    James A. Baccus, George L. Waas, Geoffrey B. Dobson and Winifred Sheridan Smallwood, Tallahassee, for respondents.
    Before PEARSON and HENDRY, JJ., and SACK, MARTIN, Associate Judge.
   PEARSON, Judge.

We are presented with a petition for writ of certiorari which seeks review of a final order of the Department of Transportation of the State of Florida which granted the application of the respondent Henry Ruza-kawski to use a portion of Snake Creek in the Florida Keyes as a private seaplane base. The order was entered by the Secretary of Transportation (Florida Department of Transportation). The order provided that the findings of fact, conclusions and recommendations of the Hearing Examiner were adopted “as modified” and proceeded to modify the Examiner’s recommended order by providing that the license order, in fact, be issued.

We have jurisdiction to review this order pursuant to Fla.Stat. § 120.68 and FAR 4.5(c). The petitioners contend that the Department of Transportation erred in overruling the finding of the Hearing Examiner that the landing and take-off site was not adequate in that the prior existing uses and physical impediments of the designated area would make the use of the proposed site hazardous to nearby life and property. Other contentions are advanced but we hold they are without merit. We hold that the position outlined above is meritorious because the Department of Transportation was without authority to make a finding which is contrary to that of its Hearing Examiner when the finding of fact by the Hearing Examiner is supported by competent and substantial evidence in the record of the hearing.

Section 120.57(l)(b)(9) of the Florida Statutes, which is a part of the Administrative Procedure Act, provides for agency action upon the basis of the findings of the Hearing Examiner as follows:

“9. The agency may adopt the recommended order as the agency’s final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines that a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record. In the event a court, in reversing an agency’s order, finds that such agency action was done in bad faith or maliciously, the court may award attorney’s fees and costs to the aggrieved prevailing party.”

The findings of the hearing examiner were as follows:

* # * * * *
“The site of the proposed landing and take-off area desired by the Applicant to be licensed is inadequate for the proposed purpose.
“The granting of a certificate of site approval and license to the Applicant, as applied for, should be denied.
“CONCLUSIONS: Section 330.30(1), Florida Statutes, 1973, provides the basis upon which licensing should be granted or denied. One of these conditions is that the site is adequate. Chapter 14-60.07 G. (8), of the Florida Administrative Code as adopted to implement the Statute provides:
‘No seaplane base shall be approved which requires aircraft to operate in close proximity to a bridge, public beach, power line, boat dock or other area which could constitute a danger to persons or property.’
“The evidence in this case clearly demonstrates that the area of Snake Creek upon which he desires a license for use as a landing and take-off site is not adequate for that purpose as provided by the law and the implementing Administrative Code. This area is already subject to uses inconsistent with the Applicant’s desires. These uses include a bridge, power line, boat docks and uncontrolled recreational activities, all of which, are proscribed by regulation as above cited. It is true that the Applicant has gone to considerable length in acquiring authorization from at least three levels of government and no less than five agencies. However, this authorization dealt with navigable airspace and his seaplane ramp. He has even been advised that the geometric configuration of Snake Creek would meet the minimum standards of site approval. All of this is unfortunate and must be frustrating to the Applicant. However, for the reasons stated herein it must be concluded that the site requested, by the Applicant for his intended use, is not adequate for such use and should not be licensed for that purpose.”
‡ ‡ ‡ ‡

The order of the agency is as follows:

* * * * * *
“FINDINGS OF FACT: The site of the proposed take off and landing area desired by the applicant to be licensed is adequate for the issuance of a limited license for use by Henry C. Ruzakowski only when limited to his personally-owned Republic Sea Bee type aircraft. The applicant in hearing on 30 September, 1975, accepted the limitation to his own personal aircraft and personal pilo-tage.
“CONCLUSIONS: The water concerned is in the public domain and should be available to the public for reasonable use. It is concluded that reasonable use includes a landing area for Henry C. Ru-zakowski’s personally owned Republic Sea Bee aircraft.
“It is ordered that the recommended order as herein modified, the exceptions to the recommended order, the evidence and the transcript of the proceedings be made a part of this order and that a limited seaplane base site approval for the area known as Venetian Shores Seaplane Base should be and is granted.”

It will be immediately noticed that the agency violated the statute in that it did “reject or modify the findings of fact” without “stat[ing] with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.”

Further, our review of the record in the light of the briefs filed compels us to hold that there is competent, substantial evidence to support the finding of the examiner and that he did proceed carefully in a strongly-contested matter to conduct a fair hearing in full compliance with the requirements of law.

We believe the entire tenor of the provisions of the Administrative Procedure Act having to do with the functions of a Hearing Examiner leads to the inescapable conclusion that the action of the agency, after a full hearing, is in the nature of a procedural review. Extensive provisions are made for remand or correction where the hearing is not complete or in accordance with the rules of due process, but there is no provision which suggests that the agency should make a new judgment upon the evidence. This relationship between agency and examiner is not new to the law. The rule long applied in chancery matters is that where a master is appointed to take the evidence and report the same, together with his findings of fact and conclusions of law, his findings should be approved by the chancellor unless clearly erroneous or it appears that the master has misconceived the legal effect of the evidence. Frank v. Frank, Fla.1954, 75 So.2d 282. We do not think that the Administrative Procedure Act can be read to grant to the head of an agency greater powers over an examiner’s findings than those of a trial judge over the findings of a master in chancery.

Accordingly, the writ is granted and the order appealed is quashed.

It is so ordered.


text:
    The STATE of Florida, Appellant, v. Tommile JACKSON, Appellee.
    No. 75-1863.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Rehearing Denied Sept. 1, 1976.
    Richard E. Gerstein, State’s Atty., and Lance R. Stelzer, Asst. State’s Atty., for appellant.
    Arthur E. Huttoe, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed upon the rule that “A defendant’s constitutional rights have been denied if he is not brought to trial within such period of time as is reasonable under the circumstances and the delay is due to neglect or laches of the prosecution or of public officers.” Therefore, even though defendant has waived speedy trial, he must be tried in a reasonable time after he has announced that he is ready for trial.

      . 21 Am.Jur.2d Criminal Law § 251 (1965).


text:
    Charles WILLIAMS, Appellant, v. GATEWAY INSURANCE COMPANY, Appellee.
    No. 73-1241.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1976.
    Ser & Keyfetz, Miami, for appellant.
    Vernis & Bowling, Coconut Grove, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on May 14, 1974 (294 So.2d 422) affirming the order of the circuit court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed April 21, 1976 (331 So.2d 301) and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on May 31,1974 is withdrawn, the judgment of this court filed May 14, 1974 is vacated and the opinion and judgment of the Supreme Court of Florida in this cause is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16 b, F.A.R.).