author: GRIMES, Judge.

text:
    Lester JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-79.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
    James A. Gardner, Public Defender, Sarasota, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant, Lester Johnson, contends that he was not afforded a speedy trial. Appellant was convicted of an attempt to commit a lewd, lascivious and indecent assault upon a child under the age of fourteen years. The maximum punishment for this crime was five years imprisonment. The court, however, determined that appellant was a subsequent felony offender under Fla.Stat. § 775.084 (1971) and summarily sentenced appellant to a ten-year term. Upon appeal and at 292 So.2d 426, this court affirmed the judgment but vacated the sentence, holding that the enhanced sentence imposed on appellant as a recidivist could not be imposed without the state having first filed a separate information alleging specific prior offenses upon which recidivism was predicated. We based our ruling upon Fla.Stat. § 775.11 (1971) [repealed by § 66, Chapter 74—383, effective July 1, 1975],

This court’s mandate was received by the trial court on April 18, 1974. On June 25, 1974, an information was filed charging Johnson as a subsequent felony offender. On July 12, 1974, the court issued an order for Johnson’s return from Union Correctional Institution where he was then incarcerated to answer the subsequent felony offender charge. On October 23, 1974, appellant filed a motion to discharge pursuant to RCrP 3.191. The motion was denied the following day. The case was tried by a jury on October 30, 1974, and appellant was convicted.

Appellant contends that the state had to bring him to trial on the charge of being a subsequent felony offender within ninety days of the receipt of the mandate of this court pursuant to RCrP 3.191(g). This rule provides:

“(g) Effect of Mistrial, Order of New Trial. A person who is to be tried again shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time.”

While it is true that had it not been for the mandate there would have been no requirement to have a trial on the charge of recidivism, can it be said that the mandate made possible a new trial? We think not. Johnson had not been tried as a subsequent felony offender before he was sentenced as such. Our previous opinion set aside his sentence for this reason.

The record reflects that appellant was in prison serving sentences imposed in Dade County in 1969 when the information charging him with being a subsequent felony offender was filed. Therefore, pursuant to RCrP 3.191(b)(1), the speedy trial time commenced to run upon the filing of the information. Because appellant was imprisoned, the state had at least one year within which to bring him to trial. The trial was timely, so the motion for discharge was properly denied.

We recognize that the provisions of the speedy trial rule could be construed to reach the opposite result on these particular facts, but we believe that our interpretation is consistent with what the rule is intended to accomplish.

Appellant’s other point on appeal is without merit.

Affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Irene R. MURPHY, Appellant, v. TALLAHASSEE TITLE COMPANY., a Florida Corporation, et al., Appellees.
    No. Y-319, Y-414.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1975.
    W. J. Oven, Jr., Tallahassee, for appellant.

      J. Marshall Conrad, Robert A. Mick, L. Ralph Smith, Jr., Peter Guarisco and Harry Lewis Michaels of Michaels & Patterson, Tallahassee, for appellees.
   PER CURIAM.

Upon trial on the merits of this case, the trial court found that the plaintiff had failed to carry her burden of proof in establishing that the defendants excavated their land as to cause a subsidence of the plaintiff’s land in the natural state, and further found that the plaintiff had failed to establish the extent of any damages suffered by her. As trier of the facts, the lower court resolved any conflict in the testimony, and we find that its conclusions are supported by the record.

Accordingly, it is unnecessary to pass upon the merits of the legal positions taken by any of the parties, and we therefore

Affirm.

BOYER, C. J., SMITH, J., and SACK, MARTIN, Associate Judge, concur.


text:
    SEACO ELECTRICAL SUPPLIES, INC., Petitioner, v. Frank H. MEYER, Respondent.
    No. X-385.
    District Court of Appeal of Florida, First District.
    Dec. 5, 1975.
    Jerry W. Gerde, of Davenport, Johnston, Harris, Gerde & Harrison, Panama City, for petitioner.
    G. Robert Barron, Fort Walton Beach, for respondent.
   PER CURIAM.

This petition for common law writ of certiorari is not accompanied by a copy of the judgment of the circuit court of which review is sought, nor by copy of the judgment of the county court which was vacated by the complained-of circuit court judgment, nor by other parts of the record before the circuit court which are essential, in our view, to a determination of whether the circuit court departed from the essential requirements of law. Rule 4.5, subd. c(l), F.A.R. The petition for certiorari is, accordingly,

Dismissed.

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


author: BOYER, Chief Judge.

text:
    Gordon Willard GRINER, Appellant, v. STATE of Florida, Appellee.
    No. Y-341.
    District Court of Appeal of Florida, First District.
    Dec. 5, 1975.
    Ken Davis, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellant appeals conviction of the crime of withholding support from a minor. The facts are not in conflict. Appellant was required by a final judgment of divorce to pay to his former wife monthly support payments for his two minor children. When the oldest child became 18 years of age appellant ceased his support of that child but continued making payments for his remaining minor child until December 16, 1974, on which date a check was mailed and subsequently cashed. On February 6, 1975, an information was filed at the behest of appellant’s former wife, charging appellant with unlawfully and willfully withholding support from his minor child since December 16, 1974. At the trial, which was before the court without a jury, the child’s mother (appellant’s former wife) testified that she had received no support payments from appellant since December 16, 1974. Appellant, testifying in his own behalf, produced his checkbook containing his check stubs which reflected a check in the amount of the monthly support payment payable to his former wife dated February 5, 1975 and another in the same amount on March 7, 1975. Appellant testified that the first check was placed in his former wife’s mailbox on the date that it was written and that the latter was mailed. He had not balanced his checkbook and could not testify as to whether or not the checks had cleared his account. There was no evidence as to the needs of the child nor was there evidence that he had been deprived of any necessities of life.

It is axiomatic in American jurisprudence that one charged of a crime is presumed innocent until proven guilty beyond and to the exclusion of a reasonable doubt and that the burden of proof rests upon the State. A conviction may not rest upon suspicions, speculation nor conjecture. Sub judice, the only evidence adduced in support of the charge was that the child’s mother did not receive the support payments. There was no evidence that appellant willfully and intentionally withheld support. (See Steadman v. State, 1920, 80 Fla. 547, 86 So. 428). In fact, the only evidence in that regard was to the effect that payments were made by appellant though not received by the payee. In addition, to sustain a conviction of the crime of unlawfully and willfully withholding support from a minor child there must be a showing that the minor child was in need of support. (Steadman v. State, supra, and Broadnax v. State, Fla.1952, 57 So.2d 651). No such evidence was adduced.

Although not determinative, it is pertinent to note that the information charging appellant with a felony was filed when appellant was, by his former wife’s own testimony, less than sixty days in arrears.

The judgment and sentence here appealed are reversed with the directions that appellant be discharged.

It is so ordered.

SMITH, J. and SACK, MARTIN, Associate Judge, concur.


text:
    Antonio L. VAZQUEZ, Appellant, v. Esther Fonseca VAZQUEZ, and Progressive Casualty Insurance Company, Appellees.
    No. 74-1707.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Gilbert, Silverstein & Heilman, Miami, for appellant.
    Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for appel-lees.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Gaston v. Pittman, Fla. 1969, 224 So.2d 326.


author: PER GURIAM.

text:
    Herman WATSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-432.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER GURIAM.

Affirmed on the authority of Estevez v. State, Fla.1975, 313 So.2d 692. See also Hall v. State, Fla.App.1972, 261 So.2d 521; Pettigrew v. State, Fla.App.1974, 295 So.2d 672; State v. Kirkland, Fla.1975, 322 So.2d 480. Compare Calvo v. State, Fla.App. 1975, 313 So.2d 39.


text:
    James D. SHAW, Appellant, v. CITY OF MIAMI et al., Appellees.
    No. 75-732.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Dollar & Glassford, Miami, for appellant.
    John S. Lloyd, City Atty.,’ and Ronald A. Silver, Asst. City Atty., for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant, plaintiff below, brings this interlocutory appeal from an order of the trial court dated May 8, 1975 granting ap-pellees’, defendants below, motion to dismiss the complaint for declaratory decree, as amended, for failure to join indispensable parties as defendants.

On September 9, 1974, pursuant to a motion filed by appellees to join indispensable parties, the trial court ruled that each member of the Miami City Employees’ Retirement System and Miami City General Employees’ Retirement Plan were indispensable parties to the action. After this ruling, ap-pellees City of Miami, Donald L. Printz, and Ralph Parks, as alleged class representatives, filed a motion to dismiss the complaint, as amended, for the failure of appellant to join indispensable parties as defendants. By its order dated May 8, 1975, the trial court granted this motion without prejudice to appellant to amend his complaint and join the indispensable parties. From the order, appellant appeals.

Appellant contends that the requisite elements existed for a class action under Rule 1.220, Florida Rules of Civil Procedure, 30 F.S.A., and that the trial court erred by holding otherwise in its May 8, 1975 order. Appellees contend to the contrary.

We have considered 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. Therefore, the order appealed is affirmed.

Affirmed.


text:
    Ronald ORANGE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1806.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
    Richard L. Jorandby, Public Defender, and Elliot R. Brooks, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty.Gen., Tallahassee, and Frank B. Kessler, Asst.Atty.Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. United States v. Johnson, 413 F.2d 1396 (5 Cir. 1969), aff’d en banc, 431 F.2d 441 (5 Cir. 1970); State v. Cohn, 284 So.2d 426 (3d DCA Fla.1973).

Affirmed.

WALDEN, C. J., and OWEN and MAGER, JJ., concur.


text:
    Gregory Lewis LOMAX, Appellant, v. STATE of Florida, Appellee.
    No. 74-1089.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1975.
    James A. Gardner, Public Defender, Sarasota, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This case is another in a long line of cases which concern the effect of the failure to give a requested instruction on a lesser included offense.

On the night of March 28 the appellant was seen hanging around the lobby of a motel for a couple of hours. He then pulled a pistol on the clerk and had her fill a paper bag with the contents of the cash register. He took her across the street to another building, had her disrobe and tied her in a shower. She managed to get free and called the police. A police officer heard the radio description of the robber and began to cruise the area. He stopped appellant and a fight ensued. The appellant then fled but was caught by other officers responding to the sounds of gunfire. The appellant was carrying a suitcase containing a pistol and a paper bag full of cash. Appellant was charged with robbery.

At trial appellant was identified as the perpetrator of the crime and was convicted of robbery. Before the jury was charged, however, the defense requested instructions on attempted robbery, assault with intent to commit robbery, grand larceny and petit larceny. The court refused to instruct on assault with intent to commit robbery and attempted robbery expressly for the reasons that the only lesser included offenses to robbery set forth in Florida Standard Jury Instructions in Criminal Cases are grand larceny and petit larceny.

Several opinions have indicated that assault with intent to commit robbery is a category (3) necessarily lesser included offense of robbery. Gilford v. State, Fla.1975, 313 So.2d 729; Bracy v. State, Fla.App.4th, 1974, 299 So.2d 126; Henry v. State, Fla.App.2d, 1973, 277 So.2d 78. However, the Supreme Court recently held in State v. White, Fla.1975, 324 So.2d 630, (Opinion filed September 10, 1975), that one of the elements of assault is the victim’s well-founded fear that violence is imminent. Under the reasoning of that • case where, as here, the information charges robbery in the usual statutory terms, it would be possible to commit the robbery without committing an assault. Therefore, if anything, assault with intent to commit robbery could have only been a category (4) offense in this case. Turning to the proof, we find ample evidence of an assault so it was error to fail to give the requested instruction on this charge. Likewise, the mandate of RCrP 3.510 required an instruction on attempted robbery. The question posed is whether the failure to give these instructions can be considered harmless error.

While also being different in kind, assault with intent to commit robbery is a more serious crime than grand larceny in terms of penalty. Therefore, the rule of DeLaine v. State, Fla. 1972, 262 So.2d 655, holding harmless the failure to give an instruction “two steps removed,” does not apply. Yet, the evidence in this case is so overwhelming, we are prompted to ask whether the harmless error rule can apply where the instruction which should have been given concerns an offense one step removed from that of which the appellant was charged and convicted. Upon reflection, we conclude that it can.

In State v. Wilson, Fla.1973, 276 So.2d 45, the Supreme Court held that even though the court should have given a requested instruction on assault where the defendant was charged with and convicted of robbery, the failure to do so was harmless in view of the “substantial evidence in support of the jury’s verdict.” While the DeLaine “two step” rationale might have been applicable because a charge on grand larceny was given, the court chose to base its decision on the overwhelming evidence of guilt. The fact that Justice Boyd’s plea for the right of “jury pardon” of the higher degree of crime was a minority position in Gilford v. State, supra, lends support to our conclusion. In short, we hold that the failure to give an instruction of an immediately lesser included offense may be harmless if there is overwhelming evidence that the appellant committed the greater crime and the jury could not reasonably have found that only the lesser crime was committed.

The same reasoning is applicable to the failure to give a charge on attempted robbery. Since the evidence of a completed robbery was so great, there was no rational basis for the jury to have concluded that attempted robbery was the only crime committed. Cf. Gilford v. State, supra.

To hold that this appellant was not fairly tried for the failure to give the requested instructions would be an affront to justice. Appellant’s other points on appeal do not merit discussion.

Affirmed.

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

      . As defined in Brown v. State, Fla.1968, 206 So.2d 377.

      . But see Mitchell v. State, Fla.App.1st, 1976, 321 So.2d 108 (Opinion filed October 29, 1975), the rationale of which suggests that if the evidence conclusively shows the robbery to have been completed, there would be no error in refusing to charge on assault with an intent to commit robbery.


text:
    Lee HENRICH, Appellant, v. Lyle E. ANDERSON, Appellee.
    No. 74-622.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
    C. Lavon Ward, Fort Lauderdale, for appellant.
    Frederick P. Tiballi of Tiballi Schroeder & Truesdell, Fort Lauderdale, for appellee.
   PER CURIAM.

Upon consideration of the record, briefs and oral argument of counsel for the respective parties, we determine that the trial court did not err in entering final judgment on a directed verdict for the defendant at the conclusion of all the evidence, as there was no evidence legally sufficient to have supported a verdict for the plaintiff on his complaint for defamation. Accordingly, the final judgment appealed is affirmed.

Affirmed.

CROSS, MAGER and DOWNEY, JJ., concur.


author: BOARDMAN, Judge.

text:
    Eugene Lee FLOURNORY, Appellant, v. STATE of Florida, Appellee.
    No. 74-1289.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.

      James A. Gardner, Public Defender, Sarasota, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant was charged with possession of heroin. After jury trial he was found guilty and sentenced to serve five years in the state penitentiary with credit for time served pending trial. The facts disclose that appellant was taken into custody for said offense on January 17, 1974. He was arraigned on March 8, 1974; pled not guilty, and the case was set for trial on April 11, 1974. He was released on bail. On the same day, March 8, he was arrested for violation of parole. While the record shows he was afforded a preliminary hearing on the parole violation, his parole was not revoked. Through mistake, he was delivered from the county jail to the state prison. Approximately seven weeks later, the trial court issued a writ of ha-beas corpus ad prosequendum ordering appellant to be returned for trial on May 20, 1974. On three prior occasions, appellant failed to appear before the court as ordered for the reason that his whereabouts were unknown — he was in state prison— which circumstance was apparently unknown to the prosecutor. The appellant did appear before the court on May 20, 1974, at which time the case was continued upon the request of the attorney of the co-defendant on the grounds of recent employment and his willingness to waive his client’s right to speedy trial. At this hearing, the state agreed to the continuance and advised the court that it did not want to try the case twice.

On July 25, 1974, appellant filed his motion for discharge alleging denial of his right of speedy trial under the provisions of RCrP 3.191. After hearing held on August 6, 1974, the day of the trial, the motion for discharge was denied. On the same day, the case pending against the co-defendant was again continued on account of illness. The court ordered appellant to be tried separately on August 15, 1974.

Appellee alleges that appellant waived, through counsel, his speedy trial right at the hearing held on May 20, 1974. The following pertinent colloquy took place at said hearing:

THE COURT: Mr. Reynolds, you haven’t said anything about the continuance. Is that all right with you ?
MR. REYNOLDS [appellant’s counsel] : We are ready for trial depending on the date set.
MR. EPPLEY [assistant state attorney] : Your Honor, I would then set it June 11.
THE COURT: June 11?
MR. EPPLEY: Yes, sir.
THE COURT: Is that satisfactory, Mr. Fussell and Mr. Reynolds?
MR. FUSSELL [co-defendant’s counsel] : We will make ourselves available, Your Honor.
MR. REYNOLDS : Yes, sir.
THE COURT: All right. Reset it for June 11. .
(Emphasis added; bracketed material supplied).

Under the provisions of the speedy trial rule, appellant should have been tried on or before July 16, 1974; within 180 days from the date he was taken into custody on January 17, 1974. He was not.

As the above colloquy indicates, appellant’s counsel stated on May 20, 1974, that he was ready for trial depending on the date set. The date set by the trial court was June 11, 1974, well within the 180-day period. We mention in passing that if the date set had been after July 16, 1974, outside the speedy trial time, then ap-pellee’s argument may have been well taken. See State v. Nelson, Fla.App.2d, 1975, 320 So.2d 835. Additionally, we note from the record that on June 11, 1974, the trial date was continued, without appellant or his counsel being present, to July 15, 1974, still within the speedy trial time. This continuance was at the request of co-defendant’s counsel due to illness of his client. On July 15, 1974, the trial court again continued the case to August 6, 1974, due to the continued illness of the co-defendant. At this hearing appellant was represented by counsel; however, the record is silent as to any statements or actions made by appellant’s counsel. It appears that appellant was not present. As we have held in the past, a waiver of a fundamental right, i. e., right to speedy trial in this case, cannot be ascertained from a silent record.

We are unable to ascertain from the record that any statements or acts, made subsequent to the May 20, 1974 hearing, either by appellant or his counsel, would constitute a valid waiver of his right to speedy frial.

Lastly, the record fails to demonstrate that the state showed the existence of the exceptional circumstances set out in RCrP 3.191(f), which would justify the trial court in extending the time period within which the appellant was entitled to be tried.

Reversed and remanded with directions to the trial court to enter its order discharging appellant.

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


text:
    William Roy GUESS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-461, 75-601.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    William Roy Guess, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON 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:
    Leon MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 74-1200.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
    James A. Gardner, Public Defender, Sarasota, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed.

See Nelson v. State, Fla.App.2d 1975, 319 So.2d 154.

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


text:
    Dennis Nell GRAVES, Appellant, v. STATE of Florida, Appellee.
    No. 75-785.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
    James A. Gardner, Public Defender, Sarasota, and Steven H. Denman, Asst. Public Defender, and Nevin A. Weiner, Legal Intern, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment and sentence is affirmed without prejudice to appellant seeking appropriate relief under RCrP 3.850.

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


author: RAWLS, Judge.

text:
    SARASOTA COUNTY, Florida, a political subdivision of the State of Florida, Petitioner, v. BEKER PHOSPHATE CORPORATION, a Florida Corporation, and Manatee County, Florida, a political subdivision of the State of Florida, Respondents.
    No. Z-111.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.

      Richard E. Nelson, Nelson, Hesse, Cyril & Weber, Sarasota, for petitioner.
    Roy C. Young, Brown, Smith, Young & Pelham, Tallahassee, John P. Harllee, III, Harrison, Harllee & Porges and Richard A. Hampton, Bradenton, for respondents.
   RAWLS, Judge.

By this petition for writ of certio-rari to the Florida Land and Water Adjudicatory Commission, Sarasota County challenges the order of the Adjudicatory Commission dismissing for lack of standing its appeal by which it sought review of a development order entered by respondent Manatee County approving the application for a development of regional impact by respondent Beker Phosphate Corporation.

Sarasota County urges three points in seeking to have the order of Manatee County reviewed by the Adjudicatory Commission, viz:

“I. The Adjudicatory Commission’s order erroneously interprets Section 380.-07(2), Florida Statutes, as preventing an appeal by Sarasota County of the development order issued by Manatee County.
“II. The Adjudicatory Commission’s order erroneously interprets Section 3(2) of Chapter 74-310, 1974 Laws of Florida, as preventing the application of the provisions of said chapter to the appeal herein.
“III. The Adjudicatory Commission’s order erroneously holds that a violation of the Government in the Sunshine Law, Section 286.011, Florida Statutes, cannot be grounds for an appeal under the provisions of Chapter 380, Florida Statutes.”

By enacting the Florida Environmental Land and Water Management Act of 1972, the legislature established land and water management policies to guide and coordinate local decisions relating to growth and development. The legislature expressly stated its intent:

“. . . that such state land and water management policies should, to the maximum possible extent, be implemented by local governments through existing processes for the guidance of growth and development; and that all the existing rights of private property be preserved in accord with the constitutions of this state and of the United States.”

The regulatory scheme enacted by the legislature is clearly expressed in Chapter 380, Florida Statutes. If the proposed development is of regional impact, the developer must file an application with the local government having jurisdiction. The appropriate local government shall give notice and hold a hearing in the same manner as for a rezoning under Florida Statute 176.051, or as provided under the appropriate special or local law. The notice provision embedded in the statutory scheme is designed to protect the interests of the local citizens, the landowners, the regional inhabitants, and the general public throughout this state. This is accomplished by directing that notice given by the local government state that a proposed development is of a regional impact and that the notice be published at least four weeks in advance of the hearing. Notice is additionally required by the statutory scheme to be given to the state land planning agency, the appropriate regional planning agency, and any other persons designated by the state land planning agency as entitled to receive such notice.

The interests of the citizens of the surrounding area are protected by the explicit requirements of Florida Statute 380.06(8) in that within 30 days of receiving notice, the regional planning agency must submit to the local government a report and recommendations on the proposed project. This statute enumerates numerous areas of regional impact to which the report must address itself.

In complete harmony with the above scheme is the provision of the chapter concerning who may appeal to the Florida Land and Water Adjudicatory Commission an order by a local government concerning a development of regional impact. In appropriate part this statutory section provides:

“Within thirty days after the order is rendered, either the owner, developer, an appropriate regional planning agency, or the state land planning agency may appeal the order to the Florida land and water adjudicatory commission by filing a notice of appeal with the commission.” (emphasis supplied)

Without dispute Sarasota County is not one of those parties who is authorized by this statute to appeal to the Florida Land and Water Adjudicatory Commission.

The entire scheme of Chapter 380 carefully preserves the rights of local governments to the maximum extent possible in “zoning” property within its boundaries; the rights of the regional area by requiring a regional impact study in appropriate cases; the rights of the state by authorizing its land planning agency or the regional planning agency to seek review of local governmental action; and the rights of the landowner, including a specific timetable compelling expeditious action in order to quickly resolve the question of governmental dictates as to the use of his land. In seeking to accomplish this regulatory scheme, the legislature enumerated those parties that were charged with the responsibility of reviewing the local government’s action and vested with the right to appeal an order entered by such local government. In the instant cause Manatee County’s Development Regional Impact Order has not been appealed by one of those enumerated parties. Sarasota County, a stranger to the proceedings, is not and was not authorized to seek review of Manatee County’s Development Regional Impact Order.

We next turn our attention to Sarasota County’s allegation that the Adjudicatory Commission’s order erroneously prevents application of the provisions of Chapter 74-310, Laws of Florida. This contention is without merit for two reasons. First, as we hereinabove stated, the legislative scheme by the precise language of Florida Statute 380.07(2) excludes Sarasota County as a proper party. Second, the Supreme Court of Florida in Lewis v. Judges of the First District Court of Appeal held that the time of commencement of the adjudicatory proceeding controls the applicability of Chapter 74-310, Laws of Florida. The instant application was filed with Manatee County on October 11, 1974, and a public hearing was held by the Tampa Bay Regional Planning Council on December 9, 1974; thus, the “adjudicatory proceeding” had commenced prior to January 1, 1975, the effective date of the “new” Administrative Procedure Act. •

Finally, Sarasota County contends that it has standing to appeal the subject order because of alleged violations by Manatee County of the Government in the Sunshine Law. Since we hold that Sarasota County is without standing in this proceeding, we pretermit any discussion as to the propriety of injecting this issue into an administrative proceeding.

The petition for review is denied.

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

      . The petition alleges that it is presented pursuant to Section 120.68, Florida Statutes (1975), and thus will be treated as a petition for review. See Yamaha International Corp. v. Ehrman, 318 So.2d 196 (1 Fla.App.1975).

      .The dismissal of Sarasota County’s appeal by the Adjudicatory Commission contained the proviso: “. . . if the Second District Court of Appeal in the case of Sarasota County v. General Development Corporation, Case No. 74-2372-CA-01 [Second District Court of Appeal Case No. 75-77], presently pending, finds that a county has standing to appeal to this Commission, Sarasota County shall be entitled to reinstate this appeal.” By cross-petition, Beker Phosphate challenges this provision of the order being reviewed. The subject condition imposed by the Adjudicatory Commission was improper because Sarasota County had the right (which it has exercised) to seek review of the dismissal in this Court.

      . Chapter 380, Florida Statutes (1973). Also see Finnell, Saving Paradise: The Florida Land & Environmental Act, 1972 Urban Law Annual 103.

      . Florida Statute 380.021.

      . Florida Statute 380.06(6).

      . Florida Statute 380.06(7).

      . Id.

      . Florida Statutes 380.06(8) (a), (b), (c), (d), and (e) direct that the report shall address itself to the effect of the development on the environment,' natural resources, economy, efficient use or undue burden on water, sewers, solid waste disposal, other public facilities, public transportation, ability of people to find adequate housing, and any other areas which the regional planning agency shall deem appropriate.

      . Florida Statute 380.07(2).

      . Florida Statute 380.07 (2).

      . Florida Statutes 380.06(8), 380.08, and 380.07 (2). By specifically designating parties' authorized to seek review of the local government’s order, the legislature sought to avoid administrative and judicial delay of the resolution of the landowner’s right to lawfully utilize his property.

      . The “new” Administrative Procedure Act, Chapter 120, Florida Statutes (1975).

      . Lewis v. Judges of the First District Court of Appeal. Opinion filed July 17, 1975, 322 So.2d 16.


text:
    BODIN APPAREL, INC., a Florida Corporation, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Appellee.
    No. 75-22.
    District Court of Appeal of Florida, Third District.
    July 15, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Eugenius SIERADZKI, Petitioner, v. The STATE of Florida, County of Dade, Respondent.
    No. 75-852.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
   PER CURIAM.

Certiorari denied.


text:
    EVANS CONSTRUCTION COMPANY, a Florida Corporation, Appellant, v. The CITY OF TALLAHASSEE, a Municipal Corporation, and Florida Title & Guaranty Company, a Florida Corporation, Appellees.
    No. X-28.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1975.
    Rehearing Denied Dec. 2, 1975.
   PER CURIAM.

Affirmed.


text:
    Herbert F. MAZARIN and Elizabeth M. Mazarin, Appellants, v. CAMINO GARDENS ASSOCIATION, INC., Appellee.
    No. 75-269.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Rehearing Denied Dec. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Ozzie Joseph NEGRON, Appellant, v. STATE of Florida, Appellee.
    No. 75-712.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Rehearing Denied Dec. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Sylvia F. GUILLEN et al., Appellants, v. Ruth S. KITCHING et al., Appellees.
    No. 75-1353.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Willie Fred HOWARD, Appellant, v. The STATE of Florida, Appellee.
    No. 75-802.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 1975.
   PER CURIAM.

Appeal quashed.


text:
    Tommy MILES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1099.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 1975.
   PER CURIAM.

Appeal quashed.


text:
    SPORTMEN’S INDUSTRIES, INC., and Louis Vernell, Appellants, v. CENTRAL BANK AND TRUST COMPANY, Appellee.
    No. 75-1305.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 1975.
   PER CURIAM.

Appeal quashed.


text:
    The STATE of Florida, Appellant, v. John Edward CASTRO, Appellee.
    No. 75-1382.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 1975.
   PER CURIAM.

Appeal quashed.


text:
    KENDALL EAST ESTATES, INC., a corporation, Petitioner, v. YALE OGRON BUILDERS SALES, INC., a corporation, Respondent.
    No. 75-1661.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    FOOD FAIR STORES, INC. and Second Fairland, Inc., Appellants, v. DIVISION OF ADMINISTRATION, State of Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 74-527.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
    Rehearing Denied Dec. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    BISCAYNE BAY INVESTMENTS LIMITED, INC., a/k/a Biscayne Bay Investments, Ltd., Inc., a Florida corporation, et al., Appellants, v. Danny David COHEN, Appellee.
    No. 75-879.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Rhey W. HEDGES, Appellant, v. WACKENHUT PROTECTIVE SYSTEMS, INC., a Florida Corporation, et al., Appellees.
    No. 75-908.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Essex Jerome JAMES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. X-443.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1975.
    Rehearing Denied Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Franklin Delano PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. Y-342.
    Nov. 4, 1975.
    Rehearing Denied Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    William Henry SAVKO a/k/a William Sauko a/k/a “Tiny”, Appellant, v. The STATE of Florida, Appellee.
    No. 75-438.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    STEPHENS VAN TERMINAL, INC., Appellant, v. AIRPORT AUTO & SALVAGE CO., INC., et al., Appellees.
    No. 74-1642.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Roland H. VILANDRE, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1870.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 1975.
    Rehearing Denied Dec. 10, 1975.
   Habeas corpus denied.


text:
    Marjorie Ann BOUGHNER, Appellant, v. Jackson L. BOUGHNER, Appellee.
    No. 75-351.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
    Rehearing Denied Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Appellant, v. Gail DAHN and Michael L. Meyer, Appellees.
    No. 74-933.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
    Rehearing Denied Dec. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Connie Jo DYKEMAN, a minor, by and through her father and next friend, Burton Dykeman, and Burton Dykeman, individually, Appellants, v. William E. SAUNDERS et al., Appellees.
    No. 74-1539.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Marion G. LONGWELL, Appellant, v. A & M STORES, INCORPORATED, et al., Appellees.
    No. 74-1125.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1975.
    Rehearing Denied Dee. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert A. ROBINSON, Appellant, v. SOUTHERN CRATE AND VENEER COMPANY, a foreign corporation doing business in the State of Florida, Appellee.
    No. 75-515.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Charles O. WISELOGEL et ux., Appellants, v. COAST FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 75-469.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1975.
    Rehearing Denied Dec. 9, 1975.
   PER CURIAM.

Affirmed.


text:
    Barlington Dureese BLYE, Appellant, v. STATE or Florida, Appellee.
    Nos. 74-1521, 74-1522.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    William BONDY, Appellant, v. STATE of Florida, Appellee.
    No. 75-388.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Alfred BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 75-56.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


author: P.ER CURIAM.

text:
    Robert Vernel CARNEGIE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1689.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
   P.ER CURIAM.

Affirmed.


text:
    CONGREGATIONAL CHURCH OF BOCA RATON, INC., Appellant, v. SHELLER CONSTRUCTION COMPANY, a Florida Corporation, Appellee.
    No. 75-1467.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    INTERNATIONAL AIRMOTIVE CORP., Appellant, v. Frank FICARRA, Appellee.
    No. 75-274.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Rehearing Denied Dee. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Willie JOHNSON, Appellant, v. STATE of Florida, Appellee. Freddie KENDRICK, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 75-63, 75-92.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    F. Wells McCORMACK, Appellant, v. H. Theo NIELANDER, a/k/a Ted Nielander, Appellee.
    No. 74-1558.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Eddie MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 75-211.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Carlo SCHEMBRI d/b/a Plastics Outlet, Appellant, v. TOMPKINS LAND COMPANY, INC., Appellee.
    No. 75-262.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    SEABOARD COAST LINE RAILROAD COMPANY, a foreign corporation authorized to do business in the State of Florida, Appellant, v. Ancilla M. BUCKLEY, Appellee.
    No. 75-5.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY and R. E. Shaw, Appellants, v. Donald EWELL and Mary Ewell, his wife, Appellees.
    No. 75-112.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    BARNETT BANK OF CLEARWATER, N.A., Appellant, v. Paul M. SIPLE, Appellee.
    No. 75-230.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Joseph Henry BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 75-391.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    CITY OF ST. PETERSBURG, Florida, a Municipal Corporation, and Raymond E. Harbaugh, Appellants, v. HAMMOND BROTHERS BUILDERS, INC., a Florida Corporation, Appellee.
    No. 75-841.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    ISLAND TOWERS, LTD., Appellant, v. Alfred E. and Anne K. HUBER, Appellees.
    No. 75-500.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    PLAYBOY OF MIAMI, INC., Appellant, v. Hal GLIST, Appellee.
    No. 75-1084.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Raymond RHOME, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-137, 75-259.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 1975.
   PER CURIAM.

Appeals dismissed.


text:
    The STATE of Florida, Appellant, v. Paul DOYON, Appellee.
    No. 75-1578.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    The STATE of Florida, Appellant, v. Mirta Iris NIEVES, Appellee.
    No. 75-1473.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    George A. WEIDNER, Appellant, v. STATE of Florida, Appellee.
    No. 75-165.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1975.
    Rehearing Denied Dec. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    Barney BAJKOWSKI, Petitioner, v. DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, DIVISION OF FAMILY SERVICES For the State of Florida, Respondent.
    No. 75-1351.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Morris LIEBMAN et al., Appellants, v. Arthur S. DAVIS and Ingrid S. Davis, his wife, Appellees.
    No. 75-1679.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    ALLEN R. PYLE LANDCLEARING, INC., a Florida Corporation, et al. Appellants, v. Willis M. ANDERSON et al. Appellees.
    No. 75-1103.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Steven W. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 75-176.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    DIVISION OF ADMINISTRATION, State of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. HALL’S AUTO PARTS, INC., et al. (Parcel No. 668), Appellee.
    No. 75-422.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    W. Gray DUNLAP and Travelers Ins. Co. et al., Appellants, v. PRENTICE-HALL et al. Appellees. Terrell M. TURNER, Appellant, v. W. Gray DUNLAP et al. Appellees.
    Nos. 75-275, 75-276, 75-277, 75-276 and 75-946.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 1975.
   Appeals dismissed.


text:
    David Paul GEHRKE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1672.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Johnny HALL, Appellant, v. STATE of Florida, Appellee.
    No. 75-223.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    James O. JONES, Petitioner, v. CHRYSLER CREDIT CORPORATION, Respondent.
    No. 75-1265.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
   PER CURIAM.

Certiorari denied.


text:
    LEADERSHIP COMMUNITIES, INC., Appellant, v. VILLAGE CONSTRUCTION CORPORATION, Appellee.
    No. 75-78.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert S. LEVY, Appellant, v. H. Irwin LEVY, Appellee.
    No. 73-938.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Gary Jay MATUS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1155.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Eugene MILGRAM and Charlotte Milgram, his wife, Appellants, v. GRIFFIN BROTHERS CO., INC., a Florida Corporation, et al., Appellees.
    No. 75-420.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    In re Irene Devereux WHITE, Deceased. Charles C. HALL, Appellant, v. Albert WHITE et al., Appellees.
    No. 74-1742.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Terrell Dean DICKS, Appellant, v. STATE of Florida, Appellee.
    No. Y-22.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Maurice Richard DION, Appellant, v. STATE of Florida, Appellee.
    No. Y-198.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Larry GIBBS et al., Appellants, v. STATE of Florida, Appellee.
    No. X-356.
    District Court of Appeal of Florida, First District.
    Nov. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    Kenny HENDRICKS, Appellant, v. STATE of Florida, Appellee.
    No. Y-265.
    District Court of Appeal of Florida, First District.
    Nov. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    SOUTHEASTERN AERIAL CROP SERVICE, INC., Appellant, v. INSURANCE COMMISSIONER, State of Florida, Appellee.
    No. Y-170.
    District Court of Appeal of Florida, First District.
    Nov. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    Earl Jack WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. Y-307.
    District Court of Appeal of Florida, First District.
    Nov. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert Lee BOYD, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-601, 75-602.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    James BRADFORD, Appellant, v. STATE of Florida, Appellee.
    No. 75-201.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Curley DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 75-168.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Elmer Clyde McCORD, Jr., Appellant, v. Julia Ann McCORD, Appellee.
    No. 75-96.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Stephen McMILLAN, Appellant, v. STATE of Florida, Appellee.
    No. 75-274.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Richard C. NELMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-126.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    David Alan O’DELL, Appellant, v. STATE of Florida, Appellee.
    No. 75-24.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    George SPINKA, Appellant, v. STATE of Florida, Appellee.
    No. 75-109.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Ernest G. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-108.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


author: JONES, Justice.

text:
    Grace LEETH, as Administratrix of the Estate of O. J. Leeth, Deceased v. Clarence Alfred ROBERTS, Jr., etc.
    SC 1350.
    Supreme Court of Alabama.
    Nov. 20, 1975.

      James S. Hubbard, and Charles L. Parks, Anniston, for appellant.
    J. M. Sides, Anniston, for appellees.
   JONES, Justice.

This is an appeal from a directed verdict in favor of Anniston Lincoln Mercury, Inc., and its agent, Clarence Alfred Roberts, Jr., in a wrongful death action brought against them by Grace Leeth, as Administratrix of the estate of O. J. Leeth.

There are two issues for review: First, does evidence that the defendants’ automobile came to a stop one to two feet across the center line" following a head-on collision on a two-lane road make out a jury question on the issue of negligence? Second, must testimony concerning the position of vehicles after a collision be corroborated by proof that the vehicles had not been moved between the time of the accident and the time of the observation by a witness in order to be admissible ?

We answer both questions in favor of the appellant; therefore, we reverse and remand for a new .trial.

Because this case must be retried on remand, we consider it unwise to discuss the evidence extensively. Suffice it to say that the left front end of the car driven by plaintiff’s intestate collided with the left front end of the car driven by Roberts in a curve on Highway 9 near Lineville, Alabama, on January 25, 1973. Plaintiff’s intestate died instantly as a result of .the collision. Appellant brought this wrongful death action urging the theory that Roberts was hugging the inside of the curve in violation of the rules of the road.

On direct examination, the plaintiff called Roberts who testified that he saw the Leeth car coming toward him and he began to pull his car to the right when the collision occurred. He also testified that immediately after the head-on collision the front end of his car came to rest one or two feet across the center line of the highway, i. e., to his left of the center line. He then drove his car across the road and parked his car off the paved surface onto the shoulder of the highway.

At the close of the plaintiff’s case, the trial Judge granted the defendant’s motion for a directed verdict.

The propriety of this ruling is embraced in the issue whether Roberts’ testimony that he was pulling right immediately before the collision and that his car came to rest across the center line after the collision makes out a jury question on negligence. The Alabama case of Smith v. Tripp, 246 Ala. 421, 20 So.2d 870 (1945), is directly on point. In that case, the only competent evidence on the issue of liability showed “that the driver of the defendants’ truck pulled to the right immediately before the collision” and that his truck came to rest with the back corner of the trailer slightly over the center line. The Court held that this testimony was enough to make out a jury question (and, indeed, to sustain a jury verdict) on whether the defendants’ truck was hugging the inside of the curve immediately before the collision. We hold that Tripp is authority for this situation; therefore, it was error to grant a directed verdict for the defendant.

Because the evidentiary question will likely arise again upon retrial of this cause, we will now treat that issue.

Plaintiff called Wayne Watts as a witness. Watts had followed the police to the accident scene. The plaintiff asked Watts where the vehicles were located at the scene of the accident. The trial Judge excluded this testimony because the plaintiff could not prove that the automobiles had not been moved between the time of the collision and the time Watts arrived on the scene. Both parties rely upon the cases of Holley v. Josey, 263 Ala. 349, 82 So.2d 328 (1955), and Malone v. Hanna, 275 Ala. 534, 156 So.2d 626 (1963), to support their positions on this appeal.

The Josey case, which was quoted at length and approved in the Hanna case, affirmed the trial Court’s admission of evidence concerning the location of objects found at the scene of an automobile accident even though the proponents could not prove that the objects were in the same place when the witnesses saw them as they were at the time of the accident. The Jos-ey court cited and distinguished three Alabama cases: S. H. Kress & Co. v. Barratt, 226 Ala. 455, 147 So. 386 (1933); Bradley v. Deaton, 208 Ala. 582, 94 So. 767 (1922); Southern Railway Co. v. Lefan, 195 Ala. 295, 70 So. 249 (1915). See also Birmingham Union Railway Co. v. Alexander, 93 Ala. 133, 9 So. 525 (1890).

The Josey court stated that the cited cases held “in substance, that if a party, in an effort to show negligence, attempts to introduce evidence as to conditions before or after the time of the accident, it must be first made to appear that the conditions were substantially the same on the two occasions” ; but it held that “the rule as expressed by these cases is limited to where it is an attempt to show negligence”.

The appellees argue that this language justifies the trial Judge’s exclusion of Watts’ testimony because it was offered in an effort to prove the plaintiff’s allegation of negligence. This is not a proper interpretation of Josey.

To understand the rule, it is necessary to compare the three cases Josey distinguished with the holding of Josey and Hanna. The cases cited in Josey involved situations in which the negligence sought to be proved was a defective condition in the defendant’s property (for example, an improperly secured awning or a burnt out trailer light). In such cases, the ultimate issue of liability is whether the property was defective at the time of the accident; that is to say, similarity of circumstances is a necessary predicate when the existence of an object or condition at a given time is in issue or is the gravamen of the action or defense. Therefore, any testimony concerning the condition of the property either before or after the accident is highly persuasive and should be corroborated by proof that the condition had not changed during the interval to avoid misleading the jury.

Unlike those cases, Josey, Hanna, and the instant case involved testimony concerning the position of objects or vehicles at the scene of an automobile accident. Here, this testimony was obviously not offered in an effort to prove negligence. Indeed, the location of the defendant’s car immediately after impact rather than its location as observed by Webb is more favorable to the plaintiff’s theory of liability.

Josey did not intend to exclude all testimony about the scene of an accident which could not be accompanied by evidence accounting for the interval between the accident and the witness’s observation. In fact, both Josey and Hanna affirmed the admission of such testimony without proof that the objects or vehicles had not been moved. In cases where the testimony does not go directly to the ultimate issue of liability, but only constitutes one feature of a composite of the witness’s observations, the Josey court concluded that the right of cross examination — to show all the surrounding facts and circumstances — would amply protect the defendant. The credibility and weight of the testimony is left to the jury. We hold, therefore, that the exclusion of Watt’s testimony was error.

We conclude on a note of caution. While the limited purpose of the question in the instant case was readily apparent, there are often situations where it is not clear from counsel’s question whether the elicited proof of subsequent conditions at the accident site goes to the ultimate issue of liability. An example can be seen in the case where proof is offered of repair of premises after an accident. Evidence of subsequent repairs may be admitted for the limited purpose of showing the condition of the premises at the time of the accident, but such evidence is not admissible as an admission of negligence by the defendant. Whenever such evidence is offered, in testing its propriety it is entirely proper for the trial judge to require of counsel to show what issue his proffered proof addresses. Whenever such evidence is admitted, the party opposing the evidence has a right to have the trial judge instruct the jury that the evidence is not admitted to show negligence but for the limited purpose of allowing the party offering the evidence to show the condition of the premises (or other limited purpose) at the time of the accident. City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 529 (1944).

Reversed and remanded.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.

      . For a good discussion of “Prior or Subsequent Existence,” see II Wigmore on Evidence, § 437, p. 413 (1940).

      . This is not to be understood as changing or otherwise affecting those cases which recognize the exceptions to this general rule. See, for example, Norwood Clinic v. Spann, 240 Ala. 427, 199 So. 840 (1941), and Gulf, M. & N. R. Co. v. Havard, 217 Ala. 639, 117 So. 223 (1928).


author: SHORES, Justice.

text:
    Carolyn Frances JONES v. Mary Louise MOORE.
    SC 1147.
    Supreme Court of Alabama.
    Nov. 20, 1975.

      Walter W. Furner, Bessemer, for appellant.
    Thomas L. Foster, Birmingham, for ap-pellee.
   SHORES, Justice.

The litigants in this case are mother and daughter. Mrs. Moore was married to Mr. Moore, Mrs. Jones’ father, for fifty-two years prior to his death in 1974. During the course of their marriage they acquired a home in Birmingham, for which they paid approximately $8,200. Mrs. Moore testified, and it was not contradicted, that she paid the earnest money on the house and that she and her husband together paid the balance. Title to the property was held in their joint names with right of sur-vivorship.

Having enjoyed good health all of his life, Mr. Moore was stricken with cancer sometime in 1973, and spent some weeks in the hospital in the fall of 1973. He returned home in October and remained there until he was readmitted to the hospital on January 16, 1974, at which time his condition was diagnosed as terminal. Mr. Moore never returned home and remained hospitalized until his death on March 6, 1974.

On February 6, 1974, from his hospital bed, Mr. Moore executed a deed conveying his one-half interest in the home to his and Mrs. Moore’s daughter. It is this deed which is the subject of the controversy between these parties.

Mrs. Moore filed suit seeking to have title to the subject property quieted in her and asked the court to set aside the deed executed by her husband on the ground that Mr. Moore was, at the time of the execution of the deed, mentally incompetent to execute a valid conveyance of the land.

The trial court correctly held that Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), had settled the question of whether one joint tenant in a survivorship deed is capable of conveying his interest in jointly held property absent the consent of the co-tenant, and observed that the only issue remaining for its determination was the mental competency of Mr. Moore at the time of the execution of the deed.

The trial court found that Mr. Moore was incompetent on February 6, 1974, when he purported to convey his interest in the property to his daughter.

From this judgment, the daughter appeals.

It is her argument that although the evidence was taken ore tenus, that there was no evidence to support the trial court’s finding that Mr. Moore was incompetent on that date.

Appellant states in brief:

“A detailed scrutiny of the evidence fails to find any supportive of the claim that Robert Earl Moore, on February 6, 1975, was mentally incompetent to execute a deed. . . .” (Emphasis added)

At least five witnesses, other than the medical doctors, whose testimony was received by deposition, testified that following Mr. Moore’s illness they had observed him on numerous occasions, and at times found him in a deteriorated state, mentally; that he could not carry on rational conversations; sometimes drifted off of one subject on to another; would forget whether he had had meals; was incapable of managing his affairs; incapable of understanding what was going on, etc. Admittedly, the evidence is conflicting, and we see no purpose to be served in setting all of it out. However, to illustrate that appellant is wrong in her assertion that there was no evidence to support the trial court’s finding, we do set out the following, which appears in the record:

Mr. Moore’s physicians’ notes, made at times they examined him during his stay in the hospital, show the following:

“1-24-74 Disoriented at times .
“1/25/74 . . . Appears pt’s mental and physical status fluctuates .
“1/27 Pt appears depressed
“1-28 Pt’s family co.n’t to be in turmoil. Pt is depressed but his mental+physical ... is satisfactory.
“2-1 Disoriented today. Combative. Will not allow bath. Trying to climb over side rails.
“2-2 Pt very sedated. Orientation comes and goes.
‘2-3 Pt is oversedated.
“2-4 Less sedated. . . .
“2-5 Very alert. .
“2-6 To begin ambulating .
“2-7-74 Continues to improve
“2-8-74 Alert, oriented better.

Dr. Bancroft, on deposition, stated that in addition to cancer of the lung, Mr. Moore had suffered a stroke at the time he was readmitted to the hospital in January, 1974, and in addition:

“A . . . he had an inoperable tumor of the lung and the prognosis was particular decline until death . .
“Q . . . Did that condition affect Mr. Moore’s central nervous system?
“A It did.
“Q Did this condition affect his reasoning capabity?
“A It did. It did.
“Q Doctor, in his condition, as far as his condition is concerned, three months prior to the time that he died would you, based on his medical — based on your medical prognosis of his condition, would you have transacted business with this man ?
“A I would not have. I would not have transacted business with him.
“Q Okay, sir. Would you tell us why, please, sir?
“A Well, he was impaired. He was mentally impaired from the standpoint of orientation, alertness, ability to recall facts, ability to appreciate time, person, and place.”
Also in the record is a letter, which is as follows:
“January 21, 1974
“TO WHOM IT MAY CONCERN:
“This is to certify that I have examined Robert L. Moore, white male of 73 years who resides at 1124 McMillan Avenue, S.W., Birmingham 35211, on 1/20/74 following his admission to the Baptist Medical Center-Montclair and have found him to be suffering from damage of the central nervous system so as to render him incompetent in the management of his own affairs. This condition is expected to be permanent.
“/s/ Joe D. Bancroft, M.D.
Joe D. Bancroft, M.D.”

Dr. Bancroft explained that it was his opinion that Mr. Moore was suffering from two disorders of the central nervous system, arteriosclerosis and tumor of the brain, both of which he said were incurable and progressive, and that both conditions affect a person’s reasoning ability.

Against this evidence was the testimony of the appellant, who testified that her father was capable of knowing what he was doing on the day he signed the deed. It was her testimony that her father had conveyed his interest in the home of her parents to her so that his wife would have a home.

It is her argument that the testimony taken ore tenus was insufficient to support the trial court’s conclusion, and that the central issue of Mr. Moore’s competency must be decided on the basis of the medical evidence received by deposition.

We disagree with the appellant.

Appellant appears to argue that no lay witnesses testified with absolute certainty that Mr. Moore was incompetent on the exact day that the deed was executed. We have carefully read the entire record. All of the witnesses who testified had known Mr. Moore for a number of years, and had seen him frequently after he was hospitalized with his final illness. We think they were competent to give an opinion, based upon their observation of him, as to Mr. Moore’s mental capacity at the time of the execution of the deed in question. In Blackwell v. Sewall, 280 Ala. 359, 365, 194 So.2d 519, 525 (1967), we said:

“It appears to be the doctrine of our cases that whether a witness is qualified to deliver a non-expert opinion, favorable or unfavorable, upon the issue of mental capacity, is a question submitted to the sound discretion of the trial court, a discretion not reversible unless plainly erroneous. Wear v. Wear, 200 Ala. 345, 76 So. 111; Price v. Marshall, 255 Ala. 447, 52 So.2d 149; Haghart v. Cooley, 278 Ala. 354, 178 So.2d 266.”

The thrust of appellant’s argument is that since no witness who testified said with absolute certainty that they saw Mr. Moore on the exact date that the deed was signed, that none of them was in a position to testify with regard to his mental condition on that day. Although many of them testified that they had visited with him periodically during the period in which he was hospitalized, she asserts that only she and a practical nurse, who was in attendance at the time the deed was signed, were in a position to give an opinion as to his condition on that day. Under our cases, we do not think it is necessary to sustain the trial court’s finding that such precision is necessary. As indicated, the medical evidence was that Mr. Moore was mentally impaired and had been since he suffered a stroke in early January. It was Dr. Bancroft’s opinion that the condition was progressive and permanent.

The rule has been repeatedly stated by this court, and appears as follows in Hall v. Britton, 216 Ala. 265, 267, 113 So. 238, 239 (1927) :

“In order to render a deed void because of the mental incapacity of the grantor — and the principle is the same for any other signatory — the test is ‘not merely that the grantor’s mental powers were impaired, but whether he had sufficient capacity to understand in a reasonable manner the nature and effect of the act which he was doing.’ 18 Corp.Jur. 218, § 131; White v. Farley, 81 Ala. 563, 8 So. 215; Stanfill v. Johnson, 159 Ala. 546, 49 So. 223.”;

which was quoted with approval in Casey v. Krump, 260 Ala. 280, 69 So.2d 864 (1954), which noted that the rule had been followed also in Spence v. Spence, 239 Ala. 480, 195 So. 717 (1940).

The next point made by appellant is that the ore tenus rule does not attach since, she contends, the lay witnesses were not qualified to state an opinion, and the only remaining evidence of Mr. Moore’s incapacity was by way of depositions of the physicians. Therefore, she says, we should review the medical evidence without any presumption in favor of the conclusion reached by the trial court. Again, we disagree.

First, as indicated, we think the trial court correctly considered the testimony offered ore tenus by the lay witnesses. Secondly, the rule has long been established that where the trial court’s determination is based on evidence, part of which was offered orally, and part by deposition, its finding has the effect of a jury verdict and will not be disturbed on appeal unless plainly and palpably erroneous and contrary to the great weight of the evidence. In Blackwell v. Sewall, supra, which also involved the validity of a deed which was cancelled because of the alleged mental im-competency of the grantor, the rule was stated as follows:

“All of the numerous witnesses, except Drs. Brown, May, and Mudd, testified orally before the court. The three medical witnesses testified by deposition. After reading this record we are clear to the conclusion that there was ample oral and material testimony tending to support the Chancellor’s conclusions and decree. He saw and heard all of the witnesses except the three named medical witnesses, and observed their demeanor. Having this advantage, his conclusions will not be disturbed unless plainly and palpably contrary to the weight of the evidence. McBrayer v. Smith, 278 Ala. 247, 177 So. 571; Thompson v. Collier, 170 Ala. 469, 54 So. 493; Hackett v. Cash, 196 Ala. 403, 72 So. 52.” (280 Ala. at 367, 194 So.2d at 526)

The foregoing disposes of appellant’s assignments of error numbered one through eleven, all of which were argued together.

She next claims error in the trial court’s sustaining an objection to a question asked Mrs. Moore, on cross-examination, which was: “Q Have you been convicted of crime involving moral turpitude ?”

There is no error to reverse here. Assuming, without agreeing, that the question involved a subject which was proper cross-examination, the latitude to be allowed in cross-examination of witnesses is within the discretion of the trial court, and unless that discretion is grossly abused, it will not be reviewed here, particularly in respect to collateral and irrelevant matter. Powell v. Powell, 285 Ala. 230, 231 So.2d 103 (1970). Besides, even if such were proper cross-examination, the question as put is improper for the reason that it was too general and should have been disallowed for that reason alone. Craven v. State, 22 Ala.App. 39, 111 So. 767 (1927).

The last argument advanced by the appellant is that the trial court erred in refusing to allow testimony of Mr. William Thomason, attorney for the appellant, who volunteered to testify. As stated by the appellant, the only issue to be determined in this case was the mental capacity of Mr. Moore at the time of the execution of the deed in question.

In his voluntary statement, before asking to be put on the stand, Mr. Thomason said:

“MR. THOMASON: I will show to the Court and be cross-examined if counsel wishes that on some time prior to February the 6th, Mrs. Jones telephone [d] my office, put Mr. Moore on the telephone; I discussed the deed with him and informed him as to what I thought it might do; and he answered my questions and he appeared coherent.
“I have never met Mr. Moore; I have never seen him physically; that one conversation on the telephone is the only direct conversation that I recall having with Mr. Moore; at the same time that he talked with me about the deed he retained me to represent him in a contest of the Inquisition as to his sanity. His voice indicated that he understood what he was doing at both times.”

It is obvious, from Mr. Thomason’s voluntary statement, that he had no occasion to observe Mr. Moore, nor to form an opinion as to his mental capacity, other than a voice on the telephone, which was identified to him as Mr. Moore’s. We note that, while appellant argues that the trial court erred in relying on testimony of other lay witnesses who did observe Mr. Moore over a period of time, she now complains that her attorney was not permitted to express his opinion after his own admission that he had never seen Mr. Moore at all.

There being no further assignments of error, the judgment appealed from is affirmed.

Affirmed.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.