author: PEARSON, Judge.

text:
    Bernard DORFMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1173.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Rehearing Denied July 14, 1976.

      Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for ap-pellee.
    Before BARKDÜLL, C. J., and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

Bernard Dorfman was found guilty on nine accounts of lewd and lascivious assault on female minors. After the entry of judgment, the court entered an order withholding the entry of sentence and committed the defendant to the South Florida State Hospital for treatment and rehabilitation as a mentally disordered sex offender, pursuant to Fla.Stat. § 801.03. In addition, the court ordered the defendant placed on probation to begin upon his release from the hospital. After release, the defendant violated his probation. A hearing was had at which probation was revoked and defendant sentenced to three years in the state penitentiary with "credit to be given you for time served in the Dade County Jail prior to sentencing, to wit: ONE HUNDRED SIXTY FOUR (164) DAYS.”

On this appeal, it is urged that the sentence is illegal and that if the sentence is legal, it is improper because the court failed to give the defendant full credit for the time spent in the county jail and in the South Florida State Hospital.

The first point presented by appellant attacks the legality of the sentence upon the ground that it is a general sentence for nine different crimes as has been forbidden by the holding of the Court of Appeal, Second District, in Darden v. State, Fla.App.1975, 306 So.2d 581. Darden v. State and cases following that holding were concerned with a general sentence for a total term greater than the maximum of one count but less than the aggregate of the maximum of all counts. In the instant case, the defendant was found guilty of nine counts of lewd and lascivious assault on female minors in violation of Fla.Stat. § 800.04. Each violation was punishable by imprisonment by not more than ten years. The general sentence of three years was not greater than the maximum of one count. In addition, each crime was a violation of the same statute. Therefore, the holding in Darden is not applicable here. Cf. Benson v. U. S., 332 F.2d 288 (5th Cir. 1964).

Appellant’s second point urging that the court erred in failing to give sufficient credit for time served prior to imposition of the sentence must be considered in three sections. The first of these is the time after the release from the hospital until the time of sentencing. The trial court gave defendant credit for 164 days. The State concedes that because of a mathematical error, the proper credit for this time was 169 days. We need not discuss this time period further.

The second period of time with which we are concerned is the time served by the defendant in the county jail between his arrest on the charge and the imposition of hospitalization and probation. The decisions with regard to this period are complicated by the fact that there was a change in the statute allowing credit prior to sentencing. At the time that the crimes were committed and at the time that sentence was withheld, it was discretionary with the court to allow a defendant credit for all or part of the time he spent in the county jail before sentence. The statute, at the time of the imposition of the sentence upon revocation of probation, required the court to give credit for all time spent in jail awaiting disposition of the charges against him.

The trial court applied the statute in effect at the time of the commission of the crime and declined to give the defendant credit for time spent in jail prior to being sent to the hospital. The Fourth and Second District Courts of Appeal have considered similar situations in Sharp v. State, Fla.App.1974, 303 So.2d 56, and Nash v. State, Fla.App.1975, 313 So.2d 118, respectively. In each case, the court held that the defendant was entitled to credit for the time spent in jail prior to the revocation of his probation. The State concedes the holding of these cases but urges that the basis for them has been overruled by the Florida Supreme Court in Lee v. State, Fla. 1974, 294 So.2d 305, in that the Sharp and Nash decisions are based upon the holding of the First District Court of Appeal decision in State v. Lee, Fla.App. 1973, 286 So.2d 596, which was overruled by the Florida Supreme Court in the first cited Lee decision. We have examined the cited cases and hold that the Nash and Sharp decisions are still controlling in the circumstances presented here. Therefore, we find that the trial court committed error in failing to grant credit to the defendant for the fifty days he was incarcerated prior to being committed to the hospital.

The third period of time with which we are here concerned is the time that the defendant spent in the South Florida State Hospital. The appellant urges that one committed as a mentally disordered sex offender remains committed until the court determines that the individual has recovered from the disorder and, therefore, this period of time constitutes a “confinement” as generally understood by the law and as supported by the axiom that “all jails look the same from the inside.” See Voulo v. Wainwright, Fla.1974, 290 So.2d 58, 59. The statute with which we are here concerned is Fla.Stat. § 921.-161(1), above quoted, which uses the words “but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence.” We hold that time spent in the state hospital in an attempt to affect a cure for a sex offender is not time spent in the county jail. Therefore, we hold that the trial court did not err in refusing to allow credit against the three year sentence for the time spent in South Florida State Hospital.

Affirmed in part, reversed in part and remanded with directions to enter an amended sentence granting the defendant credit for the time spent in the county jail as follows: (1) five days (with regard to which the State concedes error) and (2) fifty days for the time spent in the county jail prior to the order directing treatment in the South Florida State Hospital.

Affirmed in part, reversed in part and remanded.

      . Florida Statute § 921.161 (1971) provided in pertinent part as follows:
      “921.161 Sentence not to run until imposed ; credit for county jail time after sentence; certificate of sheriff
      “(1) A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence may allow a defendant credit for all or part of the time he spent in the county jail before sentence. The credit must be for a specified period of time. The credit may be provided for in the sentence or by order during the term of court when the sentence is imposed.”

      . Florida Statutes § 921.161(1), eff. May 28, 1973, provides:
      “A sentence of imprisonment shall not begin to run before the date is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Modesto BISONO, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1318.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See: Washington v. State, 51 Fla. 137, 40 So. 765; Reis v. State, Fla.App.1971, 248 So.2d 666; Carter v. State, Fla.App.1976, 330 So.2d 508 (opinion filed April 23, 1976); Dorfman v. State, Fla.App. 1976, 333 So.2d 481 (opinion filed this date); § 790.07(2), Fla.Stat.; § 790.-10, Fla.Stat.


author: CHARLES CARROLL, Associate Judge.

text:
    Herbert C. ANDERSON, Appellant, v. Angela M. ANDERSON, Appellee.
    No. 75-1095.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Robert B. Kane, Tallahassee, for appellant.

      Milledge, Horn & Hermelee and Martin D. Berg, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

This is an appeal by an ex-husband from an order denying his second petition to be relieved of further obligation to pay alimony.

The case presents a question of whether a divorced husband should be required to continue to pay alimony to a wife who, in the years subsequent to divorce, has become self supporting.

These parties were divorced by a judgment entered by the Circuit Court of Dade County on January 10, 1962. Therein the husband was ordered to pay alimony of $400 per month, and $600 per month for support of the three minor children of the marriage, whose custody was awarded to the wife. On an appeal by the wife, a holding in the judgment that the husband was the sole owner of a 1959 purchase money mortgage of $71,000.00 was reversed, establishing that the wife owned a one-half interest therein.

On September 22, 1964, the husband filed a petition for modification of the judgment, seeking to be relieved of the order for payment of alimony, and a reduction in the child support. The wife filed a petition for increase of child support. The trial court denied both petitions. The husband appealed, and the wife cross assigned as error the denial of her petition. This court affirmed. The husband petitioned the Supreme Court for review on certiora-ri. His petition was dismissed for want of conflict jurisdiction. Justice Roberts filed a dissenting opinion, which recited the showing by the husband with respect to the capability of the wife for self support which she had chosen not to utilize. Justice Roberts expressed the view that the district court’s affirmance was in conflict with numerous cases cited, because, on the facts, the denial of relief to the husband was contrary to the law.

Justice Roberts then proceeded to state the law applicable to the case as he understood it to be established. Although that statement of the law was made in a dissenting opinion, it was not made in dissent of any contrary holding as to those principles of law by the Court majority, which had not dealt with the merits. The dissent was from the majority holding that there was no conflict jurisdiction. For that reason, and due to the importance of the legal principles there stated, and their applicability to the facts disclosed on the subsequent petition of the husband for relief from the alimony, the denial of which was. the basis of the present appeal, we adopt that statement of the law in Justice Roberts’ opinion, which is as follows (194 So.2d at 908-909):

“These decisions all stand for the proposition that the marriage status, once achieved by the wife, does not carry with it the right forever after to be supported by her former husband in veritable ease and comfort, regardless of her capacities for self support. The horse and buggy era, when the husband’s vow to take care of his wife ‘ ’till death do us part’ was accepted by both parties as a sacred promise and an essential part of the marriage contract — required, as well, by the mores of the society of that era and the necessity of insuring that the divorced wife could not become a public charge — is a thing of the past. Today, the high incidence of divorce in our country, is, regrettably, a reality of life which we no longer approach in the manner of the camel threatened by an oncoming sand storm. We now educate our daughters, as well as our sons, to enable them to take their place in the business community. — not only before and during marriage but also after the break-up of the marriage, should it occur. And we are coming more and more to recognize that in most cases the break-up of the marriage is not, as it cannot be, solely the fault of the party who is found to be technically at fault— that both parties must bear some of the brunt of the failure. It should not be considered a victory for one spouse and a reverse for the other, but a defeat for both.
“It is therefore the settled law of this jurisdiction that the fact that the divorced wife is able to be employed and has the ability to earn a living is a relevant material factor in determining her ‘need’ for alimony, regardless of whether she was or was not a wage earner during the marriage or at the time of the divorce. It is well settled, and has. for a long time been so, that the fact the wife has a separate estate — whether acquired before or during marriage, from her own efforts or those of her husband — is a relevant material factor in determining her ‘need’ for alimony. Chaires v. Chaires, 1864, 10 Fla. 308, 315; 10 Fla.Jur., Divorce and Annulment, Sec. 166; Heller v. Heller, supra, [Fla.App]., 151 So.2d 35; Kahn v. Kahn, supra., [Fla.]., 78 So.2d 367. The fact that there were minor children involved in the case sub judice (aged 15, 13 and 8 at the time of the hearing on the petitions for modification in October of 1964, all in good health and attending local schools) is relevant to the question of whether the wife should be required to seek part-time, as distinguished from full-time, employment, but does not relieve her of her responsibility to contribute to her own support, if she has wage-earning capacity. See Raley v. Raley, supra, [Fla]., 50 So. 2d 870.
“In short, the Chancellor, in determining the question of what alimony, if any, should be awarded to the wife in a divorce proceeding, can no longer settle the question solely on a consideration of her actual monetary ‘need’ and the husband’s financial ‘ability’ to pay; her monetary ‘need’ must be met, in the first instance, by her own resources — her wage-earning capacity as well as her separate estate — and only then, if they are not adequate, may the husband be called upon to provide her with such additional funds ‘as from the circumstances of the parties and nature of the case may be fit, equitable and just; * * *.’ Sec. 65.08, Fla.Stat., F.S.A.”

By a petition filed on September 25, 1974, and amended on March 4, 1975, the husband again asked the court to relieve him of further obligation to pay alimony. Therein it was alleged the children had attained majority, and that he had supported and educated them, with the youngest now in college at his expense; that the children were not living with the wife, and it was no longer necessary for her to supply accommodations for them. It was further alleged that “the wife has acquired a substantial earning capacity; she has a good job with a secure future”.

The wife filed a response, averring that the husband was seeking to modify a post-judgment agreement of the parties dated February 28, 1968, which contained a provision that it would not be subject to modification, and averred that if such agreement was modifiable, her alimony could be modified only “if there has been substantial changes in the financial position of either or both parties”. The wife’s response listed the incomes of the parties for 1971-1973, as follows: 1971, husband $36,094.00, wife, $16,306.00; 1972, husband $52,296.00, wife, $18,585.00; 1973, husband $54,734.00, wife, $15,562.00. It appears from the record that the husband has assets and income in an amount which is ample to enable him to pay the alimony. He so admitted.

After an evidentiary hearing, the trial court denied the husband’s petition for modification, without discussion or findings of fact. By a subsequent order the husband was ordered to pay the wife’s attorney’s fees. The amount thereof as fixed by the court was $3,500.00.

The husband then filed this appeal, on which he contends it was error to deny his petition to be relieved of further payment of alimony, and contends it was error to require him to pay the wife’s attorney’s fee and that the fee allowance was excessive.

As to the attorney’s fee allowance, we find no error, and affirm that feature of the order appealed from. It was within the court’s discretion to charge such fee to the husband, under § 61.16 Fla.Stat., F.S.A. In view of the extent to which the matter was litigated, we hold the amount awarded does not represent an abuse of discretion.

Regarding the denial of the husband’s petition for relief from the requirement to pay further alimony, he argues that ruling was error in view of the changed circumstances of the wife by which she has become self supporting. In opposition thereto the wife argues that the challenged ruling was not an abuse of discretion and contends the matter was res judicata because a similar petition which the husband had filed previously was denied.

The latter contention of the appel-lee is without merit. The material change in the financial circumstances of the wife was shown to have occurred subsequent to the time of the filing and hearing on the husband’s 1964 petition for such relief. On that earlier occasion the most revealed was that the wife was equipped by education, experience, and ability to be self supporting, but it appeared she was not exercising such abilities, and it was not shown that she was self supporting.

By the time of the hearing on the husband’s subsequent 1974-1975 petition it was shown that the wife’s financial situation had improved substantially. The care of the children no longer was her responsibility, and she had regular employment earning in excess of $15,000 per year.

In view of the foregoing, under the applicable law the ability of the husband to pay does not justify continuation of the alimony where, as here, the rehabilitated wife is shown to have become self supporting.

This disposition of the case does not involve or represent a re-evaluation of the evidence upon which the trial court acted. Cf. Westerman v. Shell’s City Inc., Fla. 1972, 265 So.2d 43; Shaw v. Shaw, Fla. 1976, 334 So.2d 13.

This is not a case in which the denial of the husband’s petition for termination of the alimony was based on a conflict in the evidence as to whether the wife was employed or as to the amount of her income. Nor was the ruling of the trial court grounded on a finding that the payment of the alimony was essential for the support of the wife. Such a finding, if it had been made by the trial court in this case, would not have the support of competent substantial evidence. Without the need for any re-evaluation thereof, the evidence simply shows that at the time of the hearing, thirteen years after the divorce judgment, the wife’s annual earnings were more than three times the amount which the alimony would provide and it was not shown that the amount she was earning was inadequate to constitute self support.

Our reversal of the order is grounded on a holding that the ruling of the trial court for continuance of payment of the alimony in the face of a clear showing that the wife had become self supporting, was an error of law. See Beard v. Beard, Fla.App.1972, 262 So.2d 269; Craig v. Craig, Fla.App.1974, 298 So.2d 189; Thigpen v. Thigpen, Fla.App.1973, 277 So.2d 583; Kennedy v. Kennedy, Fla. 1974, 303 So.2d 629.

Accordingly, the order denying the husband’s petition for termination of his obligation to pay alimony as ordered in the divorce judgment is reversed, and the divorce judgment is hereby modified to eliminate therefrom the requirement for payment of such alimony by the husband, from and after the date of the filing, in the office of the clerk of the circuit court, of our mandate in this case. This ruling will not operate to preclude the wife from filing a petition in the trial court in the future for further modification of the judgment under § 61.14 Fla.Stat., F.S.A. to require payment of some alimony, upon a showing of need therefor which may be brought about by some subsequent change in her financial circumstances.

The order appealed from is affirmed in part and reversed in part and the divorce judgment modified, as and in the respects set forth above.

      . Anderson v. Anderson, Fla.App.1963, 163 So.2d 24. Certiorari was denied by the Supreme Court, on the ground of absence of conflict jurisdiction, Anderson v. Anderson, Fla.1964, 164 So.2d 3.

      . Anderson v. Anderson, Fla.App.1965, 180 So.2d 360.

      . Anderson v. Anderson, Fla.1967, 194 So.2d 906.

      . That agreement of 1968 did not deal with alimony. It concerned child support, with the husband to pay support for the children, who were in college, direct, rather than to the wife and for such support to extend as long as their schooling continued.

      . The children had attained majority. One was self supporting. The others were continuing their education, supported by the husband, one in medical school and one in college.
      According to the wife’s testimony, she is, and since 1968 has been, employed as an assistant professor at Miami-Dade Community College. Her annual salary is $15,600.00. The position is one with tenure, and pension rights. There are certain fringe benefits, including hospitalization insurance. The wife lives in a condominium apartment, which she purchased several years ago for $35,000.00 with a down payment of $13,000.00. She owns a 1974 Pontiac Grand Prix automobile, on which $2,000.00 of the purchase price remains unpaid. Other than for mortgage and car payments, she has no debts of consequence. She has $40,000.00 in a savings account, which she is holding for the benefit of the children. In certain of the years while so employed she made a few thousand dollars dealing in real estate.

      . A petition for modification of a judgment for alimony on the ground of change of circumstances should not be denied if change of circumstances sufficient to warrant modi-fieation is clearly shown. Simon v. Simon, Fla.App.1963, 155 So.2d 849; Chord v. Chord, Fla.App.1968, 209 So.2d 281, 282; Rogers v. Rogers, Fla.App.1969, 229 So.2d 618, 620.


author: BOARDMAN, Judge.

text:
    Paul B. FAULKNER and Annie W. Faulkner, Appellants, v. ALLSTATE INSURANCE COMPANY and Robert J. Leary, Appellees.
    No. 75-318.
    District Court of Appeal of Florida, Second District.
    June 16, 1976.
    Rehearing Denied July 9, 1976.

      Bill Wagner, of Wagner, Cunningham, Vaughan, May & Genders, Tampa, for appellants.
    Edward M. Waller, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellees.
   BOARDMAN, Judge.

The focal issue to be decided on this appeal is whether the wife loses her right of action for loss of consortium when her husband, who is injured in an automobile accident because of the negligence of a third person, does not meet at least one of the threshold requirements of the Florida no-fault insurance law. The trial court was of the opinion that she did. We agree and affirm.

The facts of this case are not disputed. Plaintiff/appellant, Paul B. Faulkner, sued the defendant/appellee, Robert J. Leary, alleging that Leary negligently operated his automobile causing a collision with an automobile operated and owned by him. The amended complaint claimed damages for personal injury and property damage against Leary and the applicable liability insurance company. Appellant was joined in the amended complaint by his wife, Annie W. Faulkner, who sought damages for loss of consortium as a result of the injuries to her husband caused by the negligence of Leary. Appellees, in their answers and defenses, denied negligence, alleged contributory negligence, and stated as their second defense that appellants “. . . have no cause of action against [appellees] in that [appellants] have not complied with terms and requirements of the Florida Automobile Reparations Act and therefore have no cause of action against these [appellees].” Fla.Stat. § 627.-730-741, effective January 1, 1972.

The cause came on for trial by jury upon the issues as formed. At the conclusion of all the testimony, attorney for appellants orally moved the court for a directed verdict on the issue of liability and, after argument, the motion was granted.

The court properly instructed the jury with regard to all items of compensable damages that each appellant would be enti-tied to under the law of Florida and under the facts of the case. It was over appellants’ timely objection that the court instructed the jury, in substance, that if Paul Faulkner had not met one of the threshold provisions of the no-fault insurance law the jury was to return a verdict in favor of the appellees and against the appellants on all their asserted claims. We think it helpful to set out the applicable instruction concerning the special verdict under attack by appellants.

THE COURT: . . .

First, you will consider the special verdict. This has three questions on it, a place to be answered yes or no to each question.
Question one; do you find from the evidence that the Plaintiff sustained a permanent injury as a result of the automobile accident with Robert J. Leary? You will answer that question yes or no.
Question number two is; do you find from the evidence that the Plaintiff has sustained medical expenses that total in excess of one thousand dollars as a result of the automobile accident with Robert J. Leary? That will be answered yes or no.
Question number three; do you find from the evidence that Plaintiff has sustained total medical expenses and lost earnings of five thousand dollars or more, as a result of the automobile accident with Robert J. Leary ? You will answer that question yes or no.
If you find each of these three questions are answered no, then the form of your verdict would be: we the jury find in favor of the Defendants Allstate Insurance Company, Daniel Robert Leary, and Robert J. Leary and against the Plaintiffs Paul B. Faulkner and Annie W. Faulkner. . . .

After consideration, the jury returned its verdict against both appellants.

The case presents a novel question and insofar as our research disclosed we have not found a case from Florida or any other jurisdiction in which the precise question confronting us was considered and decided.

The nearest case we have found dealing with a somewhat analogous factual situation as that presented here is the case of Marquez v. Mederos, Fla.App.3d, 1974, 307 So.2d 873, by our sister court. In that case, which was decided after no-fault insurance law became effective, it was held that where the son, a minor, sustained personal injuries in an automobile accident, but did not reach one of the threshold requirements, the father’s claim for loss of services, being derivative in nature, was barred.

Similarly, in another case somewhat analogous, but prior to no-fault, this court held in Dobbins v. S. A. F. Farms, Inc., Fla.App.2d, 1962, 137 So.2d 838, that a husband could not claim for loss of consortium against an employer who was liable to the wife for Workmen’s Compensation.

In neither of the foregoing cases, however, was it urged, as it is here, that the statutes involved were given unconstitutional application as to the plaintiff in that the plaintiff was denied “access to the courts” for redress of a legally recognized injury, in violation of Section 21, Declaration of Rights, Constitution of the State of Florida, and in that, additionally, the plaintiff was denied equal protection. While the points are well argued, we nevertheless reject them.

The equal protection argument falls, we think, because, in our view, the threshold is a reasonable line of demarca-tiori between the classifications of those spouses married to an injured person who does not reach the threshold, (and who will recover under no-fault, thus at least vicariously, if not directly, benefiting to a legally sufficient degree the noninjured spouse) and those able to join a claim for loss of consortium in a tort action by an injured spouse who has passed the threshold. Cf. Bassett v. Merlin, Inc., Fla. 1976, 335 So.2d 273; White v. Clayton, Fla. 1975, 323 So.2d 573; Martin v. United Security Services, Inc., Fla. 1975, 314 So.2d 765.

With respect to the “access to the courts” argument, it falls for somewhat the same reasons. In the case of a husband seeking loss of consortium, other compen-sable damages such as medical expenses of the wife (which are his obligation to begin with) are recoverable under the no-fault provisions, and his wife, if working, may recover considerable loss of earnings—all of which inure to the direct as well as indirect benefit of the husband seeking the loss of consortium. He thus has reasonable “substituted” court access or, to put it another way, reasonable alternative relief. Lasky v. State Farm Insurance Co., Fla. 1974, 296 So.2d 9. It would seem, too, that his loss of pure “consortium,” now a nebulous intangible in the first place, would be presumptively de minimis in almost all cases in which the injured party did not reach the threshold, the personal injuries being presumably minor. Lasky, supra. By a parity of reasoning, save for the no-fault recovery of medical expenses, a wife seeking loss of consortium hardly fares worse. We see no unconstitutional infirmity in the application of the no-fault insurance law to the appellant-wife’s claim herein.

Accordingly, the judgment appealed should be, and it is, hereby,

AFFIRMED.

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


text:
    Joseph NIZZO, Appellant, v. AMOCO OIL COMPANY, Appellee.
    No. 75-1010.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Sept. 8, 1976.

      Horton, Perse & Ginsberg, Dunn & Johnson, Miami, for appellant.
    Carey, Dwyer, Austin, Cole & Selwood, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

This appeal is by Joseph Nizzo, who was the defendant and counterclaimant in the trial court. He appeals an order dismissing with prejudice his counterclaim against the plaintiff, Amoco Oil Company. The controlling question presented is whether the counterclaim, which was for alleged tor-tious interference with Nizzo’s business by Amoco, is precluded by the fact that the lease between the parties contained the following clause concerning the assignment of the lease:

“8. Lessee will not assign, mortgage or encumber this lease, or sublet the said premises, buildings, equipment, machinery and appliances or any part thereof, and will not allow any lien or encumbrance to be placed upon the leasehold interest hereby created or any part thereof, without first obtaining the written consent of lessor.”

Nizzo was an Amoco dealer. He got behind in his accounts with Amoco and the parties agreed to terminate their business relationship. Nizzo owed at that time $5,945.50 for oils, tires, batteries and other items. When he did not pay, Amoco filed suit for the money. Nizzo filed a counterclaim, the material portions of which are as follows:

“5. That on or about the 26th day of December, 1972, the Defendant/Counter Plaintiff, JOSEPH NIZZO, obtained a purchaser to wit a certain: Ralph Gonzalez, who entered into a contract with the Defendant/Counter Plaintiff, JOSEPH NIZZO, to purchase said business for the sum of Five Thousand and No/100 ($5,000.00) Dollars, which sale was to include the assets thereof, together with the Counter Claimant’s good will.
“6. The said Plaintiff/Counter Defendant, AMOCO OIL COMPANY, through its agent, servant and employee, advised your Counter Claimant, JOSEPH NIZZO, that they would not approve said prospective purchaser after previously advising your Counterclaimant that said purchaser appeared to be well qualified and would be an asset to operating an Amoco Service Station.
“7. The Counterclaimant later discovered that while the said corporation, AMOCO OIL COMPANY, refused to approve said prospective purchaser and required your Counterclaimant, JOSEPH NIZZO, to return the deposit of Five Hundred and No/100 ($500.00) Dollars, said AMOCO OIL COMPANY, induced said prospective purchaser to purchase a different service station at a different location. All of this was unknown to the Counterclaixnant.
“8. Thereafter, on or about the 11th day of May, 1973, the Counterclaimant obtained another buyer, to wit: Gilbert Louis, who was willing and able to purchase said station for the amount of Five Thousand and No/100 ($5,000.00) Dollars, and pursuant to said agreement, put up a Five Hundred and No/100 ($500.00) Dollars deposit.
“9. The Plaintiff/Counter Defendant, AMOCO OIL COMPANY, was advised of this second prospective purchaser through its agent, servant and employee, and when said agent, servant, and employee discovered that the second prospective purchaser was a member of the black race, the agent, servant, and employee of the Plaintiff/Counter Defendant, stated that they would not allow and permit a member of the black race to operate that service station in that area and that to do so was contrary to the Plaintiff’s business policy.
“10. All of the acts of the aforementioned Plaintiff/Counter Defendant, through its agent, servant and employee, caused the Defendant/Counter Plaintiff to lose both of these sales.”

Upon motion to dismiss the counterclaim, Amoco urged in the trial court that it affirmatively appears from the lease, which was an exhibit to the complaint, and the allegations of the counterclaim that the counterclaim did not state an action upon which relief could be granted because the lease showed that there was no restriction upon Amoco’s right to disapprove of any assignee. It is urged that under the law, a lessor’s refusal of consent, even though arbitrary and unreasonable, is not legally actionable where the covenant prohibiting assignment is without qualifications. See 49 Am.Jur.2d Landlord & Tenant § 423 and cases cited therein. In addition, appellee urges that the Florida case of Financial Business Services, Inc. v. Schmitt, Fla.App. 1973, 272 So.2d 536, is persuasive for appel-lee’s position that the law in Florida is the same.

Appellant, on the other hand, maintains that the law in Florida is, or should be, that the unreasonable withholding of consent to the assignment of a lease by the landlord constitutes actionable interference with the lessee. Appellant relies upon Tollius v. Dutch Inns of America, Inc., Fla.App.1970, 244 So.2d 467. In addition, it is urged that Amoco’s refusal to approve the assignment to one of the proposed assignees was based upon the fact that it was against the policy of Amoco to permit a member of the black race to operate a service station in the area where Nizzo’s business was located. It is, thereupon, argued that such refusal was illegal because it deprived the proposed as-signee of constitutional rights and that, therefore, it cannot be justified by a contract which gives Amoco the right to disapprove of assignees.

We hold that neither of these questions is determinative in the present case. A reading of the counterclaims show that they are based upon allegations other than the simple refusal to approve of the assign-ee. In paragraph 7, above quoted, the counterclaim alleges effective interference with a contract of sale by taking Nizzo’s prospective purchaser and inducing him to purchase a different service station. A reading of the entire counterclaim shows that it recites a course of conduct which would constitute a tortious interference with Nizzo’s business if the allegations were true.

Paragraph 8 alleges a breach of law in that it is alleged that Amoco refused to consider a qualified purchaser solely because of his race. The law is clear that the contract may not give validity to illegal acts. See Schaal v. Race, Fla.App.1961,135 So.2d 252, and cases cited therein. We hasten to point out that we are dealing in the instant case with a pleading and not with established facts. We determine simply that the pleading is not subject to dismissal because of the provision in the lease which attempts to give the counter-defendant the right to reject a prospective customer for any reason sufficient to itself.

The right of a lessor to disapprove of prospective assignees of a lease does not render the lessor immune from an action for tortious interference with the business of the lessee where it can be shown that the actions of the lessor amounted to an intentional interference with an advantageous business relationship. See Dade Enterprises v. Wometco Theatres, 119 Fla. 70, 160 So. 209 (1935); and John B. Reid & Associates, Inc. v. Jimenez, Fla.App.1966, 181 So.2d 575.

The order dismissing the counterclaims with prejudice is reversed and the cause is remanded with directions to deny the motion to dismiss.

Reversed and remanded with directions.


author: ALDERMAN, Judge.

text:
    Robert Jackson RECE, Appellant, v. STATE of Florida, Appellee.
    No. 75-2222.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1976.
    Lawrence M. Litus, Melbourne, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, and Anthony Musto, Asst. Attys. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

Appellant, the defendant below, was charged with possession of controlled substance with intent to sell or deliver in violation of Section 893.13(l)(a) 2, Florida Statutes (1975). He attempted to enter a plea of nolo contendere, reserving the right to appeal the trial court’s denial of his motion to suppress evidence. The trial judge refused to accept his plea of nolo contendere, but stated:

“I will accept the guilty plea in this case on the condition subsequent that the defendant reserves the right to have the Appellate Court review some pre-trial ruling of this Court relating to suppression of evidence. I think that is only fair that the questions of law by the trial court be reviewed by the Appellate Court; yet the practice ought to be flexible enough for the man to accept the plea for trial purposes, and if the Appellate Court doesn’t agree, I will state I don’t feel that I have misled the defendant in that if he can’t have his appeal on the suppression of evidence heard, he can reserve his right to withdraw his plea later.”

The case of State v. Ashby, 245 So.2d 225 (Fla.1971) recognized that a defendant could be permitted to plead nolo contendere, conditioned on reservation for appellate review of the question of legality of the evidence seized and used against him. The court in Ashby held the practice to be not objectionable since it expedites resolution of the controversy and narrows the issues to be resolved. However the court stated:

“A different result would obtain if the plea was one of guilty rather than nolo contendere, . .” (At 228.)

The rule in Florida is that a voluntary plea of guilty in a criminal case waives all defects other than jurisdiction. Mixon v. State, 54 So.2d 190 (Fla.1951); Gibson v. State, 173 So.2d 766 (Fla. 3rd DCA 1965); Hunter v. State, 174 So.2d 415 (Fla. 3rd DCA 1965).

The defendant should have been allowed to enter his plea of nolo contendere so he properly could have preserved his right of appeal. We could reverse and remand the case to allow the defendant to withdraw his plea of guilty and enter a new plea of nolo contendere. However such action will not be necessary in this case. No useful purpose would be served in allowing the defendant to bring this matter back before the court. The trial court’s refusal to accept a plea of nolo contendere in this case was harmless error because the point on appeal which appellant sought to preserve is without merit.

Affirmed.

CROSS, J., and CARLTON, CHARLES T., Associate Judge, concur.


author: MILLS, Judge.

text:
    STATE of Florida DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, et al., Appellants (Defendants), v. Mary Sue LOWERY, Appellee (Plaintiff).
    No. BB-59.
    District Court of Appeal of Florida, First District.
    June 23, 1976.

      Kenneth H. Hart, Jr., Alex D. Little-field, Jr., Tallahassee, Walter W. Snell, and Black, Crotty & Chanfrau, Daytona Beach, for appellants.
    C. Allen Watts, of Fogle & Watts, De-land, for appellee.
   MILLS, Judge.

The defendants appeal from a final judgment rendered in favor of the plaintiff following a nonjury trial in a quiet title suit.

The parties to this appeal agree that the question before us is:

WHERE PROPERTY IS HELD AS AN ESTATE BY THE ENTIRETIES, DOES THE CONVEYANCE OF THE HUSBAND’S INTEREST TO THE WIFE HAVE THE SAME LEGAL EFFECT AS THOUGH THE HUSBAND HAD DIED, THUS ALLOWING THE WIFE, AS THOUGH A SURVIVOR, TO TAKE THE ENTIRE ESTATE FREE OF THE CLAIMS OF THE HUSBAND’S CREDITORS?

Under the facts in this case, the answer is yes.

Lowery and her former husband owned property in Volusia County as tenants by the entirety. During their marriage, numerous judgments and claims of lien were filed against the husband including those of the defendants. The property was not homestead.

On 5 October 1967, Lowery and her former husband entered into a stipulation in anticipation of divorce, by which the husband agreed to convey to Lowery the property in dispute. This stipulation was incorporated in the final judgment of divorce rendered on 31 October 1967.

On 24 October 1967, Lowery’s former husband executed and delivered a quitclaim deed to the property to Lowery. This deed was recorded on 3 November 1967.

On 10 April 1974, Lowery filed a quiet title suit contending that the judgments and liens of the defendants were clouds on her title.

The defendants concede that so long as property is held as an estate by the entir-eties, a judgment or lien against one spouse only cannot attach to the property. Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376 (1920).

Defendants concede also that under Section 689.11, Florida Statutes, a conveyance by husband to wife without joinder of the wife is as valid as if the parties were unmarried. Such a conveyance terminates an estate by the entirety and vests the entire estate in the wife. Hunt v. Covington, 145. Fla. 706, 200 So. 76 (1941).

In addition, it is settled that a transfer is not in fraud of creditors where it is part of the settlement of property and rights of alimony and support incident to a divorce, particularly where the settlement is adopted and incorporated in the divorce decree. Trueman Fertilizer Co. v. Stephan, 111 Fla. 207, 149 So. 349 (1933).

Defendants concede that there is no attachable interest as long as the tenancy by the entirety continues. They also concede that death terminates the tenancy without benefiting the creditors. It is unchallenged that the conveyance was based on a bona fide agreement ratified and adopted by the court.

Defendants seek something to which they never had any right. The conveyance and the judgment took that right away.

Under the facts in this case, the trial court correctly held that the convey-anee by the former husband to Lowery terminated the estate by the entirety; therefore, when the final judgment of divorce was signed, the former husband had no interest to which any judgment or lien could attach.

The judgment is affirmed.

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


author: RAWLS, Judge.

text:
    STANDARD MARINE INSURANCE COMPANY, a corporation, Appellant, v. William E. ALLYN, Appellee.
    No. Z-174.
    District Court of Appeal of Florida, First District.
    June 23, 1976.
    Jeffry D. Dunn of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellant.
    David M. Wiesenfeld and John J. Sulik of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellee.
   RAWLS, Judge.

Appellee Allyn, a pedestrian, was struck and severely injured by an uninsured Ho-daka motorcycle. A claim was timely filed by Allyn with his insurer, appellant Standard, for damages pursuant to the uninsured motorist provision of his policy. Standard denied the claim. The trial judge, in the instant suit filed by Allyn, instructed the jury:

“ . . . as a matter of law that the defendant [appellant], the Standard Marine Insurance Company, a corporation, is liable for all sums which Mr. Allyn [appellee], the insured, it’s [sic] insured, shall be legally entitled to recover as damages from the owner-operator of the uninsured motorcycle because of bodily injury or damage sustained by the plaintiff [appellee], or caused by the accident. However, this is only up to $10,-000, for the limits of the defendant’s liability under the terms of its insurance policy is $10,000 and, therefore, plaintiff can recover no more than that amount, regardless of his damages.”

Judgment was entered upon a jury verdict of $10,000; hence this appeal.

The sole issue is whether or not a motorcycle is an uninsured motor vehicle within the terms of an insurance policy issued by appellant Standard to appellee Allyn.

Part IV entitled “Protection Against Uninsured Motorists” of the subject insurance policy as initially issued provided:

“COVERAGE J — UNINSURED MOTORISTS (DAMAGES FOR BODILY INJURY). To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile . . . caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile . . . . ”

After the Florida Automobile Reparations Reform Act was passed by the Florida legislature, Standard amended the subject insurance policy as follows :

“UNINSURED MOTORIST COVERAGE AMENDMENT
“It is agreed that the term ‘uninsured automobile’ is changed to ‘uninsured motor vehicle’.”

Standard urges that, as its policy now reads, only one definition of the term “motor vehicle” appears in same which is found in Section I under the caption of “Personal Injury Protection”, viz:

“ . . . ‘motor vehicle’ means a 4 wheel self-propelled vehicle of a type required to be registered and licensed under Florida law, which is not used as a public or livery conveyance, and which is one of the following types:
“(a) a private passenger vehicle, such as a sedan, station wagon or jeep-type vehicle,
“(b) a pick-up or panel truck not used primarily in the occupation, business or profession of the owner
“(c) a utility automobile designed for personal use, as a camper or motor home or for family recreational purposes but a utility automobile does not include any such automobile used primarily (1) in the occupation, profession or business of the owner or (2) for the transportation of passengers.”

The rationale of Standard is that its “PIP” definition of “motor vehicle” clearly excludes two-wheeled vehicles such as the uninsured motorcycle in the instant case. To apply such definition to the separate coverage of uninsured motorist, as Standard urges, would exclude the following defined vehicles from uninsured motorist coverage:

1. A 4 wheel vehicle which is used as a public or livery conveyance.
2. A pickup or panel truck used primarily in the occupation, business or profession of the owner.
3. Any truck other than a pickup or panel truck.
4. A utility automobile (as a camper or motor home) which is used primarily (1) in the occupation, profession or business of the owner or (2) for the transportation of passengers.
5. A vehicle owned by the State of Florida, any political subdivision or municipality thereof, or the federal goverment.
6. Other motor vehicles which have not been categorized.

To accept the foregoing exclusions as defined by Standard would be to emasculate the public policy of this state.

We do not perceive that the legislature, by enacting the Florida Automobile Reparations Reform Act, intended to exclude those motor vehicles enumerated above from the umbrella of uninsured motorists. The statutory definition of a “motor vehicle’’ found in the Financial Responsibility Act is far more consonant with the public policy of this state as to uninsured motorist than the “PIP” definition in the instant policy, viz:

"(1) Motor vehicle. — Every self-propelled vehicle which is designed and required to be licensed for use upon a highway, including trailers and semi-trailers designed for use with such vehicles (except traction engines, road rollers, farm tractors, power shovels, and well drillers) and every vehicle which is propelled by electric power obtained from overhead wires but not operated upon rails.”

This state’s public policy has historically required financial responsibility of those operating motor vehicles upon its public streets and highways. In Davis v. United States Fidel. & G. Co. of Baltimore, Md., this court held that the uninsured motorist statute establishes a public policy that every insured is entitled to recover under their policy for the damages he or she would have been able to recover against the offending motorist if that motorist had maintained a policy of liability insurance. Standard, citing Dorrell v. State Fire and Casualty Company, argues that it is well settled “in interpreting an automobile insurance policy the courts have followed the definitions given in the policy itself.” Such contention is well settled where the definition given is applicable to the coverage assumed and if not contrary to statutory limitations and requirements. However, as stated in Standard Accident Insurance Company v. Gavin, supra:

". . . ‘It is well settled in this State that where a contract of insurance is entered into on a matter surrounded by statutory limitations and requirements, the parties are presumed to have entered into such agreement with reference to the statute, and the statutory provisions become a part of the contract. . . .’” (quoting from the trial judge’s opinion)

Finally, Standard cites Valdes v. Prudence Mutual Casualty Company as being dispositive of the issue. There, the Third District Court of Appeal, in construing that particular insurance policy, held that a motorcycle was not an owned automobile within the exclusionary provision of the policy. Here, we are concerned with a policyholder that has paid a premium for uninsured motorist coverage. As we construe the term “uninsured motorist”, such includes a motor vehicle being operated upon the public streets and highways of this state. Allyn, the insured, was struck down by such a motor vehicle. If our construction is in conflict with Valdes, supra, then so be it.

The judgment appealed is AFFIRMED.

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

      . It is noted at the outset that the uninsured motorist statute, F.S. 627.727, is not a part of the Florida Automobile Reparations Reform Act, F.S. 627.730-627.741.

      . This definition is markedly similar to the definition of “motor vehicle” in the Florida Automobile Reparations Reform Act, F.S. 627.732.

      . Florida Statutes 627.730-627.741.

      . Florida Statute 324.021(1).

      . Davis v. United Fidel. & G. Co. of Baltimore, Md., 172 So.2d 485 (Fla.App. 1st 1965). See also Standard Accident Insurance Company v. Gavin, 184 So.2d 229, 24 A.L.R.3d 1359, (Fla.App. 1st 1966).

      . Dorrell v. State Fire and Casualty Company, 221 So.2d 5 (Fla.App. 3rd 1969).

      . Valdes v. Prudence Mutual Casualty Company, 207 So.2d 312 (Fla.App. 3rd 1968).


author: GRIMES, Judge.

text:
    William Roscoe TOMLIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-184.
    District Court of Appeal of Florida, Second District.
    June 18, 1976.
    Rehearing Denied July 1, 1976.
    Jack O. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was adjudicated guilty of shooting into an occupied vehicle and placed on probation for five years. Within the term of his probation, appellant was charged with and convicted of the following crimes: (1) conspiracy to sell a controlled substance, to wit: MDA on March 19, 1974 (felony); (2) sale of a controlled substance, to wit: MDA on March 15, 1974 (felony) ; (3) possession of a controlled substance, to wit: less than five grams of cannabis on March 19, 1974 (misdemeanor) ; (4) possession of a controlled substance, to wit: MDA on March 19, 1974 (felony). Appellant was sentenced to five years on each of the felony convictions and six months for possession of cannabis. His probation was also revoked, and he was sentenced to one year for shooting into an occupied vehicle. All of the sentences were concurrent.

An undercover agent made a controlled buy of MDA from appellant on March 15, 1974. The evidence of guilt concerning this crime is clear.

On March 19, the same undercover agent arranged to go to appellant’s house to make a larger purchase of MDA. When the agent arrived, appellant told him the MDA wasn’t there and that they would have to go get it. When they went outside to get in the agent’s car, the police arrived with a search warrant, and appellant was arrested. The police found MDA in a cigarette box on a coffee table in the living room.

Contrary to appellant’s contention, we believe that his possession of the MDA on March 19, 1974, was sufficiently proved. Constructive possession may be inferred from incriminating statements or circumstances. Taylor v. State, Fla.App. 2d, 1975, 319 So.2d 114. The appellant was the owner of the house. While others rented rooms in the house, the contraband was not found in these rooms. The appellant was dealing in MDA and had sold some to the undercover agent at the house just four days earlier. The evidence was sufficient to infer knowledge of the presence of the MDA and the ability to maintain control over it. Cf. Frank v. State, Fla.App. 1st, 1967, 199 So.2d 117. Appellant’s statement to the agent that they had to go somewhere else to get the MDA tended to rebut the inference, but the jury resolved this issue in favor of the state.

In the course of searching the house, the police found a small quantity of marijuana in an unspecified location. There was no other evidence tending to tie appellant to the marijuana. Thus, the evidence was subject to the reasonable hypothesis of appellant’s innocence in that the marijuana may have been in the possession of one of the persons who was renting a room in the house. Cf. Harris v. State, Fla.App. 3d, 1974, 307 So.2d 218.

Likewise, there was insufficient evidence to prove a conspiracy to sell the MDA. The state never did say with whom the appellant was supposed to be conspiring. The undercover agent could not have been the conspirator because where one of two persons who conspire to do an illegal act is an officer acting in the discharge of his duties, the other person cannot be convicted on a charge of conspiracy. King v. State, Fla. 1958, 104 So.2d 730. The only testimony remotely relevant to this count indicated that a man named Snyder may have been present when the undercover agent talked to appellant about the purchase of MDA. By itself, this evidence was not sufficient to prove that appellant and Snyder were guilty of conspiracy.

Appellant’s other points on appeal are without merit. Accordingly, the judgments for sale and possession of MDA are affirmed, and the judgments for conspiracy and possession of cannabis are reversed. The judgment entered upon the probation revocation is also affirmed.

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


text:
    STATE of Florida, Appellant, v. Thomas Walter ANGLIN,
    Nos. 75-1025 and 75-1026.
    District Court of Appeal of Florida, Second District.
    June 11, 1976.
    Rehearing Denied July 1, 1976.
    Robert L. Shevin, Atty. Gen. Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    David B. Webster, Webster, Caltagirone & Jeske, Tampa, for appellee.
   GRIMES, Judge.

The state appeals two orders discharging appellee for failure to bring him to trial within the 180-day period prescribed by the Speedy Trial Rule. The court charged the state with the period of time it took appellee to prosecute an unsuccessful appeal from a pretrial ruling. The court construed State v. Williams, Fla.App.2nd, 1973, 287 So.2d 415, as requiring the state to obtain an extension of the speedy trial time pending the appeal even where the appeal was being taken by the defendant.

In State v. Williams, supra, this court held that in the absence of an order of extension, the speedy trial time was not tolled while the state was appealing the dismissal of a charge arising out of the same factual circumstances covered by the pending information. No opinion was expressed upon the effect on the speedy trial time of an appeal by the defendant. However, in State ex rel. Simonds v. Hall, Fla.App.2nd, 1976, 326 So.2d 443, decided after the order of discharge entered below, we held that the speedy trial time was tolled during the pendency of a defendant’s cross-petition for certiorari because he was not continuously available for trial within the meaning of RCrP 3.191(a)(1). If the defendant is availing himself of the right to prosecute an appeal, he is in no position to complain that he is being denied his right to a speedy trial.

The other arguments advanced by appellee in support of the ruling are without merit. The orders of discharge are reversed. The state will have 90 days from the receipt of the mandate within which to bring the appellee to trial. See State v. Glidewell, Fla.App.2nd, 1975, 311 So.2d 126; State v. Vinson, Fla.App.2nd, 1974, 294 So.2d 418.

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

      . While not essential to this opinion, our holding in this case is buttressed by the fact that upon the institution of the appeal the court entered an order upon appellee’s motion postponing the trial until the outcome of the appeal.


author: WALDEN, Chief Judge.

text:
    Jeremy COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1749.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1976.
    Rehearing Denied July 6, 1976.
    Joe M. Mitchell, Jr., Melbourne, and L. B. Vocelle, Vero Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Chief Judge.

Defendant pleaded nolo contendere to possession of marijuana, reserving his right to appeal the denial of his motion to dismiss. We reverse.

The Stop and Frisk Statute, Fla.Stat. § 901.151(2) (1975), provides there must be circumstances which reasonably indicate to the policeman that a person has committed, is committing, or is going to commit a crime. We carefully have reviewed the re.cord on appeal and the testimony and, based thereon, we hold the facts- surrounding the defendant’s detention merely constitute bare suspicion and, therefore, are insufficient to support a stop and frisk, Stanley v. State, 327 So.2d 243 (Fla.App., 2d 1976); Richardson v. State, 291 So.2d 253 (Fla.App., 1st 1974).

We reverse the trial court’s order denying defendant’s motion to suppress and remand for proceedings consistent herewith.

REVERSED AND REMANDED.

CROSS, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Erik James GRIFFIS, a minor, by his parents and natural guardians, et al., Appellants (Plaintiffs), v. J. C. PENNY COMPANY, INC., a corporation, et al., Appellees (Defendants).
    No. BB-456.
    District Court of Appeal of Florida, First District.
    June 17, 1976.

      Rudy Hernandez, of Hernandez & Matthews, Jacksonville, for appellants.
    Ronald L. Palmer and Charles Cook Howell, III, of Howell, Kirby, Montgomery, D’Auito & Dean, Jacksonville, for appellees.
   MILLS, Judge.

The question raised by this interlocutory appeal is whether the plaintiffs must obtain service of process on the nonresident corporate defendant under the provisions of Section 48.182, Florida Statutes, or Section 48.193,Florida Statutes.

The plaintiffs allege that the defendant negligently manufactured a fondue pot which it distributed to J. C. Penny Company, Inc., where it was purchased in December of 1972 and given to plaintiffs as a gift. In December of 1973, the minor plaintiff was injured when the pot handle snapped causing hot oil to spill on him. Upon motions of defendant, the trial court dismissed plaintiffs’ amended complaint and quashed the service of process on it. After filing a second amended complaint, plaintiffs moved the court to clarify its order by ruling whether they should serve process on the defendant under Section 48.-182, Florida Statutes, or Section 48.193, Florida Statutes. The court ruled that on authority of AB CTC v. Morejon, 324 So.2d 625 (Fla.1975), service of process would be governed by Section 48.182, Florida Statutes. This interlocutory appeal followed.

Section 48.182, Florida Statutes, became effective 1 July 1970, and Section 48.193,Florida Statutes, became effective 1 July 1973. Neither statute can be applied retroactively to allow service as to an alleged wrongful act or act or omission committed before enactment of the statutes. AB CTC v. Morejon, supra.

The alleged negligent acts of the defendant took place before December 1972, because it was then that Penny sold the allegedly defective pot to someone who gave it to plaintiffs.

Since the alleged negligent acts of the defendant took place before the effective date of Section 48.193, Florida Statutes, but after the effective date of Section 48.182, Florida Statutes, the trial court correctly ruled that Section 48.182, Florida Statutes, was applicable to this case.

This interlocutory appeal is dismissed.

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


author: RAWLS, Acting Chief Judge.

text:
    Jack Nelson JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. Z-332.
    District Court of Appeal of Florida, First District.
    June 17, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

By amended information, appellant was charged in Count I with breaking and entering with intent to commit grand larceny, in Count II with grand larceny, and in Count III with unlawfully receiving or aiding in the concealment of stolen property, knowing the same to have been stolen.

Prior to taking testimony, appellant’s attorney moved the court to instruct the state to make an election between Counts II and III on the ground that the counts were inconsistent and repugnant to each other. The trial judge denied the motion. This motion was renewed following presentation of the state’s case, and again the trial judge denied the motion. The trial court instructed the jury that each count of the information constituted a separate and distinct offense. The jury returned a verdict of guilty on all three counts. The trial court entered judgments of guilt and imposed sentences on Counts I and II; there was no adjudication on the third count of receiving or aiding in the concealment of stolen property.

Appellant’s sole point on appeal is: “The trial court prejudicially erred in denying Appellant’s motions, timely made, to require the State to elect which of two repugnant and inconsistent counts it would rely upon for a conviction, said error requiring reversal for a new trial.” We agree.

The well settled rule in this state is as expressed in the early case of Bargesser v. State, 95 Fla. 401, 116 So. 11 (1928):

“Larceny and receiving stolen goods knowing the same to be stolen are separate and distinct offenses and, where the same property, the same larceny, and the same person as principal are involved, they are in law inconsistent offenses . the principal in a larceny cannot himself be guilty of the crime of receiving the same goods which he himself has stolen, nor can the guilty receiver himself be the principal in the larceny. The inconsistency is obvious. One cannot receive goods from himself.
“Since the defendant, under the evidence in this case, could not in law be guilty of both of these offenses, of which one did the jury find him guilty? . . . Since the verdict is one which the law does not authorize, the judgment entered thereon must be, and is hereby, reversed.”

Carlton v. State, 108 Fla. 34, 145 So. 249 (1933), reiterated the foregoing rule wherein the Supreme Court stated:

“Being appropriate, as this court has said, a motion to require the state to elect between two inconsistent counts should be granted, when two counts of an information are entirely repugnant but have been permitted to stand in order to meet evidence which may possibly be adduced at the trial. To deny such motion when properly and timely made will be held reversible error warranting a new trial, when it appears that the jury has found the defendant guilty on one of the two inconsistent counts.”

REVERSED with directions that a new trial be granted.

MILLS and SMITH, JJ., concur.

      . Tidwell v. State, 143 Fla. 397, 196 So. 837 (1940); see Pearce v. State, 143 Fla. 347, 196 So. 685 (1940). Adams v. State, 138 Fla. 206, 189 So. 392 (1939), is not necessarily to the contrary. The unanimous Supreme Court held that the counts of larceny and of receiving stolen property were not, in the circumstances of that case, repugnant to each other. It appears that Adams may well have been charged in the larceny count as an aider and abettor. See Bargesser, supra, 116 So. at 13; Adams v. State, 60 Fla. 1, 53 So. 451 (1910).


text:
    William R. TEDDER, joined by his wife, Deborah Tedder, Appellants, v. CITY OF FORT PIERCE et al., Appellees.
    No. 75-2053.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1976.
    Rehearings Denied July 6, 29, 1976.
    Hubert R. Lindsey of Farish & Farish, West Palm Beach, for appellants.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellees.
   PER CURIAM.

Upon review and consideration of the briefs and record on appeal we are of the opinion that plaintiffs’ cause of action against the individual employees of the City of Fort Pierce was not barred by the one year limitation applicable to cities and villages as prescribed in sec. 95.24, F.S. Insofar as those defendants other than the City of Fort Pierce are concerned the four year limitation period set forth in sec. 95.-11(4), F.S., is applicable. Accordingly, the order granting defendant’s motion to dismiss plaintiffs’ amended complaint and the final judgment rendered thereon are affirmed insofar as it relates to the City of Fort Pierce, defendant, and reversed insofar as it relates to the individual defendant-employees of the City of Fort Pierce.

AFFIRMED, in part; REVERSED, in part.

WALDEN, C. J., and CROSS and MA-GER, JJ., concur.


author: McNULTY, Chief Judge.

text:
    Robert L. HAAG, Appellant, v. Larry Richard PHILLIPS and Travelers Insurance Company, Appellees.
    No. 75-1504.
    District Court of Appeal of Florida, Second District.
    June 18, 1976.
    George O. Kluttz of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellant.
    James A. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   McNULTY, Chief Judge.

Plaintiff/appellant Haag was a passenger in a motor vehicle driven by defendant/appellee Phillips. He sustained injuries when their car collided with an uninsured motor vehicle. Both were acting within the scope of their employment as employees of a mobile home corporation which was insured by appellee Travelers. Haag settled out his Workmen’s Compensation claim as against his employer and brought this independent action against Phillips personally, joining Travelers.

Phillips defaulted but appellee Travelers filed a motion for summary judgment, relying principally on exclusions in its policy which disclaimed liability where there was Workmen’s Compensation coverage and a co-employee exception. On the day of the hearing on the motion, however, appellant filed a motion to amend his complaint to plead coverage under the uninsured motorist provision of the policy. The trial court disallowed the amendment and entered a summary judgment in favor of Travelers, from which this appeal is taken. We reverse.

Appellant concedes that under the authority of McRae v. Snelling the Workmen’s Compensation and co-employee exclusions under the policy would bar his claim herein against Phillips. He contends nevertheless, however, and we agree, that in the spirit of liberality, amendments to pleadings should be freely granted. Particularly is this so very early on in the proceedings (and surely at or before a motion for summary judgment is sought) when, as here, no prejudice to the other side is shown and a cause of action may well be viable. So he insists that in the interest of justice he be permitted to plead himself within the uninsured motorist coverage of Travelers’ policy.

Now the trial court may well have determined that the uninsured motorist provisions of the policy herein were inapplicable, although the record is silent as to this. In any event, the conditions precedent to their applicability vel non were never injected into the case since the court declined to permit an amendment to establish them as issues. For instance, the record is silent as to whether the appellee Phillips was personally insured which, if he were, might affect the “uninsured” nature of the claim against Travelers.

Additionally, supplemental briefs requested by this court reveal that Workmen’s Compensation benefits already paid to Haag exceed the $10,000 limit of liability under the uninsured motorist provision .of the policy. Accordingly, Travelers contends that Haag’s claim is now moot since the foregoing limits “shall be reduced” by any amounts paid or payable under the Workmen’s Compensation law. Haag counters, on the other hand, that the policy herein may well be a multi-vehicle policy and that, if he meets the criteria of Tucker v. Government Employee’s Insurance Company , he may be able to “stack” two or more limitations of liability.

We decline at this time to decide the validity of either of these contentions. The record simply doesn’t adequately pose the issues to be decided nor the factual framework upon which they are predicated. Justice and the spirit of the amendment rule require that we reverse so as to permit plaintiff/appellant Haag to amend as he requested. The trial court will then have before it the real controversy remaining between the parties and the record will permit further review if that be deemed necessary.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN and GRIMES, JJ., concur.

      . (Pla.App.4th, 1974), 303 So.2d 670.

      . See Rule 1.190(a), RCP.

      . (Fla.1973), 288 So.2d 238.


author: DOWNEY, Judge.

text:
    Edward J. STACK, Sheriff of Broward County, Florida, Appellant, v. STATE of Florida ex rel. Norman KAYE, Appellee.
    No. 75-1130.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1976.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellant.
    Emerson Allsworth of Allsworth, Dou-mar, Schuler, Padula & Laystrom, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

The central issue involved in this appeal is whether res judicata applies to a second habeas corpus proceeding arising out of a second attempt to extradite the appellee.

Appellee was originally arrested in Florida in January 1975, pursuant to a demand for extradition initiated by the State of Maine. Appellee filed a petition for writ of habeas corpus in which he attacked all the supporting documents attached to the executive warrant of rendition of the Governor of Florida. Appellee also alleged that he was not present in the demanding state at the time set forth in the indictment supplied the Governor of Florida and that he was not a fugitive from justice. After a hearing on the petition and respondent’s return the court found, among other things, that the petitioner was not physically present in the State of Maine on the dates alleged in the indictment; that the amended indictment included in the supporting documents did not substantially charge petitioner with a crime under the laws of the State of Maine; and that other supporting documents were insufficient. The court thereupon ordered petitioner released from custody and discharged. No appeal was taken from this order.

Pursuant to a second demand from the Governor of Maine to the Governor of Florida appellee was arrested once again on April 18, 1975. Once again appellee filed a petition for writ of habeas corpus and once again on June 9, 1975, the court ordered appellee discharged. It is this latter order of discharge which is here for review.

In the second habeas corpus proceeding appellee asserted all the grounds he asserted in the first habeas proceeding. In addition he contended the matter was res judi-cata because all the issues raised in the second extradition proceeding had been adjudicated adversely to the state in the first habeas proceeding. Based upon that ground, appellee moved to quash the rendition warrant and asked to be discharged. At the hearing on appellee’s motion the court received in evidence the entire court file in the first habeas corpus proceeding. Upon considering that file, the court found that the documents in the second proceeding were identical in substance to the documents in the first proceeding. The court concluded the issues presented in the second extradition proceeding were res judica-ta, and it ordered the appellee discharged.

Appellant does not here question the circuit court’s procedure in resolving the issues between the parties on motion. Rather the appellant contends that (1) the doctrine of res judicata does not apply to extradition proceedings; and (2) the documents supporting the rendition warrant of the Governor of Florida were adequate. We hold that under the circumstances of this case the doctrine of res judicata applied to the second habeas corpus proceedings and barred them. We therefore affirm the order under review on the first point without considering appellant’s second point.

The Annotation: Habeas Corpus Discharge — Extradiction Bar, 33 A.L.R.3d 1443, 1444, sets forth the pertinent rules in the following manner:

“Generally, whether a discharge on habeas corpus of one held for extradition bars a subsequent extradition proceeding depends on whether the court in the second proceeding is asked to pass upon the same matters or on matters different from those considered by the court in the earlier proceeding. Thus, a discharge in an earlier proceeding will bar a later one within the same jurisdiction based on identical issues and evidence. On the other hand, a discharge because of insufficient process or lack of evidence does not bar a subsequent extradition proceeding and is not res judi-cata in a subsequent habeas corpus proceeding where the process is corrected or additional evidence is presented.” (Footnotes omitted.)

Florida follows the foregoing rules in all habeas corpus proceedings:

“It is the well-established general rule, . that discharge upon habeas corpus operates as a bar and estoppel only as to the particular proceeding or process under review and is res judicata only upon the same question presented under the same state of facts. The principle of res judicata does not apply, in cases of habeas corpus, to a judgment discharging the prisoner, where a new state of facts warranting his restraint is shown to exist, different from that which existed at the time the first judgment was rendered.” 15 Fla.Jur:, Habeas Corpus, § 115, p. 501 (footnotes omitted).

Since the papers filed in the second proceeding seeking appellee’s extradition are substantially identical to those filed in the first proceeding, and since no new evidence was proffered, it seems clear that the appellant was attempting to relitigate the same questions with the same evidence. The suggestion that the appellant can start over again with the same documentation and ask the same court to consider the same matter again is completely out of tune with traditional ideas of American jurisprudence and exemplifies the very concept which gave rise to the doctrine of res judicata.

AFFIRMED.

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


text:
    Iris Suarez SALAZAR, as widow of Carlos Emilio Salazar, Deceased, Appellant, v. Jose I. MARQUES et al., Appellees.
    Nos. 75-1484 and 75-1527.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1976.
    Ronald J. Langa, Maher & Overchuck, Orlando, for appellant.
    Bruce S. Bullock and Robert M. Sharp, Bullock, Sharp & Childs, Jacksonville, for appellees-Jose I. Marques, Irving L. Col-vin, and The Employers Fire Ins. Co.
    Edna L. Caruso, Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellees-Mercy Hospital and INA.
   PER CURIAM.

A review and consideration of the factual circumstances in this case, as reflected in the briefs and record, demonstrates in our opinion the existence of genuine issues of material fact regarding whether the cause of death of plaintiff’s husband resulted from the negligence of the defendants. Giallanza v. Sands, 316 So.2d 77 (Fla.App.4th, 1975); Forrest v. Carter, 308 So.2d 141 (Fla.App.lst, 1975). Accordingly, the summary judgment is reversed and the cause remanded for further proceedings consistent herewith.

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


author: BY THE COURT. BOYER, Chief Judge

text:
    Daniel I. MILLING and Elee Milling, his wife, Appellants (Plaintiffs), v. STATE FARM FIRE AND CASUALTY COMPANY, a corporation, Appellee (Defendant).
    No. Z-455.
    District Court of Appeal of Florida, First District.
    June 17, 1976.
    Craig F. Hall, Fort Lauderdale, and Harold Silver, Barton & Cox, Gaines-ville, for appellants.
    W. C. O’Neal, Chandler, O’Neal, Avera, Gray, Lang & Stripling, Gainesville, for appellee.
   BY THE COURT.

Upon considering the briefs, the record and oral argument, the judgment is affirmed on authority of Gordon v. Phoenix Insurance Company, 242 So.2d 485 (Fla.App. 1st, 1970).

MILLS and McCORD, JJ., concur.

BOYER, C. J., concurs specially.

BOYER, Chief Judge

(concurring specially) .

The issue presented by this appeal is identical to that presented to this Court in Gordon v. Phoenix Insurance Company, Fla.App. 1st, 1970, 242 So.2d 485 and to our sister court of the Third District in Allstate Insurance Company v. Chastain, Fla.App. 3rd, 1971, 251 So.2d 354, cert. den. Sup.Ct.Fla.1972, 263 So.2d 578. The decisions of another District Court of Appeal are not binding on this Court when we have made a prior decision on the same point. (Weedman v. Sunland Roller Rink, Inc., Fla.App. 3rd, 1975, 323 So.2d 688). Accordingly, although I am of the view that the decision reached by our sister court in Allstate Insurance Company v. Chastain, supra, is the better rule of law, in the interest of stare decisis and stability of the law in a single district, I concur in affirmance of the order of the learned trial judge here appealed, who also relied upon and cited Gordon v. Phoenix Insurance Company, supra.


author: PER CURIAM. WALDEN, Chief Judge

text:
    PORT EVERGLADES TERMINAL COMPANY, Appellant, v. TRANSPORT INSURANCE COMPANY, as subrogee of William J. Griffin, and William J. Griffin, Individually, Appellees.
    No. 75-566.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1976.
    Recalled and Republished Aug. 13, 1976.
    Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellant.
    Tully Scott and Robyn Greene, of Cor-lett, Merritt, Killian & Sikes, Miami, for appellee, Transport Ins. Co.
    T. W. Montgomery, of Jones & Montgomery, Fort Lauderdale, for appellee, William J. Griffin.
   PER CURIAM.

AFFIRMED.

DOWNEY, J., and ANDREWS, JOHN, Associate Judge, concur.

WALDEN, C. J., dissents with opinion.

WALDEN, Chief Judge

(dissenting):

It is my view that the judgment in favor of plaintiffs should be reversed and remanded for a new trial. This is a negligence case. The trial court directed a verdict in favor of plaintiffs as a matter of law. I feel that this was error because from the facts, circumstances and allowable inferences there was a negligence question as concerns plaintiffs’ conduct which could only be properly resolved by the jury. This was appellant’s first point.

As to appellant’s second point suggesting that the proceedings impermissibly made possible a double recovery so as to constitute error, I agree. However, appellant either contributed to or acquiesced in such trial errors and did not preserve the matters for appellate review. Thus, I am of the opinion that this point would not be sufficient to warrant reversal.

With this, I respectfully dissent from the majority decision to affirm, and would reverse and remand for a new trial.

ORDER

ORDERED that the opinion of this court, published June 18, 1976, is recalled and republished effective August 13, 1976. All future periods for filing a Petition for Rehearing or Petition for Writ of Certiorari shall commence running as of August 13, 1976.


text:
    Theresa FISHER, Petitioner, v. STATE of Florida DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Southern Bell Telephone Company, Respondents.
    No. 76-210.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1976.
    Patrick M. Scanlon and James D. Fagan of Adair, Goldthwaite, Stanford & Daniel, Atlanta, Ga., for petitioner.
    Kenneth H. Hart, Jr,, General Counsel, Tallahassee, and James R. Parks, Miami, for respondent-Department of Commerce.
   PER CURIAM.

Upon due consideration of the briefs and record we are of the opinion that the termination of petitioner’s employment was because of nonavailability of work at the expiration of her approved maternity leave; therefore petitioner did not voluntarily leave her employment without good cause attributable to her employer thus entitling her to receive unemployment benefits. See Robinson v. Industrial Relations Commission, Fla.App., 329 So.2d 401, opinion filed March 26, 1976. This court’s recent decision in Robinson, supra, involved a situation markedly similar to the instant case and we are of the opinion that the rationale and conclusion in Robinson is applicable here. Accordingly, the petition for writ of certiorari addressed to the decision of the Industrial Relations Commission (denying petitioner’s claim for unemployment compensation) is granted and the order under review is quashed and the cause remanded with directions to grant petitioner unemployment compensation benefits.

CERTIORARI GRANTED.

WALDEN, C. J., and CROSS and MA-GER, JJ., concur.


text:
    Maude COLLINS, Appellant, v. Ralph FREEMAN d/b/a Freeman Trucking Co., and Wilson Franklin Conner, Appellees.
    No. 75-1509.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1976.
    Michael I. Libman, of Abramson, Scre-min, Mendigutia & Libman, Miami, for appellant.
    No appearance for appellees.
   PER CURIAM.

Appellant-plaintiff, Maude Collins, appeals a final order of the trial court dismissing plaintiff’s case for want of prosecution.

Upon review of the record on appeal and after consideration of the briefs submitted by counsel for the respective parties, we conclude that actions taken by the plaintiff herein constituted sufficient diligence in the prosecution of her case as to preclude dismissal thereof by the trial court. Popkin v. Crispen, 213 So.2d 445 (Fla.App. 1968). The trial court, therefore, abused its discretion in dismissing plaintiff’s case for want of prosecution.

Accordingly, the final order of dismissal is reversed and the cause is remanded for further proceedings consistent with the views herein expressed.

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


text:
    BROWARD TEACHERS UNION LOCAL 1975, a Labor Organization, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, etc., Appellee.
    No. AA-349.
    District Court of Appeal of Florida, First District.
    June 23, 1976.
    Joseph H. Kaplan, Howard S. Susskind, Joseph C. Segor of Kaplan, Dorsey, Sicking & Hessen, Miami, for appellant.
    Thomas W. Brooks, Tallahassee, for ap-pellee.
   ON SUGGESTION OF MOOTNESS

PER CURIAM.

Appellee has filed a suggestion of mootness praying that this court dismiss this appeal for the reason that all issues have either been decided or rendered moot by our opinion in Broward County Classroom Teachers Association, Inc. v. Public Employees Relations Commission, Fla.App. 1st, 331 So.2d 343, opinion filed May 3, 1976. We have considered the brief of appellant as well as appellant’s memorandum in opposition to the suggestion of mootness. While we do not consider that our aforesaid opinion renders this cause moot, it does rule upon the issues raised on this appeal and we are not persuaded to change our previous ruling. It would, therefore, serve no useful purpose for appellee to file a brief. Having considered this appeal on the merits in conjunction with the record, appellant’s brief and our opinion in Brow-ard County Classroom Teachers Association, Inc., supra, the order appealed from is AFFIRMED.

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


text:
    STATE of Florida, Appellant, v. Artis Leo SMITH, Appellee.
    No. 76-104.
    District Court of Appeal of Florida, Second District.
    June 16, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Gary A. Kahle, of Olmsted, Schwarz & Kahle, Port Charlotte, for appellee.
   McNULTY, Chief Judge.

The state appeals the dismissal of Count I of an information which charges appellee with bribing or attempting to bribe certain police officers to refrain from arresting him for unlawful gambling activities not yet then committed but intended in futuro. The order of dismissal was expressly predicated on Nell v. State. We do not agree that Nell controls the factual situation in the case at bar and reverse.

The principal issue in that case was the construction of an element of the offense of bribery under the statute, viz, the intent to influence the official action of the person to whom the bribe is offered. Accordingly, the court was primarily concerned with whether or not the matter sought to be influenced therein fell within the scope of the public officer’s official duties; and in resolving that issue the court relied in part on Streeter v. State. Apparently the trial court here construed Nell as interpreting the Streeter case to mean that bribery would not lie unless the official action sought to be influenced related to a matter then pending before the public officer to whom the bribe is offered at the time the offer is made. We do not so construe Nell.

Clearly, the express holding of Streeter was that a conviction, based on an information charging that the act to be influenced related to an offense already committed, could not be sustained when the proof established that the offense was to be committed in futuro. In short, there was a fatal variance between the pleading and proof; and Nell recognized this.

We believe Zalla v. State is more in point and, in fact, controls here. It was therein squarely held that an information alleging a bribe was offered to induce police officers to refrain from interfering in the defendant’s future gambling activities stated an offense. Future unlawful activity is thus a matter which might by law be brought before the officers in their official capacity and may be the object of- the bribe.

In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded with directions to reinstate the stricken Count I.

HOBSON and GRIMES, JJ-, concur.

      . (Fla.1973), 277 So.2d 1.

      . Section 838.011, F.S.1973.

      . (1925) 89 Fla. 400, 104 So. 858.

      . Note 1 at p. 6.

      . (Fla.1952), 61 So.2d 649.


text:
    Claudette WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1224.
    District Court of Appeal of Florida, Second District.
    June 18, 1976.
    Jack O. Johnson, Public Defender, and Dan P. Brawley, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Claudette Warren appeals the revocation of her probation. Appellant was placed on probation for two years after she entered a plea of nolo contendere to a charge of receiving and concealing stolen property. She was subsequently charged with violating her probation. Appellant’s probation supervisor swore out an affidavit alleging that appellant violated her probation by failing to “live and remain at liberty without violating any law” in that she was arrested, pled guilty and was sentenced for petit larceny. The affidavit alleged three other violations of probation conditions.

At the probation revocation, appellant’s counsel announced she would admit the petit larceny charge and that it was agreed the other charges would be “dropped.” After determining appellant understood the consequence for her admission, the court accepted the admission and allowed appellant to explain the larceny conviction. Over defense counsel’s objection the court questioned appellant concerning the other charges. The court then revoked probation and sentenced appellant to two years with credit for time served. The order of revocation of probation listed all four allegations as appellant’s violations of probation.

Appellant contends that fundamental due process requires that a revocation be based only on the violation charged and argues that Crum v. State, Fla.App.4th, 1973, 286 So.2d 268 is controlling. We disagree and affirm the revocation of probation and sentence. The affidavit of violation set forth a sufficient allegation of a violation, the petit larceny conviction. Appellant admitted violating her probation. However, while we note the trial court could properly inquire into appellant’s conduct, there apparently was an agreement to “drop” the other violations. Accordingly, in the interest of justice we instruct the trial court to strike the other violations from its order revoking probation.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.


text:
    PARLIAMENT LIFE INSURANCE COMPANY, Appellant (Defendant), v. EGLIN NATIONAL BANK, Appellee (Plaintiff).
    No. X-154.
    District Court of Appeal of Florida, First District.
    June 23, 1976.
    Frank C. Bozeman of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Pensacola, for appellant.
    Walter J. Smith of Smith, Grimsley, Barron & Remington, Fort Walton Beach, for appellee.
   MILLS, Judge.

Parliament Life Insurance Company appeals from a final judgment entered in favor of Eglin National Bank following a nonjury trial in a suit brought by Eglin in which it sought the surrender or cash in of an annuity insurance policy issued by Parliament to E. N. Davis, and given by Davis to Eglin as collateral for a loan.

Although Parliament has raised several issues, the issue which is determinative of this appeal is whether the trial court acquired jurisdiction over the person of Parliament.

Eglin made a $20,000.00 loan to Davis on a promissory note. As collateral for the loan, Davis gave Eglin an annuity insurance policy issued by Parliament. The policy was purchased by Davis at Parliament’s home office in Allentown, Pennsylvania.

At the time the policy was issued, Davis was a resident of Florida. Parliament was not doing business in Florida and had never done business in Florida. Parliament has no employees or agents in any state except Pennsylvania. The only contact it has with Florida is to receive premiums mailed to it by insureds who originally lived in Pennsylvania when they bought their policies, and then moved to Florida.

Davis defaulted on the promissory note, and Parliament refused to permit the policy to be surrendered or cashed in. Eglin brought suit. Service of process was obtained on Parliament under Section 626.-907, Florida Statutes. Parliament moved to dismiss the action for lack of jurisdiction over the person, and moved to quash the service of process. Both motions were denied.

Section 626.906, Florida Statutes, provides that:

“Any of the following acts in this state, . . . by an unauthorized foreign or alien insurer . . . shall constitute an appointment by such insurer of the insurance commissioner and treasurer, to be its attorney, upon whom may be served all lawful process in any action, suit, or proceeding instituted by or on behalf of an insured or beneficiary, arising out of any such contract of insurance; and any such act shall be signification of the insurer’s agreement that such service of process is of the same legal force and validity as personal service of process in this state upon such insurer:
“(1) The issuance or delivery of contracts of insurance to residents of this state . . . ”

Section 626.906, Florida Statutes, does not require that the insurance company conduct extensive business in Florida. It does require that certain acts in this State must be committed before the insurer is subject to the jurisdiction of the Florida courts. One such act is the issuance or delivery of contracts of insurance to residents of this State. In this case, the issuance and delivery of the contract of insurance occurred in Pennsylvania. The act of issuance and delivery did not occur in this State as required by the statute. The fact that Davis was a resident of Florida is not sufficient, standing alone, to bring Parliament within the purview of the statute.

In Parmalee v. Iowa State Traveling Men’s Association, 206 F.2d 518 (5th Cir. 1953), Section 625.30, Florida Statutes, now Section 626.906, Florida Statutes, was construed as follows:

“It cannot be disputed that Florida has the power, within constitutional bounds, to prescribe the terms upon which insurance may be placed and kept in force upon its residents. * * * It seems clear, however, that as to policies held by residents of the state which are issued and delivered to them in the state by insurers not authorized to do business there, the Legislature in the exercise of its power to protect such residents, established and defined, for the purpose of the statute, what constitutes doing business in the state. We construe the legislation to apply only to policies of insurance delivered in Florida to Florida residents.”

The judgment is reversed.

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