author: HOBSON, Acting Chief Judge.

text:
    Laura F. FRASE, Administratrix of the Estate of John A. Meyer, Deceased, also known as J. A. Meyer, Jennifer M. Brazell and Edward Brazell, her husband, William B. Meyer and A. R. Meyer and Ruth Meyer, his wife, Appellants, v. J. M. BRANCH and Marian L. Branch, his wife, Appellees.
    No. 77-1342.
    District Court of Appeal of Florida, Second District.
    July 26, 1978.
    Rehearing Denied Aug. 30, 1978.

      John F. Bennett of Fishback, Davis, Dominick & Simonet, Orlando, for appellants.
    T. Richard Hagin of Getzen & Hagin, Bushnell, for appellees.
   HOBSON, Acting Chief Judge.

In this appeal we are confronted with the question of whether homestead rights will defeat an agreement for deed in which the grantor’s spouse did not validly join where the grantor owned the property separately and the grantor and his spouse retained more than 160 contiguous acres of rural land in excess of the property subject to the agreement. The trial court answered this question in the affirmative. We answer this question in the negative and reverse the final judgment of the trial court.

The facts are not in dispute. The grant- or, J. M. Branch, bought 360 contiguous acres of rural land and took title in his name alone. Later, the grantor and his wife took title by the entireties to another 80 acres which is contiguous with the original 360 acres. Mr. and Mrs. Branch constructed a home on this land and have lived there since 1945. In 1961, Mrs. Branch was physically and mentally disabled. In 1971, Mr. Branch entered into an agreement for deed with a close friend, John Meyer. The agreement covered 40 acres of the original 360 acres purchased by Mr. Branch. Fulfillment of the terms of agreement for deed would leave Mr. and Mrs. Branch with 400 contiguous acres of land containing their homesite. While Mrs. Branch’s signature appeared on the agreement, there is now no dispute that it is invalid due to her mental incompetency. Mr. Meyer assumed exclusive dominion over the 40-acre tract sold by Mr. Branch. John Meyer died in 1973 after having paid $4,500 under the agreement. Laura Frase, as administratrix of Meyer’s estate, brought action in the trial court to obtain specific performance of the agreement for deed. Mr. and Mrs. Branch asserted homestead as an affirmative defense and paid $4,500 into the registry of the court. At the bench trial, Mr. Branch testified to the portions of the 440-acre tract which he selected as homestead. Included in this selection of the 160-acre homestead tract was the 40 acres subject to the agreement for deed. The trial resulted in a final judgment which found that Mrs. Branch was mentally incompetent at the time she joined in execution of the agreement, that the agreement for deed was void, and that Mr. and Mrs. Branch had not abandoned the 40 acres in a manner defeating their homestead rights to that parcel. Accordingly, the trial court denied specific performance, quieted title in Mr. Branch, and ordered payment to Meyer’s administratrix of the $4,500 deposited into the registry of the court.

Homestead rights have long been embodied in the organic law of this state [See Baker v. State, 17 Fla. 406 (1879) interpreting the homestead provision of the Florida Constitution of 1868.] The purpose of these protections is to preserve a home for the family, even at the sacrifice of just demands, and to protect the family from destitution and want. Hill v. First National Bank of Marianna, 79 Fla. 391, 84 So. 190 (1920). The provisions of homestead laws should be carried out in the liberal beneficent spirit in which they are enacted. Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912); Jetton Lumber Co. v. Hall, 67 Fla. 61, 64 So. 440 (1914). Nevertheless, great care should be taken to prevent homestead laws from becoming instruments of fraud, an imposition on creditors, or a means to escape honest debts. Id.; see also Vandiver v. Vincent, 139 So.2d 704 (Fla. 2d DCA 1962).

Homestead protections are not unlimited. In Florida, homestead property may consist of up to 160 contiguous acres of qualified rural land. In Florida, as well as in many other states, property in excess of the homestead, though part of the same tract, may be made subject to the obligations of the landowner. See Weiss v. Stone, 220 So.2d 403 (Fla. 3d DCA 1969); Barco v. Fennell, 24 Fla. 378, 5 So. 9 (1888); 1 American Law of Property § 5.82 (A. J. Casner ed. 1952); 40 C.J.S. Homesteads §§ 43, 146 (1944); 40 Am.Jur. Homestead § 40 (1968); Annot. 45 A.L.R. 395, 413 (1926).

In the case at bar, Mr. and Mrs. Branch owned a total of 440 contiguous acres of rural property. They were entitled to select only 160 contiguous acres as their homestead, leaving 280 excess acres. The 280 acres of excess land were subject to the obligations of the owner. If the 40-acre tract alienated by Mr. Branch was a part of his 280 acres of excess land, then the 40 acres is subject to his obligations. Accordingly, the homestead laws would not prevent specific performance of the agreement for deed to the 40-acre tract.

The force of the argument made on behalf of Mr. and Mrs. Branch is not that any part of the 280 acres of excess land was not alienable without valid joinder of Mrs. Branch, but that the trial court properly ruled that Mr. Branch could not be held to have selected his homestead property from land other than the tract subject to the agreement for deed. Thus, apparently for the first time, a court of this state is squarely presented with the issue of whether an instrument, alienating property which is in excess of the homestead amount and nonessential to the homestead protection, operates as a selection of homestead to the exclusion of the alienated property from the land from which homestead may be selected. If this issue is answered in the affirmative, then the alienated property is not homestead and the validity of the instrument of alienation is not affected by the failure to join the grantor’s spouse.

The courts of many other jurisdictions have considered this issue and quite uniformly held that the instrument of alienation acts as a selection of homestead by exclusion of the alienated tract. The general rule has been stated as follows:

“Where the owner of a tract of land sells part of it, if the part retained is sufficient to constitute homestead and the part sold is not essential to the homestead, the sale is an election to treat the part retained as homestead and not the part granted.” 40 Am.Jur.2d Homestead § 82 (1968).
“[Hjence, a sale of such excess is not rendered invalid because it fails to comply with the statutory requirements for the conveyance of homesteads.” 40 C.J.S. Homesteads § 146 (1944).

The sale of such excess land is not rendered invalid because the grantor’s spouse had failed to join in the instrument. Accord, Kunkel v. Kunkel, 515 S.W.2d 941 (Tex.Ct. Civ.App.1974) (on rehearing).

The case which appears to be the root of this rule in Alabama is Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742 (1916). That case involved a contract to convey a tract of land where the seller retained sufficient contiguous property to constitute the maximum homestead amount including the dwelling. The Supreme Court of Alabama ruled that the contract to sell the tract “amounts to the selection of a homestead to the exclusion of the alienated tract, and the provisions of the (Alabama code) with respect to the alienation of homestead have no application.” 70 So. at 743. That court held that the buyer could specifically enforce the contract for sale. Biglane v. Rawls, 247 Miss. 226, 153 So.2d 665 (1963), recognized the force of this rule and collected various authorities from different jurisdictions. See also Thorp v. Thorp, 70 Vt. 46, 39 A. 245 (1897); Rutherford v. Jamieson, 65 Miss. 219, 3 So. 412 (1888); Hall v. Gottsche, 114 Iowa 147, 86 N.W. 257 (1901).

The rule is logical and fair. The reason for the rule is easily understood. The rule fulfills the purpose of the homestead laws by preserving the maximum protection available under those laws while exercising great care to ensure that those laws do not become a vehicle to avoid just obligations. Generally, the landowner has a right to select his homestead in any contiguous shape from his qualifying lands. See Shone v. Bellmore, 75 Fla. 515, 78 So. 605 (1918) and Sections 222.01 and 222.02, Florida Statutes (1977). However, once the landowner has dealt with others in a manner establishing an exercise of his right of selection, the landowner may be held to that selection. Hence, where the landowner’s act clearly manifested an intention not to select and occupy a portion of his property as homestead, he cannot, to the detriment of a just claimant, thereafter disclaim any intention to make this selection. See Semple v. Semple, 82 Fla. 138, 89 So. 638 (1921). Where the seller retains the maximum amount of land qualified to be selected as homestead, the landowner’s family is afforded maximum homestead protection. His alienation may be considered as an exercise of his right to select the retained land as homestead rather than the land conveyed. The land subject to conveyance is therefore not homestead and may be alienated without joinder of the landowner’s spouse. This result preserves the sanctity of the agreement and protects the rights of the buyer while in no way impairing the function of the homestead provisions.

In the instant case, Mr. Branch was entitled to select his homestead from the 440 contiguous acres owned by him and his wife. When he sold 40 of those acres to Mr. Meyer, he manifested an unequivocal intent not to use and occupy those 40 acres as his homestead. He may be held to have selected his homestead to the extent of excluding the 40 acres sold to Mr. Meyer. The 40-acre tract was no longer homestead. It was alienable, and in fact alienated, by Mr. Branch without valid joinder of his wife. He retained 400 contiguous acres of land (well more than twice the maximum amount) from which to select his homestead and protect his family.

We note in passing that the enforceability of contracts to convey homestead has been the subject of some doubt. See 1 American Law of Property § 5.103 (A. J. Casner ed. 1952); 40 Am.Jur. Homestead § 129 (1968). However, this doubt does not arise where, as here, the property subject to the agreement to convey was, in fact, not homestead. Where the landowner’s actions have excluded excess land from homestead protections, the homestead laws do not apply and do not bar the remedy of specific performance of the contract. See Williams v. Kilpatrick, supra; 1 American Law of Property § 5.103 (A. J. Casner ed: 1952); 40 C.J.S. Homesteads § 146 (1944).

The trial court having misconstrued the legal significance of the undisputed facts, its final judgment denying specific performance of the agreement for deed must be reversed. The cause is remanded to the trial court for entry of a final judgment ordering specific performance of the agreement for deed according to its terms.

REVERSED and REMANDED.

BOARDMAN and SCHEB, JJ., concur.


source: Caselaw Access Project

author: HENDRY, Judge.

license: Public Domain

text:
    LEATHERBY INSURANCE COMPANY, a Foreign Corporation, Vernel Jackson and Linda Johnson Tyler, Appellants, v. Raymond ECKERSON, Fernando Raphael Cruz and Randle-Eastern Ambulance Service, Inc., a Florida Corporation, Appellees.
    No. 77-1048.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.

      Prunty, Ross, DeLoach & Olsen and John W. Prunty, Miami, for appellants.
    Frank X. Gliozzo, Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   HENDRY, Judge.

This appeal, taken from a “corrected final judgment” for damages in a negligence action, challenges the correctness of certain rulings of the trial judge which, inter alia, reinstated two verdicts of the jury and apportioned the damages against the joint-tortfeasors after the court had formerly rejected the verdicts, declared a mistrial and discharged the jury. Appellants Jackson, Tyler and their insurance carrier, Leatherby Insurance Company, were defendants in the trial court. Appellee Eck-erson was the plaintiff while appellees Ran-dle-Eastern Ambulance Service, Inc. and its driver, Cruz, were co-defendants.

The facts surrounding the alleged negligence in this case need not be discussed, as the merits of the appeal rest in procedural rulings of the trial judge. Suffice it to say that at the termination of a personal injury action stemming from a vehicular collision, the jury, after deliberation, returned two separate verdicts (on two verdict forms) in favor of plaintiff Eckerson. In the first verdict, the jury found against Jackson, Tyler and Leatherby in the sum of THREE THOUSAND, FIVE HUNDRED ($3,500.00) DOLLARS and in the second verdict, the jury found against Randle Eastern and Cruz in the sum of THIRTY-ONE THOUSAND, FIVE HUNDRED ($31,500.00) DOLLARS.

The trial judge, after determining that the two separate verdicts against the joint-tortfeasors were improper, marked the verdicts void and instructed the jury that if they found against both defendants, they should assess the amount of damages against both defendants in one verdict form. After a second deliberation, the jury returned unable to agree upon the amount of damages to be assessed against the joint tortfeasors. After questioning the individual jurors as to the possibility of their reaching an agreement on the amount of damages, the trial judge, apparently convinced that no agreement could be reached, declared a mistrial and discharged the jury.

Subsequently, upon motion, the trial judge in two orders (1) entered judgment in favor of the plaintiff and against the defendants for the total amount of the two voided verdicts and (2) then apportioned the judgment, assessing seventy (70%) percent against Randle Eastern and thirty (30%) percent against Jackson, Tyler and their insurer. These orders were subsequently embodied in the “corrected final judgment” now under appeal.

There is but one issue in this appeal, to-wit: whether the trial judge erred in entering a judgment which assessed and apportioned damages in the absence of a proper jury verdict. We believe that the trial judge did so err and accordingly, we reverse.

Firstly, with regard to the separate verdicts returned against the joint-tortfeasors, the trial judge correctly determined that absent the use of “special verdicts,” the separate verdicts were improper pursuant to then controlling Section 768.-31(3)(a) & (c), Florida Statutes (1975). Lincenberg v. Issen, 318 So.2d 386 (Fla.1975); Kennedy and Cohen, Inc. v. Van Eyck, 347 So.2d 1085 (Fla. 3d DCA 1977); Moore v. St. Cloud Utilities, 337 So.2d 982 (Fla. 4th DCA 1976). Secondly, when the jury returned from deliberating a second time (after having been instructed by the trial judge as to the use of the corrected verdict forms) and announced that no decision could be reached as to the amount of damages to be awarded to the plaintiff, the trial judge properly granted a mistrial. Dehon v. Heidt, 38 So.2d 39 (Fla.1948). However, as no proper verdict had been rendered by the jury, it was error for the trial judge to resurrect the voided, improper verdicts and enter judgments in accordance therewith. See Dehon v. Heidt, supra.

Accordingly, after a careful review of the record, in light of the briefs and arguments of counsel, it is our opinion that the “corrected final judgment” must be reversed and the cause remanded for new trial.

Reversed and remanded for new trial.


author: PER CURIAM.

text:
    James GETTY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1096.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender and Elliot Gersten, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The single issue presented upon this appeal is whether the trial judge erroneously denied defendant’s motion to suppress the physical evidence. There were three searches: (1) of defendant’s automobile at the time of his arrest, (2) of defendant’s automobile at the police garage pursuant to a search warrant, and (3) of defendant’s residence pursuant to a search warrant. Defendant attacks the validity of the search warrants upon the ground that the affidavits do not show probable cause. We hold that in each case, the affidavit contains sufficient facts to show probable cause. See the principles of law in Brenner v. State, 337 So.2d 1007, 1008-1009 (Fla. 3d DCA 1976).

Defendant does not question the legality of his arrest. The initial warrantless search at the time of his arrest, when contraband was seen but not removed, was a legal search pursuant to defendant’s arrest and was necessary for an inventory incident to the impoundment of defendant’s automobile. See Waterhouse v. State, 256 So.2d 397 (Fla. 3d DCA 1972); and Gagnon v. State, 212 So.2d 337 (Fla. 3d DCA 1968).

Affirmed.


text:
    Albert CORVISON, Appellant, v. Brenda Kay CORVISON, Appellee.
    No. 77-2558.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.
    Nelson & Nelson, Hialeah, for appellant.
    Byrd V. Duke, Jr. and Nancy Appleton, North Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Albert Corvison appeals that portion of a final judgment of dissolution of marriage awarding permanent custody of the two minor daughters, Angela 6 and Jennifer 3, to his former wife, Brenda, and contends this custody award by the chancellor constituted an abuse of discretion.

While Section 61.13(2), Florida Statutes (1977) provides for equal consideration of the spouses in awarding custody, the law still remains that other essential factors being equal, the mother of the child of tender years should receive prime consideration for custody. Anderson v. Anderson, 309 So.2d 1 (Fla.1975).

The chancellor in the case at bar determined that the best interests of the minor children dictated that custody be awarded to their mother. After a review of the record, we conclude that appellant has failed to demonstrate an abuse of discretion by the chancellor. See Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975) and cases cited therein.

Affirmed.


text:
    Richard C. HOWE, etc., et al., Appellants, v. SOUTH BROWARD HOSPITAL DISTRICT, etc., et al., Appellees.
    No. 76-2320.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1978.
    Rehearing Denied Sept. 18, 1978.
    Howard Todd Jaffe, of Kaplan & Jaffe, P.A., Hollywood, for appellants.
    Jonathon P. Lynn, of Stephens & Schwartz, P.A., Miami, for appellees.
   PER CURIAM.

This is an appeal from a Summary Judgment entered in favor of a physician in a medical malpractice case. We reverse.

The procedure leading up to entry of the Summary Judgment was improper and prejudicial. It also appears from the record that factual issues existed. The Summary Judgment below is reversed and the case remanded for further proceedings. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); and Howe v. South Broward Hospital District, 345 So.2d 1079 (Fla. 4th DCA 1977).

DOWNEY, C. J., BERANEK, J., and BAKER, JOSEPH P., Associate Judge, concur.


author:
PER CURIAM.
      OTT, Judge,

text:
    STATE of Florida, Appellant, v. Gary W. SEPULVADO, Appellee.
    No. 77-987.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1978.
    Rehearing Denied Sept. 14, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Appellee/defendant Sepulvado and two others were charged with the aggravated battery of Louis Fox. Prior to trial Sepul-vado moved to suppress any testimony that Fox might give identifying him as one of Fox’s assailants. The trial court granted the motion, holding that Fox could not testify as to his pretrial identification of Sep-ulvado, nor could he give an in-court identification. The state appeals the trial court’s order. We affirm.

Sepulvado’s motion alleged that a photo display shown to the victim Fox by the police shortly after he was attacked was impermissibly suggestive, and that it would taint any in-court identification the victim might give. At the hearing on the motion Fox and Detective McManus of the Clear-water Police Department were the only witnesses.

First, Fox was called as a witness for the state. He testified he had been attacked and beaten by three white males as he walked down a well lighted street in downtown Clearwater in the early morning hours of February 3, 1977. He claimed to have gotten a good look at his assailants, even though he acknowledged he had seen them for only “three or four seconds” as they attacked him. He described the color of their hair, and noted that each of the assailants had a full beard.

After he was treated and released from the hospital, Fox went to the police department where he was asked to go through a “photo tray” by Detective McManus. This was about eight hours after the incident. According to Fox the photo tray contained approximately 150 pictures, about 30% of which were black males and the rest white males. Fox said that he went through all the pictures and selected six. After a further viewing of these six, he selected three which he identified as being his assailants. One of these was defendant Sepulvado. During cross-examination Fox specifically denied that Detective McManus had brought him any additional photographs once he began looking at the photo tray.

The defense then called Detective McMa-nus, who gave quite a different version of the photo identification procedure. First, he said the photo tray contained pictures of white males only, and did not contain any pictures of blacks as Fox had testified. The detective also said it had come to his attention while Fox was looking at the photo tray that Sepulvado and two others (all of whom had previous criminal records and photos on file) had been arrested in the vicinity of the assault shortly after it had occurred. The detective stated that he thereupon took photographs of these three men into the room where the victim was going through the photo tray and told the victim, “[W]hen you finish going through those photographs [the ones in the photo tray] would you please look at these photographs [the three file photographs]?” McManus further testified that when he laid the three additional pictures on the desk the victim immediately identified them as his assailants. According to McManus the victim was reasonably certain about two of the subjects but not quite sure about Sepulvado. The reason Fox gave for not being certain that the photo of Sepulva-do was the third assailant was that the photo (apparently made some years before) depicted a man with a beard, whereas his third assailant did not have a beard. This, of course, conflicts with Fox’s testimony that each of his assailants had a full beard.

When Sepulvado was arrested a new picture was taken of him in which he did not have a beard. This new picture was placed in a photo pack with pictures of four other individuals. This new photo pack was shown to the victim the next day. From this five-picture photo pack Fox was able to positively identify Sepulvado as being the third assailant.

As is obvious, the testimony at the suppression hearing was conflicting in several important respects. While the detective said he had presented the pictures of Sepul-vado and his cohorts to Fox separately, Fox denied this and said these pictures had been selected by him from the some 150 photographs in the photo tray. Fox said the photo tray contained pictures of both black and white males; the detective said it contained only pictures of white males. Fox said that all three men who had attacked him were bearded; the detective testified that Fox had told him that Sepulvado did not have a beard. These conflicts made the trial court’s decision a hard one.

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court noted that almost all identification procedures will be suggestive to some extent. However, such procedures do not become impermissibly suggestive and require suppression unless the “totality of the circumstances” indicate that the identification resulting from the procedure is unreliable. See also Baxter v. State, 355 So.2d 1234, 1237 (Fla. 2d DCA 1978). Justice Powell, writing for the majority in Neil v. Biggers, enumerated five factors relevant to this determination of reliability vel non :

(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness’ degree of attention;
(3) the witness’ prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the identification procedure; and
(5) the length of time between the crime and the identification procedure.

409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411.

After the victim testified in the instant case, the trial judge indicated that the state had made a prima facie showing that the photographic display was presented in an acceptable manner. But, after the police detective testified the court granted defendant’s motion to suppress. This demonstrates to us that the court chose to place great credence on the testimony of the police detective. From our review of Detective McManus’ testimony we believe that the trial court could have properly concluded that the photo display was suggestive. The pictures of Sepulvado and his two code-fendants were presented to the victim in such a way as to pointedly draw Fox’s attention to them. Further, when Sepulva-do’s picture was subsequently presented to the victim in the five-picture photo pack it augmented the suggestiveness of the previous identification procedure.

As noted, mere suggestiveness does not necessitate suppression; it is only procedures that are impermissibly suggestive under all the circumstances of the case that call for suppression.

A trial court’s factual conclusions come to this court clothed in a presumption of correctness, and we must make all reasonable inferences and deductions capable of being drawn therefrom in a manner that will sustain the trial court’s conclusions. Cameron v. State, 112 So.2d 864, 869 (Fla. 1st DCA 1959). Without recounting the evidence, we think that in holding the identification procedures to be impermissibly suggestive the trial court must have considered the extremely short glimpse the victim had of his assailants at the time of the assault, the trying conditions under which he viewed them, the inconsistency as to whether Sepulvado was bearded, and the victim’s unsureness about the identity of Sepulvado at the time of the photographic display. Considering the law enunciated in Neil v. Biggers, and under the standard of review we are mandated to follow, we cannot say the trial court erred in finding the identification procedures were impermissi-bly suggestive.

Our inquiry, however, does not end here. The trial court in its order not only prohibited any testimony concerning the pretrial photo display, but also prohibited any in-court identification of Sepulvado by the victim. So this additional question must be asked: Even though the pretrial identification procedure was impermissibly suggestive, did the trial court err in suppressing any in-court identification the victim might give? We think not.

In-court identification must be prohibited if the impermissibly suggestive

pretrial identification procedure “gives rise to a very substantial likelihood of irreparable mistaken identification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968). See also United States v. Sutherland, 428 F.2d 1152, 1155 (5th Cir. 1970). The heart of this standard is that a suggestive pretrial identification procedure should not be allowed to taint an in-court identification. Therefore, all the surrounding circumstances must be considered to determine if the witness’ in-court identification is grounded upon a basis independent of the suggestive pretrial procedure. Simmons v. United States, supra; Hamilton v. State, 303 So.2d 656 (Fla. 2d DCA 1974); Cribbs v. State, 297 So.2d 335 (Fla. 2d DCA), cert. denied, 303 So.2d 335 (Fla.1974). However, once a trial court determines that a pretrial identification procedure was impermissibly suggestive, it is presumed that any in-court identification will be tainted. It is the state’s burden to overcome this presumption by “clear and convincing” evidence. United States v. Sanders, 156 U.S.App.D.C. 210, 215, 479 F.2d 1193, 1198 (1973); United States v. Cook, 464 F.2d 251, 254 (8th Cir. 1972); Cribbs v. State, supra, at 336. But see State v. Ciongoli, 313 So.2d 41, 44 (Fla. 4th DCA 1975). We do not believe the trial court erred in finding that the state had not carried its burden in the instant case. The only additional evidence presented by the state which the court could have considered on this issue consisted of statements by the victim that he had an independent recollection of his assailants apart from the suggestive photo display. However, the trial court found in its order of suppression that the victim’s testimony was “extremely suspect” because of the conflicts with the testimony of the detective. The trial judge obviously placed little weight on his statements. We cannot say the trial court’s judgment was in error on this score.

We therefore affirm the order of the trial court suppressing the identification testimony.

GRIMES, C. J., and SCHEB, J., concur.

OTT, Judge,

dissenting.

The trial court ruled that the photographic identification procedures were impermis-sibly suggestive and therefore tainted both the photographic and in-court identification. I disagree.

The first consideration is the scope or appropriateness of our appellate review. It should go without saying that the appellate court should not substitute its conclusions for those of the trial court upon conflicting evidence or facts. It should be equally clear, however, that the appellate court must look to the evidence to determine whether the existing conflicts are on matters relevant and material and whether there is any competent and substantial evidence to support the conclusion reached by the trial court. The appellate tribunal is not foreclosed from review of the trial court’s determination but is limited to considering whether the evidence (1) is conflicting on matters material to its decision; (2) supports the ruling or result.

It therefore becomes necessary that the evidence or facts of this case be considered in some detail. The facts were presented to the trial court in a pretrial motion to prohibit any identification of this particular defendant (appellee herein) by the elderly victim of an aggravated assault. The ground for the motion was that the initial police identification procedures were imper-missibly suggestive and therefore tainted both the photographic identification and any in-court identification the victim might make.

After being assaulted at about 2:00 a. m. on February 3,1977 the victim was taken to the hospital. After being treated and released he went to the police department at about 10:00 a. m. — or about 8 hours after the assault. At this time, he was given a photo tray which contained approximately 150 photographs.

The investigating officer and the victim were the only two witnesses to testify at the evidentiary hearing conducted about 3V2 months later.

With reference to the photo identification process, the officer testified as follows. The officer started the victim on the tray. About 15 minutes after the victim began looking through that tray, it came to the officer’s attention that the appellee and two others had been arrested about the time of the assault in the vicinity of the assault. The officer testified as follows:

A. The report was brought to my attention that the Defendant and two other subjects had been arrested around the time — downtown in the vicinity of downtown Clearwater. Detective Butler brought it to my attention, and with this we called downstairs to Records and we checked to see if any of these subjects had any kind of record, criminal record, with us, which they did.
We obtained photographs of all three subjects. I would say the time period we are speaking of now is probably 20 or 30 minutes by the time the pictures were printed. The pictures came upstairs to me. Mr. Fox [the victim] was still going through the tray, the first tray of pictures. I would say he had gone through maybe 50 or 60 photographs. It was hard for me to say. He was taking them out and setting them on the desk.
I walked into the room, he had a — I had instructed him since they were in alphabetical order to take them out between index cards, the pictures, and go through them one by one, and instead of getting them out of alphabetical order, and he was going through them.
He laid these pictures on the desk that I had obtained through the Records section and I told him, I said, “When you finish going through those photographs, would you please look at these photographs?”
Q. Those were the three that were in your hand?
THE COURT: Those three?
A. Yes, just those three.
Q. Who was those three?
A. The Defendant there and Carpenter and Thomas.
Q. All right.
A. He looked at the pictures of Carpenter — he looked at the pictures of all three of them. Tentatively at that time he made identification of Carpenter and Thomas. He wasn’t quite sure about the Defendant Sepulvado. I told him, I instructed him to go back, continue going back through the rest of the photographs. In other words, continue to finish the tray of photographs which he was looking at which he did.

The officer also testified that the photo tray contained pictures of white males only.

The victim testified that the photo tray which he had been given contained photographs of both black and white males. Moreover, the victim testified as follows:

Q. . while looking at these photographs, did [the officer] add any photographs, to your knowledge, to the group of photographs?
A. Not to my knowledge.
Q. How did he ask you to look at the photographs?
A. Just told me to go through them.
Q. Did he specifically point out any individual?
A. No, he didn’t. They were all on the desk.
Q. Did he suggest in any way who might have been the person who assaulted you?
A. No, he didn’t.

The victim testified that he put about six photographs aside in the process of looking through the entire photo tray. He stated that he subsequently narrowed the six photographs to three — the defendant and his two codefendants.

The officer testified that on the day of the assault, the victim at first hesitated to identify the older file photo of appellant. [The older file photo showed him with a full beard.] The officer testified as follows with reference to the victim’s identification:

[H]e [the victim] believed that Sepul-vado [the appellee], the picture of him, he believed at that time he had a full beard on the picture, and [the victim] said that if the subject did not have the beard that would be the other subject, the third subject that would have assaulted him.
Q. The third subject who did not have the beard?
A. Right.

On the day of the assault the officer had a new picture made of the appellant following his arrest. When this photo became available it was placed in a photo pack which included pictures of four other individuals. The photo pack was shown to the victim on the day after the assault. The officer testified that the following then occurred:

A. Well, he made positive identification of Sepulvado because of the fact he did not have a beard at the time of the arrest.
In other words, the picture we had obtained through the Records section was several years older, or older, and he did have a full beard.
Q. But the picture he used to identify Mr. Sepulvado did not have a full beard?
A. Right, correct.

At the suppression hearing some 3V2 months later the victim stated:

Q. Now, the three suspects that — subjects that you say attacked you that night, did any of the three or all of the three have beards?
A. All three had beards, yes.
Q. Full beards?
A. Full beards.
Q. You are sure of that?
A. That is right.
Q. Would you describe the visual features of the three individuals you say attacked you?
A. Well, one of them had blond hair, blond beard. The other two were the same sort of beard as he has sitting over there. One was dark bearded, brownish. One was a blond beard and the other was a dark beard, five-eleven, and the other one was about six-two.
Q. All right, now, you mentioned “seated over there,” you referred to the beard?
A. Yes.
Q. Look at that man. Does he have a beard?
A. Except his beard comes up a little bit now.
Q. What do you mean “now”?
A. In other words, before he had a fuller beard.
Q. What?
A. Before his beard was fuller. Now it is trimmed up.

The victim’s testimony with reference to the appellee’s beard is somewhat confusing. In an attempt to understand it, I should note the testimony of the officer with reference to the beard of the appellee:

Q. . did Mr. Sepulvado have facial hair?
A. When?
Q. At the time of the arrest, the time of the assault?
THE COURT: At the time of the arrest.
A. At the time of the arrest I believe he had long sideburns like muttonchops.
THE COURT: Like he has now?
A. Yes.

The victim made no statement to the officer or at the hearing that indicated a poor view of this assailant when assaulted or any doubt as to the certainty of his identification of the appellee as that assailant. Neither can I find, in the victim’s testimony, any indication of impermissibly suggestive identification procedures.

The trial court concluded, however, that the differences between the testimony of the victim and the officer, together with other weaknesses he thought existed in the victim’s testimony, rendered the entire testimony of the victim unworthy of belief. Reasonable men may differ as to the extent of any real conflict and the significance or meaning of such as do exist. The believability or credibility of a witness and the weight to be given certain facts or testimony are normally the exclusive or peculiar function of the jury. If the trial court is saying that such conflicts or weaknesses in the victim’s testimony caused it to disbelieve the victim’s identification then this constitutes an improper invasion of the jury function.

The trial court was led away from the primary consideration of the identification procedures employed to a consideration of vagaries, inconsistencies and conflicts it believed were demonstrated in the victim’s testimony and their bearing on his credibility. Whether or not a jury would choose to disregard the victim’s identification because of any meaningful discrepancies in other areas of his testimony and thereby perhaps conclude the state had not carried its burden of proof — including identification — is an entirely different question from that of whether the procedures employed were im-permissibly suggestive so as to be the likely cause of the victim’s identification of appel-lee.

Assuming that the trial court chose — as it certainly could — to reject the testimony of the victim we must then consider the question of whether the evidence, exclusive of the victim’s testimony, establishes that the identification procedures strongly suggested either a clear danger of misidentification or that the appellee was the assailant.

I am left with the officer’s testimony, then, as the only believable or credible testimony as to the procedures employed or the surrounding facts and circumstances.

In this court’s recent opinion in Baxter v. State, 355 So.2d 1234, 1237 (Fla.2d DCA 1978) we pointed out that “[d]ue process requires that evidence posing ... a high danger of misidentification be withheld from consideration by the jury.” However, we went on to hold:

The degree of danger of misidentification required for exclusion of the evidence is appropriately high so as not to deprive the jury of evidence which is reliable despite the somewhat suggestive procedure and so as to preserve the jury’s function to weigh the evidence. Once threshold reliability is established, the accused may employ the traditional methods for testing the weight which the jury should attach to the evidence. The accused may use cross-examination, impeachment, rebuttal testimony, and closing argument to persuade the jury that the identification was mistaken. 355 So.2d at 1237-38.

Also on point is the statement by the Supreme Court of the United States in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968):

The danger that use of the technique [photo identification] may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error.

In Simmons the following rule was promulgated which is still in effect: “[cjonvic-tions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside . . . only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” [Emphasis supplied.] . 390 U.S. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253.

In Baxter we held:

In order to warrant exclusion of evidence of the identification, the identification procedure must have been so suggestive, and the witness’ unassisted ability to make the identification so weak, that it may reasonably be said that the witness has lost or abandoned his or her mental image of the offender and has adopted the identity suggested. 355 So.2d at 1238.

In Baxter the court went on to consider the totality of the circumstances:

In making this determination of threshold trustworthiness, the trial judge must consider the totality of the circumstances surrounding the extra-judicial identification. These circumstances will include:
(1) The ability of the witness to perceive and preserve a mental image of the offender;
(2) The method of identification employed;
(3) Accompanying conversation or actions;
(4) The positiveness and manner of the witness’ identification;
(5) Whether the witness expressed doubts about the selection or failed to identify the accused. 355 So.2d at 1238.

Neil v. Biggers, supra note 2, also addressed the question “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411. The Court listed the “factors to be considered in evaluating the likelihood of misidentification” as:

(1) The opportunity of the witness to view the criminal at the time of the crime.
(2) The witness’ degree of attention.
(3) The accuracy of the witness’ prior description of the criminal.
(4) The level of certainty demonstrated by the witness at the confrontation.
(5) The length of time between the crime and the confrontation. 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411.

I see nothing in the officer’s testimony as to the procedures employed that casts doubt on the threshold trustworthiness of the victim’s identification of appellee.

I would hold that the identification procedure herein was not impermissibly suggestive according to the rules as promulgated in Simmons and interpreted by this court in Baxter.

Support is also found in other recent decisions of the United States Supreme Court, the lower federal courts and the courts of Florida. A close examination of the facts of these cases and the courts’ application of the Simmons rule to those various factual situations, indicates that the facts in the instant case fall short of demonstrating the “very substantial likelihood of misidentifi-cation” necessary to mandate the court taking the case from the jury.

In four recent cases identification procedures were held to be permissible.

(1) Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). The Court held admissible an in-court identification by a witness who had first observed his assailant in the headlights of a passing car. As in our case, the initial identification was at night. The witness in Coleman testified that he observed his assailant “face to face” and that he “got a real good look at him.”

(2) In Simmons, supra, the Court stated that the circumstances of the case created “little chance that the procedure utilized led to misidentification of Simmons.” 390 U.S. at 385, 88 S.Ct. at 971, 19 L.Ed.2d at 1254. The Court pointed out that the witnesses “were shown the photographs only a day later, while their memories were still fresh.” 390 U.S. at 385, 88 S.Ct. at 972, 19 L.Ed.2d at 1254. In our case, the victim was shown the file photographs and photo tray on the same day as the assault and was shown the photo pack on the day after that.

(3) In Neil, supra, the Court held that even though the show-up procedure utilized was unnecessarily suggestive, there was, under the totality of the circumstances, no substantial likelihood of misidentification. This was so, even though there had been a seven month lapse between the alleged rape and the confrontation. In our case, the identification was made with much greater speed.

(4) In United States v. Allen, 497 F.2d 160 (5th Cir. 1974) the victim — after consuming “eight or ten beers” — was lured into a house by a female where he was hit over the head, and then driven to a remote area where he was stabbed by two males. By his own testimony, the victim’s initial observation of his two assailants whose pictures he later identified was marred by poor lighting conditions. The court upheld the identification notwithstanding the drinking, the blow to the head [received before he viewed his assailants] and the poor lighting conditions. Of course, in the instant case the victim had nothing to drink and was able to view his assailants before being assaulted in any way.

In two other cases identification procedures were held to have violated due process.

(1) In Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) the witness failed to identify the defendant despite a suggestive line-up. At an ensuing show-up the witness could make only a tentative identification. Ultimately, at a second line-up, in which the defendant was the only person who also appeared in the first line-up, the witness was able to muster a definite identification. All of the identifications were held inadmissible, the Court observing that the identification was “all but inevitable” under the circumstances. 394 U.S. at 443, 89 S.Ct. at 1129, 22 L.Ed.2d at 406.

(2) In Hamilton v. State, 303 So.2d 656 (Fla.2d DCA 1974) this court held that a photographic identification of the defendant was impermissibly suggestive and tainted a later in-court identification. In that case, the victim picked appellant’s photo out of a photo pack of five. However, four days later, she expressed doubt and asked to see the photos again. After narrowing the five photos down to two, she selected a picture of the other person. A policeman there present then said that she had selected the right photo the first time and suggested she try again.

In both Foster and Hamilton the facts were so strong (in contrast to the instant case) that there was no question that there was an impermissibly suggestive police procedure which tainted the identification.

I would reverse the order of the trial court suppressing the identification testimony and remand for further proceedings accordingly.

      . In its order granting the motion to suppress the lower court stated:
      [T]he Court being of the opinion that the photographic display procedures were so im-permissibly suggestive as to fatally taint the victim’s identification of the accused despite the victim’s assertion of an independent recollection, the victim’s testimony being extremely suspect in that he denied the suggestive procedures followed and had only a limited opportunity to identify his assailants under difficult circumstances. [Emphasis supplied.]

      . Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401, 410 (1972) added a slight qualification to the rule. The court in Neil stated “while the phrase [“a very substantial likelihood of irreparable misidentification”] was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggested out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself.”

      . In the instant case the victim testified that the area of the assault was lighted “just like daytime.” Moreover, the victim testified at the hearing as follows:
      Q. Did you have an opportunity when you turned around prior to the assault to look at the three individuals who assaulted you?
      A. [The victim] I certainly did.
      Q. Did you get a good look at that time?
      A. [The victim] I sure did.


text:
    Edward Charles GENTER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-533.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 1978.
    Rehearing Denied Sept. 15, 1978.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Affirmed on the authority of G. W. B. v. State, 340 So.2d 969 (Fla. 1st DCA 1976); cert. denied, 348 So.2d 948 (Fla.1977); Magueira v. State, 352 So.2d 587 (Fla. 3d DCA 1977); Fla.R.Crim.P. 3.380(b); Baisden v. State, 203 So.2d 194 (Fla. 4th DCA 1967); Williams v. State, 110 So.2d 654 (Fla.1959); Spencer v. State, 133 So.2d 729 (Fla.1961).


author: HUBBART, Judge.

text:
    Eugene HOLLOWAY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1521.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 1978.
    Rehearing Denied Sept. 14, 1978.

      Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender and Andrew Rosen, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen. and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   HUBBART, Judge.

The central issue presented for review by this appeal is whether it constitutes reversible error in a criminal case, in which the defendant is charged with first degree murder, for the trial court to refuse to instruct the jury, over objection by defense counsel, on the lesser offenses of second degree murder, third degree murder and manslaughter where the statute of limitations has run on all such lesser offenses. We hold that no such reversible error is shown and affirm.

The facts of this case pertinent to the above issue are undisputed. On1 June 2, 1976, the defendant Eugene Holloway and a co-defendant were indicted for the crime of first degree murder before the Circuit Court for the Eleventh Judicial Circuit of Florida. It' was alleged that the murder was committed on November 7, 1972, in Dade County, .Florida. At trial, the evidence sufficiently established that the defendant Holloway in company with his co-defendant committed the murder in question at the above date and place as alleged; the defendant makes no contention to the contrary.

At the conclusion of all the evidence, the trial court held a charge conference and announced that it was not going to instruct the jury on the lesser offenses included within the main charge of first degree murder (i. e. second degree murder, third degree murder and manslaughter) on the ground that the statute of limitations had run on such lesser offenses. Defense counsel specifically objected to this ruling. The trial court thereafter instructed the jury as to first degree murder but not as to any lesser offense.

The defendant was convicted of first degree murder by the jury and was sentenced to life imprisonment. He now appeals and argues that the trial court committed reversible error in refusing to instruct on the above lesser offenses. This is the sole and only error urged as having been committed by the trial court in this cause.

It is the established law of this state, as well as the overwhelming weight of authority throughout the country, that on an indictment for first degree murder, the defendant may not be convicted of any lesser offense (i. e. second degree murder, third degree murder and manslaughter) on which the statute of limitations has run. The trial court is not required to instruct the jury on any such lesser offense. Perry v. State, 103 Fla. 580, 137 So. 798 (1931); Blackmon v. State, 88 Fla. 188, 101 So. 319 (1924); Nelson v. State, 17 Fla. 195 (1879); Chaifetz v. United States, 109 U.S.App.D.C. 349, 288 F.2d 133 (1960); 47 A.L.R.2d Anno. 887, 888 (1956); 1 Wharton’s Criminal Law and Procedure 418-19 (Anderson 1957). Indeed, a statute purporting to authorize a conviction on a lesser offense barred by the statute of limitations has been held invalid. Mitchell v. State, 157 Fla. 121, 25 So.2d 73 (1946).

It is true that Fla.R.Crim.P. 3.490 and 3.510 as interpreted in Brown v. State, 206 So.2d 377 (Fla.1968), impose a mandatory duty on the trial court to instruct the jury upon proper request on all lesser offenses as therein defined when embraced by the main offense for which the defendant is charged. These rules, however, presuppose that the lesser offense involved is a viable crime for which the defendant may be convicted and sentenced. By definition, there can be no lesser offense where the statute of limitations has run thereon because any conviction returned as to such offense would be a nullity. The trial court is not, therefore, required to instruct the jury on any lesser offense which is barred by the statute of limitations. In our view, this is a fair and reasonable construction of the above rules which does no violence to any of the defendant’s rights guaranteed by the state and federal constitutions.

In the instant case, all agree that the applicable two year statute of limitations had run on the lesser offenses of second degree murder, third degree murder and manslaughter; that a conviction on any of these offenses could not be returned against the defendant herein; and that there was no statute of limitations on the crime of first degree murder. § 932.465, Fla.Stat. (1971). As such, the trial court was eminently correct under the law in instructing the jury solely as to first degree murder and in refusing to give any instructions on the above lesser offenses.

Affirmed.

      . “If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all cases charge the jury as to the degrees of the offense.” Fla.R.Crim.P. 3.490.

      . “Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.” Fla.R.Crim.P. 3.510.


text:
    Earl McGOWAN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2193.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 1978.
    Rehearing Denied Oct. 2, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Defendant, Earl McGowan, appeals his conviction and “sentence” for robbery and unlawful possession of a firearm while engaged in a criminal offense.

We find defendant’s first contention concerning the trial court’s failure to instruct on the element of specific intent to be without merit. See Bell v. State, 354 So.2d 1266 (Fla.3d DCA 1978).

McGowan secondly argues that the trial court erred in ordering, pursuant to Section 775.087, Florida Statutes (1975), that he serve a minimum of three years imprisonment prior to being eligible for parole where the evidence adduced at trial established that he was not in actual possession of a firearm during the commission of the robbery with which he was charged.

The trial judge in the instant case withheld imposition of sentence and placed McGowan on ten years probation. As a special condition of probation the judge ordered that McGowan be imprisoned for seven years and further that he not be eligible for parole until he served three years pursuant to Section 775.087, Florida Statutes (1975). The judge also directed that McGowan be eligible for gain time under Sections 944.27, 29, Florida Statutes (1975).

Trial courts of this state have the general authority to require incarceration as a condition of probation for felony offenses pursuant to the general condition provisions of Section 948.03, Florida Statutes (1975). State v. Jones, 327 So.2d 18 (Fla.1976). When incarceration is imposed as a condition of probation, such incarceration constitutes a condition of probation and not a sentence. See State v. Williams, 237 So.2d 69 (Fla.2d DCA 1970 ); See also Fla. R.Crim.P. 3.790(a).

Nevertheless, it appears that the trial judge imposed the condition that McGowan serve three of the seven years incarceration only because of the dictates of Section 775.087, Florida Statutes (1975). To come within the purview of this statute a defendant must have actual, not constructive possession of a firearm. Earnest v. State, 351 So.2d 957 (Fla.1977). The evidence in the record reflects that McGowan’s accomplice and not McGowan was in actual possession of the firearm. Although we affirm the conditions of probation, we remand the cause to the trial court to review the imposition of the three year mandatory incarceration condition in light of the holding in Earnest, supra.

It is so ordered.

      . Cited with approval in State v. Jones, supra.


text:
    Charles McKNIGHT a/k/a Denver Clark and the Peerless Insurance Company, a New Hampshire Corporation, Appellants, v. The STATE of Florida for the Use and Benefit of DADE COUNTY, Appellee.
    No. 77-2236.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 1978.
    Rehearing Denied Sept. 8, 1978.
    Martin S. Saxon, Miami, for appellants.
    Janet Reno, State’s Atty. and John P. Durant, Asst. State’s Atty., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

This is an appeal from an order of the circuit court which denied the defendant’s motion to vacate a final judgment upon forfeiture of defendant’s bond in a criminal proceeding.

The appellants, Charles McKnight, also known as Denver Clark, and Peerless Insurance Company, were the defendants in the circuit court in final judgment proceedings on bond estreature entered by another trial court. The appellee, State of Florida, was the plaintiff in the lower court.

The appellant’s bond was estreated on March 28, 1977. The defendant McKnight was surrendered on April 1, 1977, and a sheriff’s certificate of surrender was filed with the Clerk of the Circuit Court on April 15, 1977. On May 27th, the Clerk of the Circuit Court entered a final judgment on the estreated bond. The trial judge vacated the estreature order on June 15, 1977. On July 8th, the appellants filed their motion to vacate the final judgment. The motion was denied by order of September 28, 1977.

The defendant acted in accordance with Section 903.26(5)(d), Florida Statutes (1977), in the surrender. The Clerk, who received the certificate of surrender prior to the entry of the final judgment, clearly erred in entering the final judgment upon a bond which was in the process of being discharged.

The order appealed is reversed with directions to enter an order discharging the bond.

Reversed.

      . Filed June 1, 1977.

      . Filed September 30, 1977.


text:
    Rubin SANTANA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2552.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 1978.
    Rehearing Denied Sept. 15, 1978.
    Engel, Aronson, Fried & Cohn, Miami and Jan K. Moncol, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gem and Sharon Langer, Legal Intern, for appellee.
    Before ' PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Affirmed without prejudice to file a proceeding pursuant to Fla.R.Crim.P. 3.850.


text:
    The STATE of Florida, Appellant, v. Anthony Luke CAPRIO, Joseph Frank Miranda, Thomas Vincent D’Alessio, and Edward Arthur Betit, Appellees.
    No. 78-180.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 1978.
    Rehearing Denied Sept. 15, 1978.
    Janet Reno, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Engel, Aronson, Fried & Cohn, Philip Carlton, Jr., Miami, Robert J. O’Toole, Fort Lauderdale, for appellees.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

The order of dismissal under review is reversed on the authority of State v. Sobel, 363 So.2d 324 (Fla.1978).

The cause is returned to the trial court for further proceedings not inconsistent with State v. Sobel, supra.

Reversed and remanded, with directions.


author: LETTS, Judge.

text:
    NATIONAL EQUIPMENT RENTAL, LTD., Appellant, v. LITTLE ITALY RESTAURANT & DELICATESSEN, INC., Domenico Armanno and Vincenza Armanno, Appellees.
    No. 77-996.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 25, 1978.

      J. Wesley Howze, Jr., of Nohrr & Nohrr, Melbourne, for appellant.
    Robert T. Burger, Satellite Beach, for appellees.
   LETTS, Judge.

This appeal centers around an attempt by a creditor to establish his foreign judgment in Florida. The attempt was successfully opposed on jurisdictional grounds and a jury verdict rendered in favor of the judgment debtors on their counterclaim sounding in fraud. We reverse the $1,500 award arising out of said counterclaim.

In presenting their claim of fraud, the judgment debtors produced no facts or evidence to show that they had sustained any damages in type or amount. There was no showing that they lost any monies nor that the alleged misrepresentation had any adverse effect upon them whatever. Actual damages and the measure thereof are essential as a matter of law in establishing a claim of fraud. Tampa Union Terminal Co. v. Richards, 108 Fla. 516, 146 So. 591 (1933); Automated Management Systems of Florida, Inc. v. Thomson & McKinnon, Inc., 261 So.2d 531 (Fla. 3rd DCA 1972); Berwick Corp. v. Kleinginna Investment Corp., 143 So.2d 684 (Fla. 3rd DCA 1962).

Accordingly, we must reverse the final judgment on the counterclaim. In all other respects this cause is affirmed.

REVERSED AND REMANDED FOR THE ENTRY OF A JUDGMENT IN ACCORDANCE HEREWITH.

CROSS and MOORE, JJ., concur.


text:
    Donald M. HUBER and Mary Lou Huber, Appellants, v. Lelon WHISENANT, Appellee.
    No. 77-1059.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 25, 1978.
    Jack B. Nichols of Nichols & Tatich, Orlando, for appellants.
    Robert T. Burger, Satellite Beach, and Lawrence V. Johnston of Meadows & Johnston, Cocoa, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS, LETTS and MOORE, JJ., concur.


text:
    OKEECHOBEE COUNTY BANK, Appellant, v. Greg L. GERNAT, a/k/a Gregory L. Gernat, and Rose Marie Gernat Conlon, former wife of Greg L. Gernat, and William L. Gernat, Appellees.
    No. 77-1967.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 19, 1978.
    Tom W. Conely, III, of Conely & Conely, Okeechobee, for appellant.
    No appearance for appellees.
   PER CURIAM.

Affirmed.

CROSS, ANSTEAD and MOORE, JJ., concur.


author: ERVIN, Judge.

text:
    TRUCK DISCOUNT CORPORATION and Allstate Insurance Company, Appellants, v. Shirley A. SERRANO, as Administratrix of the Estate of Ignacio Serrano, Deceased, Appellee.
    No. FF-486.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 19, 1978.

      Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellants.
    Carl D. Dawson of Dawson, Galant, Maddox, Sulik & Nichols, Carle A. Felton, Jr. of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellee.
   ERVIN, Judge.

This appeal concerns the question of which insurer bears the burden of indemnity following a settlement by the insurers of three party defendants to the tort claimant’s estate in a wrongful death action.

Ignacio Serrano died when his vehicle was struck by a tractor owned by appellant, Truck Discount Corporation. The tractor had been leased by Truck Discount to Davis Transport and Rental. The tractor in turn was sub-leased by Davis to Lone Star Holding Company, the employer of the driver who was involved in the accident with Serrano. The parties settled the wrongful death action for $250,000. All three insurers provided their insureds with primary maximum coverage of $100,000 per person. Under the agreement, Allstate, Truck Discount Corporation’s insurer, paid $50,000; Continental Insurance, Davis Transport and Rental’s insurer, paid $100,000, and Hartford, Lone Star’s insurer, paid $100,000. Continental Casualty Company, the excess carrier for Davis, made no contribution. It was agreed among the parties that a future judicial determination of the liability among the insurers would be made.

In its final judgment the trial court concluded that Allstate had primary coverage with limits of $100,000 but paid only $50,000 toward the agreed settlement of $250,000; that Continental Insurance Company properly paid its limits of $100,000; that Hartford was a basic insurer following the coverages of Allstate and Continental Insurance Company with limits of $100,000 and it paid its limits of $100,000 toward the agreed settlement; that Continental Casualty Company, the excess carrier of Davis, had excess coverage to the primary coverages of Allstate, Continental Insurance and Hartford, whose combined primary limits totaled $300,000. It concluded that the primary limits of the three insurers were not exceeded; therefore, Continental Casualty Company’s excess coverage was not involved. Hartford was allowed to recover $50,000 from Allstate, which appeals.

The Florida dangerous instrumentality doctrine places primary liability upon the owner for damages caused as a result of negligence in the use of the instrumentality. The owner, however, is normally entitled to indemnity from his permittee. His right of indemnity is subject to the exception that if the owner leases a vehicle to another, and the lease provides that insurance will be furnished to the lessee, the lessor will be denied indemnity. Morse Auto Rentals, Inc. v. Lewis, 161 So.2d 235 (Fla. 3d DCA 1964); Bordettsky v. Hertz Corporation, 171 So.2d 174 (Fla. 2d DCA 1965); Morse Auto Rentals, Inc. v. Papandrea, 180 So.2d 351 (Fla. 3d DCA 1965). In the instant case the lease agreement between Truck Discount and Davis specifically provided that Davis would maintain at its own expense an insurance policy providing primary coverage of $100,000 per vehicle per person. Davis obtained such insurance through Continental Insurance Company. The lease also stated, “lessee agrees to indemnify and save harmless the lessor from and against all claims, demands, liability and expenses whatsoever . . . for which lessor is not fully reimbursed and protected by the insurance provided for in the section of the lease.” Davis’ excess insurance limits with Continental Casualty were $5,000,000.

We find nothing in the insurance policy of Continental Casualty which precludes Continental Casualty from indemnifying Allstate. Coverage “A” of Continental Casualty’s policy provides in part:

Coverage A — Excess Liability Insurance. The company will indemnify the insured for loss in excess of the total applicable limits of liability of underlying insurance stated in the schedule. The provisions of the immediate underlying policy are, with respect to Coverage A, incorporated as a part of this policy except for any obligation to investigate and defend and pay for costs and expenses incident to any of the same, the amounts and the limits of liability, an “other insurance” provision and any other provisions which are inconsistent with this policy. (Emphasis supplied)

The provisions of the underlying policy were of course those of Truck Discount’s primary insurer, Continental Insurance Company. The underlying policy specifically obligated the insurer to pay on behalf of the insured “all sums which the insured, by reason of contractual liability, shall become legally obligated to pay because of bodily injury. . . .” Coverage “A” of Davis’ policy with its excess carrier adopted the provisions of the underlying policy which had obligated it to pay all sums that the insured, by reason of contractual liability, assumed. Continental Casualty argues, however, there is language under a separate section, coverage “B”, which excludes Allstate’s claim for indemnity since it in effect requires that all primary insurance be exhausted before the excess coverage is activated. We do not believe the exclusionary language under coverage “B” has any applicability to Allstate’s claim. Coverage “B” applies where either the occurrence or damages are “not covered by underlying insurance”. Since both the occurrence and damages were covered by Truck Discount’s primary insurer, Continental Insurance Co., coverage “B” cannot act as a bar to Allstate’s claim.

Neither do we believe the case law in Florida precludes Allstate from indemnification. Hartford argues that the owner’s insurer may not be indemnified because (1) the owner was primarily responsible for injury to a third person, citing Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947); Leonard v. Susco Car Rental System of Florida, 103 So.2d 243 (Fla. 3d DCA 1958); Spurgeon v. State Farm Mutual Insurance Company, 169 So.2d 343 (Fla. 1st DCA 1964); Hartford Accident and Indemnity Co., Inc. v. Liberty Mutual Insurance Co., 277 So.2d 775, 777 (Fla. 1973), and (2) an owner’s insurer is not entitled to indemnity from its insured for payment made to an injured third person as a result of the negligence of its insured. Morse Auto Rentals, Inc. v. Lewis, 161 So.2d 235 (Fla. 3d DCA 1964); Ray v. Earl, 277 So.2d 73, 76 (Fla. 2d DCA 1973). None of the cases relied upon by Hartford involved lease agreements in which the lessee agreed to maintain at its own expense liability insurance policies and to indemnify the lessor against all claims.

While there is language in Roth v. Old Republic Insurance Co., 269 So.2d 3 (Fla. 1972), which suggests that the owner may not be indemnified by its lessee or the lessee’s permittee because the owner has ultimate primary liability, we believe, as later opinions have held, Ins. Co. of North America v. Avis Rent-A-Car, 348 So.2d 1149 (Fla. 1977) and National Indemnity Company v. The Home Insurance Company, 345 So.2d 1077 (Fla. 3d DCA 1977), that Roth should be limited to its facts. In Roth, the Supreme Court denied indemnity to the owner’s insurer from the lessee’s permittee who had caused the accident. The rental contract had provided that the automobile could not be operated by anyone other than the lessee without the written consent of the owner. The lessee, however, permitted Roth to drive. The lessor’s insurer contended that the insurance which it provided to the owner and persons using the car with the owner’s permission did not extend to one who was driving without such permission. The Supreme Court rejected the insurer’s claim, holding that since the lessee had paid for the insurance, the lessee’s protection for which the lessee had paid a premium necessarily inured to the permit-tee and that any contractual provision precluding coverage to anyone other than the lessee without the express consent of the owner was contrary to public policy.

As the court observed in National Indemn. Co. v. Home Ins. Co., supra, the facts in Roth were distinguishable from those before it (as well as here) in two respects: First, the lease agreement provided that the lessee was to indemnify and hold harmless the lessor from losses arising from use of the vehicle. Second, the lessee was required to procure her own insurance, independent of any insurance the lessor was forced to procure. Here, Allstate’s claim for indemnity from its lessee’s excess carrier is not barred because Lone Star was an insured under the owner’s insurance with Allstate. Here, as in Ins. Co. of North America v. Avis Rent-A-Car, supra, multiple layers of insurance were available to the injured party. No concept of public policy is violated by the parties’ agreement as to which one should bear the loss. The primary limits of coverage provided by the three insurers were sufficient to meet the tort claimant’s demands. So long as such coverage was sufficient, “[t]he parties were free to contract between themselves to shift the burden of loss . . ..” Id. at 1154. We recently held in another case involving a similar question of indemnity that parties were at liberty to so contract. Hertz Corp. v. Pugh, 354 So.2d 966 (Fla. 1st DCA 1978).

It is of course true in Avis the court allowed the lessor’s insurer to pursue indemnification from the lessee’s insurer only after Avis’ primary coverage per person was exhausted. The same result does not apply here because in Avis the lessor’s carrier was required by the rental agreement to provide primary coverage of $100,000 per person for which the lessee paid a premium. Here, as in National Indem. Co. v. Home Ins. Co., supra, the lessee was required to procure its own insurance. Allstate as a consequence is entitled to be indemnified from Continental Casualty Company for all sums-it paid toward the agreed settlement of $250,000 to the tort claimant.

The judgment is reversed and remanded to the trial court with directions that the judgment against Allstate be vacated and that judgment be entered against Continental Casualty Company as the primary excess carrier.

REVERSED AND REMANDED.

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

      . Allstate’s policy, in describing “persons insured,” includes persons using an automobile with the permission of the named insured, provided his use is within the scope of the named insured’s permission.


text:
    Kathryn F. SUMNER f/k/a Kathryn F. Tart, Appellant, v. Joe Frank TART, Appellee.
    No. II-44.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 19, 1978.
    Charles Ruse, Jr., Ocala, for appellant.
    Robert L. Appleget, Jr., of Black, Landt & Appleget, Ocala, for appellee.
   PER CURIAM.

Wife appeals an order modifying a final judgment of dissolution. She claims first that the trial court abused its discretion in awarding her only a $25 per month child support increase. While we may have awarded more had we been sitting in the trial court’s position, we cannot say on this record that the trial court abused its discretion in the amount awarded. We do find merit' in wife’s second and third points, however. She validly contests the part of the modification order in which the trial court awarded the federal income tax deduction for the child to the husband. We agree with the court in Lang v. Lang, 252 So.2d 809 (Fla. 4th DCA 1971), that federal tax matters must be resolved according to the Internal Revenue Code and Regulations, not the provisions of a state court order modifying a final judgment of dissolution. That part of the order granting husband the income tax deduction for the parties’ child will therefore be stricken from the judgment.

Finally, wife contends that the court erred in denying her attorney’s fees for the modification proceeding. We agree. The record reveals that husband currently has an income while wife does not. Neither party has substantial assets. We think the proof is ample to show her need and his ability to pay the fees.

The judgment is therefore affirmed in part and reversed in part, and the case remanded for the entry of an order not inconsistent with the above opinion.

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


author: MELVIN, Judge.

text:
    Daniel FERRI, as Personal Representative of the Estates of Helen Ferri and Anthony J. Ferri, Sr., Appellant, v. CITY OF GAINESVILLE, a Municipal Corporation, Royal Globe Insurance Company, a Foreign Corporation, et al., Appellees.
    Nos. II-226 to II-231.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 25, 1978.
    Thomas W. Davis of Barton & Cox, Gainesville, for appellant.
    Joe C. Willcox, John R. McDonough, Orlando, Milton Baxley, II, Gainesville, Stanley Moore and Alan E. DeSerio, Tallahassee, for appellees.
   MELVIN, Judge.

Anthony J. Ferri, Sr. and Helen Ferri were killed at a highway intersection when a truck collided with the car in which they were riding. The accident occurred in Ala-chua County near the City of Gainesville. By agreement the City had assumed responsibility for maintenance of the traffic light at the intersection.

The personal representative of the Ferris’ estates filed six suits, and now appeal from the orders that granted motions to dismiss with prejudice as to each defendant. The suit against the City of Gainesville was dismissed for failure of the plaintiff to state a cause of actionable negligence. The suit against Alachua County was dismissed for failing to state a cause of action for actionable negligence and the Department of Transportation was dismissed on the ground that residual sovereign immunity had not, by statute, been waived.

It is not necessary that we deal with the doctrine of sovereign immunity. Each complaint falls for failure to state a claim against the named defendant for actionable negligence.

The traffic intersection where the accident occurred had been controlled by a traffic light that for a number of seconds reflected a red, then a yellow, and then a green light. The traffic light became inoperative and the City of Gainesville undertook to repair the same. During the repair period, a decision was made to set the traffic light to flash a continuous red light in the direction being approached by the victims’ automobile, and a flashing yellow light in the direction the truck was approaching. The victims in this accident approached the intersection, and came to a complete stop. Then, for some reason not reflected here, they proceeded into the intersection and in front of the truck.

The traffic signals had obviously served their purpose. They were sufficient to warn and to cause the person driving the Ferri automobile to come to a complete stop. Therefore, it may not be said that either defendant violated a duty to warn the victims of a dangerous intersection. A person does not have the right to require the city, county or the state to maintain any particular type of traffic light at a given time or place. See Commercial Carrier Corp. v. Indian River Cty., 342 So.2d 1047 (Fla. 3d DCA 1977), and Section 316.133, Florida Statutes (1975).

Each final judgment appealed from is AFFIRMED.

BOOTH, J., concurs.

SMITH, Acting C. J., dissents, without opinion.


author: SMITH, Acting Chief Judge.

text:
    CAPELETTI BROTHERS, INC., Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. KK-195.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 13, 1978.

      R. Earl Welbaum of Welbaum, Zook, Jones & Williams, Miami, and Kenneth G. Oertel of Truett & Oertel, P. A., Tallahassee, for appellant.
    Alan E. DeSerio, John J. Rimes, III, and H. Reynolds Sampson, Tallahassee, for ap-pellee.
   SMITH, Acting Chief Judge.

Again an agency of the state has entered an order purporting to affect the substantial rights of a party without complying with Section 120.57, Florida Statutes (1977). See General Development Corp. v. Div. of State Planning, 353 So.2d 1199, 1209 (Fla. 1st DCA 1978). Again it is the Department of Transportation. See Couch Construction Co., Inc. v. Department of Transportation, 361 So.2d 172 (No. II 314), 361 So.2d 184 (No. KK-100) (Fla. 1st DCA 1978). Again we reverse.

Capeletti, holder of a DOT certificate of qualification to bid on construction work to be let by DOT, was served March 29, 1978, with a DOT preliminary notice of delinquency on a prior , state job. On May 5, following a response by Capeletti, DOT sent a telegram and letter advising that Capelet-ti’s certificate was suspended for delinquency. On June 16, following other correspondence from Capeletti, DOT wrote another letter refusing to lift the suspension and refusing to stay the effect of its action pending a Section 120.57(1) hearing on the disputed fact of delinquency. DOT’s action thus purports to disqualify Capeletti to bid on other DOT jobs during the indefinite' period of the suspension.

Section 337.16, Florida Statutes (1977), provides:

(1) No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked.
(2) The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification.
(3) Any person found delinquent on a contract or whose certificate is revoked or suspended shall be given the same benefit of hearing as provided in the case of a person refused an original certificate.

Proceedings under Section 337.16 for revocation of a contractor’s certificate of qualification are in effect license revocation proceedings cognizable under Sections 120.52(7) and 120.60. Any inconsistent DOT procedures under Sections 337.15 — .16, or under rules implementing those statutes, are replaced by Section 120.60, providing in part:

(1) Unless otherwise provided by statute enacted subsequent to the effective date of this act, licensing is subject to the provisions of s. 120.57.

Section 120.57 and Section 120.59 contemplate entry of an order of certain characteristics upon completion of Section 120.57(1) or (2) proceedings. Those statutes were not satisfied by DOT’s sundry letters advising Capeletti of its intended action and of its decision to suspend Capeletti’s certificate of qualification. DOT does not plausibly contend that its correspondence satisfied the procedural requirements of Chapter 120. DOT urges instead that, under its rules, Section 120.57 proceedings are in the nature of an appeal from its decision reached in the free-form proceedings characterized by its exchange of correspondence with Cape-letti. More particularly, DOT urges that its decision to suspend Capeletti’s certificate is immediately effective, although Section 120.57 proceedings are now in progress, unless Capeletti posts a $216,000 bond to pay delay damages on pending contract awards. That argument is unfounded. In license revocation proceedings, as in other proceedings affecting a party’s substantial interests, an adverse determination of a party’s substantial interests is ineffective until an order has properly been entered pursuant to Section 120.59, after proceedings under Section 120.57. The only exception to that rule in license revocation proceedings is for prevention of “immediate serious danger to the public health, safety, or welfare.” Section 120.60(6). DOT does not contend that such an emergency exists.

DOT’s Rule 14-23.01(4)(a), Fla.Admin. Code, provides that, following a preliminary and final notice of delinquency, the affected contractor may “appeal” and have a hearing under Section 120.57(1) or (2). That rule provides:

(a) Appeals. Substantially affected parties have the right to request a hearing under 120.57 FS.

DOT thus chooses to “plow the same ground twice,” once in free-form proceedings here characterized by summary correspondence, and again by Section 120.57(1) or (2) proceedings. An agency may find it convenient to integrate the two processes, see McDonald v. Department of Banking and Finance, 346 So.2d 569, 578 n. 5 (Fla. 1st DCA 1977), but that is not required. “Free-form” proceedings are nothing more than the necessary or convenient procedures, unknown to the APA, by which an agency transacts its day-to-day business. See H. Levinson, Elements of the Administrative Process, 26 Amer.L.Rev. 872, 880, 926 et seq. (1977). Without summary letters, telephone calls, and other conventional communications, the wheels of government would surely grind to a halt. The vast majority of an agency’s free-form decisions become conclusive because they are not challenged in Section 120.57(1) or (2) proceedings. Yet the agency’s rules must clearly signal when the agency’s free-form decisional process is completed or at a point when it is appropriate for an affected party to request formal proceedings, if authorized, or to accept his statutory opportunity for informally structured proceedings under Section 120.57(2). In other words, an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57. Uncertainty in an agency’s rules and practices on this point usually results, as is shown by our experience in the past several months, in a petition for review followed by an agency motion to dismiss on the alternative grounds that the agency has not yet taken final action or that, if it has done so, the request for Section 120.57 proceedings and the review petition are too late. We have usually resolved such confusion in favor of the affected party.

Without agency rules of procedure which are decisive on the question of the timeliness of a request for Section 120.57 proceedings, we are left with the problematic task of ascertaining from the record whether the affected party clearly waived Section 120.57 benefits following free-form agency action. Absent waiver, we must regard an agency’s free-form action as only preliminary irrespective of its tenor. E. g., Couch Construction Co. v. Department of Transportation, No. II-314, supra. We find no such waiver on this record. Until proceedings are had satisfying Section 120.57, or an opportunity for them is clearly offered and waived, DOT is powerless to suspend Capeletti’s certificate of qualification. General Development Corp. v. Division of State Planning, 353 So.2d 1199 (Fla. 1st DCA 1978); Harris v. Florida Real Est. Comm’n, 358 So.2d 1123, 1125 (Fla. 1st DCA 1978); J. A. Jones Constr. Co. v. Department of General Services, 356 So.2d 863 (Fla. 1st DCA 1978). DOT is likewise impotent to condition Capeletti’s bidding privileges, pending completion of Section 120.57 proceedings, on posting of a bond.

DOT’s action is REVERSED. Because we consider that DOT had prior notice of Chapter 120 requirements, Capeletti’s motion for costs and attorney’s fees is GRANTED. Section 120.57(l)(b) 9. Costs are assessed at $50 and attorney’s fees at $1500.

MELVIN and BOOTH, JJ., concur.

      . Professor Levinson writes: “ ‘Free-form’ proceedings are not subject to legal requirements with regard to any of the procedural elements, although legal requirements may exist with regard to nonprocedural elements. In free-form proceedings the agency is therefore at liberty to adopt any procedure it wishes, or no procedure at all.” 26 Amer.L.Rev. 872, 880 (1977).


text:
    Elliot W. BUTTS, Jr., Appellant, v. Louise A. BUTTS, Appellee.
    No. II-145.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1978.
    Rehearing Denied Sept. 13, 1978.
    Albert Datz, of Datz, Jacobson & Lembcke, Jacksonville, for appellant.
    Walter G. Arnold and Charles W. Arnold, Jr., of Arnold, Stratford & Booth, Jacksonville, for appellee.
   PER CURIAM.

Husband appeals a $10,000 attorney’s fee award to wife in a dissolution judgment. We agree that the award was erroneous and reverse. Although there are conflicting estimates of the parties’ respective net worths, the record reveals that both parties have substantial assets. This court has held consistently that when a party has been shown to have the ability to pay for the services of his or her attorney, it is improper to require the other party to pay for those services, even though he or she may have the ability. See Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977); Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977); Canakaris v. Canakaris, 356 So.2d 858 (Fla. 1st DCA 1978). The pre-“no-fault” case of Valparaiso Bank & Trust Co. v. Sims, 343 So.2d 967 (Fla. 1st DCA 1977), is distinguishable in that wife there was, as noted by the court, not shown to have the ability to pay a lawyer at the time of the divorce or at the time of the fee hearing.

The award of attorney’s fees is reversed.

MILLS and ERVIN, JJ., concur.

McCORD, C. J., dissents.


text:
    Klaus Robert SCHAEPER, an incompetent minor, by and through his father and next friend, Herbert Schaeper, Herbert Schaeper, Individually, and Arcadia B. Schaeper, Appellants, v. J. M. FIELDS, INC., a Foreign Corporation, Appellee.
    No. JJ-17.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1978.
    Rehearing Denied Sept. 14, 1978.
    Robert 0. Stripling, Jr., of Avera & Stripling, Gainesville, for appellant.
    Dennis Comfort of Jones & Langdon, Gainesville, for appellee.
   PER CURIAM.

Appellants appeal a jury verdict in favor of appellee on false arrest, malicious prosecution, and compensatory damage counts. The action arose out of an episode at a J. M. Fields store at which appellant Klaus Schaeper, a 14-year-old Mongoloid child with the mental age of a four-year-old and the appearance of a 10-year-old, was seen by the store security guard taking a toy comb out of its package and putting it into his pocket. After making this observation, the security guard approached the boy, asked him where his parents were, and then, not receiving an answer, took the boy’s hand and walked toward the store intercom. Klaus’ mother then came up, and the security guard told her what he had seen. Subsequently, the guard, Klaus, and his mother proceeded to a back room, where Mrs. Schaeper removed the comb from Klaus’ pocket and returned it to the guard. The guard then asked her to sign a release form which insulated Fields from civil liability ,for the incident and further stated that there had been “reasonable and probable grounds for the apprehension and detention.” Mrs. Schaeper refused to sign the admission and asked to call her husband. She did so. Mr. Schaeper advised her not to sign the form and stated that he would come to the store. He then spoke to the security guard, who testified that Schaeper was abusive, threatening to sue Fields over the incident. The security guard then called the Gainesville police because, according to his testimony, “I needed something legal to protect me to show that I had not held her.” The police officer arrived at the store at approximately the same time as Mr. Schaeper and stated in his testimony that Schaeper was threatening suit against Fields and threatening to “have” the security guard’s and policeman’s jobs. Schaeper then read the release form and asked to call an attorney. He was permitted to call several attorneys but could not contact one.

The Schaepers testified that both the security guard and the police officer encouraged them to sign the release and threatened that unless they did so, Klaus would have to be taken to the juvenile detention center. They continued in their refusal, however, and the officer filled out a juvenile complaint form charging Klaus with shoplifting and releasing him to his parents’ custody.

Subsequently, the juvenile intake counselor assigned to the case interviewed the Schaepers and upon learning of Klaus’ retardation, recommended that the case not be prosecuted further. That report was forwarded to the State Attorney’s office for investigation, and the charges were dropped. The Schaepers’ suit against Fields followed.

At the trial, the Assistant State Attorney who investigated the case stated that he had dropped the prosecution because he believed no useful function would be served by taking the child to juvenile court. In addition, however, he was then permitted to testify, over the objection of appellants’ counsel, that he had concluded that Fields’ security guard had had “sufficient probable cause to stop the young man involved.”

Appellants’ first point on appeal is that the trial court erred in permitting the Assistant State Attorney to testify that probable cause existed for the detention and prosecution of Klaus for shoplifting. They argue essentially that since it is the function of a jury to determine whether or not a merchant has probable cause to detain a suspected shoplifter under § 901.34(1), Jefferson Stores v. Caudell, 228 So.2d 99 (Fla. 3 DCA 1969), and since the question of probable cause in a malicious prosecution case is for the determination of the jury, Oosterhoudt v. Montgomery Ward & Co., Inc., 316 So.2d 582 (Fla. 1 DCA 1975), the assistant state attorney’s testimony regarding probable cause invaded the province of the jury on both the false arrest and the malicious prosecution counts. We agree. The testimony of the assistant state attorney here told the jury that the legal officer charged by the state with enforcing the law had investigated the facts and reached the conclusion that the J. M. Fields employee had had probable cause for its actions with regard to the Schaeper incident. The prejudicial effect of this testimony is incalculable, and the case must be reversed on this account. As we indicated in Oosterhoudt, supra, we believe that the jury must be allowed to draw its own conclusions in determining the crucial question of probable cause in malicious prosecution actions. We think that policy was offended by the introduction of the testimony here.

Recently, however, in Owens v. City of Pensacola, 355 So.2d 1266 (Fla. 1 DCA 1978), this Court certified the question of whether probable cause is an issue to be resolved by the jury to the Supreme Court of Florida. We think that the proper procedure to be followed on the remand of this case must be determined by how the law stands at the time of the retrial. If our Oosterhoudt holding is still valid, the issue of probable cause must be retried by a jury. If the Supreme Court decides before the trial that the issue of probable cause can be determined by the trial court as a matter of law, it appears to us that there being no material questions of fact here, the court could make that determination in this case. Appellants’ other points, claiming that the court erred in denying their motion for a new trial because the verdict was contrary to the manifest weight of the evidence and claiming error in the court’s refusal to givé a requested instruction on malicious prosecution, are without merit.

The judgment is reversed and the case remanded for proceedings consistent with this opinion.

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