author: MOORE, Judge.

text:
    Melissa E. CRISLIP, Appellant, v. James G. HOLLAND, City of Fort Pierce, and Florida Utilities Contractors, Inc., Appellees.
    No. 78-2788.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.

      Larry Klein, and Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellees, City of Fort Pierce.
   MOORE, Judge.

The plaintiff appeals a final summary judgment entered in a suit for damages arising out of an automobile accident. We reverse.

The plaintiff, Melissa Crislip, was a passenger in a van driven by one of the defendants, James Holland. Holland was driving west on Avenue M in Fort Pierce when he allegedly ran a stop sign and collided with another automobile. The van flipped on its side and landed next to a utility pole located at the southwest corner of the intersection of 21st Street and Avenue M. The pole was 10 feet 4 inches from the nearest edge of 21st Street and 14 feet 5 inches from the nearest edge of Avenue M. Crislip was thrown from the van and eventually landed against the utility pole. She was pinned between the pole and the van, and her leg was impaled on a metal spike protruding from the pole 18 inches from the ground.

Crislip sued Holland, the City of Fort Pierce and another defendant who is not a party to this appeal. Her complaint alleged that Holland negligently collided with another motor vehicle which resulted in her becoming pinned between Holland’s motor vehicle and the utility pole, and her impalement on the spike located in that pole. She further alleged that the City of Fort Pierce placed the spike in the pole, negligently creating an unreasonable risk of injury to her.

The City of Fort Pierce moved for a summary judgment on the ground that Crislip’s injury resulted from an independent, efficient cause which superseded the alleged negligent act or omission of the City. The deposition testimony submitted at the summary judgment hearing revealed that the City had placed the spike in the utility pole as a benchmark for surveying purposes. The City also admitted that the spike created somewhat of a safety hazard to passersby. The trial court granted the motion and the plaintiff appealed.

The reasonableness of the City’s action in placing the benchmark spike in the utility pole is not at issue on this appeal. The trial court did not find, nor can the City claim, that there was an absence of a genuine factual issue regarding the reasonableness of the City’s conduct. The sole question presented on this appeal is whether the injuries sustained by the plaintiff were a foreseeable consequence of the purportedly negligent acts of the defendant city. If the plaintiff’s injuries were not a foreseeable consequence of the City’s conduct, then the City cannot be held liable for such injuries, irrespective of its own possible carelessness in placing the spike on the pole. On the other hand, if such injuries were foreseeable, then the City is liable for the injuries sustained by the plaintiff as a result of her impalement on the spike, even though the City’s negligence might be considered slight in comparison to Holland’s alleged erratic driving.

In order for injuries to be a foreseeable consequence of a negligent act, it is not necessary that the initial tortfeasor be able to foresee the exact nature and extent of the injuries or the precise manner in which the injuries occur. Rather, all that is necessary in order for liability to arise is that the tortfeasor be able to foresee that some injury will likely result in some manner as a consequence of his negligent acts. Leib v. City of Tampa, 326 So.2d 52 (Fla. 2nd DCA 1976); Broome v. Budget Rent-A-Car of Jax, Inc., 182 So.2d 26 (Fla. 1st DCA 1966); Railway Express Agency v. Brabham, 62 So.2d 713 (Fla.1952); 57 Am.Jur.2d, Negligence, § 157, pages 518-519. See also, Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433 (1913).

An action for negligence is predicated upon the existence of a legal duty owed by the defendant to protect the plaintiff from an unreasonable risk of harm. The extent of the defendant’s duty is circumscribed by the scope of the anticipated risks to which the defendant exposes others. In order to prevail in a lawsuit, the plaintiff must demonstrate that he is within the zone of risks that are reasonably foreseeable by the defendant. The liability of the tort-feasor does not depend upon whether his negligent acts were the direct cause of the plaintiff’s injuries, as long as the injuries incurred were the reasonably foreseeable consequences of the tortfeasor’s conduct. Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3rd DCA 1976). If the harm that occurs is within the scope of danger created by the defendant’s negligent conduct, then such harm is a reasonably foreseeable consequence of the negligence. The question of foreseeability and whether an intervening cause is foreseeable is for the trier of fact. Gibson v. Avis Rent-A-Car System, 386 So.2d 520 (Fla.1980).

Applying the foregoing authority to the facts in this ease, it is abundantly clear that the trial court erred in ruling that, as a matter of law, the defendant City was relieved of liability by the intervening negligence of Holland. We find that the plaintiff’s injuries were of the type that the City could reasonably anticipate would flow from its actions in placing the spike on the utility pole. The City recognized that members of the public passing by in close proximity to the pole would be exposed to a risk of danger. The crux of the City’s argument is that, because the injuries were sustained by a plaintiff who arrived upon the spike by being hurtled there as a result of an automobile crash, rather than by a plaintiff who was merely passing by the utility pole, the accidental injuries were unforeseeable. This contention is unavailing, however, since the particular method of injury is irrelevant to the determination of the whether the occurrence of injuries is reasonably foreseeable. Broome, supra. The City, through the exercise of reasonable foresight, might have reasonably anticipated that some person would come in dangerous contact with the spike in some manner. Moreover, the question of the extent of the City’s responsibility to anticipate the consequences of its acts was the province of the trier of fact and should not have been summarily resolved in favor of either party. Gibson, supra.

The City also posits the definition of foreseeability as set forth in the landmark case of Palsgraff v. Long Island Railway Company, 248 N.Y. 339, 162 N.E. 99 (N.Y.Ct. of App.1928) as controlling in the instant case. In Palsgraff, a passenger was running in an attempt to catch one of the defendant’s trains. Two of the defendant’s railway guards, while assisting the passenger, dislodged a package from the passenger’s arms, causing it to fall upon the rails. The package contained fireworks, which exploded and created a concussion that ultimately dislodged some scales at the other end of the loading platform. The scales fell and struck the plaintiff, causing her injuries. The plaintiff sued and gained a verdict in her favor, which was affirmed. The Court of Appeals of New York reversed, however, holding that the defendant was not liable because it had not been negligent in regard to the plaintiff. The Court opined that negligence is founded upon the defendant’s acts which expose the plaintiff to a foreseeable risk of harm, stating:

The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. [citations omitted, emphasis supplied]. Id., 162 N.E. at 100.

The Court determined that the plaintiff’s injuries were not a foreseeable consequence of the acts performed by the defendant’s employees, and that the injuries were therefore not actionable. Nonetheless, the Court also stated:

This does not mean, of course, that one who launches a destructive force is always relieved of liability, if the force, though known to be destructive, pursues an unexpected path. It was not necessary that the defendant should have notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye. [emphasis supplied; citations omitted]. Id., 162 N.E. at 100.

This quoted portion of the Palsgraff opinion is apropos to the circumstances of the instant controversy. Here, we have the City “launching a destructive force” by affixing the spike onto its utility pole. Additionally, although the City might not have foreseen the precise manner of the plaintiff’s injuries, the possibility of an accident occurring in some fashion similar to that which occasioned the plaintiff’s injuries was obvious to the “ordinarily prudent eye”. Hence, we find nothing in the “Palsgraff test of foreseeability” to be repugnant to the outcome of this case.

Inasmuch as the City should have known, through the exercise of ordinarily reasonable foresight, that the implanting of its benchmark spike created an unreasonable risk of danger to others, the injuries sustained by the plaintiff were within the zone of foreseeable consequences of the City’s actions. As such, the trial court erred in granting a summary judgment in favor of the defendant City.

REVERSED.

DOWNEY and ANSTEAD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Randy HART, Appellant, v. STATE of Florida, Appellee.
    No. 80-775.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Rehearing Denied Aug. 26, 1981.
    Richard L. Jorandby, Public Defender, and Charles Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Though the evidence of appellant’s guilt is overwhelming, we are nonetheless compelled to reverse and remand for new trial on the authority of Tascano v. State, 393 So.2d 540 (Fla.1980).

Reversed and remanded.

BERANEK, HERSEY and HURLEY, JJ., concur.


author: PER CURIAM. BERANEK, Judge,

text:
    Anthony E. TESTA, Appellant, v. STATE of Florida, Appellee.
    No. 80-916.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Rehearing Denied Aug. 12, 1981.
    J. David Bogenschutz of Varón & Stahl, P.A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS, C. J., and MOORE, J., concur.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. I believe the evidence was insufficient to sustain the crime charged and would therefore reverse the defendant’s larceny conviction.


text:
    Thomas Earl MURRAY and Alvin Everett Henley, Appellants, v. STATE of Florida, Appellee.
    No. YY-290 & YY-291.
    District Court of Appeal of Florida, First District.
    June 22, 1981.
    Rehearing Denied Aug. 26, 1981.

      Larry G. Turner and Thomas W. Kurrus, Gainesville, for appellant Thomas Earl Murray.
    Jeffrey L. Meldon and Charles G. Brac-kins, Gainesville, for appellant Alvin Everett Henley.
    Jim Smith, Atty. Gen., and Gregory Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   LILES, WOODIE A. (Retired), Associate Judge.

While it is true we live in an age of great mobility in all phases of life, and even though the State of Florida is in close proximity to the main source of the illegal sale and use of marijuana and other contraband, the times and activity still do not warrant the suspension of the right against illegal searches and seizures contained in the Fourth and Fourteenth Amendments to the U. S. Constitution and Article I, Section 12, of the Florida Constitution, even if we had the authority to do so. However, it does require that we re-examine and redefine reasonableness as it pertains to warrantless searches and seizures.

Defendants Henley and Murray pled nolo contendere in the trial court and reserved the right to appeal the denial of their motions to suppress the contraband which was the basis of the charges against them. They maintain that the State’s seizure of the marijuana was constitutionally impermissible and that the statute under which they were charged in Count I of the information, Section, 893.135, Florida Statutes, violated their federal and state constitutional rights. They also maintained that they had standing to contest the denial of their motions to quash the search.

Henley and Murray entered into an agreement with a confidential informant to supply him a large amount of marijuana. The agreement was made in Pensacola, Es-cambia County, Florida. However, the marijuana was to be delivered to the confidential informant in Gainesville, Florida. The informant was to furnish rental cars to be turned over to the defendants at the Holiday Inn West in Gainesville. Pursuant to the agreement, they proceeded to Gaines-ville where the informant had leased a Pontiac and a Cougar XR-7 automobile on a police charge card. Upon receiving the vehicles, the informant, proposed purchaser of the marijuana, was to wait in the motel’s restaurant while the defendants drove the cars to an undisclosed location to load them with the marijuana. The cars and cargoes would then be delivered to the informant, and he would pay the defendants upon receipt of the contraband. The informant gave the keys to the first car, a Pontiac, to the defendants, who drove it to a secret location where the marijuana bags were wrapped in opaque plastic, sealed by tape, and loaded into the trunk of the automobile. Henley drove the Pontiac, and Murray was a passenger. They returned to the motel parking lot, parked the car and locked it. They went into the restaurant where they met the confidential informant, who gave defendant Henley the keys to the second car, a Cougar. Henley then left in the Cougar to pick up the second load. After waiting a few minutes, Murray and the informant went out to the Pontiac in the parking lot. Murray opened the trunk and showed the informant the contents so that he could “see it was definitely what I said was in there.” However, hidden in Room 123 of the motel were several police officers observing Murray and the informant. Also, the parking lot had been staked out by police hiding in a van, and a third team of policemen monitored the events from an airplane overhead. An FDLE agent, Larry E. Smith, testified that from his vantage point in Room 123 of the Holiday Inn West he observed plastic bags with tape on them in the trunk of the Pontiac when defendant Murray opened the trunk to show the informant the marijuana. He further testified that based upon his expertise and experience in dealing with marijuana, he concluded that the substance in the trunk was indeed marijuana. Murray and the informant then proceeded to Room 123 where the money was to be paid to the defendant. Upon entering the room, the police forced Murray to lie on the floor and seized the keys to the Pontiac. Shortly after Murray’s arrest, defendant Henley telephoned the motel room. When an unidentified voice answered the phone, Henley asked to speak to Murray. The person who answered the phone told Henley that Murray was outside taking care of things. Murray then called back in about five minutes and told Henley that everything was okay and he should come to the Holiday Inn West. The marijuana in the Cougar was also in the trunk with some of it in the back seat under a blanket. Agent Smith testified that he could observe, through the windshield of the car, plastic bags with tape on them in the back seat. However, this testimony was somewhat contradicted by the defendants, who asserted the marijuana in the back seat was well hidden under the blanket. Henley parked, locked the car and went to Room 123 where he was promptly arrested and relieved of his keys. Police then took the cars and drove the vehicles to Tallahassee where the contents were searched, checked for fingerprints, and processed. At no point was a warrant obtained or sought.

Defendants concede that there was probable cause to support a search. They argue, however, that the warrantless search cannot be justified under any of the pertinent exceptions.

Parenthetically, it appears that at no time during all of these prearranged and detailed plans did it ever occur to any of the multitude of policemen to obtain or seek a search warrant. Certainly, based upon the agreement between the defendants and the informant, there would have been probable cause for one of the officers to have obtained a search warrant for a Pontiac and a Cougar XR-7. Suffice it to say, if this had been done, our task would have been easier, and we admonish the officers that it is always wiser to err on the side of caution.

Even so, it does not follow that this search and seizure was fatally defective. We must first examine in view of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), defendants’ standing to contest this search and seizure. In Rakas, the United Sates Supreme Court discarded an automatic right of standing in such circumstances and outlined three interests of which one must necessarily be asserted in order to challenge illegal police procedures. Under the facts of this case, those interests would be (1) a property interest in the automobiles, (2) a possessory interest in the automobiles, or (3) an interest in the property seized. 439 U.S. at 148, 99 S.Ct 421, 58 L.Ed.2d at 404. However, in U. S. v. Salvucci, 448 U.S. 83, 91, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619, 628 (1980), the Supreme Court said “property rights are neither the beginning nor the end of (the) inquiry.” The true test is whether the illegal search has violated the rights of one who has “a legitimate expectation of privacy in the invaded place.” Id.; Rakas, 439 U.S. at 140, 99 S.Ct. 421, 58 L.Ed.2d 387. In discussing this issue, the Florida Supreme Court has observed:

“That expectation will be recognized as legitimate if a person has exhibited an actual (subjective) expectation of privacy, and the expectation is one that society is prepared to recognize as reasonable.” Norman v. State, 379 So.2d 643, 647 (Fla. 1980). (Cites omitted)

Here, the defendants at best had temporary possession of the two cars which had been rented by the police themselves for the express purpose of affording the defendants a means to transport the marijuana to the prearranged site of the transaction. While the expectation of privacy is illustrated by the defendants’ overt steps to conceal the marijuana and exclude the public by locking the doors, we are unable to conclude that the expectation of privacy is legitimate. The second step in the process requires a determination that the expectation is one that “society is prepared to recognize as reasonable.” Id. Under the facts as outlined, we must conclude that the defendants’ expectation of privacy was not reasonable. They did not own the cars nor had they leased them. In fact, their use of the cars was for the short-lived purpose of driving them between the Holiday Inn West and the undisclosed location of the hidden contraband and back. By prearrangement they were prepared to hand over the keys to the two cars as soon as the confidential informant paid them. We conclude that the fleeting nature of whatever possessory interest they had in these cars, coupled with their obvious determination to be rid of them at the earliest opportunity, amply reveals that the defendants did not have a reasonable expectation of privacy in the automobiles. Accordingly, defendants had no standing to contest the taking of the automobiles nor the warrantless search of them. Particularly this is true when defendants voluntarily opened the trunk of both the Pontiac and the Cougar for the confidential informant to inspect.

Assuming, arguendo, that the defendants had standing, we still would not conclude that the warrantless search was unreasonable. It could be justified on the testimony of Agent Larry Smith, who from his vantage point observed plastic bags in the Pontiac’s trunk and in the back seat of the Cougar. Coupled with his expertise and prior knowledge of and experience in dealing with marijuana, he was able to conclude, and justifiably so, that the cars contained the contraband. Given this factual predicate, the warrantless search of the autos was permissible. See Albo v. State, 379 So.2d 648, 650 (Fla.1980); Rizzo v. State ex rel. City of Pompano Beach, 396 So.2d 869, (Fla. 4th DCA 1981). See also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Spinkellink v. State, 313 So.2d 666 (Fla.1975); Pomerantz v. State, 372 So.2d 104 (Fla.3d DCA 1979), cert. denied, app. dism., 386 So.2d 642 (Fla. 1980); Hansen v. State, 385 So.2d 1081 (Fla. 4th DCA 1980).

We also observe that both the Fourteenth Amendment to the U. S. Constitution and Article I, § 12, of the Florida Constitution proscribe only “unreasonable searches and seizures.” While the facts of this case are not completely unique, they do afford this Court the opportunity to make an expression regarding the reasonableness of a war-rantless search. Here, the two cars had been leased by the police. In keeping with the very specific arrangement, the police then gave temporary possession of the cars to the defendants, who promptly delivered them to the parking lot of the Holiday Inn West with the express intention of turning them over to the informant upon receipt of payment. By displaying the contents of the Pontiac’s trunk, defendant Murray sought to prove that the marijuana was definitely what he and his partner had said it was. Given these circumstances, it would appear that to suppress this evidence would be an act of unreasonableness on the part of this Court. The law should be that under the circumstances and facts of this case and similar cases, a warrantless search would be reasonable, and we so hold.

As regards the constitutionality of Section 893.135(l)(a), Florida Statutes, the question has been answered in State v. Benitez, 395 So.2d 514, (Fla.1981), and needs no further comment.

For the foregoing reasons, the denial of defendants’ motions to suppress is

AFFIRMED.

ERVIN, J., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Carl SYLVESTER, Appellee.
    No. 80-187.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Rehearing- Denied Aug. 26, 1981.
    Michael H. Davidson, General Counsel, Florida Parole & Probation Commission, Tallahassee, for appellant.
    Richard A. Kupfer and Louis M. Silber of Cone, Owen, Wagner, Nugent, Johnson, Ha-zouri & Roth, P. A., West Palm Beach, for appellee.
   MOORE, Judge.

This is an appeal by the State from the trial court’s order granting the appellee’s petition for a writ of habeas corpus.

In December 1979, Carl Sylvester was arrested and incarcerated in the Palm Beach County Jail on charges of forgery. At the time of his arrest Sylvester was on parole from previous, similar felony charges. On the day of the arrest a parole officer was notified of Sylvester’s incarceration by telephone. The parole officer responded by requesting the Palm Beach County jailing authorities to retain the defendant in their custody. Bond was set for the new forgery charges; however, the defendant was not released because of the “hold” request that was made by the officer from the Department of Corrections.

Sylvester remained in jail for ten days and no revocation of parole hearing of any kind was conducted. On the 11th day of Sylvester’s incarceration a parole officer arrested Sylvester for a parole violation and Sylvester remained incarcerated in the Palm Beach County Jail. Thereupon Sylvester filed a petition for writ of habeas corpus alleging that he should be released because he had been imprisoned for more than ten days and no revocation of parole hearing had been held.

Twenty-four days after the initial incarceration a preliminary hearing on the parole revocation was held resulting in a finding of probable cause to believe that Sylvester had violated his parole. Three days later the trial court granted the petition for writ of habeas corpus and the State appeals, arguing that the trial court misconstrued the pertinent statutory provisions. We agree, and reverse the order granting habe-as corpus relief.

Sections 949.10 through 949.12, Florida Statutes (1979) state:

949.10Subsequent felony arrest of felony parolee or probationer prima facie evidence of violation. — The subsequent arrest on a felony charge, in this state, of any person who has been placed on parole or probation following a finding of guilt of any felony, or a plea of guilty or nolo contendere to any felony, shall be prima facie evidence of the violation of the terms and conditions of such parole or probation. Upon such arrest, the parole agreement or probation order shall immediately be temporarily revoked and such person shall remain in custody until a hearing by the Parole and Probation Commission or the court. 949.11 Hearing. — Any person whose parole or probation agreement is revoked pursuant to s. 949.10 shall be given a hearing pursuant to s. 947.23 or s. 948.06. The hearing shall be held within 10 days from the date of such arrest, the provisions of s. 947.23 or s. 948.06 notwithstanding. Failure of the commission or the court to hold the hearing within 10 days from the date of arrest shall cause the immediate release of such person from incarceration on the temporary revocation.
949.12 Immediate temporary revocation; bail not allowed. — A person whose parole or probation has been temporarily revoked pursuant to s. 949.10 shall not be admitted to bail prior to the hearing provided for in s. 949.11.

The trial court construed these provisions to mandate the release of a parolee, who has been arrested on new felony charges, when no revocation of parole hearing is held within 10 days of the parolee’s arrest. The court ruled in this manner despite the fact that Sylvester had been arrested by a parole supervisor subsequent to the temporary revocation of parole. This ruling was similar to the result in Carson v. Bishop, 378 So.2d 882 (Fla. 1st DCA 1979). There, the First District held that Section 947.22 (which empowers the Parole and Probation Commission to issue warrants and make arrests when reasonable grounds to believe a parole violation exists) only applies to violations of parole other than subsequent felony arrests. When a subsequent felony arrest occurs as a violation of parole, the Court held that Sections 949.10 through 949.12apply, and the parolee must be released on the parole violation unless a hearing is held within ten days of arrest. We disagree with the conclusion reached by the First District, certify that our decision is in conflict therewith, and offer a different interpretation of the statutes.

Section 949.10 provides that when a parolee is arrested for the commission of a subsequent felony, he shall have his parole immediately revoked for a temporary period of ten days. This automatic revocation occurs only when a parolee has already been placed on parole because of a conviction for a felony offense. It does not apply to paroled misdemeanants or paroled felons who subsequently commit misdemeanors. The purpose behind such automatic revocation of parole is clear; it prevents a paroled felon from obtaining immediate bond upon his alleged commission of a subsequent felony. Hence, the statute is designed to protect the public from the continued liberty of persons with an obvious proclivity for the perpetration of serious crime. This legislative intent is further evinced by the “no bail” provisions of Section 949.12.

Section 949.11, Florida Statutes (1979) provides, however, that if the State wishes to maintain the parolee in continuous incarceration for the parole violation, it must conduct a hearing within the ten day period referred to above. If the Parole and Probation Commission fails to conduct such a timely hearing, then the parolee must be released from the incarceration caused by the automatic temporary revocation of his parole. This does not mean that the parolee is forever discharged from revocation of parole proceedings arising out of the commission of a felony. It simply means that the local “jailing” authority may no longer detain the parolee without further, formal action by the Parole and Probation Commission. Sections 949.10 and 949.11 provide the mechanism by which the State, through prompt action, may insure the continuous incarceration of a dangerous paroled felon, without abrogating the parolee’s due process rights. The failure of the State to take advantage of this mechanism does not render the parolee forever immune from arrest by a parole officer for a violation of a condition of parole.

The provision of Section 949.11 which states that a parolee must be given a hearing within 10 days, notwithstanding Section 947.23, does not mean that the normal adjudicatory procedures of Section 947.23 must be altogether abandoned, but rather, Section 949.11 only changes the timing of the hearing with regard to the temporary revocation. Sections 949.10 and 949.11 do not act as a substitute for the formal procedure for parole violations defined in Section 947.23; they only mandate that a paroled felon, arrested for the commission of a felony, will have his parole temporarily revoked for ten days. At any time after the new arrest the Commission may commence formal revocation proceedings pursuant to Sections 947.22 and 947.23.

This interpretation of the statutory provisions is consistent with the holding of Blackburn v. Jackson, 74 So.2d 80 (Fla.1954), wherein the Supreme Court stated that the circuit courts were without power to release a parolee who was being detained under a parole violation warrant of the Parole and Probation Commission absent a showing of the Commission’s abuse of discretion. We note that the warrant procedure is only one of the two methods by which the Parole and Probation Commission can effectuate an arrest under Section 947.-22. The other method is the direct, war-rantless arrest conducted by a parole officer who “has reasonable grounds to believe that a parolee has violated the terms and conditions of his parole in a material respect.” In the present case, the appellee was arrested by a parole officer on the 11th day of his incarceration. This marked the initiation of formal proceedings against the appellee, and the provisions of Sections 949.10 and 949.11 became irrelevant at this point in time. Consequently, the validity of Sylvester’s detention depended upon adherence to the requirements of Sections 947.22 and 947.23, not the application of Sections 949.-10 through 949.12.

The interpretation of Sections 949.10 through 949.12, Florida Statutes (1979) adopted by the trial court, and relied upon by the appellee, would allow the ludicrous result of affording greater protection to a paroled felon who commits a subsequent felony than a parolee who commits a subsequent misdemeanor or a mere technical violation of parole, e. g. the failure to report a change of residence. Such an interpretation would mean that a paroled felony must be released from custody .if no hearing is conducted within ten days of his arrest for the commission of a new felony; a mere technical parole violator, or a parolee who violates his parole by committing a misdemeanor, would be subject to continued incarceration until a hearing could be held “as soon as practicable,” even though incarceration exceeded ten days. We cannot ascribe such an absurd intent to the legislature.

Accordingly, we reverse the order of the circuit court and quash the writ of habeas corpus.

ANSTEAD and BERANEK, JJ., concur.


text:
    Albert L. SECADA, Appellant, v. Irene G. SECADA, Appellee.
    No. 80-1497.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied Aug. 19, 1981.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Aronovitz & Weksler and Anne-Lise Gus-tafson, Miami, for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Colucci v. Colucci, 392 So.2d 577 (Fla.3d DCA 1980); Rosen v. Rosen, 386 So.2d 1268 (Fla.3d DCA 1980), pet. for rev. den., 392 So.2d 1378 (Fla.1981).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    STATE of Florida, Appellant, v. Larry SMITH, Appellee.
    No. 80-878.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    Rehearing Denied July 30, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellant.

      Margene Roper, Port Orange and J. Russell Hornsby of Law Offices of J. Russell Hornsby, P.A., Orlando, for appellee.
    Phyllis Gelman and Joanne Schulman of the National Center on Women and Family Law, Inc., New York City, Deborah A. Sam-mons and Treena Kaye of Central Florida Legal Services, Inc., Sanford, for amici curiae.
   FRANK D. UPCHURCH, Jr., Judge.

The state appeals from an order dismissing a count of sexual battery against appel-lee. The charge arose from an incident which involved appellee and his wife, the latter being the victim of the battery.

Appellee and his wife were married in 1975 and separated in 1979. On November 29,1979, Mrs. Smith filed for divorce and on December 6,1979, she obtained a temporary restraining order enjoining the parties from molesting, harassing or interfering with one another.

Mrs. Smith accused appellee of confronting her in the parking area of her apartment complex on the evening of January 22, 1980. She alleges that he grabbed her and ordered her to come with him. She then sprayed him with a mace-type product. Appellee knocked her down and took the mace from her. He then dragged her into his car and drove off. As appellee drove he ordered his wife to undress threatening to squirt her in the eyes and nose with the mace and to beat her. She undressed and was forced to submit to sexual intercourse on two separate occasions during the trip.

Mrs. Smith, upon gaining her freedom, charged appellee with kidnaping and sexual battery. Appellee moved to dismiss the sexual battery count on the ground that at the time of the offense he and the complaining witness were husband and wife. The court granted the motion.

The question presented is whether there is a common law interspousal exception applicable to section 794.011(5), Florida Statutes (1979), thereby precluding criminal prosecution of a husband who commits sexual battery upon his wife. We hold there is no such exception and REVERSE.

Appellee contends that a marital exception has historically been a part of the state’s criminal law of rape and that along with the crime of rape it was incorporated into the sexual battery statute enacted in 1975. The state, however, contends that the sexual battery statute is broader than the prior law in the acts it defines and the actors who fall within its operation, and that the statute, silent as to its applicability to the marital relationship, proscribes the forcible and non-consensual sexual battery of any person, male or female, by any other.

The exception argued by appellee does not affect the definition of the crime but rather challenges the existence of an element of that crime, lack of consent. In other words, the statute may apply to any person but the husband’s forcible sexual intercourse with his wife would not constitute a violation thereof because an element of the crime, lack of consent, could not be established.

The present statute prohibits nonconsen-sual sexual conduct between persons of the same or different sex. Thus the offense can be committed by man against man, woman against woman, man against woman, and woman against man.

An excellent review of the history of the common law exception is contained in State v. Smith, 85 N.J. 193, 426 A.2d 38 (1981), which is factually similar to the case before us. The principle was derived from Sir Matthew Hale, a seventeenth century English jurist who declared in a treatise:

But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.

1 Hale, History of the Pleas of the Crown 629.

Despite doubts raised in Smith about the basis for this statement, numerous American jurisdictions held that a husband could not be prosecuted for the forcible rape of his wife. See, e. g., Commonwealth v. Fogerty, 74 Mass. (8 Gray) 489 (1857); People v. Pizzura, 211 Mich. 71, 178 N.W. 235 (1931); Frazier v. State, 48 Tex.Cr. 142, 86 S.W. 754 (1905). See generally 3 Wharton’s Criminal Law § 286 at 25 (14th ed. 1980).

The Smith court, however, noted that Hale’s implied matrimonial consent theory was formulated under vastly different conditions, when the matrimonial vow and hence concomitantly implied consent to conjugal rights were not retractable. However, concepts of marriage and divorce have clearly evolved and in Smith the court declared:

The rule may simply not have been applicable to revocable marriages, which exist today as a result of changes in divorce laws. The fact that many jurisdictions have mechanically applied the rule, without evaluating its merits under changed conditions, does not mean that such blind application was part of the ‘principles of the common law’ adopted in this State. Without deciding whether an exemption existed in any situations at all, we think that it was not meant to exist during the entire legal duration of a marriage. Therefore, we decline to apply mechanically a rule whose existence is in some doubt and which may never have been intended to apply to the factual situation presented by this case.

426 A.2d at 38.

The court, after concluding that the common law did not include an absolute marital exemption, proceeded to determine whether the exemption existed in 1975, at the time of the defendant’s conduct.

The Smith court noted that three basic common law principles were relied upon to justify the exemption. First was the ancient concept of the wife as a chattel of her husband or father, see Commonwealth v. Chretien, 417 N.E.2d 1203 (Mass.1981), a theory which was never accepted in this country. Smith at 44. Indeed, this concept has no value in Florida under the sexual battery statute since the purpose of that statute is to protect both males and females from sexual violence, i. e., a crime of violence and not a crime of sex. See State v. Aiken, 370 So.2d 1184 (Fla. 4th DCA 1979) (Dauksch, J., concurring), aff’d, 390 So.2d 1186 (Fla.1980).

The second underlying principle is the common law concept that husband and wife were one person and after marriage no longer retained separate legal existence. However, this concept of unity of husband and wife has been abrogated in most states and, in fact, no longer obtains in Florida. See Gaston v. Pittman, 224 So.2d 326 (Fla.1969); State v. Herndon, 158 Fla. 115, 27 So.2d 833 (1946).

The third principle, and the one utilized by Hale, is that upon entering the marriage contract a wife consents to sexual intercourse with her husband. This consent the theory goes, is irrevocable and thereby negates the third element of the crime of rape, lack of consent.

Even if we assume that marriage carries with it the implied consent to forcible sexual intercourse, it should not follow that consent can never be withdrawn so long as the marriage, in its technical sense, exists. In the factual circumstances presented, the wife clearly had withdrawn any implied consent by filing suit for dissolution of the marriage and the court, by entry of its restraining order, approved the limitation of contact between the parties. However, to rest the decision on this factor alone would require an assumption that the common law exception still exists. We reject such a contention.

While anatomical differences between the sexes limit the manner in which the offense of sexual battery can be perpetrated, it nonetheless follows that if there is an implied consent by a woman to such conduct by her husband there has to be an implied consent to similar conduct by the husband. In Hale’s time, a man could not be the victim of rape, but under section 794,011, Florida Statutes, he can be. It is inconceivable that a husband would accept the argument that by marriage he consented to the conduct defined in the statute if inflicted upon him by force or violence.

We hold that the fact of marriage carries with it no implied consent to sexual battery as defined under section 794.011, Florida Statutes. The statute proscribes a crime of violence, not a crime of sex. State v. Aiken.

Appellee warns that the spousal exception is justified because there is a danger that wives may make false complaints against their husbands out of spite or in an attempt to obtain a better divorce settlement. We doubt that this will be the result because the offense of battery which can now be exerted by one spouse against another has not been used for such purpose, at least not to the point that law enforcement has been taxed. Should this warning prove valid, the Legislature may then conclude that the definition of consent needs to be expanded.

Accepting the principle that our sexual battery statute proscribes a crime of violence and not a crime of sex, it is an indication that the people of this state no longer will tolerate a violent assault, sexual or otherwise, upon one another. Clearly, no person in this state can justifiably claim a legal right to impose his or her sexual will upon another person, including his or her spouse, over that person’s unmistakable objection. See State v. Smith.

REVERSED.

DAUKSCH, C. J., and COBB, J., concur.

      .While Florida no longer has a distinct statute dealing with rape, the offense is now incorporated in the broader sexual battery statute, section 794.011.

      . In State v. Aiken, 370 So.2d 1184 (Fla. 4th DCA 1979), aff’d, 390 So.2d 1186 (Fla.1980), the court declared that:
      Under the present statute sexual battery is a considerably broader crime than rape. Sexual battery is specifically defined as follows; (f) Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide medical purposes.

        . See e. g., Washington v. State, 302 So.2d 401 (Fla.1974), wherein the Florida Supreme Court held that any forcible penetration by a man’s sexual organ into any body orifice of another against the latter’s will constituted forcible carnal knowledge of the victim and upon conviction was punishable under section 794.01, Florida Statutes (1973).

      . See also State v. Morrison, 85 N.J. 212, 426 A.2d 47 (1981); Commonwealth v. Chretien, - Mass. -, 417 N.E.2d 1203 (1981).

      . In Smith, the New Jersey Supreme Court questioned the binding effect of Hale’s declaration:
      Hale cited no authority for this proposition and we have found none in earlier writers. Thus the marital exemption rule expressly adopted by many of our sister states has its source in a bare, extra-judicial declaration made some 300 years ago. Such a declaration cannot itself be considered a definitive and binding statement of the common law, although legal commentators have often restated the rule since the time of Hale without evaluating its merits [citations omitted],
      426 A.2d at 41.

      . See Comment: Rape and Battery Between Husband and Wife, 6 Stan.L.Rev. 719, 725 (1954).


author: DOWNEY, Judge.

text:
    SAFECO INSURANCE COMPANY OF AMERICA, a corporation, Appellant, v. Lawrence Aaron WARE, Appellee.
    No. 80-2119.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Rehearing Denied Aug. 26, 1981.

      Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellant.
    K. Jack Breiden of Law Office of E. Louis Fields, P. A., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

The trial court struck as frivolous appellant’s motion to dismiss, which was directed to appellee’s complaint, and entered a default judgment against appellant. This appeal involves the propriety of that judgment.

Appellee sued appellant and others for damages arising out of an automobile accident. Appellant initially moved for an enlargement of time within which to plead. While that motion was pending, but as yet unheard because of calendar problems, appellant filed a motion to dismiss or abate the action, essentially contending that the cause of action against appellant was based upon an insurance contract which, according to the allegations of the complaint, was not attached to the complaint because the policy was in the exclusive possession of the appellant. The motion states that appellant has furnished appellee a certified copy of the policy and suggests appellee should be required to attach to the complaint the policy he relies upon. Thereafter appellee filed a motion for final default judgment against appellant, contending that the motion to dismiss was a sham and frivolous and should be stricken and final default judgment entered. Appellant subsequently filed a motion attacking appellee’s complaint on various grounds.

In due course, a hearing was had on all of the pending motions; after the hearing the trial court struck appellant’s motion to dismiss as frivolous and entered a final default judgment against appellant.

Florida Rule of Civil Procedure 1.130 provides that contracts “upon which action may be brought or defense made” or copies thereof “shall be incorporated in or attached to the pleading.” One of the ways to reach a failure to attach a necessary exhibit is by motion to dismiss. Trawick, Florida Practice & Procedure § 6-15 (1980). Of course, if a pleader states that he does not have a copy of the writing involved, then he should obtain a copy thereof through discovery or otherwise and attach it to the appropriate pleading by amendment. See Meadows v. Edwards, 82 So.2d 733 (Fla.1955). In the case of a complaint based on a written instrument it does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in the pleading in question. Trawick, supra. In the present case the appellant furnished appellee with a certified copy of the policy and then moved to have the court require appellee to attach the policy or suffer dismissal of the complaint.

In view of the foregoing the appellant’s motion to dismiss was not frivolous; it was perfectly áppropriate. Therefore, the order striking the motion and entering default judgment was erroneous. For this reason the judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

BERANEK and GLICKSTEIN, JJ., concur.


author: ANSTEAD, Judge.

text:
    Nathaniel WATERS, Appellant, v. STATE of Florida, Appellee.
    No. 80-540.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1981.
    Richard L. Jorandby, Public Defender, and Allen DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

Nathaniel Waters was convicted of attempted burglary by the attempted unlawful entry of a dwelling with intent to commit theft therein. On appeal he claims that the state failed to prove the requisite element of intent to commit theft.

Waters contends that the state not only failed to prove that he had any specific intent to commit theft but that the circumstantial evidence that was presented on the issue failed to exclude other reasonable hypotheses. At the non-jury trial there was direct evidence that Mr. Waters unlawfully and unsuccessfully attempted to gain entrance to John Rush’s apartment by attempting to break the door lock with a pair of pliers while Rush was absent. There was no direct evidence as to what Mr. Waters intended to do once inside the apartment.

Section 810.02(1), Florida Statutes (1979) defines burglary as an unauthorized entry into a structure or conveyance with the intent to commit an offense therein. Under this definition it makes no difference whether the offender intended to commit a felony or a misdemeanor, as long as it is shown that he intended to commit some crime. In addition, the punishment for burglary is not directly related to the offense that the offender intended to commit. Rather, burglary is punishable as a felony of the first, second or third degree, depending on the circumstances attending the burglary.

Notwithstanding the fact that the specific offense intended to be committed is of little consequence to the penalties involved, this court has recently held that an information is defective if it fails to set out the specific offense. Lee v. State, 385 So.2d 1149 (Fla. 4th DCA 1980). Subsequently, in State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980), we modified that view somewhat by suggesting that the state has the choice of alleging the specific offense or of alleging its reliance upon Section 810.07 of the burglary statute, which provides that an entry made “stealthily and without consent of the owner or occupant” creates a rebuttable presumption that the entry was made with the intent to commit an offense inside the premises. Absent proof to the contrary, this presumption alone may be sufficient to prove the requisite intent to sustain a charge of burglary.

In this case, however, the state alleged in the information that the appellant intended to commit the specific offense of theft. Having alleged intent to commit a specific offense, it was incumbent upon the state to prove intent to commit a specific offense. This the state failed to do.

Mere proof of a breaking and entering does not warrant an inference that the accused intended to commit a specific offense inside the premises. Griffin v. State, 276 So.2d 842 (Fla. 4th DCA 1973). The Griffin opinion relied heavily upon Simpson v. State, 81 Fla. 292, 87 So. 920 (1921). In Simpson, the defendant, who was found attempting to enter the bedroom of a residence of a woman and her family, was charged and convicted of breaking and entering with intent to commit rape. In reversing, the Supreme Court declared:

The mere breaking and entering a dwelling house is not a fact from which may be inferred that the accused intended to commit rape, or murder, or larceny, or arson, or any other felony which the pleader’s fancy may induce him to charge in the indictment. Certain circumstances, unexplained, might tend to prove the intent, such as laying hold of a woman, or running after her in an attempt to do so, to establish intent to commit rape; the possession of a murderous weapon, ready for use, with other circumstances to establish the intent to kill; the possession of highly explosive material, to establish intent to commit arson; or the unexplained taking or attempting to take personal property, as evidence of intent to commit larceny. Some courts have held that from the mere breaking and entry the intent to commit larceny may be inferred. State v. Worthen, 111 Iowa 267, 82 N.W. 910; Moseley v. State, 92 Miss. 250, 45 So. 833. If such a presumption is warranted, which we do not hold, it is such a presumption as would prevent a conviction of intent to commit any other felony, in the absence of facts rebutting that presumption, and raising the presumption of intent to commit a different offense.
It is a well-settled rule that, in order to convict on circumstantial evidence, the facts must be such as to exclude every reasonable hypothesis except that of the guilt of the accused of the offense charged. In this case the accused was charged with an intent to commit a specific act. Only the breaking and entering, and the presence of a woman and children in the room, were proven. This does not exclude the hypothesis that he intended to commit murder, larceny, arson, or any other felony. (Emphasis supplied)

81 Fla. 297, 298, 87 So. 922.

The state contends that it is obvious from the circumstances of the attempted entry that Waters had some unlawful act in mind once he gained entry to the apartment and that it is probable that Waters intended to commit theft once inside. Although we agree that the circumstances of the attempted entry may give rise to an inference that Waters intended to commit some offense while inside, we cannot agree that such circumstances, standing alone, were sufficient to establish his intent to commit the specific offense of theft. That Mr. Waters intended to commit theft may be one logical inference drawn from the circumstances presented here. However, another logical inference might be that Mr. Waters intended to commit some other offense. Simpson, supra. That being the case, his conviction for attempted burglary with the intent to commit the specific offense of theft cannot stand.

In Dowis v. State, 326 So.2d 196 (Fla. 4th DCA 1976), this court directed that the defendant’s burglary conviction be reduced to a conviction for trespass, when the state failed to prove that the defendant’s entry was made with the intent to commit the specified misdemeanor of assault and battery. We believe a similar result is warranted here.

Because we remain concerned, as we were in the Lee and Fields decisions, supra, as to the necessity in a burglary prosecution for the state to allege and prove an intent to commit a specific offense and as to the effect of the evidentiary presumption created by Section 810.07, supra, we hereby certify to the Florida Supreme Court the following questions of great public importance:

1. In a prosecution for burglary under Section 810.02, Florida Statutes (1979), is it necessary for the state to allege an intent to commit a specific offense?
2. Is the statutory rebuttable presumption contained in Section 810.07, Florida Statutes (1979) sufficient to prove a prima facie case of intent to commit the specific offense of theft?

Accordingly, the judgment and sentence is reversed and this cause is remanded to the trial court with directions that appellant be adjudicated guilty of and sentenced on the charge of attempted trespass as prohibited by Sections 810.08 and 777.04(1), Florida Statutes (1979).

LETTS, C. J., and STONE, BARRY J., Associate Judge, concur.

      . 810.02 Burglary.
      (2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:
      (a) Makes an assault upon any person.
      (b) Is armed, or arms himself within such structure, with explosives or a dangerous weapon.
      (3) If the offender does not make an assault or is not armed, or does not arm himself, with a dangerous weapon or explosive as aforesaid during the course of committing the offense and the structure entered is a dwelling or there is a human being in the structure or conveyance at the time the offender entered or remained in the structure or conveyance, the burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Otherwise, burglary is a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or 775.084.

      . Booker v. State, 397 So.2d 910 (Fla.1981).

      . Had the state not alleged an intent to commit a specific offense and instead alleged reliance upon Section 810.07 as provided in Fields, supra, the result might be different.


author:
BERANEK, Judge.
      HURLEY, Judge,

text:
    SPORTS CAR SOUTH, Appellant, v. John D. CALVIN, Director, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, State of Florida, and King Motor Company, Appellees. SPORTS CAR SOUTH, Appellant, v. John D. CALVIN, Director, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, State of Florida, and Steering Wheel, Inc., Appellees.
    Nos. 80-433, 80-530.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1981.
    Rehearing Denied Aug. 28, 1981.
    James D. Adams of Quinton, Lummus, Dunwody & Adams, P.A., Miami, for appellant.
    Romney C. Rogers of Rogers, Morris & Ziegler, Fort Lauderdale, for appellee King Motor Co.
    Enoch J. Whitney, General Counsel, and Judson M. Chapman, Asst. Gen. Counsel, Tallahassee, for appellee John D. Calvin, Director.
   BERANEK, Judge.

These two cases, consolidated for purposes of appeal, involved applications to the Department of Highway Safety and Motor Vehicles to act as franchised automobile dealers. For reasons set forth below, we affirm in part and reverse in part.

Case No. 80-443 involved approval by the Department of Highway Safety and Motor Vehicles of an application by King Motor Company for a Fiat franchised dealership. Appellant requested a hearing pursuant to Section 320.642, Florida Statutes (1979), which reads:

The department shall deny an application for a motor vehicle dealer license in any community or territory where the licensee’s presently licensed franchised motor vehicle dealer or dealers have complied with licensee’s agreements and are providing adequate representation in the community or territory for such licensee. The burden of proof in showing inadequate representation shall be on the licensee.

Appellant, also a Fiat dealer, objected to the issuance of the franchise, and by formal letter request, sought a hearing on the issue of ‘Community or territory.” Appellant asserted that the franchise in question was to be located 25 miles away from the previous franchise dealer which the new franchise was replacing. The Department of Highway Safety and Motor Vehicles advised appellant that no hearing under Section 320.-642, Florida Statutes (1979), was necessary because the dealership was a replacement dealer rather than a new dealer and thus the statute did not apply. The Department relied upon Southside Motor Company v. Askew, 332 So.2d 613 (Fla.1976), which holds that Section 320.642 does not apply to a replacement dealer. We believe the Department incorrectly applied the rationale of the Southside Motor Company case and reverse.

Southside Motor Company v. Askew, supra, involved a replacement dealer located in exactly the same place as the dealer which was being replaced. In accordance with the appellant’s position herein, the dealership in question is 25 miles away from the physical location of the dealer which is being replaced. There is an obvious factual dispute in this case because the Department wrote to appellant in response to his request for a hearing and advised that the new dealership was only 10 miles distant from the prior dealer rather than 25 miles distant. In our opinion, this represents a substantial factual dispute which should have been resolved by hearing. Even if the Department is correct and the new dealership is 10 miles distant from the prior dealership, Southside Motor Company does not render Section 320.642, Florida Statutes (1979), inapplicable. We construe the Southside precedent to be limited to those situations where a replacement dealer is to occupy the same or substantially the same location. Here, there was at least a 10 mile difference and perhaps a 25 mile difference depending upon resolution of the factual issue presented by the record. The record on appeal in this case which was prepared by the Department of Highway Safety and Motor Vehicles contains absolutely no support for either the 10 mile version or the 25 mile version.

The Department acted improperly in failing to abide by Section 320.642, Florida Statutes (1979), and Rule 15C-1.08, Florida Administrative Code, which provides in relevant part:

15C — 1.08 Preliminary filing of an application for a motor vehicle dealer’s license; procedure. Any person who contemplates the establishment of a motor vehicle business . . . shall .. . notify the Director of the Division of Motor Vehicles of his intention to establish such motor vehicle business....
Upon receipt of such notice the Director shall be authorized to proceed with making the determination required by Section 320.642, Florida Statutes, and shall cause a notice to be sent to the presently licensed franchised dealers for the same make or makes of vehicles in the territory or community in which the new dealership proposes to locate, advising such dealers of the provisions of Section 320.642, Florida Statutes, and giving them and all real parties in interest an opportunity to be heard on the matters specified in that Section. . . . The Director may make such further investigation and hold such hearing as he deems necessary to determine the questions specified under Section 320.642.. ..

Under the statute and regulation, appellant should have been given the opportunity for an evidentiary hearing and the denial of a hearing is reversed.

Case No. 80-530 involved an application for a dealer’s license by Steering Wheel, Inc., to act as an Alfa-Romeo franchised automobile dealer. The appellant in this matter never made an appropriate request for a hearing pursuant to Section 320.642, Florida Statutes (1979), or Chapter 120, Florida Statutes (1970). The appellant, having made no attempt to obtain a hearing, cannot now complain of not receiving one and we affirm the denial of a hearing on this matter.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY, J., concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

I would affirm case no. 80-443 on the authority of Southside Motor Company v. Askew, 332 So.2d 613 (Fla.1976).


author: LETTS, Chief Judge.

text:
    PERSONAL REPRESENTATIVE OF the ESTATE OF John Edward STARLING, etc., et al., Appellants, v. FISHERMAN'S PIER, INC., etc. et al., Appellees.
    No. 80-1711.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1981.
    Edward A. Perse of Horton, Perse & Ginsberg, and Tew & Spittler, P. A., Miami, for appellants.
    Larry Klein, and Pomeroy, Pomeroy, Betts & Pomeroy, West Palm Beach, for appellees.
   LETTS, Chief Judge.

This appeal is predicated on the dismissal with prejudice of a complaint charging a corporation, which operated a commercial fishing pier, with negligence for failure to safeguard a passed-out drunk customer who was left lying near the ocean on the pier, by himself, in the early hours of the morning and rolled over into the water and drowned. We reverse.

The above facts involve gross conduct on the part of the man who drowned, perhaps exacerbated by the fact that his consumption of the alcoholic beverages, which he brought with him to the pier, was in violation of a municipal ordinance. In consequence we would expect that a jury would find the drowned man comparatively negligent in large or even total measure. However, such expectation of an appropriate apportionment of negligence is not the test in Florida to determine if a cause of action has been stated. As we see it, the question here presented is: When an invitee comes upon the commercial premises of another and passes out cold on the floor, whether through illness, injury or drunkenness, can the owner or operator of the premises ignore the inert figure lying in a dangerous place or does that owner or operator have an affirmative duty to take at least some minimal steps to safeguard the inert figure? We believe the owner or operator does have such a duty although we find no Florida case which on its facts comes close to the unusual situation now before us.

The pier operator cites us to American Jurisprudence for the proposition that there is “no general duty to come to the assistance of a person who is so ill or intoxicated as to be unable to look out for himself.” See 57 Am.Jur.2d, Negligence § 41 at p. 389. However, that section appears to be concerning itself with the level of duty owed by a chance bystander or neighbor and there is no discussion on whether the quoted statement would apply to a customer found on commercial premises.

The pier operator also cites us to the Florida case of Reed v. Black Caesar’s Forge Gourmet Restaurant, Inc., 165 So.2d 787 (Fla. 3d DCA 1964) from which we now repeat a statement somewhat similar to the statement just above quoted from American Jurisprudence:

We find no authority, absent legislative enactment, to extend the [possibility of protection in favor of third persons] to those who become voluntarily drunk so that a right of action arises in them because of injury caused by their own intoxication .... Black Caesar’s Forge at p. 788.

We would not necessarily disagree with this statement, even now, though it came before the adoption of comparative negligence. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). However, under the facts of Black Caesar’s Forge the plaintiff got himself drunk in a bar, recovered his keys from valet parking and drove off into Biscayne Bay where he drowned. As the Black Caesar’s Forge ease reasoned it, the drunk’s self-caused incapability to drive after he left the bar was the proximate cause of his death, not the remote act of dispensing the liquor. However, we are persuaded that the Third District would have been of a different view had the drunk passed out in the bar parking lot and been left there on the ground, with full knowledge by the bar’s employees, and later run over by an automobile.

The principal Florida case relied upon by the drunken deceased, is Swilley v. Economy Cab Co. of Jacksonville, 46 So.2d 173 (Fla.1950). However, we are not persuaded by it, because that case involves the “high degree of duty” owed by a common carrier to a passenger. Instead, we have found a West Virginia case with which we agree. Hovermale v. Berkeley Springs Moose Lodge No. 1483, 271 S.E.2d 335 (W.Va.1980). In this Hovermale case an invitee was drinking at the bar when he became ill and collapsed. Two friends, at the instruction of the bartender, carried him to his car to “sleep it off” out in the lodge parking lot. Then everyone, employees included, left for the night without checking on him. He died of a heart attack apparently incurred while inert in his vehicle. The Hovermale court held that although the lodge owed him only an ordinary and not a high degree of care, said ordinary care must be commensurate with the circumstances. The court continued that the circumstances dictated “that a proprietor is under an ordinary duty of care to render aid to an invitee after he knows or has reason to know the invitee is ill or injured.” Id. at 338. The same court also cited the Restatement (Second) of Torts § 314 A which is paraphrased as follows:

A possessor of land who holds it open to the public is under a duty to take reasonable action to give them first aid after he knows that they are ill or injured and to care for them until they can be cared for by others.

This West Virginia case and the Restatement of Torts are not on all fours with the problem now before us, in that we here have a passed-out drunk rather than someone ill or injured. However, we view the principle as comparable. A proprietor simply cannot ignore and step over an unconscious customer lying in a dangerous place upon his premises and he must take some minimal steps to safeguard any customer upon his premises from extreme danger, even though the customer has allowed himself to be exposed to that danger in the first place. As we recently said in Crislip v. Holland et al., 401 So.2d 1115 (Fla. 4th DCA 1981):

In order to prevail in a lawsuit, the plaintiff must demonstrate that he is within the zone of risks that are reasonably foreseeable by the defendant. The liability of the tortfeasor does not depend upon whether his negligent acts were the direct cause of the plaintiff’s injuries, as long as the injuries incurred were the reasonably foreseeable consequences of the tortfeasor’s conduct. . . The question of foreseeability and whether an intervening cause is foreseeable is for the trier of fact.

Adapting all this to the case before us, it is alleged that a drunken, passed out customer was left alone lying on a commercial pier in the early hours of the morning close to the ocean and in imminent danger of rolling over unrestrained into the water with full knowledge of the operator’s employee (the railing was inadequate to restrain horizontal bodies). In fact he did so fall in and was drowned. We hold the foregoing particular circumstances stated a cause of action and should not have been dismissed.

REVERSED AND REMANDED.

MOORE and HERSEY, JJ., concur.

      . We note, however, that the pier operator also simultaneously imbibed with the drowned man.

      . See also comment (f) to the Restatement (Second) of Torts § 314 A:
      “f. The defendant is not required to take any action until he knows or has reason to know that the plaintiff is endangered, or is ill or injured. He is not required to take any action beyond that which is reasonable under the circumstances. In the case of an ill or injured person, he will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained. He is not required to give any aid to one who is in the hands of apparently competent persons who have taken charge of him, or whose friends are present and apparently in a position to give him all necessary assistance.”
      Note: We recognize that the plaintiff in Hover-male was taken out to his car by two friends.


author: SHARP, Judge. DAUKSCH, Chief Judge,

text:
    Armond P. SAVOIE, Appellant, v. STATE of Florida, Appellee.
    No. 80-615.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.
    Rehearing Denied Aug. 10, 1981.
    Edward R. Kirkland, Orlando, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Savoie was adjudicated guilty of the offense of bribery of a police officer in violation of section 838.015, Florida Statutes (1979). In this appeal Savoie argues that the trial court erred in denying his motion to suppress the contents of a briefcase taken from his grasp at the time of his arrest. We disagree and affirm the judgment.

Florida Rule of Criminal Procedure 3.190(h)(4), provides:

The motion to suppress shall be made before trial unless opportunity therefore did not exist or the defendant was not aware of the grounds for the motion, but the court may entertain the motion or an appropriate objection at the trial.

Despite four continuances of the trial, Sa-voie’s motion to suppress the evidence was not filed until the second day of trial. The trial judge held a hearing and denied the motion to suppress because of Savoie’s waiver of his right to make the motion at that time and on the merits. He could have concluded that Savoie was aware of the grounds for the motion and had sufficient opportunity to make the motion prior to the trial. The briefcase was listed on discovery documents provided by the State. In a pre-trial deposition the principal police officer who arrested Savoie referred to the contents of the briefcase and responded that the warrantless arrest was based on probable cause.

Because Savoie failed to move to suppress prior to the trial as required by the Rule when he was aware of the grounds for the motion and had ample opportunity to make the motion, we hold that he failed to preserve for appeal any error in the admission of the evidence. O’Berry v. Wainwright, 300 So.2d 740 (Fla.4th DCA 1974); Bailey v. State, 295 So.2d 133 (Fla.4th DCA 1974); Law v. State, 204 So.2d 741 (Fla.2d DCA 1967). Contra, T. C. v. State, 336 So.2d 17 (Fla.3d DCA 1976); Davis v. State, 226 So.2d 257 (Fla.2d DCA 1969). We do not reach the merits of the motion to suppress because we affirm on the basis of waiver. See Firestone v. Firestone, 263 So.2d 223 (Fla.1972).

Accordingly, the judgment and sentence in this case are

AFFIRMED.

ORFINGER, J., concurs.

DAUKSCH, C. J., concurs specially.

DAUKSCH, Chief Judge,

concurring specially:

I concur with the majority and have considered the order on the merits, too. The trial court did not err.


author: FERGUSON, Judge.

text:
    Crawford Lee GROOMES, Appellant, v. The STATE of Florida, Appellee.
    No. 80-110.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.

      Bennett H. Brummer, Public Defender and William G. Earle, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

After trial by jury the appellant Groomes was found guilty of first degree murder, burglary and robbery. He was sentenced to life imprisonment for first-degree murder and placed on a consecutive life term of probation for the burglary. For the robbery conviction, sentence was suspended. From the convictions and sentences appellant brings this appeal raising four issues: (1) for the capital offense of murder defendant should have been tried by a twelve-man jury; (2) the confession was inadmissible because the defendant, a juvenile at the time of his arrest, was interrogated at the police station in violation of Section 39.03, Florida Statutes (1979); (3) the court erroneously permitted conviction of both the felony murder and the underlying felony; (4) the circuit court was without jurisdiction to try defendant, a juvenile, on Count III of the indictment which charges a non-life felony.

We find the first point on appeal not properly preserved for review. The record reveals a stipulation entered into between the state and the defendant whereby the state expressly waived the death penalty in exchange for the defendant’s waiver of his right to be tried by a jury of twelve persons, and an agreement to be tried instead by a jury of six persons. The stipulation is executed by the assistant state attorney, counsel for the defendant, the defendant himself and the defendant’s mother. There is also in the record, without contradiction, a report of a psychiatrist that the defendant has an “awareness of the requirements of the law”. Appellant never objected to the stipulation below either during trial or in his motion for new trial.

We note, however, that the United States Supreme Court has held that one charged with a serious crime may dispense with his constitutional right to a jury trial, Adams v. United States ex rel. McCann, 317 U.S. 269, 278, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942) either by waiver of a jury trial altogether or by consenting to a trial by fewer than the required number of jurors. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930). In State v. Garcia, 229 So.2d 236 (Fla.1969), the Supreme Court of Florida cited Patton, supra, in finding that:

Inherent in a privilege of a jury trial constitutionally preserved for the defendant is the right to waive it.

In addition, Florida Rule of Criminal Procedure 3.260 specifically provides for waiver of a jury trial.

This court has previously held that when the state has waived the right to seek the death penalty, the defendant could agree, with the consent of the state, and approval of the court, to be tried by a six-person jury. Roth v. State, 385 So.2d 114 (Fla. 3d DCA 1980). In Groomes’ case the waiver was in writing, Powers v. State, 370 So.2d 854 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1979), there was consent of the state, State ex rel. Gerstein v. Baker, 339 So.2d 271 (Fla. 3d DCA 1976), and there was acknowledgment and implicit approval of the waiver by the Court. Because the issue of waiver was not properly preserved for appeal, however, we do not decide whether “court approval” requires either an explicit record finding of voluntariness by the court or an in-court signature under Florida Rule of Criminal Procedure 3.260. Cf. Fed.R.Crim.P. 23(a) (requiring court inquiry into voluntariness). See also Quartz v. State, 258 So.2d 283 (Fla. 3d DCA 1972), cert. denied, 263 So.2d 825 (Fla.1972) (waiver in open court will substitute for judicial determination of voluntariness).

The second point on appeal is also without merit. A reliance on Section 39.-03(3)(a), Florida Statutes (1979), is unavailing. That statute provides that a child taken into custody for violation of the law shall be taken to the appropriate intake officer “without unreasonable delay.” Appellant was taken into custody at the Miami Police Station at 9:15 a. m. Shortly thereafter, his mother was summoned to the police station. At the police station the defendant was read his rights and then interrogated in the presence of his mother. He gave a full confession which was then repeated and video taped. Shortly after noon he was delivered to an intake officer at Youth Hall. We find that the delay between the taking into custody and delivery to Youth Hall was not unreasonable.

Count I of the indictment charges that the defendant, in concert with others, did jointly strike and assault the victim during the perpetration of a burglary or robbery, and that the victim died from wounds suffered in the attack. Either the felony of burglary or robbery suffices an underlying felony for the purpose of sustaining the first-degree murder conviction in Count I. Appellant correctly argues that the imposition of punishments for felony-murder and the underlying felony violates the double jeopardy clause of the Fifth Amendment to the United States Constitution. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The court obviously considered robbery as the underlying felony in support of the first-degree murder conviction on Count I and thus suspended entry of a sentence for the robbery. We reverse the conviction of robbery on the authority of Whalen, supra, State v. Pinder, 375 So.2d 836 (Fla.1979).

In the final point of this appeal, the jurisdiction of the circuit court to try the defendant as an adult for the non-life felony of robbery is challenged. Appellant contends that absent the waiver of jurisdiction by the juvenile division, a juvenile must be initially charged by a delinquency petition unless charged with a capital or life felony even where the crime arises out of the same incident that may be tried before the adult court. We find it unnecessary to address this issue as it is rendered moot by a disposition of Point III of this appeal.

The conviction and sentence for first-degree murder and burglary are affirmed, the conviction for robbery is reversed, and the cause is remanded to the trial court for correction of sentence accordingly.

      . In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Supreme Court upheld Section 913.10, Florida Statutes (1967) providing for a six-person jury in non-capital criminal cases. See also Article I, Section 22 of the Florida Constitution providing for a jury of not fewer than six. In Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), the Court held that the Sixth Amendment to the United States Constitution requires a jury be composed of at least six persons. Under the rationale of Patton, supra, a person should be able to effectively waive this substantive right to a six-person jury.

      . The Supreme Court in Whalen, supra, held that court imposition of consecutive sentences for conviction of first-degree murder committed in perpetration of the underlying felony-rape violated the double jeopardy clause of the Fifth Amendment because (a) there was no legislative authorization for imposition of consecutive sentences under the statutes involved and (b) the legislature had intended that rape be considered a lesser included offense to that of killing the victim in perpetration of the same rape thereby precluding imposition of double sentences. See Whalen, supra at n.8, 445 U.S. 694, 100 S.Ct. 1439, 63 L.Ed.2d 725. The court in Whalen, Id., cited with approval, Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (conviction for felony murder banned subsequent prosecution for underlying felony of robbery); United States v. Greene, 489 F.2d 1145, 1158 (D.C.Cir.1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974) (charge of felony-murder included every essential fact element of underlying felony).
      The Court’s decision in Whalen, has created certain confusion apparent in recent Florida decisions, see generally, Wooten v. State (Fla. 3d DCA 1981) (Case No. 78-1622, opinion filed June 16, 1981); Damon v. State, 397 So.2d 1224 (Fla. 3d DCA 1981); Monroe v. State, 396 So.2d 241 (Fla. 3d DCA 1981) (certifying question to Florida Supreme Court); Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981) (certifying question to Florida Supreme Court).
      We find, however, that the instant case — as must all cases involving separate convictions and sentencing for both the underlying felony and the felony-murder under Florida law — falls squarely within the Whalen test for double jeopardy. Like the situation in Whalen, we find no express legislative intent that consecutive sentences be imposed for the underlying felony and the felony-murder. Compare § 23-112 of the District of Columbia Code (1973) discussed in Whalen, supra, and footnote 8 in Whalen, supra, with Section 775.021(4), Florida Statutes (1979) and category three of Brown v. State, 206 So.2d 377 (Fla.1968) as explained at pages 381-2. See also Illinois v. Vitale, 447 U.S. 410, 420, 100 S.Ct. 2260, 2267, 65 L.Ed.2d 228, 238 (1980) (stating that in Harris, supra, the Court: “for purposes of the Double Jeopardy Clause . .. treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser included offense.”); Stephans v. Zant, 631 F.2d 397, 401 (5th Cir. 1980) (as felony murder is defined under Georgia law, the underlying felony is a lesser included offense of felony-murder and the same offense under Blockburger). Consistent, therefore, with Florida law, the courts may under Whalen prohibit imposition of consecutive sentences under the felony-murder statute.
      This conclusion is supported by the Court’s decision subsequent to Whalen, supra, in Albernaz v. United States, - U.S. -, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). In Albemaz, the Court applied the Blockburger test to identify congressional intent. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (whether each statutory provision requires proof of fact which the other does not). In Albemaz, the Court permitted consecutive sentences for separate violations involving conspiracy to import and conspiracy to distribute marijuana because it expressly found that the Blockburger test was met: the two relevant statutes required proof of a fact that the other did not. Albernaz, supra, at - U.S. -, 101 S.Ct. 1141-42, 67 L.Ed.2d 281. The Court also stated that the legislature is assumed to have legislated with the Blockburger rule in mind. Id. at - U.S., 101 S.Ct. 1144, 67 L.Ed.2d 283. Similarly, we must assume that the Florida legislature knew what it was doing; that when it failed to expressly provide for consecutive sentences for felony-murder and the underlying felony it perceived that proof of an underlying felony as a necessary part of proof of the felony-murder conviction involves no proof which is not required in proving the underlying felony. See Pinder, supra.

      The Supreme Court has consistently held that cumulative punishments may not be imposed unless each statutory offense required proof of a fact that the other did not and have applied the Blockburger rule to determine legislative intent. We do the same. See Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). Cf. Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980) (applying Simpson, supra, and principle of enhanced punishment to statutory interpretation).


author: HURLEY, Judge.

text:
    CENTENNIAL INSURANCE COMPANY, Appellant, v. TOM GUSTAFSON INDUSTRIES, INC., Appellee.
    No. 79-1309.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1981.
    Rehearing Denied Aug. 26, 1981.
    Larry Klein, West Palm Beach, and Fleming, O’Bryan & Fleming, Fort Lauder-dale, for appellant.
    Joel L. Kirschbaum of Esler, Kirschbaum & Pomeroy, and Thomas F. Gustafson of Kahn & Gustafson, Fort Lauderdale, for appellee.
   HURLEY, Judge.

Centennial Insurance Company appeals from a summary judgment finding coverage under an insurance policy issued by Centennial to Tom Gustafson Industries, Inc. The trial court found that Centennial had either waived its coverage defenses or was estopped from asserting them because of prejudice to the insured. Our review of the record leads us to conclude that (1) waiver of the coverage defenses was not established, and (2) the existence of prejudice, or the lack thereof, is a contested factual matter which cannot be resolved on summary judgment. Thus, we reverse.

In October, 1976, Tom Gustafson Industries, Inc., a painting contractor, was sued by The Wittington Condominium for allegedly failing to properly seal and paint the condominium. Gustafson, in turn, notified Centennial, its insurer, of the suit. Pursuant to its contractual responsibility to defend, Centennial retained the law firm of Pomeroy, Betts & Wiederhold to represent Gustafson.

Both parties commenced discovery by having experts examine the building to view the alleged paint defects; thereafter, the building was repainted by another contractor. Shortly after repainting commenced, Centennial determined that there was a coverage question. It reasoned that an exclusion in the policy was operative and, consequently, coverage did not exist. Centennial informed Gustafson’s counsel of its position and was immediately told that although counsel had been retained by Centennial, the canons of professional ethics required him to give complete loyalty to the insured-client. Thus, counsel suggested that if Centennial desired to pursue the coverage issue, it must retain a separate law firm to file a declaratory action.

In December of 1977, Centennial intervened in the action between the condominium association and Gustafson in order to seek a declaratory judgment on the coverage question. However, not until January of 1978, did Centennial notify Gustafson that it was providing a defense in the main action under a reservation of rights. Gus-tafson responded by filing a counterclaim against Centennial which alleged, among other things, that Gustafson had been prejudiced in its defense of the main claim by the tardiness of Centennial’s notice of reservation of rights. Gustafson claimed that Centennial had failed to retain a chemist who could have analyzed the paint and provided expert testimony at trial. Now, due to the repainting, Gustafson claimed that it was too late to take remedial action.

Next, Gustafson filed a motion for summary judgment. After a hearing, the court granted the motion and entered judgment declaring that coverage existed in favor of Gustafson. The court expressly based its decision on the following allegation from Gustafson’s motion:

CENTENNIAL INSURANCE COMPANY has waived the coverage defenses relied upon in their Amended Complaint for Declaratory Decree for failure to raise them within a reasonable time and/or is estopped from asserting them at this time or any future date in view of the prejudice to TOM GUSTAFSON INDUSTRIES, INC. arising out of the failure of CENTENNIAL INSURANCE COMPANY to notify TOM GUSTAFSON INDUSTRIES, INC. of their reservation of rights and their failure to provide appropriate expert examination of the subject building prior to it being repainted and to otherwise give TOM GUSTAF-SON INDUSTRIES, INC. an opportunity to defend itself or be apprised of the opportunity to defend itself.

We are compelled to disagree with the learned trial judge. It is settled that an insurer may provide a defense to its insured while reserving the right to challenge coverage if timely notice of such reservation is given to the insured. Midland Insurance Company v. Watson, 188 So.2d 403 (Fla. 3d DCA 1966). However, a delay in informing the insured of a dispute as to coverage may result in estoppel of the insurer from contesting coverage if the insured can show that he has been prejudiced. Phoenix Assurance Company v. Hendry Corporation, 267 So.2d 92 (Fla. 2d DCA 1972), cert. discharged, 277 So.2d 532 (Fla.1973). The existence of prejudice, if contested — as it was in the case at bar — presents a factual issue which cannot be resolved by summary judgment. See Torres v. Protective National Insurance Company of Omaha, 358 So.2d 109 (Fla. 3d DCA 1978).

Also, we have carefully reviewed the letters written by Gustafson’s counsel to Centennial and find that none of the statements therein demonstrate a conflict of loyalties which would estop Centennial from asserting a denial of coverage. Counsel consistently informed Centennial that, pursuant to the canons of professional responsibility, his singular duty was to the insured-client and that if Centennial wished to pursue its rights in a declaratory judgment action, it must do so by other counsel. We believe that Gustafson’s counsel, albeit that he was selected and retained by Centennial, demonstrated an appropriate sensitivity to the problems of dual representation and gave undeviating fidelity to Gustafson’s interests. Accordingly, we reverse the summary judgment and remand the case for further proceedings.

HERSEY and BERANEK, JJ., concur.


text:
    MARTHAME SANDERS & COMPANY, a Foreign Corporation, Petitioner, v. 400 WEST MADISON CORPORATION, a Florida Corporation, Norman E. Murphy and Sarah S. Murphy, Respondents.
    No. 81-999.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1981.
    Rehearing Denied Aug. 28, 1981.
    Patricia H. Thompson of Kimbrell, Ham-ann, Jennings, Womack, Carlson & Knis-kern, P.A., Miami, for petitioner.
    Bennett S. Cohn of Law Offices of Bennett S. Cohn, Lake Worth, for respondents.
   MOORE, Judge.

By a petition for writ of certiorari, the petitioner seeks review of an order granting respondents’ motion to compel arbitration and stay proceedings. The petitioner contends that the trial court erred in compelling arbitration because the respondents waived their right to arbitration by filing an answer to petitioner’s complaint in the trial court and participating in the trial court proceedings. Certiorari is granted and the order compelling arbitration and staying further proceedings is quashed.

The petitioner commenced suit against the respondents in the circuit court in March, 1979. On April 4, 1979, the respondents filed their answer and counterclaim. Thereafter, the parties proceeded with discovery, including depositions, interrogatories, and document production. The first scheduled trial in May, 1980 was continued upon respondents’ motion. In January, 1981, the trial was continued again because the court was unable to reach the case on its docket. On May 4, 1981, the third date on which the trial was scheduled to proceed, the respondents filed their motion for stay and to compel arbitration. The granting of this motion is the subject of these certiorari proceedings.

As this Court stated in King v. Thompson & McKinnon, Auchincloss, Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1978),

[Repudiation of an arbitration clause by a defendant, in the form of an answer to the complaint without demand for arbitration constitutes an abandonment of the right to arbitration and consent to submission of the controversy to the courts. (Citations omitted).

Accordingly, the respondents here have waived their right to arbitration.

We specifically reject the respondents’ contention that they could not have waived their right to arbitration because they were not aware of the contractual provision providing for arbitration until May 1, 1981. The contract attached to the complaint, which the respondents accept as true in their response to the petition for writ of certiorari, demonstrates that respondents acknowledged, by initial, the general conditions pertaining to the construction contract. The general conditions contained the provision for arbitration. The respondents must be assumed to have known, and are charged with knowledge, of the provisions incorporated into the contract they executed.

A writ of certiorari is granted and the trial court’s order staying proceedings and compelling arbitration is quashed.

LETTS, C. J. and BERANEK, J., concur.


text:
    The STATE of Florida, Appellant, v. Robert Walter MURRAY, Appellee.
    No. 80-1687.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Young v. State, 394 So.2d 525 (Fla.3d DCA 1981); Monahan v. State, 390 So.2d 756 (Fla.3d DCA 1980).


author: DANIEL S. PEARSON, Judge.

text:
    MIAMI STEEL TRADERS, INC., Appellant, v. RYDER TRUCK LINES, INC., a corporation, Ranger Division, Appellee.
    No. 80-2541.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.

      Alexander William Kent, Miami, for appellant.
    Britton, Cohen, Kaufman, Benson & Schantz and Leo Adderly, Miami, for appel-lee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

When in August 1980, Miami Steel Traders, Inc. was served with a summons and complaint, its counsel eschewed answering and instead, forty days later, filed a notice of appearance. Admittedly aware that the filing of this paper guaranteed that no default could be entered against the defendant unless its counsel was first notified of the application for default, see Fla.R.Civ.P. 1.500(b), and that the filing of an answer or responsive pleading before the default hearing would preclude default, see Fla.R.Civ.P. 1.500(c); Freedman v. Freedman, 235 So.2d 544 (Fla.3d DCA 1970), defense counsel, through the device of filing an appearance, effectively postponed the already long overdue response until Ryder applied for default, at which time defense counsel intended to cure his failure to respond to the complaint.

In late October 1980, Ryder moved for default and notified counsel for Miami Steel Traders, Inc. of its application. At this point, defense counsel’s best laid plans went awry — he mislaid and failed to calender the notice. Default and final judgment were entered. In December 1980, defense counsel, awakened (but not fully) more than a month earlier, by the threat of imminent execution on his client’s property, moved to vacate the default and final judgment. The trial court denied the requested relief, and the defendant appealed.

It is abundantly clear that the defendant’s proffer of excusable neglect went only to his failure to file an answer before the hearing on the plaintiff’s motion for default, held more than two months after the complaint was served and a month after the answer was due. No excusable neglect relating to the defendant’s failure to file the answer when it was due was shown.

While Rule 1.500(c) permits a defendant to prevent default by the filing of a late answer on the eve of the default hearing, the existence of this rule does not supplant the requirement of Florida Rule of Civil Procedure 1.140 that an answer be filed within twenty days from the service of the summons and complaint. A showing of excusable neglect to comply with Rule 1.500(c) cannot be bootstrapped into a showing of excusable neglect to comply with Rule 1.140.

The defendant has been hoist with its counsel’s own petard, and we will not pick up the pieces.

Affirmed.