author: SMITH, Judge.

text:
    Earl M. JOHNSON, Petitioner, v. Preben JOHANSEN et al., Respondents.
    No. DD-370.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1976.

      William J. Sheppard of Sheppard, Fletcher, Hand & Adams, Reese Marshall, David U. Tumin, Ernest D. Jackson, Sr. of Jackson & Micks, Jacksonville, for petitioner.
    Dawson A. McQuaig, Gen. Counsel and William Lee Allen, Asst. Counsel, Jacksonville, for respondents.
   SMITH, Judge.

By petition for common law writ of cer-tiorari, petitioner Johnson, councilman and president of the council of the City of Jacksonville, seeks review of an order of the Duval County circuit court denying a temporary injunction against proceedings by the respondent council members for removal of Johnson as council president. Petitioner also seeks a writ, pursuant to article V, § 4(b)(3), Florida Constitution, to stay those proceedings pending our determination of the matter. We expedited and heard the ease and, after deliberation, denied the stay and announced our intention to deny certiorari. This opinion elaborates on the views expressed after the hearing.

All legislative powers of the consolidated government of Jacksonville and Du-val County are vested in the council by the charter law, chapter 67 — 1320, § 5.06, Fla. Laws. The council by majority vote selected councilman Johnson as its president July 13,1976. On September 28,1976, the council passed an ordinance setting forth grounds and procedures for removal of council officers. A majority of the council then invoked those procedures by formal demand for Johnson’s removal as president for alleged conduct unbecoming an officer of the council, disorderly intoxication and disorderly conduct amounting to a breach of the peace. The conduct referred to in the specifications was allegedly committed in August 1976, before passage of the ordinance.

Jacksonville’s charter provides, in a section pertaining to Meetings of the council:

“The council shall, at the first meeting in each year, select one of its members as the president of the council and one of its members as president pro tempore. The president of the council shall preside at all meetings of the council during the year in which he is elected, and in his absence the president pro tempore shall preside.” Ch. 67-1320, § 5.07, Fla.Laws (emphasis added).

The charter contains no explicit provision for the removal of the council president during his term. Conceiving that as council president he is an officer not only of the council but also of the city or County, Johnson’s position is that he may not be removed from the presidency in midterm except by means specified in the charter, of which there are none, or by the Governor and Senate pursuant to the Florida Constitution. Article IV, § 7(a) and (b) of the Constitution provides for the removal of county officers as follows:

“(a) By executive order stating the grounds and filed with the secretary of state, the governor may suspend from office . . . any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform his official duties, or commission of a felony
“(b) The senate may . . . remove from office or reinstate the suspended official . . . .”

Article IV, § 7(c) provides for the removal of “any elected municipal officer” as follows:

“(c) By order of the governor any elected municipal officer indicted for crime may be suspended from office until acquitted . . . unless these powers are vested elsewhere by law or the municipal charter.”

The critical issue here is not whether Johnson as a duly elected member of the council is a city or county officer. Plainly, Jacksonville council members are county officers for purposes of removal under the Constitution’s article IV, § 7(a) and (b), for they exercise in Duval County the powers and duties exercised by county commissioners elsewhere. Article VIII, § 1(e), Florida Constitution; § 112.49, F.S.; In re Advisory Opinion, supra n. 2. A member of the council may therefore be removed as such only by the Governor and Senate, by recall by the voters, or by the special procedures adopted in Jacksonville for violation of its Code of Ethics, supra n. 1. Here there is no effort by the council, nor any claim of right, to remove Johnson as councilman. The council seeks only to remove councilman Johnson as its president.

An “officer” has been defined as “one who has a public duty, charge or trust, conferred by public authority, for public purposes, which is not transient, occasional, or incidental, but durable, permanent, and continuous . . . .” 3 E. McQuillin, Municipal Corporations § 12.29, at 169 (3d ed. rev. 1973); State ex rel. Davis v. Botts, 101 Fla. 361, 134 So. 219 (1931); State ex rel. Clyatt v. Hocker, 39 Fla. 477, 484, 22 So. 721, 722-23 (1897). The council presidency would seem by that definition to be, at least for some purposes, an office of the city or county. But “office” and “officer” are slippery words with uncertain implications. If the council presidency is a city or county office within the application of the removal provisions in article IV, § 7, no reason is apparent why the presidency should not also be considered an “office” within the meaning of article II, § 5(a) of the same Constitution, which forbids that any person hold “more than one office under the government of the state and the counties and municipalities . . ..” Thus, Johnson’s argument generates an immediate contradiction: by charter only a council member may be president of the council, but by Constitution that person may not hold both offices simultaneously. It might be argued also that, if the council president is in any sense an “elective . . . county officer,” he must be elected by the people, Jacksonville’s charter to the contrary notwithstanding, on the first Tuesday after the first Monday in November of each even-numbered year. Article VI, § 5, Florida Constitution.

We believe Johnson’s argument concerning “offices” and “officers,” though resourcefully conceived, grasps the wrong end of the stick. The more appropriate considerations are the nature of the council presidency, the constituency to whom the president is responsible and any constitutional or statutory restrictions on council autonomy.

The council president is first and foremost the presiding officer of a legislative body. While the president has other duties in contingencies — notably to become mayor if that office is vacant — the president’s permanent and continuous duty is to preside over deliberations of a parliamentary body. In this respect, the president’s relationship to the council is necessarily more intimate and responsible than any other “officer” who performs public duties independently, though by council appointment. Thus distinguished are such decisions as Burklin v. Willis, 97 So.2d 129 (Fla.App. 1st, 1957), and State ex rel. Gibbs v. Bloodworth, 134 Fla. 369, 184 So. 1 (1938), which held that the vice mayor and municipal judge of Port Orange and the city clerk of Miami, respectively, could not be removed by the city council and city commission of those cities, though each body was the appointing authority, except by a two-thirds vote and for cause specified in a statute then existing, § 165.18, F.S.1957, and § 2948, C.G.L. 1927. We have said that “[ujnder the common law an officer could be removed only for cause and after notice and an opportunity to be' heard.” Burklin, 97 So.2d at 131. But the common law otherwise provided for the removal by legislative bodies of their presiding officers. L. Cushing, Law and Practice of Legislative Assemblies §§ 297, 299 (9th ed. 1874):

“It is essential ... to the satisfactory discharge of the duties of a presiding officer, that he should possess the confidence of the body over which he presides, in the highest practicable degree. It is apparently for the purpose of securing this necessary confidence, that the presiding officer is required to be chosen by the assembly itself, and by an absolute majority of votes; [and] that he is removable by the assembly at its pleasure
“. . . The presiding officer, being freely elected by the members by reason of the confidence which they have in him, is removable by them, at their pleasure, in the same manner, whenever he becomes permanently unable, by reason of sickness, or otherwise, to discharge the duties of his place, and does not resign his office; or whenever he has, in any manner, or for any cause, forfeited or lost the confidence upon the strength of which he was elected.”

Jefferson wrote his Manual of Parliamentary Practice early in the Republic. That work, which was “regarded by English parliamentarians as the best statement of what the law of Parliament was at the time Jefferson wrote it,” maintained that a Speaker chosen by the House of Representatives “may be removed at the will of the House . . . .” L. Deschler, Constitution, Jefferson’s Manual and Rules of the House of Representatives § 284 at 105, § 315 at 127 (1943). Decisions honoring that relationship between a legislative body and its chosen presiding officer, and according therefore to a city council or other legislative body the right to remove its president or speaker at pleasure, include State ex rel. Childs v. Kiichli, supra n. 3, In re Speakership of the House of Representatives, 15 Colo. 520, 25 P. 707 (1891); Watson v. Common Council of City of Marysville, 140 P.2d 874 (Cal.App.3d, 1943); and Gowey v. Siggelkow, 85 Idaho 574, 382 P.2d 764 (1963). See also 4 McQuillin, Municipal Corporations § 13.19, at 500 (3d ed. rev. 1968):

“Where the body has the power to choose its own presiding officer from its own members, the office is held at will and authority of a majority of the members, and hence the body has the inherent power to remove such officer at any time, unless prohibited by some express constitutional or statutory provision.”

The Florida Constitution does not restrict the Jacksonville council’s inherent right to control its presidency, unless that is done by implication in vesting in the Governor and Senate the power to remove municipal and county officers. Article IV, § 7. Our stated doubts concerning the applicability of that section are reenforced by realization that the Governor’s power to suspend includes also the power to “fill the office by appointment for the period of suspension.” Sec. 7(a), (c). If it is merely improbable that the Governor is thus empowered to remove the council president without removing him also as councilman, it is inconceivable that the Governor, and not the council, should have power to appoint its new president. We are confident that article IV, § 7 was not intended to authorize gubernatorial suspension and replacement of the president of the Florida Senate or the speaker of the House of Representatives; and it is no less implausible that such a grant of power was intended for suspension and replacement of the council president, who is no less a city or county officer than the Senate president and House speaker are state officers. We find no constitutional abridgement of the council’s power to remove its president.

Nor is there any impediment by statute of general application. Sec. 165.18, F.S. 1971, was regarded in both Burklin and Bloodworth as legislative reinforcement of the common law doctrine that a municipal officer may be removed only for cause, after notice and opportunity for hearing. But even if the council president should be regarded for removal purposes as an officer of the city rather than of the county, apparently contrary to the Supreme Court’s Advisory Opinion, supra, note 2, § 165.18 was repealed in 1974 by the Formation of Local Governments Act, ch. 165, F.S., ch. 74-192, Fla. Laws. The only remaining statute touching on removal powers, § 112.49, F.S. 1975, is concerned only with persons who, because they exercise the powers and duties of a county officer, are removable by the governor and Senate under article IV, § 7, Florida Constitution. As we said above, the council president is not such an “officer.”

The final question is whether Jacksonville’s charter law restricts the council’s control of its presidency. It is argued that the charter provides for a one-year term in the presidency, and thus by implication impedes removal at will:

“The council shall, at the first meeting in each year, select one of its members as the president of the council The president of the council shall preside at all meetings of the council during the year in which he is elected . . . .” Ch. 67-1320, § 5.07.

We are persuaded by the Minnesota Supreme Court’s disposition of a similar argument, based on a similar charter provision:

“The sole purpose of the statute was merely to regulate the time when, and the manner in which, the city council should organize and elect their presiding officer .
“A city council is a local legislative body and in creating it the legislature, by implication, within the limits prescribed, conferred upon it all the powers and privileges in the manner of conducting their own proceedings usually recognized by parliamentary law as belonging to such bodies; and it would require a clear and explicit expression of legislative intention to that effect to justify the conclusion that it was the design to deprive this city council of the universally recognized parliamentary right of control over their presiding officer. Such an intention is not to be inferred from the mere fact that, in order to insure a prompt and orderly organization of that body, the legislature has given directions as to the time and manner of doing so.” State ex rel. Childs v. Kiichli, 53 Minn. at 153-54, 54 N.W. at 1070. See also Gowey v. Siggel-kow, supra.

We think it unlikely that the legislature would have created an irrevocable “term” for the council presidents in a section of the charter modestly entitled “Meetings.” The legislature’s use of the mandatory “shall preside” in describing the president’s duty implies no tenure, for similar imperatives are used in describing the duties of the council auditor and the council secretary, concerning whom, presumably, the council has untrammelled-removal power.

The essential character of the council presidency is not changed by the charter provision for the president’s succession to the vacant office of mayor. Sec. 6.05, n. 4 supra. Petitioner expresses apprehension that, given unrestrained power to remove its president, the council may learn of an impending vacancy in the office of mayor, depose its president and elect a new one who shall become mayor. So it may. The council may not depose the new mayor, however. For section 6.05 provides that the person thus becoming mayor

“shall cease to be a councilman during his term of mayor, and his seat on the council shall become vacant.”

The charter thus honors the proscription of article II, § 5(a) of the Constitution, that no person shall hold more than one office— councilman and mayor — under the government of Jacksonville.

What we have said disposes of petitioner’s other principal contentions: that the president may not be removed for violation of conduct standards enacted by ordinance after the conduct complained of, and that the council here improperly deviated from the removal procedures it recently adopted. The council may remove its president on grounds and by procedures satisfactory to it. That the council may thus lawfully act at any time, for any reason and in any way does not require that the council act arbitrarily. Citizens may think better of a council that prescribes an orderly hearing process and gives its presiding officer notice — even retrospective notice — of the grounds on which it will entertain removal proceedings. But that is the council’s affair, not the court’s.

Following our hearing of this matter we announced that no petition for rehearing would be entertained, due to the exigency of then imminent proceedings before the council. The exigency passed following oral announcement of our decision. Because the issue we here decide is one of lasting importance in the government of Jacksonville, we withdraw our inhibition of rehearing and will entertain any petition appropriate under Rule 3.14, F.A.R. The petition for writ of certiorari is

DENIED.

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

      . Petitioner points out that, by contrast, directors of executive departments of the consolidated government are appointed by and serve “until removed by the mayor” and the chairman of the child services advisory board is made to “serve at the will of the board.” Ch. 67-1320, §§ 7.102, 12.504, Fla.Laws. Section 17.08 provides for recall by the voters of any “officer elected in any consolidated government . . . election” and section 20.07(b) provides for suspension or removal if an elected official violates §§ 20.02-.06, the “Code of Ethics.” The ethics code does not proscribe the conduct of which Johnson is accused.

      . Sec. 112.49, F.S. 1975, provides that “any officer, official or employee” of a consolidated city-county government “who exercises the powers and duties of a county officer” shall be deemed a county officer and be removed pursuant to art. IV, § 7 of the Constitution. The Supreme Court recently held that Jacksonville’s mayor is a “county officer” by this definition, and is therefore removable by the Governor under article IV, § 7(a) rather than under § 7(c). In re Advisory Opinion to the Governor Request of July 12, 1976, 336 So.2d 97 (Fla. 1976).

      . State ex rel. Childs v. Kiichii, 53 Minn. 147, 155, 54 N.W. 1069, 1071 (1893): “The words ‘office’ and ‘officer’ are terms of vague and variable import, the meaning of which necessarily varies with the connection in which they are used, and, to determine it correctly in a particular instance, regard must be had to the subject-matter in reference to which the terms are used.” See also Seaman v. City of New York, 172 App.Div. 740, 743, 159 N.Y.S. 563, 566 (1916), affd. 225 N.Y. 648, 121 N.E. 889 (1919); 3 McQuillin, supra, at § 12.29.

      . Sec. 6.05 of Jacksonville’s charter provides that “the president of the council shall serve as mayor until his successor is elected and qualified” if the mayor dies, resigns, removes his residence from Duval County, or is removed from office when a general consolidated government election will occur within two years.

      . “Section 5.10. Auditor. The council shall appoint an auditor who . shall be responsible for the performance of the duties provided in this section and such other duties as may be assigned him by the council. .
      “Section 5.12. Secretary and Other Council Employees. The council shall select a secretary who shall keep the records of the council


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carolyn O’GRADY et al., Plaintiffs, v. Ronnie Lewis KORTIE et al., Defendants.
    No. DD-28.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1976.
    Karl 0. Koepke, Orlando, for plaintiffs.
    John P. McCoy of Cobb, Cole, Sigerson, McCoy, Bell & Bond, Daytona Beach, for defendants.
   PER CURIAM.

Pursuant to Florida Appellate Rule 4.6, the trial court has certified to this court the question as to elements of damages, if any, that can be claimed on behalf of a minor child and the estate by a surviving spouse and the administratrix in a wrongful death action arising from an incident that occurred on March 29, 1972. A second question certified relates to the applicability of comparative negligence.

Plaintiffs failed to file a brief within 15 days after the instant certificate was filed, as contemplated by Fla.App.Rule 4.6(f). Defendants have filed an extensive brief citing nine Florida appellate decisions which they contend answer the foregoing questions. Thus, there appears to be controlling precedent in this state upon which a decision of the trial court could be based. The trial court, under Article V, Section 6, Florida Constitution, has the power to adjudicate the questions, the answers to which may be reviewed on appeal, if desired. Chapman v. Slaff, 101 So.2d 413 (1 Fla.App. 1958).

In the exercise of its discretion, this court respectfully declines to answer the questions as certified. Pridgeon v. Folsom, 174 So.2d 619 (1 Fla.App.1965).

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


author: DOWNEY, Judge.

text:
    Wilfred H. CONRAD, Appellant, v. Guy Gordon McMECHEN, Appellee.
    No. 76-1761.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1976.
    Wilfred H. Conrad, pro se.
    No appearance for appellee.
   DOWNEY, Judge.

After obtaining a judgment against appellant and return of an execution unsatisfied, appellee obtained an order (dated August 3, 1976) pursuant to Section 56.29, Florida Statutes (1975), requiring appellant to appear at a time certain before a Circuit Judge in Rockledge, Brevard County, Florida, to be examined concerning his property and financial affairs. Appellant filed a motion to (a) strike the order, and (b) obtain a protective order, alleging, among other things, that he was a resident of Seminole County, Florida, and entitled to be examined in the county of his residence. While the notice of appeal (filed August 12, 1976) seeks review of the order (dated August 12, 1976) denying the foregoing motion, we treat this as an appeal from the order requiring appellant to appear before the Circuit Judge in Brevard County, since this interlocutory appeal really questions the validity of that order. See State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967).

Supplementary proceedings are a creature of statute to aid a judgment creditor in discovering assets of the debtor which might be appropriated to satisfy the judgment. South Florida Trust Co. v. Miami Coliseum Corp., 101 Fla. 1351, 133 So. 334 (1931). Section 56.29(2), Florida Statutes (1975), expressly provides that the defendant in execution appear before the court or a master at a time and place specified in the county of the defendant’s residence. The mandate of the statute is plain, but the order under review fails to comply.

It may be that the trial court felt Fla.R. Civ.P. 1.560, providing for discovery in aid of execution, allowed appellee to obtain discovery of appellant’s assets in accordance with the Rules of Civil Procedure, thus obviating the requirement of holding the examination in the county of appellant’s residence. Of course before instituting supplementary proceedings, appellee could have sought discovery pursuant to Fla.R.Civ.P. 1.560 without necessarily being restricted to the county of appellant’s residence. However, this proceeding was initiated pursuant to the provisions of Section 56.29, Florida Statutes (1975); appellee therefore must comply with those provisions. As pointed out in Wilde v. Wilde, 237 So.2d 203, 204 (Fla. 4th DCA 1970):

“This rule [Fla.R.Civ.P. 1.560] does not supplant the method provided by statute for the examination of a judgment debt- or, rather it supplements it.”

Kline, Supplementary Collection, 25 University of Miami Law Review, p. 596, 608-609, discusses the interplay between the statute and rule of procedure in the following way:

“Proceedings supplementary to execution should not be confused with discovery in aid of execution which is a process permitted by the Florida Rules of Civil Procedure. The discovery process may be commenced any time after the entry of judgment and does not require the return of an unsatisfied execution in order to implement the proceedings. However, the discovery process does not have the teeth of supplementary proceedings for it operates only as a discovery device and no orders are made by the court requiring persons to produce property or show cause why the property should not be produced. On the other hand, in supplementary proceedings, the judge may order third parties to pay the judgment creditor’s judgment and this order may be enforced through the court’s power of contempt. The discovery procedure provided by the Florida Rules is a flexible and inexpensive supplement to supplementary proceedings but it does not operate to supplant these proceedings. In this connection, the judgment creditor might find it convenient to resort first to the discovery procedure for the purpose of determining whether any third persons hold property belonging to the debtor. Once this information is obtained, and it is determined that the third parties refuse to allow the property to be applied to the judgment creditor’s judgment, he may then commence supplementary proceedings in aid of execution.” (Footnotes omitted.)

Appellant was entitled to be examined in the county of his residence, and it was therefore improper for the court to enter the order requiring appellant to appear for examination outside that county.

Accordingly, the order of August 3, 1976, is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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


author: ALDERMAN, Judge.

text:
    Willie Joe BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1380.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1976.
    Richard L. Jorandby, Public Defender, and James R. Merola, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

Defendant appeals the trial judge’s order denying his motion for discharge pursuant to Fla.R.Crim.P. 3.191. Defendant had entered a plea of nolo contendere to the offense of escape, was adjudged guilty, and sentenced to serve six months consecutively with any sentence now being served. He reserved his right of appeal.

Defendant escaped from the Glades Correctional Institution in Palm Beach County on February 11, 1971. An information charging him with this offense was filed in the Circuit Court of Palm Beach County on February 22, 1971. In December of the same year he was arrested in New Jersey and charged with robbery. On September 5,1972, based upon information provided by the State of Florida, prison officials in New Jersey erroneously advised defendant that a detainer had been lodged against him based upon a warrant from Dade County, Florida, charging him with escape. On April 30, 1973, defendant mailed a “Demand for Trial” which complied with Rule 3.191(b)(3), except that the document was not filed with the Circuit Court or served on the prosecution attorney of Palm Beach County. Instead the papers were mailed to the court and prosecutor in Dade County, the Attorney General and the Governor of Florida, as well as the Governor and Superintendent of the State Prison in New Jersey. In addition, a legal aid person, on behalf of the defendant, on May 1,1973, wrote to the Director of Corrections for the State of Florida concerning defendant’s demand for speedy trial. No action was taken. Finally in March of 1974, defendant was returned to prison in Florida. His trial was set on October 7,1974, but was not held because of defendant’s plea of nolo contendere.

The State contends that defendant’s demand for trial was not properly filed because it was not filed with the court having jurisdiction and served on the prosecuting attorney as provided by Rule 3.191(b)(3). We disagree and reverse. While there is some confusion as to the degree of fault between the officials of the State of Florida and the State of New Jersey, it is clear that through no fault of the defendant he has been denied his right to a speedy trial. Defendant’s motion for discharge should have been granted.

REVERSED and REMANDED.

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


text:
    Edward Gene ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-1317.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1976.

      Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Margarita Esquiroz, Asst. Atty. Gen., and Gary M. Rose, Legal Intern, Miami, for appellee. ■
   DOWNEY, Judge.

Appellant was charged with second degree murder and convicted of manslaughter. On appeal he contends the trial court erred by: (1) denying his motion for acquittal since the evidence demonstrated that appellant had shot the victim in self defense; (2) refusing to instruct the jury on certain attempts, excusable homicide, and several lesser included offenses; and (3) admitting into evidence a photograph of the victim that was so inflammatory it unduly prejudiced the jury against appellant.

We have considered appellant’s foregoing arguments and find contentions (1) and (3) to be without merit. However, we find merit in part of ground number (2) and reverse for a new trial.

After an argument in a bar, appellant and the victim left the premises. Later the victim returned in a car and parked in front of the bar with a shotgun protruding from the window of the passenger’s side of the car. Appellant eventually came around the corner of the building, armed with a rifle, and saw the victim sitting in the car with the shotgun protruding from the window. From his vantage point at the corner of the building, appellant shot and killed the victim, allegedly in self-defense.

The trial court instructed the jury on second degree murder, attempted second degree murder, manslaughter, and justifiable homicide. Appellant requested the court to charge the jury additionally on third degree murder; attempted third degree murder; attempted manslaughter; assault with intent to commit murder in the second degree, third degree, and manslaughter; and on excusable homicide. The trial court denied the request.

It appears to us that the trial court erred, though not reversible, in not giving the requested charge on third degree murder. In Brown v. State, 206 So.2d 377 (Fla.1968), the Supreme Court laid down the rule controlling instruction on degrees of a crime which rule has been consistently followed to the present time. Therein the court stated:

“Section 919.14 [the predecessor of Fla.R. Crim.P. 3.490], applies only to those crimes which are divided into degrees, e. g., unlawful homicide (Fla.Stat. §§ 782.-04, 782.06, F.S.A.), and arson (Fla.Stat. §§ 806.01-806.04, F.S.A.). If an accused is charged with the highest degree of such a crime, the court should charge the jury on all lesser degrees. In this category it is immaterial whether the indictment specifically charges the lesser degrees, or whether there is any evidence of a crime of such degree. Killen v. State, 92 So.2d 825 (Fla.1957); Brown v. State, 124 So.2d 481 (Fla.1960). The court must instruct on the lesser degrees simply because § 919.14 clearly requires it, and not because such degrees are necessarily included lesser offenses. In many cases the elements of the lesser degrees are totally distinct from the offense charged. See e. g., Clemmons v. State, 43 Fla. 200, 30 So. 699 (1901). If the evidence is sufficient to support a verdict of guilty of the offense charged, the jury has the power, under § 919.14 to find the accused guilty of a lesser degree of the offense regardless of the lack of evidence as to such degree. Killen v. State, supra; Hodella v. State, 158 Fla. 94, 27 So.2d 674 (1946). Under the statute, the trial judge should, and if requested must, instruct on all lesser degrees of the offense, if the case is allowed to go to the jury for a determination of guilt or innocence on the offense charged. Brown v. State, 124 So.2d 481 (Fla.1960).” 206 So.2d at 381.

This error is not reversible in this case because the jury found appellant guilty of manslaughter, a crime that carries the same punishment as third degree murder. We mention it only for the benefit of the trial court on retrial of this case.

We find no error in the trial court’s refusal to give the requested instruction on attempted third degree murder and attempted manslaughter. The information in this case charged appellant with second degree murder. Thus, when the case was submitted to the jury on that charge, Fla.R. Crim.P. 3.510 required the court to instruct the jury on attempted second degree murder. But that rule does not require the court to instruct the jury on (a) attempts to commit all offenses that are of a lesser degree than second degree murder, or (b) attempts to commit lesser offenses included in second degree murder.

Rule 3.510, Fla.R.Crim.P., provides that:

“Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.”

On this point Brown, supra, says:

“(2) ATTEMPTS. Under § 919.16 [the predecessor of Fla.R.Crim.P. 3.510], a jury is empowered to convict a defendant of an attempt to commit the offense charged in the accusatory pleading, * *
“Section 919.16, simply requires that in every case, the trial judge must determine as a matter of law whether an attempt to commit the crime charged would itself constitute an offense under Florida law. If he determines that it does, . . . then he must instruct the jury on the subject of such attempt . .” (Emphasis added.) 206 So.2d at 381.

We therefore conclude that Fla.R.Crim.P. 3.510 requires the court to instruct the jury on attempts to commit the offense expressly charged in the indictment or information but not on attempts to commit offenses of a lesser degree than the offense charged, nor on attempts to commit lesser offenses included in the offense charged, if neither sort of attempt is expressly set forth in the accusatory pleading. Cf. Settle v. State, 288 So.2d 511 (Fla.2d DCA 1974), wherein the court held that Fla.R.Crim.P. 3.390(a), which requires the trial court to inform the jury of the penalty fixed by law for the offense upon which the accused is then on trial, does not obligate the Court to inform the jury of the punishment for each of the offenses included in the offense charged.

Next, we reject the suggestion of error emanating from the trial court’s refusal to instruct on assault with intent to commit second and third degree murder and assault with intent to commit manslaughter. Those offenses are Brown Category 4 offenses (see 206 So.2d at 383). Here, neither the allegations of the information nor the evidence adduced at trial required such instructions.

This brings us to the reversible error committed in the trial of this case. The charge against appellant was second degree murder. The trial court instructed the jury, among other things, on manslaughter and justifiable homicide; but it refused to instruct them on excusable homicide. The state contends that the refusal was proper because appellant’s defense was justifiable homicide based on self defense, so the defense of excusable homicide did not apply to this case, and an instruction on excusable homicide was therefore unnecessary. We think this reasoning misses the mark.

We know from Brown, supra, that in instructing the jury in a homicide case the court must instruct on the offense charged and on all offenses that are lesser in degree than the offense charged in the accusatory pleading “regardless of the lack of evidence as to such degree.” 206 So.2d at p. 381. Clearly, if the court is mandated to instruct the jury on a certain point, it must do so properly. Therefore, since the trial court was required in this case to instruct the jury on manslaughter, it was required to define manslaughter.

As the Supreme Court stated in Hedges v. State, 172 So.2d 824, 826 (Fla. 1965), a trial court cannot define manslaughter without also defining justifiable and excusable homicide:

“One notes immediately that it [manslaughter] is in the nature of a residual offense. If a homicide is either justifiable or excusable it cannot be manslaughter. Consequently, in any given situation, if an act results in a homicide that is either justifiable or excusable as defined by statute, a not guilty verdict necessarily ensures. The result is that in order to supply a complete definition of manslaughter as a degree of unlawful homicide it is necessary to include also a definition of the exclusions.”

In a similar vein, this court stated in Jackson v. State, 317 So.2d 454, 455 (Fla.4th DCA 1975):

“Thus, great care must be exercised in giving jury instructions so the jury may obtain the whole picture of a particular subject. Therefore, in instructing and in reinstructing on manslaughter, it is essential to instruct on excusable and justifiable homicide to enable the jury to understand the definition of manslaughter.”

Another case which speaks to this point is Whitehead v. State, 245 So.2d 94 (Fla.2d DCA 1971). There the trial court had charged the jury on manslaughter and excusable homicide, but it had omitted part of the definition of justifiable homicide. The appellate court recognized that the omitted part of the justifiable homicide instruction was relevant to the evidence adduced. But it went on to point out:

“for our purposes here in deciding whether it is necessary to charge on the omitted subsection, it must be kept in mind that such a charge is necessary not because it may be required to cover evidence supporting it but rather because it defines a material portion of the offense charged. In this context it isn’t necessary that it be predicated upon admitted evidence; it is appropriate, indeed mandatory, otherwise.” 245 So.2d at 99.

See also Clark v. State, 301 So.2d 456 (Fla.3d DCA 1974).

We have not overlooked Hancock v. State, 276 So.2d 223 (Fla.1st DCA 1973). The court there recognized that an instruction on justifiable and excusable homicide is required in defining manslaughter; but it held that the trial court’s refusal to instruct on justifiable homicide was not reversible error because the defendant’s own testimony negated that defense. The state’s argument for a Hancock result is compelling, but as long as we labor under a rule which requires that the jury be instructed on all offenses of a degree lower than the offense charged whether or not there is evidence to support such instructions, it seems to us the jury must be properly instructed on the nature of the offenses of a lower degree. And it does not suffice to say: well, no prejudice accrued to the defendant, because there was no evidence to support the omitted instruction. For this reason we respectfully disagree with the Hancock case.

In view of the foregoing we hold that the failure to grant the appellant’s request for an instruction on excusable homicide was reversible error. Accordingly, the judgment and sentence appealed from are reversed, and the cause is remanded for a new trial.

CROSS, J., and WEAVER, SIDNEY M, Associate Judge, concur.

      . We express serious doubt as to whether there is such a crime as attempted manslaughter. The definition of “manslaughter” suggests that “attempted manslaughter” is an absurdity. However, for the reasons set forth below, we need not pass on that question.


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. NEWS-PRESS PUBLISHING COMPANY, a/k/a Fort Myers News-Press, a Gannett Newspaper, Appellee.
    No. 75-1815.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1976.
    Rehearing Denied Dec. 1, 1976.

      Joseph P. D’Alessandro, State Atty., Louis S. St. Laurent, Chief Asst. State Atty., and James R. Thompson, Asst. State Atty., Fort Myers, for appellant.
    Theodore Klein, Pine, Jacobson, Block, Goldberg & Semet, P.A., and Dan Paul, Paul & Thomson, Miami, for appellee.
   GRIMES, Judge.

The state appeals an order dismissing an indictment charging the Fort Myers News-Press with tampering with physical evidence by destroying certain tape recordings of conversations for the purpose of impairing their availability in an investigation into the death of James O’Neill by the Lee County Sheriff’s Department. The statute which the News-Press was charged with violating reads as follows:

“918.13 Tampering with or fabricating physical evidence.—
(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation; or * * * )>

The News-Press filed a sworn motion to dismiss pursuant to Fla.R.Cr.P. 3.190(c)(4) setting forth essentially the following facts:

Fran Williams was employed as a newspaper reporter by the Fort Myers News-Press at all times pertinent to the indictment. On October 8, 1974, she testified under subpoena before the State Attorney’s office. She was advised by the State Attorney that her testimony was being compelled in exchange for her being granted immunity from the prosecution for the matter and/or transaction about which her testimony was being compelled. Ms. Williams testified that she first became aware of the homicide involving James O’Neill on September 28, 1974. On October 1, she received a telephone call from Margie Johnson who had been living at O’Neill’s house prior to his death. Ms. Williams tape recorded this telephone conversation. Ms. Johnson was not aware that the conversation was being taped and did not give her permission for it to be taped. Ms. Williams asserted that she used the tape recording solely for the purpose of assisting her in writing her news story and then erased it according to the newspaper’s policy to erase and reuse tapes.
Two days later, Ms. Williams picked up Ms. Johnson’s daughter, Lori Sievert, and drove her to Punta Gorda where they met Ms. Johnson. Ms. Sievert told Ms. Williams that she wanted to talk with Ms. Johnson alone for a few minutes. Thereupon, Ms. Williams stepped out of the car, but unknown to Johnson and Sievert turned on a tape recorder which she had left in the car. The conversation of Johnson and Sievert was tape recorded without the knowledge and permission of either of them. Ms. Williams said that after returning to the newspaper office and writing her story, she also erased this tape.

The state filed a sworn demurrer and traverse to the foregoing motion to dismiss. Following a hearing, the court entered an order dismissing the indictment. First, the court reasoned that the News-Press could not have been guilty of destroying evidence, because the tape recordings were illegal intercepts which were inadmissible in evidence in any proceeding under Section 934.-06, Florida Statutes (1973). The court further held that the traverse filed by the state was legally insufficient to deny the truth of any of the facts stated in the defendant’s motion and that these facts, thereby undisputed, did not establish a pri-ma facie case of guilt.

We will consider in turn the two bases for the court’s order. At the outset, we note the anomalous situation in which the state contends that at least one of the intercepts was not illegal, whereas the defendant contends that both of them were illegal. Both parties agree that the tape recording of the conversation between Ms. Sievert and Ms. Johnson made without their knowledge and permission while Ms. Williams was out of the car was illegal under Chapter 934, Florida Statutes. However, the state argues that the tape recording of the telephone conversation between Ms. Williams and Ms. Sievert was not illegal because there could not be an intercept of a conversation where one of the parties to the conversation is causing it to be recorded. The following statutory definitions are pertinent to this discussion:

“934.02 Definitions. — As used in this chapter:
******
(2) ‘Oral communication’ means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting;
(3) ‘Intercept’ means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device; * * * »

The Florida Security of Communications Act was patterned after Title III of the Omnibus Crime Control Act of 1968, 18 U.S.C. § 2510, etc. When first enacted, the Florida act, like its federal counterpart, also contained the following provision:

“It is not unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication when such person is a party to the communication or when one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal act.” Section 934.03(2)(d).

Federal court decisions have interpreted this provision to mean that if one of the parties to a conversation is engaged in recording it, there is no illegal intercept. United States v. Turk, 526 F.2d 654 (5th Cir. 1976); Smith v. Wunker, 356 F.Supp. 44 (S.D.Ohio 1972). However, effective October 1, 1974 (the very day on which Ms. Williams made the first tape recording), Section 934.03(2)(d), Florida Statutes, was amended to read:

“It is lawful under this chapter for a person to intercept a wire or oral communication when all of the parties to the communication have given prior consent to such interception.”

The federal act has not been so amended. The fact that the provision permitting an intercept with the consent of one of the parties was changed in favor of a provision specifying that the consent of both parties is required strongly implies that the legislature intended to allow each party to a conversation to have an expectation of privacy from interception by the other party. This conclusion is fortified by the fact that at the same time Section 934.03(2)(d) was amended, the words “and does not mean any public oral communication uttered at a public meeting,” were added to the definition of “oral communication” in Section 934.02(2). We, therefore, hold that the Florida Security of Communications Act prohibits a party to a conversation from recording this conversation without the consent of all parties to the conversation, provided the conversation is not public as provided by Section 934.02(2) or the intercept is not conducted for the purpose of obtaining evidence of a criminal act under Section 934.03(2)(c). The Federal District Court for the Southern District of Florida has recently interpreted this statute in a similar fashion. Sunbeam Television Corp. v. Shevin (S.D.Fla.1976) (Case No. 75-1443-Civ-CA).

Since both of the tape recordings obtained by Ms. Williams were illegal intercepts, it becomes necessary to decide whether this defendant has standing to complain. The News-Press relies upon Section 934.06, Florida Statutes (1973) which reads:

“934.06 Prohibition of use as evidence of intercepted wire or oral communications. — Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may .be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.”

On the other hand, Section 934.09(9)(a), Florida Statutes (1973) provides that any “aggrieved person” may move to suppress an unlawful intercept, and Section 934.-02(9), Florida Statutes (1973) defines an “aggrieved person” as “a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.” Despite the broad language of Section 934.06, Florida Statutes (1973), our Supreme Court in the case of In re Grand Jury Investigation, 287 So.2d 43 (Fla.1973), appeared to hold that only an aggrieved person had standing to complain of an illegal intercept, and the federal decisions construing similar provisions of the federal act have clearly so held.

In Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), the United States Supreme Court held that a person only had standing to complain on Fourth Amendment grounds if he was involved in unlawfully overheard conversations or the conversations occurred on his premises regardless of whether he was present or participated in those conversations. This decision, while rendered in 1969, was predicated upon law which predated the passage of the federal act upon which Florida’s Chapter 934 was based. The Supreme Court went on to say that Congress or state legislatures could extend the exclusionary rule and provide that illegally seized evidence is inadmissible against anyone for any purpose but stated in a footnote to this observation:

“9. Congress has not done so. In its recent wiretapping and eavesdropping legislation, Congress has provided only that an ‘aggrieved person’ may move to suppress the contents of a wire or oral communication intercepted in violation of the Act. Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 221 (18 U.S.C. § 2518(10)(a) (1964 ed., Supp. IV)). The Act’s legislative history indicates that ‘aggrieved person,’ the limiting phrase currently found in Fed.Rule Crim. Proc. 41(e), should be construed in accordance with existent standing rules. See S.Rep.No.1097, 90th Cong., 2d Sess., at 91, 106.”

In two recent cases the Fifth Circuit Court of Appeals had occasion to consider the question of standing under Title III of the federal act. Thus, in United States v. Scasino, 513 F.2d 47 (5th Cir. 1975), that court said:

“In the circumstances of this case the defendants clearly cannot be considered aggrieved persons within the meaning of the statute. The Supreme Court in Alderman v. United States, 1968, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, has read the legislative history of the wiretap statute as intending the statute to reflect the existing law of standing in wiretap cases. See also United States v. King, 9 Cir. 1973, 478 F.2d 494, 506; United States v. Ahmad, M.D.Pa.1972, 347 F.Supp. 912, 933, aff’d in part, rev’d in part on other grounds, 3 Cir. 1973, 482 F.2d 171. Under prestatutory fourth amendment law, one does not have standing to suppress an illegal wiretap unless his conversations were overheard or the conversations occurred on his premises. Alderman, supra, 394 U.S. at 176, 89 S.Ct. 961. See also Goldstein v. United States, 1941, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312; United States v. Kane, 5 Cir. 1971, 450 F.2d 77.
“Consequently, under 18 U.S.C.A. § 2510(11) an ‘aggrieved person’ is one who participated in the intercepted conversation or on whose premises the conversation occurred. . . .”

In United States v. Houltin, 525 F.2d 943 (5th Cir. 1976), the court held that even though the arrest of certain defendants and the seizure of marijuana were fruits of illegal wiretaps, only those defendants who had a reasonable expectation of privacy in the wiretapped conversations had standing to complain. Thus, the court held that those who were not participants in the intercepted conversations and who did not own the property on which any party to the intercepted calls was speaking from had no standing to challenge the legality of the wiretap. In a footnote to that decision, the court said:

“3. According to Fed.R.Crim.P. 41(e) and 18 U.S.C. § 2518(10)(a), an ‘aggrieved person’ may move- to suppress evidence derived from an illegal wiretap. The statutory phrase does not liberalize the common law of standing. See United States v. Calandra, 1974, 414 U.S. 338, 348, n. 6, 94 S.Ct. 613, 38 L.Ed.2d 561. That phrase is defined in 18 U.S.C. § 2510(11) as ‘a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed’. Moreover, in Alderman, 394 U.S. at 175, n. 9, 89 S.Ct. at 968, the Court held that ‘ “aggrieved person” . should be construed in accordance with existent standing rules’.”

Since the defendant in its brief concedes that its contention of standing does not derive from Section 934.09(9)(a), Florida Statutes, our discussion of this point could stop here. However, we think it advisable to at least consider whether the defendant would have a right of suppression upon the authority of the federal interpretations because one of the intercepted conversations occurred when Ms. Williams was speaking from the News-Press office, and the state is attempting to impose criminal responsibility upon the News-Press predicated primarily upon the actions of its employee, Ms. Williams, who was a participant in that conversation. Suffice it to say, we think the purpose of Chapter 934 was to protect the victims of illegal intercepts, not those who perpetrate them. We cannot believe that the legislature intended this law to be interpreted in such a manner as to permit a person to make an illegal tape recording and then rely upon the evidentiary prohibitions of Section 934.06, Florida Statutes, to make his own determination that it would be inadmissible so that he can then destroy it. Thus, we cannot agree that the circumstances reflected by this record would not permit a prosecution for destruction of evidence.

This then brings us to the other ground upon which the indictment was dismissed. Among the averments of the defendant’s motion to dismiss were the statements that Ms. Williams told the State Attorney that the tape recordings were erased pursuant to a standard policy of the newspaper to erase and reuse tapes. Another paragraph of the defendant’s motion to dismiss read as follows:

“11. LT. SCHMIDT testified on deposition that he has no information or evidence that FRAN WILLIAMS destroyed subject tapes with the purpose of impairing their availability in any investigation.
“12. The State has no other testimony from any other individual, nor does it have any physical evidence within its knowledge or possession that the Defendant corporation by and through its agents destroyed the subject tapes with the purpose of impairing their availability in any investigation. LT. SCHMIDT, the chief investigating officer in this case, testified as follows:
Q. Did you ever come up with any evidence other than the fact that the tape recordings used by the Fort Myers News-Press were as a matter of course of business used over and over and erased and erased?
A. Yes.
Q. What?
A. From evidence we took from several of the people it was the News-Press’s policy not to try to file and keep tape recordings, and that they were reused as a policy. That’s basically all I know of why they reused them.”

These statements were pertinent to the prosecution of this case because the gravamen of Section 918.13, Florida Statutes, is the. destruction of evidence with the purpose of impairing its availability in a law enforcement investigation. In its traverse the state admitted a number of the facts set- forth. With respect to the balance, including the statements that the tapes were erased as a matter of business policy in the normal course of business and the testimony attributed to Lt. Schmidt, the traverse stated:

“The STATE OF FLORIDA, by the undersigned, pursuant to CrPR 3.190(d) in further response to the Defendant’s Motion to Dismiss, files this Traverse and specifically denies that on points 3b, 3c, 3d, 3e, 3h, 3k, 37, 6, 7, 8, 9, 12, 13 and 14 there are no material disputed facts and that the undisputed facts in this case do not establish a prima facie case of guilt against the Defendant.”

Giving the state the benefit of its double negative, we construe this to mean that there are some material disputed facts in the enumerated points (paragraphs) and that the facts contained in the motion which are undisputed do not establish a prima facie case of guilt. However, conspicuously absent from this traverse is any recitation of what facts in any of the paragraphs are denied.

Fla.R.Cr.P. 3.190(d) states in part:
“(d) Traverse or Demurrer. The State may traverse or demur to a motion to dismiss which alleges factual matters. Factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the State in such traverse. . . . ”

This rule does not require the state to allege any facts which negate the factual matters set forth in the motion to dismiss, nor must the State Attorney have personal knowledge of the facts in order to make a sworn denial. State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975). Nevertheless, any facts stated in a motion to dismiss filed under Fla.R.Cr.P. 3.190(c)(4) are deemed admitted unless they are specifically denied. The state’s traverse in this case could hardly be construed as a denial of all of the facts under the enumerated paragraphs, particularly when it is noted that some of these paragraphs include statements of fact which the state itself contends to be true.

Thus, as we construe the rule the statements that the tape recordings were erased in order that they could be reused in accordance with the usual business practice of the newspaper stands undisputed. This is consistent with the balance of the record from which it may be inferred that it was not until the tapes were erased (and presumably certain news articles appeared which contained information unknown to the police), that the state made any overtures to Ms. Williams or the News-Press concerning its investigation of Mr. O’Neill’s murder. Considered together, these facts negate the charge that the tapes were destroyed for the purpose of impairing their availability in the investigation. Of course, the mere fact that a person was following a standard policy would not necessarily be a defense to a charge of destruction of evidence. If he had the knowledge of a criminal trial, proceeding or investigation as set forth in Section 918.13, Florida Statutes, and the knowledge that the materials destroyed were likely to be evidence, then that person might have the required purpose to impair their availability solely by knowing that his act would have that result.

Here, however, we do not believe that Ms. Williams would be expected to think that these tape recordings could be evidence, in the same sense as, for example, a murder weapon. Nor do we think that she could be presumed to have the purpose to destroy evidence when she merely reuses a tape pursuant to routine procedure. The fact of the destruction, standing alone, under the circumstances here would not be sufficient to support a guilty verdict. Given the record before us that the state has no evidence which points to an improper purpose in erasing the tapes, we are compelled to find that the uneontroverted facts would be insufficient to support a conviction, and that the indictment was properly dismissed. Camp v. State, 293 So.2d 114 (Fla. 4th DCA 1974).

AFFIRMED.

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


text:
    Robert M. ALLIGOOD et al., Appellants, v. SOUTHEAST FIRST NATIONAL BEACH BANK et al., Appellees.
    No. DD-346.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1976.
    Rehearing Denied Dec. 1, 1976.

      David M. Wiesenfeld of Dawson, Galant, Maddox, Sulik & Nichols, P. A., Jacksonville, for appellants.
    Charles Cook Howell, III of Howell, Howell, Liles & Braddock, Jacksonville, for appellees.
   ON MOTION TO DISMISS INTERLOCUTORY APPEAL

SMITH, Judge.

Defendants present this interlocutory appeal pursuant to Rule 4.2, F.A.R., in an action on their alleged guaranty of another’s debts. The plaintiff creditor’s complaint was not formerly cognizable in equity. Defendants’ responsive pleading contained several affirmative defenses, including one of payment according to terms of the guaranties as interpreted by defendants, and two counterclaims, one of which prayed for equitable reformation of the guaranty instruments according to defendants’ view of their intended effect. The trial court struck all affirmative defenses and dismissed the counterclaims. Then followed defendants’ interlocutory appeal and plaintiff’s motion to dismiss it for lack of jurisdiction.

The question is whether we shall review on interlocutory appeal the sufficiency of the counterclaim for reformation, a matter formerly cognizable in equity, notwithstanding that the principal action, the stricken defenses and the other dismissed counterclaim all raised matters at law. We have dispensed with oral argument.

An interlocutory appeal such as this raises substantial questions, not yet entirely resolved, concerning the trial court’s jurisdiction to proceed with the case at hand. Willey v. W. J. Hoggson Corp., 89 Fla. 446, 105 So. 126 (1925); De La Portilla v. De La Portilla, 304 So.2d 116 (Fla.1974). Both delay and piecemeal review would result from entertaining this particular interlocutory appeal, in which the sole jurisdictional ground is the trial court’s dismissal of a reformation counterclaim which is substantially equivalent to striking — by an order not reviewable by interlocutory appeal — the affirmative defense of payment. The counterclaim would, if sustained, defeat the main action at law. Because the counterclaim for reformation raises between the same parties issues integral to the authenticity of the instruments on which the principal action is based and is by another name a denial or avoidance of liability, we will not regard it as a civil action “that, from the subject matter or relief sought, [is] such as formerly [was] cognizable in equity.” Rule 4.2a, F.A.R. The toll in delay and displacement of the trial court’s adjudicatory power is too great. Cf. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974); Meadows v. Ward, 306 So.2d 179 (Fla. App.2d, 1975). The motion will be granted and the interlocutory appeal

DISMISSED.

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


text:
    Robert M. EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-92.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

The defendant appeals a sentence upon count 2 of an information charging him with unlawful possession of cannabis in an amount less than five grams in violation of Section 404.02, Florida Statutes (1971). He was sentenced to five years of this count to run consecutively with the sentence on count 1. The sentence under count 1 is not appealed. The State has confessed that the sentence is illegal and our examination of the record and the statute convinces us that this is so.

Whereupon, the adjudication of guilt on counts 1 and 2 is affirmed. The sentence on count 1 is affirmed, the sentence on count 2 is reversed and this cause is remanded to the trial court to resentence as to count 2 of the information under the misdemeanor provisions of the applicable statute.

Affirmed in part, reversed in part and remanded with directions.


text:
    Frank Lee ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. CC-197.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1976
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The judgments are affirmed but the cause is remanded with directions to modify the sentences to make them run concurrently, as represented to defendant upon his tender of pleas of guilty, rather than consecutively. Defendant need not be present when the sentences are so modified.

AFFIRMED, but REMANDED for correction of sentences.

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


text:
    GULFPORT GUARANTY & FIDELITY CORPORATION, a Florida Corporation, Appellant, v. Harry E. BURNS, III, d/b/a Burns Lath Company, et al., Appellees.
    No. 76-984.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 1976.
    Lewis R. Pearce, of Spielvogel, Goldman & Pearce, P.A., Merritt Island, for appellant.
    Lewis H. Homer, III, Clearwater, for ap-pellee Burns.
   PER CURIAM.

The appellant has not carried the burden of proving that there are no genuine issues of any material fact remaining to be adjudicated at trial. Therefore, the court properly denied appellant’s motion for summary judgment. See Smith v. Avis Rent-A-Car System, Inc., 297 So.2d 841 (Fla.2d DCA 1974).

AFFIRMED.

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


text:
    Milton JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-2198.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1976.
    Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant entered a negotiated plea of guilty to the charge of breaking and entering with intent to commit petit larceny. In return for this plea appellant was to receive a sentence no more severe than three years and eight months, and he was to remain on bond pending a presentence investigation. The trial court accepted the plea with the express understanding regarding the maximum sentence he could impose on appellant.

While on bond pending the presentence investigation appellant was arrested on two other charges. At the outset of the sentencing proceedings on the breaking and entering charge, appellant sought permission to withdraw his guilty plea. The court refused permission, noted appellant’s arrest on the two subsequent charges, and concluded appellant had breached the “contract” involved in his negotiated plea. It then sentenced appellant to five years on the breaking and entering charge.

If a trial court decides it cannot honor the conditions of a negotiated plea, this rejection should vitiate the entire “contract” and the defendant should be allowed to withdraw the guilty plea entered pursuant to that contract. Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974); Thomas v. State, 327 So.2d 63 (1st DCA 1976); Taylor v. State, 275 So.2d 307 (4th DCA 1973); Moore v. State, 339 So.2d 228 (Fla.2nd DCA 1976).

Accordingly, the trial court erred in refusing to allow appellant to withdraw • his guilty plea when the court concluded that it would no longer honor plea agreement. The judgment and sentence appealed from are therefore reversed and the cause is remanded with directions to allow appellant to withdraw his plea of guilty, and for further proceedings.

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


text:
    GLENN E. McCORMICK CO., INC., Appellant, v. HILL YORK BROWARD, INC., et al., Appellees.
    No. 75-2245.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1976.
    Richard D. Rosen of Broad & Cassel, Bay Harbor Islands, for appellant.

      Charles G. Brackins, Fort Lauderdale, for appellees.
   PER CURIAM.

Upon review and due consideration of the briefs, oral argument and the record on appeal we are of the opinion that the totality of the circumstances demonstrates that the appellant should have been permitted to intervene in the proceedings below in furtherance of its asserted interest in the subject matter. Cf. Wags Transportation System v. City of Miami Beach, 88 So.2d 751 (Fla.1956); Miller v. Townhouse Development Corp., 178 So.2d 730 (Fla.2d DCA 1965). Accordingly, the order denying intervention is vacated and set aside and the cause remanded for further proceedings consistent herewith.

MAGER, C. J., DOWNEY, J., and STEWART, JAMES R., Jr., Associate Judge, concur.


text:
    ROSE’S STORES, INCORPORATED and Edward S. Rose, Appellants, v. Pearl MASON, Appellee.
    No. 76-1059.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1976.
    Ronald S. Webster, Whittaker, Pyle & Stump, Orlando, for appellants.
    No appearance for appellee.
   ALDERMAN, Judge.

This is an appeal from an order of the Circuit Court of Seminole County granting appellee’s motion for new trial. Appellee, the plaintiff below, sued appellants for false imprisonment. The jury’s verdict was for the appellants. After entry of final judgment, the trial court granted appellee’s motion for new trial, reciting that it had “erred in failing to instruct the jury directly that a protest on the part of the plaintiff was not an element of the cause of action for false imprisonment.”

The transcript shows that at the charge conference appellee’s requested instruction on false imprisonment was accepted and later read to the jury by the judge. There was of course no objection by appellee to the use of her own instruction. After the jury retired it later returned to the courtroom with a request for “a reading on the law for stores to be able to detain people, and probable cause.” The judge was asked a somewhat ambiguous question by a member of the jury: “Pertaining to the law and false imprisonment or detention, does that only pertain when the individual makes it known that they do not wish to be detained? In other words, when they are being detained against their own free will?” In response the judge re-read the instruction on false imprisonment. The same jur- or (Mr. Barrett) who had asked the previous question then asked, “In order to have false imprisonment or detention to take place, the person has got to be detained in a room or whatever against their will?” Another juror said she thought Mr. Barrett was trying to ask if there had to be an oral protest by the allegedly imprisoned party. Mr. Barrett then said that the jury could probably make up its mind if it heard the instruction on false imprisonment again, whereupon the judge read that part of the charge for the third time. There was no objection by appellee to the court’s failure to state whether an oral protest to detention was necessary. Later the appellee made that omission the ground for her motion for a new trial.

Pla.R.Civ.P. 1.470(b) provides in part: “No party may assign as error the giving of any charge unless he objects thereto at such time or the failure to give any charge unless he requested the same.” As a general rule, in order to preserve an alleged ground for a new trial, an objection must be made at the time the event occurs. Miller v. Pace, 71 Fla. 274, 71 So. 276 (1916); Omer Corp. v. Duke, 211 So.2d 48 (Fla. 3d DCA 1968). This is true in reference to a motion for new trial based upon the ground that the trial court failed to properly instruct the jury. Berger v. Nathan, 66 So.2d 278 (Fla.1953); Gordon v. St. Mary’s Hospital, Inc., 305 So.2d 234 (Fla. 4th DCA 1974).

We have reviewed the instruction given in this case and find that it does not omit or misstate any essential element of the tort of false imprisonment. Counsel for both parties, as well as the jury, appeared to be satisfied after the instruction on false imprisonment had been read for the third time. The jury was fully informed that the alleged restraint of the appellee had to be against her will in order to constitute false imprisonment. There was no insinuation that she had to make an oral protest before she could claim to be falsely imprisoned against her will. The trial judge could have answered the juror’s question directly, but in the absence of any objection on the part of the appellee, we cannot say that his failure to answer was fundamental error as would justify the granting of a new trial. Cf. Christian v. State, 272 So.2d 852 (Fla. 4th DCA 1973).

We conclude that the trial court abused its discretion in granting appellee’s motion for new trial. REVERSED and REMANDED with instruction that final judgment be entered in favor of appellants.

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


text:
    HEALTH CLUBS, INC., a Florida Corporation, et al., Appellants, v. STATE of Florida ex rel. Robert EAGAN, as State Attorney for the Ninth Judicial Circuit, Appellees.
    No. 76-1446.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1976.

      David A. Demers of the Law Offices of Robert W. Pope, St. Petersburg, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, and Rom W. Powell, Asst. State Atty., Orlando, for appellees.
   ALDERMAN, Judge.

This is an interlocutory appeal from an order of the.Circuit Court of Orange County denying appellants’ motion to dismiss.

The State of Florida filed an action to abate or enjoin a public nuisance alleging that the trial court had jurisdiction pursuant to Sections 823.05, 60.05, 60.06 and 796.-07, Florida Statutes (1975). It was alleged that the defendant, Health Clubs, Inc., was a Florida corporation purportedly engaged in a health club business for men known as the “Garden of Paradise” located at 2477 South Orange Blossom Trail, Orange County, Florida. Defendants Raymond Cataldo, Ioannis Diamandopolous and Philip Ranson were alleged to be the officers and directors of the corporate defendant. Defendants Stephen Cataldo and Michael Gort were alleged to be employees of the corporate defendant or to have taken an active part in the operation of the business. The complaint then contained the following allegations:

“6. On the 20th day of November, 1975, and continuously up to and including the date of the filing of this Complaint, the Defendants have maintained and operated, or permitted to be maintained and operated, the aforesaid premises and business for the purpose of lewdness, in that the Defendants have employed or permitted certain female attendants to solicit and to perform certain services for male customers within the said premises for a monetary fee. These services consisted of so-called ‘body shampoos’, wherein the female attendants either partially or fully disrobed and washed the male customer’s nude body with sponge, soap and water, and/or consisted of so-called ‘hand relief’, wherein the female attendants masturbated the male customers.
7. By reason of the above-described conduct on the part of the Defendants and those acting in concert with them, the business and premises known as the ‘Garden of Paradise’ is a place of lewdness, which tends to annoy the community and is manifestly injurious to the morals or manners of the people of the County of Orange, State of Florida, and therefore constitutes a public nuisance. Unless the Defendants are restrained by order of this Court, they and those persons acting in concert with them will in the future persist in maintaining and operating, or permitting to be maintained and operated a place of lewdness and a public nuisance, in violation of the Laws of the State of Florida and to the irreparable damage of the people of the County of Orange, State of Florida.”

In response to the complaint, appellants filed a motion to strike and a motion to dismiss. The trial court granted the motion to strike and in its order stated:

“The defendants’ motion to strike that portion of paragraph 6 of the complaint which states that: ‘These services consisted of so-called “body shampoos” wherein a female attendant either, partially or fully disrobed, and washed the male customer’s nude body with sponge, soap and water’, is granted commencing with the word ‘wherein’ and ending with the word ‘water’, since there appears to be no prohibition against such activity within the statutes or the case law of the State of Florida.”

The trial court then denied appellants’ motion to dismiss the complaint. We must reverse. After removing the language stricken by the trial court, the last sentence in paragraph 6 of the complaint now reads:

“These services consisted of so-called ‘body shampoos’, and/or consisted of so-called ‘hand relief’ wherein the female attendants masturbated the male customers.” (emphasis supplied)

The use of the combined conjunctive and disjunctive phrase “and/or” has gutted the State’s complaint. Assuming, as found by the trial judge, that there is no prohibition against “body shampoos” the complaint now alleges that the services complained of consisted of either innocent acts or wrongful acts. We can express our disapproval of this type of pleading in no better words than those written 44 years ago by Justice Terrell:

“. . .we take our position with that distinguished company of lawyers who have condemned its use. It is one of those inexcusable barbarisms which were sired by indolence and dammed by indifference, and has no more place in legal terminology than the vernacular of Uncle Remus has in Holy Writ. I am unable to divine how such senseless jargon becomes current. The coiner of it certainly had no appreciation for terse and concise law English.”

Cochrane v. Florida East Coast Ry. Co., 107 Fla. 431, 145 So. 217, 218 (1932).

Were it not for the State’s careless use of the phrase “and/or,” the complaint would have been sufficient to withstand a motion to dismiss. Section 823.05, Florida Statutes (1975), provides:

“Places declared a nuisance; may be abated and enjoined. — Whoever shall erect, establish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals or manners of the people as described in § 823.01, or shall be frequented by the class of persons mentioned in § 856.02, or any house or place of prostitution, assignation, lewdness or place or building where games of chance are engaged in violation of law or any place where any law of the state is violated, shall be deemed guilty of maintaining a nuisance, and the building, erection, place, tent or booth and the furniture, fixtures and contents are declared a nuisance. All such places or persons shall be abated or enjoined as provided in §§ 60.05 and 60.06. (emphasis supplied)

Section 60.05(1), Florida Statutes (1975), provides as follows:

“Abatement of nuisances.—
(1) When any nuisance as defined in § 823.05 exists, the attorney general or state attorney or any citizen of the county may sue in the name of the state on his relation to enjoin the nuisance, the person or persons maintaining it, and the owner or agent of the building or ground on which the nuisance exists.”

Section 60.06, Florida Statutes (1975), further provides:

“Abatement of nuisances; enforcement. —The court shall make such orders on proper proof as will abate all nuisances mentioned in § 823.05, and has authority to enforce injunctions by contempt but the jurisdiction hereby granted does not repeal or alter § 823.01.”

Section 796.01, Florida Statutes (1975), reads as follows:

“Keeping house of ill fame. — Whoever keeps a house of ill fame, resorted to for the purpose of prostitution or lewdness, shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.” (emphasis supplied)

Section 796.07(2)(a), Florida Statutes (1975), also provides:

“(2) After May 1, 1943, it shall be unlawful in the state:
(a) To keep, set up, maintain, or operate any place, structure, building, or conveyance for the purpose of lewdness, assignation, or prostitution.” (emphasis supplied)

Section 796.07(l)(b), Florida Statutes (1975), provides:

“The term ‘lewdness’ shall be construed to include any indecent or obscene act.”

We agree with the trial court’s conclusion that masturbation for hire by a female of a male customer under the circumstances alleged in the complaint is an indecent act and thus constitutes lewdness and is subject to being declared a nuisance under Section 823.05. The trial court held that the complaint stated a cause of action. Were it not for the State’s neutralization of its own complaint, we would affirm.

The Supreme Court has previously rejected the argument that Section 796.07 is unconstitutional because the term lewdness is vague, holding that the statute is sufficiently definite to withstand attacks of vagueness and overbreadth and to convey a sufficiently definite warning of proscribed conduct when measured by common understanding and practice. Bell v. State, 289 So.2d 388 (Fla.1973).

The procedure for abating or enjoining a public nuisance was approved by the Supreme Court in Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (1972). The allegations of the complaint in the Orlando Sports Stadium case are similar to the State’s allegations in the present case except that the alleged nuisance complained of there was use of the premises for unlawful drug use, rather than for “the purpose of lewdness.”

For the benefit of counsel and the court below we note that the scope of the injunction sought by the State in the present case is too broad. It seeks to enjoin the entire business of the “Garden of Paradise,” not just the particular acts alleged to constitute a nuisance. Appellants must at least be given the opportunity to demonstrate that they can operate a legitimate health club business on the premises without the alleged lewdness. Where illegal conduct which has been decreed to constitute a public nuisance is separable from legal conduct within a business enterprise, only the illegal conduct may be enjoined. Five Sky, Inc. v. State, 131 So.2d 39 (Fla.3d DCA 1961); Fasson v. State, 141 Fla. 367, 193 So. 299 (1940).

REVERSED and REMANDED with leave for the State to file an amended complaint, and for further proceedings consistent with this opinion.

CROSS and DOWNEY, JJ., concur.


text:
    Arnold BELL and Robert Smith, Appellants, v. STATE of Florida, Appellee.
    Nos. 75-1577, 75-1578.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1976.
    Rehearing Denied Dec. 7, 1976.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellants were convicted of robbery and sentenced to life imprisonment. Their only points on appeal worthy of consideration relate to whether they were improperly limited in their exercise of peremptory challenges to the jury.

The appellants were tried together. Pri- or to trial the court ruled that they were each entitled to only six peremptory challenges rather than the ten peremptory challenges which they had requested. An assertion of the right to ten peremptory challenges was reiterated during voir dire. Each appellant exercised six peremptory challenges, but neither of them sought to exercise a seventh peremptory challenge against any particular juror. The panel was then accepted by appellants’ counsel without further objection.

Fla.R.Crim.P. 3.350 clearly provides that each party shall be allowed ten peremptory challenges if the offense charged is punishable by death or imprisonment for life. If the offense charged is a felony not punishable by death or imprisonment for life, each party is entitled to six peremptory challenges. The statute under which the appellants were charged prescribed that robbery was a felony of the first degree punishable by imprisonment for life or for any lesser term of years. Therefore, the appellants were each entitled to ten peremptory challenges.

Where the court incorrectly limits the number of peremptory challenges and the defendant timely attempts to challenge a juror beyond the limits set by the court, the refusal to allow the challenge is reversible error. Meade v. State, 85 So.2d 613 (Fla.1956). On the other hand, where a defendant has not even sought to exercise peremptory challenges up to the limit allowed by the court, he can hardly be heard to complain that he was legally entitled to additional peremptory challenges. Cf. Wilson v. State, 304 So.2d 119 (Fla.1974). The question here is whether it was necessary for each of the appellants to seek to exercise a seventh peremptory challenge in the face of the court’s prior ruling that each of them was entitled only to six. We think not. In the words of our Supreme Court, the appellants’ attorneys were “not required to pursue a completely useless course when the judge had announced in advance that it would be fruitless.” Bailey v. State, 224 So.2d 296 (Fla.1969); accord, Birge v. State, 92 So.2d 819 (Fla.1957).

To argue that the appellants have failed to demonstrate prejudice because there was no showing that any juror selected to hear the case was biased or unfair is beside the point. Each appellant was permitted to challenge a prescribed number of jurors for any reason, or for that matter, for no reason. The right to use a peremptory challenge has long been regarded as a cherished tool in the selection of an impartial jury. An improper limitation of that right necessarily inheres in the jury verdict.

The judgments are reversed, and the cases are remanded for a new trial.

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

      . § 813.011, Fla.Stat. (1973).

      . Young v. State, 234 So.2d 341 (Fla. 1970), is inapplicable because the defendant’s belated request to exercise a peremptory challenge which he had failed to try to use because of mistaken reliance upon the clerk did not come until after the jury had been sworn. At that point, Fla.R.Crim.P. 3.310 required a showing of good cause to permit the additional challenge.


author: PER CURIAM. SMITH, Judge

text:
    Frank PAPIA, an Individual, and as Administrator of the Estate of Patricia Papia, Deceased minor, Appellant, v. Pamela Jean BALDASSARI a/k/a Pamela Jean Ellison, et al., Appellees.
    No. AA-115.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1976.
    E. Clay Parker, of Hoffman, Hendry, Parker & Smith, Daytona Beach, for appellant.
    Joseph M. Murasko, Fern Park, Alfred A. Green, Jr., Larry Sands, Daytona Beach, Harvey J. Garod and T. G. LaGrone, Orlando, and Jamis M. Halker of Gurney, Gurney & Handley, Maitland, for appellees.
   PER CURIAM.

Timely filing a notice of appeal is jurisdictional. The record in this cause reflects that the instant notice of appeal was untimely filed.

DISMISSED.

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

SMITH, J., specially concurs.

SMITH, Judge

(concurring):

I would deny the motion to dismiss and affirm on the merits.


text:
    Larry MILO and Leola Delores Helton, Appellants, v. STATE of Florida, Appellee.
    No. BB-326.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1976.
    Gary R. Dunham, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Richard L. Wilson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellants, Larry Milo Helton and Leola Delores Helton, were charged with attempted breaking and entering with intent to commit a misdemeanor. Both were found guilty by a jury as charged, adjudicated guilty and sentenced by the trial court. The only ground for reversal urged by appellants is that the evidence was insufficient to sustain the convictions.

Testimony adduced at the trial placed Leola Delores Helton in an automobile in the vicinity of a dwelling house owned by one Williams. An unidentified male occupant of a vehicle jumped a two and one-half foot fence and attempted to jimmy one of the windows of the dwelling. In response to a whistle from that man, appellant Larry Milo Helton (Leola’s husband) ran from the vehicle and joined the individual who was attempting to force the window open. Shortly thereafter, Leola drove the automobile away from the area and was subsequently apprehended and charged with her husband. At the conclusion of the State’s case, appellants severally moved for judgment of acquittal upon the ground that the evidence was insufficient to sustain the charge lodged. The motion was denied by the trial court.

While the evidence presented by the State supports the trial judge’s finding as to Larry Milo Helton, the evidence was entirely insufficient to support the charge lodged against appellant Leola Delores Hel-ton. There is not one scintilla of evidence of any conversation between Leola and the two men who had been with her in the automobile as to any plans on their part to break into the dwelling. The evidence equally supports the hypothesis of innocence on the part of Leola that upon realizing that her husband and the other individual were about to commit a criminal offense, she departed the scene and left them to take their chances. Thus, the trial judge erred in not granting Leola Delores Hel-ton’s motion for judgment of acquittal. (See McBride v. State, Fla.App., 338 So.2d 567, Opinion filed October 27, 1976). Accordingly, the conviction of Larry Milo Hel-ton is affirmed but the conviction of Leola Delores Helton is reversed with directions that she be discharged.

AFFIRMED IN PART; REVERSED IN PART.

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


author: BOYER, Chief Judge.

text:
    Edwin Lee PATE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. CC-144.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellant, charged by information with two counts of robbery and .two counts of aggravated assault, was tried by a jury and found guilty as charged. He received sentences of 20 years imprisonment on each robbery count and 10 years imprisonment on each aggravated assault count, all sentences to be served concurrently. His sole argument on appeal is that the sentences imposed on the aggravated assault charges should be vacated as violative of the “single transaction rule”.

On April 29, 1975, Mark Scalf and Mark Bourne, a pair of vacationing senior high school students, were hitchhiking at approximately 11:00 p. m. Appellant obligingly stopped his automobile and picked up the two youths, but shortly thereafter again stopped the car and, pointing a hunting knife at Scalf’s throat, demanded that Scalf and Bourne give him all their money. The two complied forthwith and were soon allowed to exit the automobile. At trial, both Scalf and Bourne identified appellant as the robber. Scalf was also asked by defense counsel whether defendant made any threatening statements other than when he had the knife in his hand. Scalf replied, “no sir.”

Under the facts as revealed by the record, we are compelled to agree with appellant’s assertion that the robberies and the aggravated assaults occurred as part of the same criminal transaction.

We have reached a different conclusion in dissimilar factual contexts. For instance, in Robinson v. State, Fla.App. 1st 1975, 323 So.2d 62, a five year sentence for aggravated assault was vacated initially, but was reinstated on rehearing when it was called to our attention that the defendant in that case was charged in one count with robbery of one person, but was charged in a different count with aggravated assault upon a second person. In a more factually analogous case, Booth v. State, Fla.App. 1st 1976, 332 So.2d 157, the defendant was convicted of two counts of robbery and two counts of assault with intent to commit murder in the second degree. In that case, two victims were involved. As to the first victim, a store manager, we held that there was a temporal distinction between the robbery and the assault. As to the second victim, a store patron, we said, quoting language from Hernandez v. State, Fla.App. 2d 1973, 278 So.2d 307, “ * * * Booth’s attempt to kill the patron was independent of and qualitatively other than an effort to force the surrender of his money. Booth’s frenzied attempt to kill was not ‘essential to the robbery’; it cannot be said that ‘all the evidence concerning such assault related to the elements of force and fear embraced within the aforesaid robbery’.” (Booth v. State, supra at 159)

The case sub judice is distinguishable from Booth v. State, supra. We have found no temporal distinction between the robbery and the aggravated assault: Nor is there in the record any evidence that appellant employed any threats of violence other than that which was necessary to accomplish the robbery. Accordingly, we affirm the judgment as to the convictions for robbery and aggravated assault, but vacate the sentences for aggravated assault.

Affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion.

RAWLS and McCORD, JJ., concur.