author: OVERTON, Justice. SUNDBERG, Justice,

text:
    FLORIDA-TEXAS FREIGHT, INC., Petitioner, v. Paula F. HAWKINS, William T. Mayo, and Robert T. Mann, as members of and constituting the Florida Public Service Commission, Respondents.
    No. 53303.
    Supreme Court of Florida.
    Dec. 13, 1979.
    Rehearing Denied March 11, 1980.

      Richard B. Austin of the Law Offices of Richard B. Austin, Miami, for petitioner.
    0. C. Beakes, Jacksonville, for Florida • Freight Forwarders Rate Bureau, intervening petitioner.
    Prentice P. Pruitt, Legal Director, and Donald R. Alexander, Staff Counsel, Florida Public Service Commission, Tallahassee, for respondent.
    Norman J. Bolinger of Schwartz & Bol-inger, Jacksonville, for the Florida Intrastate Rate Bureau, intervening respondent.
   OVERTON, Justice.

By petition for writ of certiorari, we are asked to review Public Service Commission Order No. 14020, dated December 29, 1977, which amended Chapter 25-16, Florida Administrative Code, by adding parts III and IV thereto. The issue presented is whether the Commission complied with section 120.-54(2)(a), Florida Statutes (Supp.1976), which requires the preparation of an economic impact statement in rulemaking proceedings. This Court has jurisdiction pursuant to article V, section 3(b)(7), Florida Constitution.

The Public Service Commission by Order No. 13443, dated April 12, 1977, proposed to amend Chapter 25-16, Florida Administrative Code, by adding parts III and IV. The rules contained in this chapter prescribe the procedures for tariff filings by freight forwarders and include provisions relating to bills of lading and waybills, credit allowances, c. o. d. payments, collection of undercharges and the filing of contracts and agreements. The Commission circulated the proposed rules to all interested parties and published them in the Florida Administrative Weekly (FAW). At petitioner’s request, the Commission held a public hearing on parts III and IV of the rules on May 17, 1977.

The Commission addressed the issue of the economic impact of the proposed rules on two occasions. In its notice published in the FAW, the Commission stated:

These rules merely implement already established procedures and will not result in additional costs for the freight forwarders, public or the Commission and therefore have no economic impact.

Also, Transportation Rate Supervisor Julian R. O’Pry testified at the public hearing that he did not feel that the rules would affect the costs presently incurred by the forwarders.

On August 15, 1977, the hearing examiner entered an order recommending that the rules be adopted as proposed. Petitioner filed exceptions to the examiner’s report, complaining of an inadequate economic impact statement as required by section 120.-54(2)(a), Florida Statutes (Supp.1976). After oral argument the Commission entered its Order No. 14020 in which it affirmed the examiner’s report in all relevant respects.

Petitioner argues that the Commission’s failure to prepare an economic impact statement rendered the instant rulemaking proceeding invalid. The Commission counters with three arguments: (1) the proceeding was in substantial compliance with section 120.54(2)(a); (2) petitioner has failed to produce any evidence contradicting the Commission’s finding of no economic impact; and (3) any possible error in Commission procedure was not material and hence does not require a remand. § 120.68(8), Fla.Stat. (Supp.1976). For the following reasons, we agree with the Commission’s contention.

Section 120.54(2)(a) provides:

(2)(a) Every agency, prior to the adoption, amendment, or repeal of any rule, shall prepare information on its proposed action by preparing an economic impact statement using professionally accepted methodology, with quantification of data to the extent practicable, giving effect to both short-term and long-term consequences. The economic impact statement shall include the following information:
1. A description of the action proposed, the purpose for taking the action, the legal authority for the action, and the plan for implementing such action;
2. A determination of the least-cost method for achieving the stated purpose;
3. A comparison of the cost-benefit relation of the action to nonaction;
4. A determination of whether the action represents the most efficient allocation of public and private resources;
5. A determination of the effect of the action on competition;
6. A conclusion as to the economic impact of the proposed agency action on preserving an open market for employment; and
7. A conclusion as to the economic impact upon all persons directly affected by the action, including an analysis containing a description as to which persons will bear the costs of the action and which persons will benefit directly and indirectly from the action.

By this provision the legislature seeks to promote agency introspection in administrative rulemaking. The process of formulating rules and regulations involves an interplay between social and economic factors and the legislative goals underlying agency action. In order to ensure a comprehensive and accurate analysis of economic factors in this calculus, the legislature has instructed an agency, through section 120.54(2)(a), to prepare an explicit statement delineating the short- and long-term economic consequences of a proposed rule. Such a procedure directs agency attention to certain key considerations and thereby facilitates informed decision making. It also serves the salutary purpose of opening up the administrative process to public scrutiny.

The procedure envisioned by section 120.-54(2)(a) does not, however, command adherence to form over substance. We agree with the Commission’s argument that it substantially complied with the dictates of the Administrative Procedure Act. Ample notice of the proposed action was given, and its statement, published in FAW, expressed the Commission’s finding that no economic impact would result from adoption of the proposed rules. True, the statement did not track the seven subsections of the statute, but, in the absence of some evidence to the contrary or a showing of prejudice by a protestant, this shortcoming does not require remand. The petitioners never objected to the summary economic impact statement until after the unfavorable hearing examiner’s recommended report was filed. Further, the petitioners had sufficient opportunity to challenge the Commission’s statement at the public hearing. This failure to contravene the statement is even more glaring in view of the fact that the Commission’s staff witness specifically stated that there would be no economic impact.

The record in this cause does not require a remand to the Commission to file a detailed formal statement simply negating each of the seven factors outlined in section 120.54(2)(a) when a finding of no impact has been made. We find that petitioners were not denied a fair hearing in this cause, and certiorari therefore is denied.

It is so ordered.

ENGLAND, C. J., and BOYD and ALDERMAN, JJ., concur.

SUNDBERG, J., dissents with an opinion, with which ADKINS, J., concurs.

SUNDBERG, Justice,

dissenting.

I respectfully dissent from the majority opinion because I believe it materially impairs the purpose and integrity of section 120.54(2)(a), Florida Statutes (Supp.1976). As recognized by the majority:

By this provision the legislature seeks to promote agency introspection in administrative rulemaking. The process of formulating rules and regulations involves an interplay between social and economic factors and the legislative goals underlying agency action. In order to ensure a comprehensive and accurate analysis of economic factors in this calculus, the legislature has instructed an agency, through section 120.54(2)(a), to prepare an explicit statement delineating the short- and long-term economic consequences of a proposed rule. Such a procedure directs agency attention to certain key considerations and thereby facilitates informed decision making. It also serves the salutary purpose of opening up the administrative process to public scrutiny.

The procedure envisioned by section 120.-54(2)(a) is analogous to that found in our capital punishment statute, section 921.-141(3), Florida Statutes (1977). That provision directs the trial judge to make specific findings in the record of any aggravating or mitigating circumstance appertaining to one convicted of a capital offense. As in section 120.54(2)(a), the purpose of the statute is to channel into the decision-making process certain factors considered vital by the legislature.

The assertion by respondents and acceptance by the majority of the proposition that petitioner was obliged to rebut the Commission’s finding of no economic impact evinces a misunderstanding of the purpose of an economic impact statement. This statement is a procedural device designed to further the integrity of decision-making in agency rulemaking. It ensures a fair and comprehensive process by requiring a systematic review of essential economic factors. As such, the statement is equally vital, and mandatory, in contested as well as uncontested proceedings. Thus, the Commission’s failure in this case to comply with section 120.54(2)(a) constitutes error irrespective of the substantive correctness of its findings.

For these reasons I would grant the petition for writ of certiorari and quash the order of the Commission.

ADKINS, J., concurs.

      .Section 120.54(2), Florida Statutes (Supp. 1976), was recently amended by chapter 78-425, Laws of Florida:
      (2)(a) Each agency, prior to the adoption, amendment, or repeal of any rule, shall provide information on its proposed action by preparing a detailed economic impact statement. The economic impact statement shall include:
      1. An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork;
      2. An estimate of the cost or the economic benefit to all persons directly affected by the proposed action;
      3. An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; and
      4.A detailed statement of the data and method used in making each of the above estimates.
      (b) If an economic impact statement is required before an agency takes action on an application or petition by any person, the statement shall be prepared within a reasonable time after the application is made or the petition is filed.
      (c) Failure to provide an adequate statement of economic impact is grounds for holding the rule invalid; however, beginning October 1, 1978, no rule shall be declared invalid for want of an adequate statement of economic impact unless the issue is raised in an administrative or judicial proceeding within [one] year of the effective date of the rule to which the statement applies.


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    Alvin FISCHER, Petitioner, v. STATE of Florida, Respondent.
    No. 55703.
    Supreme Court of Florida.
    Dec. 13, 1979.
    Rehearing Denied March 4, 1980.

      Mark R. Baer, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Max Rud-mann, Asst.. Atty. Gen., West Palm Beach, for respondent.
   OVERTON, Justice.

Petitioner, by a writ of certiorari, requests review of a circuit court’s order upholding the constitutionality of section 823.-06, Florida Statutes (1977). The statute requires that all doors of buildings used for public entertainment must open outwardly. We have jurisdiction.

Petitioner, Alvin Fischer, is the owner of a public entertainment facility. He was charged by information with failing to have the doors of his establishment open outwards, a third degree felony under section 823.06. Petitioner alleged at trial that the statute was unconstitutional on two grounds.

Petitioner first contends that the statutory classification of buildings used for public entertainment was invidiously discriminatory, thus violating the fourteenth amendment equal protection clause. The statute is alleged to be irrational in that it applies only to places of public entertainment while imposing no criminal sanctions for a similar condition in a department store, office building, or other establishment predictably subject to large crowds and high population density.

The classification scheme appears to this Court to rest upon differences fairly and substantially related to the object of the legislation. Soverino v. State, 356 So.2d 269 (Fla.1978); Gammon v. Cobb, 335 So.2d 261 (Fla.1976). The owners of public entertainment facilities are required to provide doors which open outwardly to facilitate the escape of large crowds in an emergency situation such as a fire. There can be no argument that an outward opening door is the safer exit under emergency conditions; the statutory requirement is rationally related to the objective of public safety. The legislature has deemed application of this safety requirement to public entertainment facilities more important than to other types of establishments. The characteristics of public entertainment facilities in terms of crowd size and density are not identical to other types of facilities; the legislature is not forced to treat them as equivalents. Ridaught v. Division of Highway Patrol, 314 So.2d 140 (Fla.1975). The special burden imposed by such classification is not invidious or arbitrary.

Petitioner further alleges that a felony sanction is too drastic a penalty to be imposed for the incorrect positioning of a door, and as such it constitutes an eighth amendment violation as cruel and unusual punishment. We find that the statutory penalty of third-degree felony for this offense is not cruel and unusual punishment. Cognizant of the tragic consequences which might arise in the event of a fire or other emergency in a place of public entertainment were the statute not complied with, the legislature has provided those sanctions it feels appropriate to ensure compliance.

The order of the trial court is affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, SUNDBERG and ALDERMAN, JJ., concur.

      . All buildings erected in this state for theatrical, operatic, or other public entertainments of whatsoever kind shall be so constructed that the shutters to all entrances to said building shall open outwardly and be so arranged as to readily allow any person inside said building to escape therefrom in case of fire or other accident. Any owner, manager, lessee, or other person having charge of any public building for the use expressed herein who fails to comply with the provisions of this section shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

      . Art. V, § 3(b)(3), Fla.Const.


text:
    Dorothy Nell DUNCAN, Petitioner, v. Tommy David DUNCAN, Respondent.
    No. 53966.
    Supreme Court of Florida.
    Jan. 31, 1980.

      Robert E. Gibson and Hal. P. Dekle of Williams, Gibson & Harley, Tallahassee, for petitioner.
    Harold E. Regan, Tallahassee, for respondent.
   OVERTON, Justice.

This cause is before the Court on a petition for certiorari to review the decision of the First District Court of Appeal reported at 356 So.2d 28 (Fla. 1st DCA 1978). The district court approved the trial court’s judgment, which included as part of an overall property disposition the award to the husband of exclusive use of jointly held Alabama property occupied by thq husband’s parents. The award was based upon the husband’s special equity in the property. We initially accepted jurisdiction based upon conflict in the areas of exclusive possession and special equity. Conflict with Watson v. Watson, 324 So.2d 126 (Fla. 3d DCA 1976), Ranes v. Ranes, 311 So.2d 370 (Fla. 2d DCA 1975), and Saviteer v. McAdoo, 310 So.2d 28 (Fla. 2d DCA 1975), concerning the award of exclusive possession has been resolved in part by our express disapproval of Saviteer and Ranes in McDonald v. McDonald, 368 So.2d 1283 (Fla.1979). Conflict remains with Ball v. Ball, 335 So.2d 5 (Fla.1976), on the issue of what spousal contributions establish a “special equity.” We have jurisdiction. There is a need to define those circumstances in domestic relations proceedings which justify a special equity award and to harmonize the criteria for exclusive possession awards.

In most dissolution proceedings involving long-term marriages and minor children, the trial judge is presented with the difficult task of stretching the available family dollars to provide for two family units instead of one. There is seldom enough money to fulfill the needs of the parties and their children in the manner to which they were accustomed prior to the dissolution proceedings.

In the instant case we find the trial judge was sensitive to such problems and entered a fair and equitable dissolution judgment which will, to the extent possible, maintain some fiscal stability for this family until the youngest child reaches majority. Although we disagree with the finding that the husband had a special equity in the Alabama property, we nonetheless fully concur in the award of exclusive possession, given the circumstances of this case.

At the time of the dissolution, the parties had been married for thirty-three years. They had five children, two of whom were still minors and living at home. The accumulated material wealth of the parties acquired during this marriage consisted of the following: cash in the amount of $14,800; a home with unencumbered title, held as a tenancy by the entirety, consisting of twenty-three acres with an assessed valuation of $36,000; residential real property with unencumbered title in Opp, Alabama, held as a tenancy by the entirety and occupied by the parents of the appellee husband, the assessed value of which was $20,000; and motor vehicles consisting of a 1965 Ford, customarily used by the wife, a 1975 Buick, and a 1972 GMC pickup truck, customarily used by the husband. The parties also owned personal household goods, tools, and a tractor. The husband occupied the role of the principal provider and at the time of the dissolution was employed by the State of Florida with a net take-home pay of $266 per week. The wife in this marital partnership has been a homemaker and has not been gainfully employed during the entire marriage. She asserted in her financial statement that she needed $600 per month in expense funds to maintain herself and minor children.

In its final judgment the trial court granted to the wife child support in the amount of $150 per month for each child; permanent alimony in the amount of $300 per month; the exclusive use and control of the home as long as either child is under the age of eighteen years, living with her, and unmarried; the home furnishings; the 1965 Ford automobile; one-half of the cash; and an additional sum of $1,750 to equalize the automobile distribution. The court directed that the husband pay to the wife the sum of $600 per month through March 1, 1979; the sum of $450 per month through July 1, 1982; and the sum of $300 per month thereafter. The reduction dates coincide with the months in which the two minor children reach their respective majorities. The wife would thus initially receive $7,200 a year plus the use of the home without rent or mortgage obligations during her period of exclusive possession.

The husband is left with approximately $6,200 of annual income, from which must be deducted the cost of living accommodations in the Tallahassee area in order to maintain his state employment. The trial court granted to the husband the 1975 Buick; the 1972 GMC pickup truck; his tools, tractor, and other equipment; and one-half of all cash less the $1,750 necessary to equalize the automobile distribution. The husband also received exclusive use of the Alabama residential property, occupied by the husband’s parents, as long as either child is under the age of eighteen years, living with the wife, and unmarried. In this regard the court found that:

[T]he husband has a special equity in this residence based on the fact that he participated in the construction of the same by laying the bricks, digging the trenches, preparing the blue prints, hiring the carpenter and brick laying sub-contractors, over-seeing their work at least once a week for several months by traveling from Pensacola, Florida, to Opp, Alabama and by buying and hauling to the job site the various building materials. Further, the Court finds that all of the money which went into this home was derived from the salary and wages of the husband and the home was built with the permission of the wife, for the husband’s mother and father, who have resided there since its completion in 1960.

The effect of granting the exclusive use of the marital home and Alabama property to the wife and the husband, respectively, until the youngest child reaches majority, is to toll for six years the final disposition of the real property acquired by the parties during their marriage.

In upholding the judgment of the trial court and approving this grant of exclusive possession of the Alabama property to the husband, the district court of appeal found that the husband’s actions in acquiring and improving this property were a “significant personal contribution . . . sufficient to establish a special equity in husband in the Alabama house, at least to the extent of granting him the exclusive use of that house while wife has exclusive use of the parties’ marital home.” 356 So.2d at 29.

Given the totality of the factual circumstances, the record evidence is sufficient to justify the exclusive possession awards, including the property dispositions, alimony, and child support award. However, we must reject the finding that the efforts of the husband in constructing the improvements on the Alabama property constituted a “special equity.”

Grants of “special equity” and “exclusive possession” in certain property are judicially created terms. They were established to assist the trial judge in the formulation of equitable property dispositions and support orders. In establishing criteria to govern the application of the terms “special equity” and “exclusive possession,” we must be careful to avoid inflexible rules of law which unduly restrict the trial judge in determining what is equitable and just. The terms “special equity” and “exclusive possession” were established to do equity in those circumstances where their use is appropriate and justified.

Special Equity

The term “special equity” was judicially created to avoid the harshness of the statutory rule that absolutely prohibited alimony for an adulterous wife. See Heath v. Heath, 103 Fla. 1071, 138 So. 796 (1932). In its true sense, a “special equity” is a vested interest which a spouse acquires because of contribution of funds, property, or services made over and above the performance of normal marital duties. Eakin v. Eakin, 99 So.2d 854 (Fla.1958). See, e. g., Ball v. Ball, 335 So.2d 5 (Fla.1976) (property acquired with inherited/ funds of one spouse); Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978) (one spouse entered the marriage with possession of realty and personalty); and Green v. Green, 228 So.2d 112 (Fla. 3d DCA 1969) (one spouse contributed special labor toward accumulation of the other spouse’s wealth). A special equity in property held as tenants by the entirety will not arise when the property is acquired from funds generated by a working spouse while the other spouse performed normal household and child-rearing responsibilities. Ball v. Ball; accord Fiedler v. Fiedler, 375 So.2d 1119 (Fla. 2d DCA 1979).

The vested property interest established by this type of “special equity” is not alimony. It is clearly distinguishable from the “special equity” finding used to justify lump sum alimony. This distinction is set forth in our opinion in Canakaris v. Canakaris, No. 54,124 (Fla. January 31, 1980), rendered simultaneously with this decision.

When the court finds a true “special equity,” it should indicate that the party has a vested interest in the subject property. The award, once made, is permanent and not subject to modification.

Exclusive Possession of Property

The award of “exclusive possession” of property subject to disposition in a dissolution proceeding should either be directly connected to the obligation to pay support or be temporarily necessary to prevent reduction in the value of the subject property. The critical question is whether the award is equitable and just given the nature of the case. A grant of exclusive possession of property to one of the parties in a final judgment must serve a special purpose. See, e. g., McDonald v. McDonald, 368 So.2d 1283 (Fla.1979) (a form of rehabilitative alimony for a spouse demonstrating a need); George v. George, 360 So.2d 1107 (Fla. 3d DCA 1978) (aid to a child who had reached majority but who had a debilitating muscular disorder); Lange v. Lange, 357 So.2d 1035 (Fla. 4th DCA 1978) (aid to a spouse with mental problems); and Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975) (aid to a spouse with custody of minors). In each of these instances, the exclusive possession is actually a facet of support and is clearly warranted because of the equity of the cause. We can foresee the need to grant temporary exclusive possession of a family business in order to ensure income for support and to avoid an immediate substantial reduction in value.

We reject the asserted inflexible rule that an award of exclusive possession of property must be limited to the home, that it benefit only a spouse with minor children, and that it must terminate when all children born of the marriage have attained the age of majority. McDonald v. McDonald. In so holding, we disapprove Church v. Church, 338 So.2d 544 (Fla. 3d DCA 1976); Watson v. Watson, 324 So.2d 126 (Fla. 3d DCA 1975); Ranes v. Ranes; and Saviteer v. McAdoo.

An award of exclusive use of property must be determined by the equity of the cause and should be for a specified period. It is always subject to modification whenever there is a change of circumstances.

The Instant Case

We fully recognize that the disposition of property acquired during a marriage and the provisions of child support and alimony are mutually dependent. A judgment containing each of these ingredients must be fair and equitable and must provide a plan of hopeful fiscal stability, particularly during the time when the family unit includes minor children who must be properly supported. In the instant case the parents of the husband have been provided a residence in Alabama where they have resided since 1960. This property is part of the accumulated marital assets and was acquired by the husband and wife with funds earned in the course of their marriage. When considered with the award of the marital home to the wife, the fiscal condition of the parties, the husband’s ability to provide support, and the termination date of the possession, we must agree that the award of exclusive possession of the Alabama property to the husband was within the discretion of the trial judge. To do otherwise would likely force partition of the Alabama property, resulting in significant relocation expense for the husband’s parents and an accompanying decrease in the husband’s fiscal ability. This, in turn, could adversely affect provisions for the support of the wife and minor children. The amount of money available for this family is limited. The trial judge in this instance balanced the needs of the parties and determined that this plan would provide stability for the entire family until the children reached majority. The award of exclusive possession merely tolled the time for the final disposition of the real property acquired during the marriage until the youngest child reaches majority. We find that there was a demonstrated need for this exclusive possession award, which is directly connected with the support provisions, of this final judgment.

The division and distribution of material wealth acquired in the course of a marriage and the interconnected needs for the support of a spouse and minor children, together with the parties’ respective financial problems, are among the most difficult and sensitive issues facing a trial judge in this type of proceeding. In this case the trial judge entered an equitable and reasonable judgment. Although the erroneous finding of a special equity served as a legal basis for the award of exclusive possession of the Alabama property, the facts warranting the award were clear from the record. We affirm this correct result even though it was reached in part for the wrong legal reason. Firestone v. Firestone, 263 So.2d 223 (Fla.1972); In Re Estate of Yohn, 238 So.2d 290 (Fla.1970). We disapprove the opinion of the district court as it relates to the issues discussed in this opinion and deny the petition for writ of certiorari.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD and ALDERMAN, JJ., concur.

SUNDBERG, J., dissents.

      . Art. V, § 3(b)(3), Fla.Const.


author: BOYD, Justice,

text:
    Eugene HOLLOWAY, Petitioner, v. STATE of Florida, Respondent.
    No. 55266.
    Supreme Court of Florida.
    Jan. 31, 1980.

      Warren S. Schwartz, Asst. Public Defender, Miami, for petitioner.
    Steven L. Bolotin, Asst. Atty. Gen., Miami, for respondent.
   The Court having accepted jurisdiction and heard argument, and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, certiorari is denied.

No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

ENGLAND, C. J., and ADKINS, OVER-TON, SUNDBERG and ALDERMAN, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

This case is before us on conflict certiora-ri to review Holloway v. State, 362 So.2d 333 (Fla. 3d DCA 1978). The decision of the district court conflicts with Brown v. State, 206 So.2d 377 (Fla.1968), and that court’s attempt to distinguish Brown does not convince me. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Petitioner was convicted of first-degree murder. The murder was committed on November 7, 1972. Petitioner was tried pursuant to indictment filed June 23, 1976. After the presentation of evidence to the jury, petitioner requested that the court instruct the jury on the lesser offenses of second-degree murder, third-degree murder, and manslaughter. The court declined to so instruct the jury, on the ground that instructions on lesser offenses are not required when the statutory limitations period has expired on such lesser offenses. See § 932.465, Fla.Stat. (1971). The district court affirmed, holding that since a defendant may not be convicted of any lesser offense on which the statute of limitations has run, the court is not required to instruct the jury on any such lesser offense.

Florida Rule of Criminal Procedure 3.490 provides:

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

We have held that it is error to violate the strict mandate of this rule. State v. Abreau, 363 So.2d 1063 (Fla.1978); Brown v. State, 206 So.2d 377 (Fla.1968).

The accused has a right to have the jury instructed on all less serious included offenses regardless of the expiration of the limitations period on the lesser offenses. The purpose of these instructions is to guide the jury in reaching the proper verdict and the running of the statute of limitations should have no effect.

The function of the jury, in reaching the proper verdict, is to make factual and not legal determinations. If the jury finds that the conduct of the accused fits under a certain category of crime, it so informs the court in its verdict. The judge then decides the legal question of whether upon the verdict rendered an adjudication of guilt is proper. If the verdict finds the accused guilty of an offense barred by the statute of limitations, the court should acquit the defendant.

In the case of a homicide, it denies due process for the court to instruct the jury that it may find the defendant guilty of first degree murder or not guilty at all. If the jury is convinced that the defendant committed homicide intentionally, but that the evidence does not show murder in the first degree, the temptation will be great to render a verdict of guilty of first-degree murder as charged, so as not to acquit one who culpably took human life.

When the evidence shows that the most that can be established at trial is one of the lesser degrees of homicide, and the statute of limitations has run on them, the suspect will simply not be charged. But one who has committed a lesser degree of homicide but is prosecuted for first-degree murder is denied fundamental fairness and equal protection if the jury is told that it must convict of first-degree murder or not at all.

Furthermore, equal protection of the laws requires that in matters of criminal procedure the accused must be treated the same as others, charged with first-degree murder, when the lesser degrees of homicide are still viable offenses under the statute of limitations. The fact that the less serious offenses are not viable because of the expiration of the statutory period does not justify depriving the accused of an advantage afforded to others similarly charged.

I dissent from the Court’s order. I would quash the district court’s decision.


text:
    Margaret W. INGRAM, Petitioner, v. Max H. INGRAM, Respondent.
    No. 56015.
    Supreme Court of Florida.
    Jan. 31, 1980.
    David R. Lewis of Lewis, Paul, Isaac & Castillo, Jacksonville, for petitioner.
    Donald F. Perrin of Newton, Watson, Barry & Perrin, Jacksonville, for respondent.
   OVERTON, Justice.

This case is before the Court on a petition for writ of certiorari from the District Court of Appeal, First District, reported as Ingram v. Ingram, 364 So.2d 1251 (Fla. 1st DCA 1978). The petitioner alleges conflict with Shaw v. Shaw, 334 So.2d 13 (Fla.1976), on grounds that the district court substituted its judgment for that of the trial judge, despite the fact that there was no finding that the trial judge had abused his discretion. We find conflict with Shaw v. Shaw, as well as with our recent decision in Canakaris v. Canakaris, No. 54,124 (Fla.1980). We have jurisdiction, and quash the opinion of the district court.

This controversy arises from a dissolution proceeding in which the husband claimed a “special equity” in the marital home. The wife entered this marriage with title to the home which she had purchased, with a $200 down payment, approximately ten months prior to the marriage. The parties lived in the house during the eight-year marriage. During the course of the marriage both parties contributed to the house payments. The husband, who had two daughters from a previous marriage living in the marital home, contributed the majority of each mortgage payment. The husband also paid for various repairs and improvements to the home.

In its final judgment, the trial court refused to grant the husband a “special equity” in the home. The district court of appeal reversed and found that the husband’s financial contributions toward the mortgage constituted a “special equity,” and remanded the case for a determination of his share. There was no finding by the district court that the trial judge abused his discretion in denying the husband’s claim of a “special equity.”

We have recently discussed the concept of “special equity” and the discretion of the trial judge in dissolution proceedings in our decisions in Duncan v. Duncan, 379 So.2d 949, No. 53,966 (Fla.1980), and Canakaris v. Canakaris, No. 54,124 (Fla.1980). The determination of the trial judge that there was no “special equity,” as we have defined it in Duncan and Canakaris, was proper. Ball v. Ball, 335 So.2d 5 (Fla.1976). This does not mean that the trial judge was without the discretionary authority to make an alimony award to the husband if such an award was necessary to do equity between the parties.

We quash the opinion of the district court. In view of our decisions in Duncan and Canakaris, we direct that the district court remand to the trial judge for reconsideration if he deems it appropriate, given all the circumstances of the case.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD and ALDERMAN, JJ., concur.

SUNDBERG, J., concurs in result only.

      . Art. V, § 3(b)(3), Fla.Const.


author: BOYD, Acting Chief Justice.

text:
    COMMERCIAL TRUCK BROKERS et al., Petitioners, v. Robert T. MANN et al., Respondents.
    No. 56900.
    Supreme Court of Florida.
    Jan. 31, 1980.

      J. B. Rodgers, Jr. of Rodgers, Rodgers, Wagner & Satava, Orlando, for petitioners.
    Prentice P. Pruitt, Legal Director, and Paul Sexton, Staff Counsel of the Florida Public Service Commission, Tallahassee, for respondents.
    Edward E. Fessenden, Jr. of Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lakeland, for Joseph Land and Co., Inc., intervening respondent.
   BOYD, Acting Chief Justice.

This cause is before us to review a Public Service Commission order establishing the standard for obtaining a transportation brokerage license. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Joseph Land & Company, Inc. applied for three auto transportation broker’s licenses for three different locations, Lake Placid, Leesburg and Lake Wales. The three applications were consolidated for one hearing which petitioners joined as protestants. The hearing examiner recommended that the applications be granted except as to seafood which is not an issue here. Petitioners filed a list of exceptions, asserting that section 323.31(2), Florida Statutes (1977) embodied the same standard contained in section 323.03(4), Florida Statutes (1977); that the testimony at the hearing did not satisfy the standard; and that the “swing office” at Lake Wales was illegal. The commission denied the exceptions and granted the applications. In re Application of Joseph Land and Company, Inc., Docket Nos. 780154-ATB, 155-ATB, 156-ATB, Order No. 14925 (Fla.Pub.Ser.Comm., 1979). Petitioners seek review raising the same issues listed in their exceptions to the hearing examiner’s recommendation.

Petitioners’ claim that the standard for granting a transportation brokerage license under section 323.31(2), Florida Statutes (1977), is the same as the standard for granting certificates of public convenience under section 323.03(4), Florida Statutes (1977), is without merit. Section 323.03(4) provides that the proposed service must be “required by the present or future public convenience and necessity,” whereas section 323.31(2) provides that the proposed service need only be “consistent with public convenience and necessity.” (Emphasis supplied.) Apparently the latter provision was employed because the public has a lesser need to be protected from excessive competition among brokers than it does from among carriers. See generally, Gray Line Nat’l Tours Corp. v. United States, 380 F.Supp. 263 (S.D.N.Y.1974); Collette Travel Service Inc. v. United States, 263 F.Supp. 302 (D.R.I.1966). The divergent purposes of the statutes support the conclusion that an applicant for a broker’s license does not have to show as great a need for his service as does an applicant for a motor carrier certificate.

This conclusion is further supported by other differences between the two statutes. Section 323.03(4)(b) specifically provides that the commission must make an affirmative finding as to the “present necessity for the certificate.” Conversely, section 323.31(2) provides that the “[C]om-mission may deny any [broker’s] application when the need for the proposed service is not affirmatively shown.” By using the permissive word may, the legislature has implied that the commission may grant an application for a broker’s license when the need for the proposed service is not affirmatively shown.

We are not unmindful that our interpretation of section 323.31(2) requires an applicant for a broker’s license “to establish by substantial evidence . . . that the issuance of a license to him would be consistent with the public convenience and necessity,” while at the same time relieving the applicant from affirmatively showing the need for issuing the license. This seeming contradiction can be resolved by finding that it is possible for an applicant to prove that the proposed service is consistent with public necessity without having to affirmatively show a public need for the service. Proof that a service is consistent with public necessity may be established by evidence showing the service is not totally duplica-tive of existing service. Such evidence would not “affirmatively” establish a need for the new service, but would at least tend to show the new service is not inconsistent with public necessity.

We now reach the issue of whether there is competent substantial evidence supporting the commission’s decision to grant the three applications. The commission found that the applicant had affirmatively shown the existence of a public need for a license at two of the locations. A score of witnesses testified to the need and convenience for a broker’s services at Lake Placid and Leesburg. Such extensive testimony is more than an adequate basis for supporting the commission’s determination.

As for the third application for a broker’s license at Lake Wales, although the commission found that an affirmative need had not been established, it granted the application. Lake Wales is presently being serviced by Sunland Brokers, Inc., which is owned and operated by the same person, Joseph Land, who owns and operates the applicant company. Mr. Land testified that a second license was needed which could be transferred from one location to another on a seasonal basis. Other witnesses’ testimony concerning the need for more brokers during the peak seasons establishes that the granting of the license would be consistent with public necessity.

Petitioner’s third point is that the Lake Wales license establishes a “swing office” in violation of section 323.31(3)(c), Florida Statutes (1977), and Rule 25-5.124, Florida Administrative Code. Those provisions provide that a separate license is required for each location a broker conducts business. But the commission may grant a seasonal transfer from one locality to another upon request. Rule 25-5.126, Fla.Admin. Code. Since the commission has not granted approval for the applicant to operate at any location other than mentioned on the license, it has not violated either the statute or its rules.

The order under review is affirmed.

It is so ordered.

OVERTON, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.

      . Issuance of license; hearing; protest. A transportation brokerage license shall be issued to any applicant therefor, who is found to be qualified, as hereinafter provided, to perform the transportation brokerage services proposed in his application and who is found to have complied with the provisions of this section and the requirements, rules and regulations of the commission thereunder; otherwise, such application shall be denied. Upon the filing of the application and the payment of the fees hereinafter provided, the commission shall set a time for a public hearing and shall at the same time give written notice thereof to each transportation broker holding a license to do business anywhere in the state. At such public hearing the applicant will be required to establish by substantial evidence the statements made in his application as well as the fact that the issuance of a license to him would be consistent with public convenience and necessity. In issuing any such license the commission shall consider the effect of the proposed service upon transportation brokerage as a whole within the service area sought by the applicant. The commission may deny any such application when the need for the proposed service is not affirmatively shown.

      . Issuance of certificate.—A certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements and rules thereunder of the commission, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity. In determining whether such certificate shall be granted, the commission, among other things, must specifically consider, and in a contested proceeding make affirmative findings concerning, each of the following elements:
      (a) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs.
      (b) The present necessity for the certificate in relation to the volume of existing or projected future traffic over such route or in such territory.
      (c) The financial ability of the applicant to furnish adequate, continuous, and uninterrupted service at the times required therefor, and to meet the financial obligations of the service which the carrier proposes to perform.
      (d) The effect on existing transportation facilities and service of all kinds, and particularly whether the granting of such certificate will or may seriously impair essential public service as provided by existing motor carriers.
      (e) The fitness of the applicant properly to perform the proposed service and to conform to provisions of this part and the rules of the commission.
      (f) The feasibility of the transportation proposed.

      . Localities or locations from which the applicant desires to operate shall be stated as precisely as possible and if possible shall be stated by reference to a particular incorporated municipality. License shall be issued according to the localities or locations stated in the application therefor and shall authorize the applicant to do business only from the localities or locations stated. Nothing herein contained shall be interpreted as preventing any transportation broker from holding licenses to do business from more than one locality or location but a separate license shall be required for each locality or location from which business is done; provided, however, upon application to and approval by the commission, licensed transportation brokers engaged exclusively in procuring transportation for seasonal commodities, may, upon terminating seasonal operations in a given locality, move to another locality and continue such seasonal operations without procuring an additional license or licenses for such subsequent places of business.

      . (1) A license shall be required for each location from which a broker conducts business. Each location shall be precisely described by setting forth the street address and the name of the city, town or village. If the business is located in unincorporated territory, the nearest readily identifiable location should be stated. Reference should be made to a public road.
      (2) A business location is a place where business is transacted by a transportation broker for a shipper in relation to the movement of the shipper’s property by a motor carrier, such as: Selling or offering for sale any transportation of property except cut flowers and flower bulbs, negotiating for, or holding himself or itself out by solicitation, advertisement, or otherwise as one who sells, provides, furnishes or contracts for such transportation.

      .(1) No transportation broker, holding a license issued by this Commission, shall transfer the permanent business location of such license to a seasonal location without prior approval of the Commission; neither shall such license be transferred from an approved seasonal location to another seasonal location without such prior approval of the Commission.
      (2) When a transportation broker’s license is to be transferred from one locality to another, on a seasonal basis, the licensee shall submit a request on a form prescribed by the Commission. Such forms may be obtained from the Transportation Department, Florida Public Service Commission, 101 East Gaines Street, Tallahassee, Florida 32304.
      Requests shall be submitted in duplicate and, after approval by the Commission, the original copy shall be returned to the licensee to become a part of the license for the duration of the transfer period.
      (3) If a transportation broker’s license is on seasonal transfer, it must be immediately transferred back to its permanent location or to another seasonal location at the end of the season or after sixty (60) days, whichever occurs first. Should the season extend beyond sixty days, an extension for a reasonable period of time may be granted at the current seasonal location. Requests for such extension shall be made on the form used for seasonal transfers and the same procedure shall be used in approving such extensions as in approving seasonal transfers.


author: PER CURIAM.

text:
    RADIO TELEPHONE COMMUNICATIONS, INC., Petitioner, v. Robert T. MANN, Etc. et al., Respondents.
    No. 56902.
    Supreme Court of Florida.
    Jan. 31, 1980.
    B. Kenneth Gatlin and John W. Costigan, of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for petitioner.
    Felix A. Johnston, Jr., of Woods, Johnston & Erwin, Tallahassee, for Williams Metro Communications Corp.
    Norman H. Horton, Jr., and Prentice P. Pruitt, Tallahassee, for Florida Public Service Commission.
   PER CURIAM.

The petition for writ of certiorari is denied.

ADKINS, BOYD, OVERTON and MCDONALD, JJ., concur. ■

ENGLAND, C. J., and SUNDBERG and ALDERMAN, JJ., dissent.


author: PER CURIAM. BOOTH, Judge,

text:
    CHATTANOOGA BOILER AND TANK COMPANY, Appellant, v. William RITTENBERRY and Monsanto Corp. and Monsanto Textiles Company, Appellees.
    No. KK-211.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1979.
    Robert D. Bell, of Fisher, Bell, Hahn, Winn & Rubel, Pensacola, for appellant.
    J. Nixon Daniel, III, of Beggs & Lane, Pensacola, for appellees.
   PER CURIAM.

We affirm the judgment notwithstanding verdict entered in favor of Monsanto, the employer of Rittenberry, following the entry of a verdict in favor of the third party tortfeasor, Chattanooga, on its claim for indemnity against Monsanto. Chattanooga had alleged Monsanto was actively negligent in causing certain injuries suffered by its employee, Rittenberry, during the course of employment, while Chattanooga was only passively negligent. There can be no claim for indemnity, under the circumstances, by a third party tortfeasor against an injured party’s employer. Seaboard Coast Line R. Co. v. Smith, 359 So.2d 427 (Fla.1978).

The judgment notwithstanding verdict is AFFIRMED.

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

BOOTH, J., specially concurring.

BOOTH, Judge,

specially concurring.

The facts here do not bring cause within the rule of Home Indemnity v. Edwards, 360 So.2d 1112 (Fla. 1st DCA 1978) and cases cited therein, therefore, I concur.


author: MELVIN, Judge. ERVIN, Judge,

text:
    Betty Elwood MELTON, as Personal Representative of the Estate of Thomas Albert Melton, Deceased, and for the benefit of the survivors of Thomas Albert Melton, Deceased, Appellant, v. Henry ESTES, d/b/a Tharpe Street Trailer Park and United States Fidelity and Guaranty Insurance Company, Appellees.
    No. JJ-437.
    District Court of Appeal of Florida, First District.
    May 15, 1979.

      Marion D. Lamb, Jr., R. William Roland and James N. McConnaughhay of McCon-naughhay, Booth & Roland, Tallahassee, for appellant.
    David A. Barrett and Roy L. Glass of Barrett, Boyd & Bajoczky, Tallahassee, for appellees.
   MELVIN, Judge.

James Patronis, in October of 1976, rented a trailer space from Henry Estes, in Estes’ trailer park known as Tharpe Street Trailer Park. Allstate Mobile Home Movers undertook the task of moving the Pa-tronis’ trailer onto the Estes’ trailer park and Bobby Lord was the driver of its tractor power unit used for such purpose. While the trailer was being pulled onto the lot rented by Patronis, the wheels of the trailer fell into a septic tank, the location of which was not obvious to the driver. Estes had advised Lord of other septic tanks and utilities in the area that would constitute some hazard, but he did not call this particular septic tank to his attention. After the trailer had come to rest, Lord advised that he would be unable to remove it until the following day. The next day, Melton, who was a part-time employee of Allstate Mobile Home Movers, came with Lord for the purpose of removing the trailer.

At the time the trailer fell into the septic tank, Estes had superior knowledge as to the location of such tank. However, when the house trailer had been pulled over the septic tank, the tank had broken and the trailer fell in. From that point forward, everyone involved had equal knowledge of the location of that septic tank, the location and condition of the house trailer, and the soil in the area. It cannot be in reason said that Estes had any comparable knowledge to that possessed by Lord or Melton as to the proper procedure for removing a house trailer from a septic tank. Melton and Lord had superior knowledge, to that possessed by Estes, as to the weight of the house trailer and the foundation support that would be necessary for jacks to rest upon in order to lift the house trailer from the septic tank. The activities of Lord and Melton, employees of Allstate Mobile Home Movers, were necessarily independent of any previous negligence on the part of Henry Estes in failing to advise as to the location of the septic tank. Whether or not Allstate Mobile Home Movers should have, in the exercise of due diligence, sent to the scene an appropriate size lift-crane or whether it should have sent a part-time employee were judgment factors made by Allstate Mobile Home Movers and concerning which Henry Estes had no part and no decisional responsibility.

The tragic death of Melton occurred when inadequate boards were placed to support the lift jacks and the boards gave way trapping Melton under the house trailer, crushing him to death. Before Melton crawled under that house trailer and before he and Lord attempted to place the boards and jack-up the house trailer, they knew, or should have known, the condition of the soil as to whether or not it was hard packed or soft type soil. Their failure to use reasonable care was the sole legal cause of the accident that crushed the life out of Mr. Melton. Melton and Lord, not Estes, had superior knowledge of any danger involved in the effort to jack-up and extract the mobile home from a septic tank. The activity of Lord and Melton in the procedures followed by them in their effort to extract the house trailer constituted an independent, intervening cause that completely disintegrated the causal connection between Estes prior negligence and the claimant’s injuries. It was not foreseeable by Estes that Lord and Melton would not observe that which was obvious and would not take reasonable care for their own safety. Therefore, there was no issue of fact for a jury determination. Pope v. Pinkerton-Hays Lumber Company, 120 So.2d 227 (Fla. 1st DCA 1960).

In Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), our sister court of appeal affirmed a summary judgment entered in favor of the Florida Power & Light Company and the University of Miami in a suit by Arleen S. Rice, as personal representative of the Estate of Brian Rice. Rice was electrocuted on the campus of the University of Miami when a model airplane that he was flying over an open field, with metal line hand control, came in contact with uninsulated power lines. The power lines were not a “latent hazard” but were obvious for all who cared to observe. The court held at 839:

“We have stated that the existence of unobstructed power lines, clearly visible above an open field is not a latent hazard. See footnote 2, supra. The duty of a landowner to an invitee is to use ordinary care to maintain the premises in a reasonably safe condition for use in a manner consistent with the invitation, and to warn of latent perils which are known or should be known to the owner but which are not known to the invitee or which, by the exercise of due care, could not be known to him. Hickory House v. Brown, 77 So.2d 249 (Fla.1955); Messner v. Webb’s City, 62 So.2d 66 (Fla.1952); Hall v. Holland, 47 So.2d 889 (Fla.1950); Quinnelly v. Southern Maid Syrup Company, 164 So.2d 240 (Fla. 2d DCA 1964).
An ‘owner is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own sense, and is not required to give the invitee notice or warning of an obvious danger.’ Hall v. Holland, supra, at 891-92. Messner v. Webb’s City, supra. Nor need he alter the premises to eliminate known and obvious dangers. Hall v. Holland, supra, at 892.
Where an obviously dangerous condition exists, an underlying requirement to liability of a landowner is that he have knowledge of that condition which is superior to that reasonably obtainable by the invitee Rist v. Florida Power & Light Company, 254 So.2d 540 (Fla.1971); Somers v. Meyers, 171 So.2d 598 (Fla. 1st DCA 1965); Quinnelly v. Southern Maid Syrup Company, supra. Such is not the case on the facts before us.” (Emphasis supplied)

Likewise, such is not the case on the facts before us.

The final summary judgment appealed from is AFFIRMED.

McCORD, C. J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

The majority is in agreement that Estes had superior knowledge of the location of the septic tank. The law is clear that Estes, the landowner, owed his invitees a duty to maintain his premises in a reasonably safe condition and to warn them of dangerous conditions which he knew or should have known and of which his invitees were ignorant and could not with reasonable care discover. McNulty v. Hurley, 97 So.2d 185 (Fla.1957); Post v. Lunney, 261 So.2d 146 (Fla.1972). Notwithstanding the fact that Estes breached his duty by failing to disclose to Lord the location of the septic tank, the majority concludes that it was Melton’s negligence — not Estes’ — which was the proximate cause of the former’s death. The majority states it was not foreseeable by Estes that Lord and Melton would not observe that which was obvious and not take reasonable care for their own safety. Nevertheless, it was foreseeable by Estes that some one was required to remove the trailer from the hole. Estes did not undertake that responsibility.

An independent, intervening cause breaks the causal connection between a defendant’s negligence and the claimant’s injuries only if the intervening cause is not a foreseeable or probable consequence of a defendant’s negligence. Johnson v. Wood, 155 Fla. 753, 21 So.2d 353 (1945); Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227 (Fla. 1st DCA 1960). I do not think the facts clearly show that Melton’s attempt to remove the trailer was not a foreseeable consequence of Estes’ negligence, nor do I think they show that Melton’s negligence was the sole proximate cause of his death. Generally, proximate cause is an issue for the jury to determine. It “is not a question of science or legal knowledge — it is a fact to be determined in consideration of all the circumstances.” Trotter v. Hewett, 163 So.2d 510, 511 (Fla. 3d DCA 1964); Wisdom v. Nickels, 212 So.2d 652 (Fla. 4th DCA 1968). I would reverse the summary judgment and permit the parties to proceed to trial.


author: PER CURIAM. OTT, Judge.

text:
    Tony DAMICO and Josephine Damico, his wife, Appellants, v. Wayne William LUNDBERG, Appellee.
    No. 78-1442.
    District Court of Appeal of Florida, Second District.
    June 29, 1979.
    On Rehearing Nov. 7, 1979.

      Mac A. Greco, Jr., Tampa, for appellants.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellee.
   PER CURIAM.

Affirmed.

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

ON MOTION FOR REHEARING

OTT, Judge.

In this automobile negligence action the circuit court, acting under the authority of Section 627.7262, Florida Statutes, dismissed defendant’s liability insurance carrier. The action thén proceeded to trial on the merits and resulted in a defense verdict. The Florida Supreme Court has now ruled that Section 627.7262 is an unconstitutional intrusion upon that court’s rule-making power. Markert v. Johnston, 367 So.2d 1003 (Fla.1979). As appellants urged on this appeal, and now on petition for rehearing, the action of the circuit court in ordering such dismissal was undeniably erroneous.

Appellants further insist that such error was prejudicial per se, automatically requiring reversal if properly contested, and cite Godshall v. Uniguard Insurance Co., 281 So.2d 490 (Fla.1973) as authority for that proposition.

We are not unmindful of Godshall, but we do not believe that by it our supreme court meant to abrogate the cardinal principle of appellate review: error is reversible only when, considering all the facts peculiar to the particular case under scrutiny, it is reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed. 3 Fla.Jur.2d 499; Stecher v. Pomerory, 253 So.2d 421, 422 (Fla.1971).

Here, no amount of emphasizing the financial responsibility of the defendant could counteract plaintiff husband’s admission that he entered the intersection in which the collision occurred without knowing whether the traffic light was red or green, because he and his wife were talking and he was not paying attention to the light. Supplementing that damaging admission was the positive testimony of the defendant, the driver of the vehicle immediately behind the defendant, and the driver of a vehicle which had been stopped waiting for the light to change, that defendant entered the intersection on a green light.

That, together with the facts revealed to the jury concerning the relative economic positions of the parties (plaintiffs being elderly, retired and not in the best of health, while defendant was younger, steadily employed and was returning home from a golf match at the time of the accident), prevent us from speculating that the jury might have found liability on the part of the defendant if they had known he was insured. Even had that information been added, the state of the evidence was such that a verdict for appellants would have been incredible. We simply do not feel that reversible error was made to appear.

The order of dismissal and judgment are affirmed.

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


text:
    Philip EPIFANO, as Trustee, Appellant, v. TOWN OF INDIAN RIVER SHORES, a municipal corporation existing under the laws of the State of Florida, Edward J. Nolan, Mayor, Fred E. Gierhart, Suzanne M. Boden, Thad D. Wilkins and Paul Parent, as members of and constituting the Town Council of the Town of Indian River Shores, Appellees.
    No. 78-1352.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1979.
    George H. Moss of Jones, Paine & Foster, P.A., Vero Beach, for appellant.
    Chester E. Clem, Jr. of Jackson & Clem, P.A., Vero Beach, for appellees.
   PER CURIAM.

Appellant was plaintiff below and seeks reversal of a final judgment. The suit was for a declaratory decree relating to the validity of a zoning moratorium ordinance and a rezoning ordinance passed by the Town Council of the Town of Indian River Shores, the defendant/appellee. The trial court concluded that the municipal* ordinances had been properly adopted, that they were not subject to constitutional attack, and that the City was not equitably estopped from enforcing the ordinances. The trial court also found that the plaintiff had no vested right to the particular zoning claimed.

The matter was tried before the Court without a jury. The evidence introduced was voluminous and complex.

Appellant initially contends that the ordinance was enacted in an unconstitutional manner resulting in a denial of due process. We find appellant has failed to demonstrate error in this regard.

Appellant asserts a vested right to certain zoning existed. The trial court found to the contrary and we find his conclusion supported by City of Boynton Beach v. Carroll, 272 So.2d 171 (Fla. 4th DCA 1973), and City of Hallandale v. State, ex rel. Sage Corp., 326 So.2d 202 (4th DCA 1976). Appellant also contends that the zoning classification was unreasonable and arbitrary, constituting a denial of equal protection of the laws. We find this contention to be without merit. Appellant’s contentions regarding equitable estoppel were basically factual questions which were properly'determined by the trial court. We conclude that appellant has failed to demonstrate error in any respect. The final judgment below is therefore affirmed.

AFFIRMED.

ANSTEAD and BERANEK, JJ., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.


text:
    ROBLES DEL MAR, INC., (Oaks of Sea), a Florida Corporation, formerly known as Cook’s Landing, Inc., and Dovenmuehle, Inc., an Illinois Corporation authorized to do business in the State of Florida, Appellants, v. TOWN OF INDIAN RIVER SHORES, a municipal corporation existing under the laws of the State of Florida, Edward J. Nolan, Mayor, Fred E. Gierhart, Suzanne M. Boden, Thad D. Wilkins and Paul Parent, as members of and constituting the Town Council of the Town of Indian River Shores, Appellees.
    No. 78-1329.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1979.
    Rehearing Denied March 12, 1980.
    James T. Vocelle of Vocelle, Gallagher & Block, Vero Beach, for appellants.
    Chester E. Clem, Jr. of Jackson & Clem, P. A., Vero Beach, for appellees.
   PER CURIAM.

AFFIRMED. See Epifano v. Town of Indian River Shores, 379 So.2d 966 (1979).

AFFIRMED.

ANSTEAD and BERANEK, JJ., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.


text:
    Dick K. HANSON, Appellant, v. Oma R. HANSON, Appellee.
    No. MM-371.
    District Court of Appeal of Florida, First District.
    Nov. 27, 1979.
    Rehearing Denied Feb. 28, 1980.
    Robert B. Staats, Panama City, for appellant.

      Dedee S. Costello, Panama City, for ap-pellee.
   PER CURIAM.

This is an appeal from an order establishing a foreign decree as a Florida decree and modifying the same.

We reverse. The court below erred in exercising jurisdiction by entering the order because there was pending in another state at the time of the filing of the petition upon which the order is based a proceeding concerning the custody of the children named in the petition, viz: Illinois, which at such time was exercising jurisdiction substantially in conformity with the provisions of Chapter 77-433, Laws of Florida, Acts of 1977, incorporated in Sections 61.1302-61.-1348, F.S., particularly Sections 61.1314 and 61.133.

Reversed and remanded to the trial court with direction to dismiss the petition.

McCORD, Acting C. J., SHIVERS, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Jack Lee LOVING, Appellant, v. STATE of Florida, Appellee.
    No. OO-115.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1979.
    Rehearing Denied Jan. 25, 1980.
    Louis 0. Frost, Jr., Public Defender, and Charles M. Johnston, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant/Loving appeals his conviction and eight year sentence, urging alternatively that the sentence should be made concurrent with a federal sentence partially served or that he should be allowed to withdraw his guilty plea. We cannot agree; the sentences are independent. The new state sentence, however, should have been made effective the date it was imposed. We remand for resentencing.

Mr. Loving was arrested by state authorities for robbery in 1968. While out on bail pending sentencing, he was arrested on a federal robbery charge. On May 28, 1969, he was sentenced to forty years on the state charge and on June 6, 1969, sentenced to fifteen years on the federal charge.

In 1977, Mr. Loving was released from federal custody and returned to Florida to serve the state sentence. After exhausting state remedies, he filed a petition for a writ of habeas corpus in federal court alleging that he had been promised a recommendation of an eight year sentence on the state robbery charge in exchange for a guilty plea and his cooperation. After an eviden-tiary hearing, Judge Scott ordered that Mr. Loving be resentenced to a term of eight years or be allowed to withdraw his plea.

On April 19, 1979, Mr. Loving was sentenced to eight years in state prison, beginning May 28, 1969 and “not to include any incarceration in the -federal system for any offense for which the federal system has sentenced you”.

Mr. Loving argues that the original 40 years sentence should have been concurrent with his anticipated federal sentence and therefore his new eight year sentence must be made concurrent. He would then be entitled to release, having served his eight years. We find little merit in this contention. The trial court’s only error was to make May 28, 1969 the effective date of the sentence. When Judge Scott invalidated the 1969 sentence, it was void from the beginning, Helton v. Mayo, 153 Fla. 616, 15 So.2d 416 (Fla.1943); Sterns v. Wainwright, 195 So.2d 860 (Fla.1967), and the new sentence runs from the date actually imposed, with credit given for any time served under the invalid sentence. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Simmons v. State, 217 So.2d 343 (Fla. 2nd DCA 1969).

It is well settled that sentences for different crimes run consecutively unless otherwise directed by the trial judge. Helton v. Mayo, supra; § 921.16, Florida Statutes (1977). We find no indication in the record that either trial judge intended the state sentence to be concurrent with the federal one. Nor does the record support Mr. Loving’s assertion that the original plea bargain contemplated concurrent sentences. In fact, his argument is directly contradicted by Judge Scott’s finding in the habeas corpus proceeding that the state and federal sentences were consecutive. Having taken this position in federal court, Mr. Loving may not now contend the opposite.

The evidence does not indicate that concurrent sentences were contemplated by the plea arrangement; defendant has now obtained the benefit of his bargain and is not entitled to withdraw his plea. Davis v. State, 308 So.2d 27 (Fla.1975); Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979).

Mr. Loving should be resentenced for an eight year term, effective the date of imposition, with credit for any time served under the invalid sentence.

The sentence is vacated and the case remanded for proceedings consistent with this opinion.

McCORD, Acting C. J., and ROBERT P. SMITH, Jr. and LARRY G. SMITH, JJ., concur.


text:
    STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. ARGONAUT INSURANCE COMPANIES, Appellee.
    No. QQ-28.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1979.
    Rehearing Denied Jan. 23, 1980.
    Thorwald J. Husfeld of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., DeLand, for appellant.
    Noah C. McKinnon, Jr., of Coble, McKin-non, Rothert, Bohner, Barkin & Godbee, P. A., Daytona Beach, for appellee.
   PER CURIAM.

State Farm Fire & Casualty Company appeals the deputy commissioner’s denial of its claim for reimbursement or indemnification.

The deputy commissioner founded her denial of the claim upon the legal presumption that where two separate carriers have issued insurance policies to the same employer, it shall be presumed that only that policy with the later .effective date shall be in force. Section 440.42(2), Fla.Stat. The record in this instance, however, will not support a finding of dual coverage on the date of accident. State Farm’s non-binding application for insurance was approved on May 26, 1976, some six days subsequent to the accident. The deputy commissioner’s application of § 440.42(2), Fla.Stat., was therefore inappropriate.

The order is reversed and the cause remanded to the deputy commissioner, who is directed to make appropriate findings and enter a new order based on the record.

ROBERT P. SMITH, Jr., Acting C. J., and SHAW and WENTWORTH, JJ., concur.


text:
    Joseph VETRICK, Petitioner, v. Susan Lee HOLLANDER, formerly Susan Vetrick, and the Honorable John A. Miller, Judge of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Respondents.
    No. 79-1456.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1979.
    Rehearing Denied March 7, 1980.

      H. C. Feige of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for petitioner.
    James P. O’Flarity of Law Offices of James P. O’Flarity, Palm Beach, for respondent Susan Lee Hollander.
   PER CURIAM.

This matter is before us upon a petition seeking both a writ of mandamus and a writ of prohibition. We have elected to treat the petition as one for writ of certio-rari.

The petition seeks to reverse a trial court order, in post dissolution proceedings, directing the petitioner to execute a sales contract incidental to the private sale of the marital homeplace. The petitioner failed to appeal a final judgment directing a sale of the homeplace and later suffered a dismissal for failure to prosecute of an appeal challenging the trial court’s order requiring the parties to list the property for sale under certain conditions. A third order requiring the petitioner to execute the listing agreement was appealed and subsequently dismissed.

Although we believe the trial court’s previous orders cannot now be challenged by the petitioner, we conclude that the trial court had no authority to compel the petitioner to go through with a private sale of the property on terms contrary to those contained in the prior orders. Normally a trial court is limited in its authority to partition jointly owned property to those procedures set forth in Chapter 64, Florida Statutes (1977). Sullivan v. Sullivan, 363 So.2d 393 (Fla. 2d DCA 1978). However, here the trial court entered orders for the private sale of the property which may have been erroneous but nevertheless were entered in conformity with the court’s jurisdiction. The petitioner is now foreclosed from challenging those orders by reason of his failure to properly seek review of the orders, supra. The order challenged here, however, exceeded the terms of the previous order which directed that the property be listed for $83,000.00. The current order authorizes the sale of the property for $75,-000.00.

Accordingly, the petition for writ of cer-tiorari is granted, the order of May 23,1979, is quashed, and the trial court is directed to conduct further proceedings not inconsistent herewith.

DOWNEY, C. J., ANSTEAD, J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.


text:
    Michael and Carol DEVLIN, Petitioners, v. AETNA FINANCE COMPANY, Respondent. Gary and Donna WIGGS, Petitioners, v. BENEFICIAL FINANCE COMPANY OF ORLANDO, Respondent. Peoria LACY, Petitioner, v. LIBERTY LOAN CORPORATION, Respondent. Patsy BOYD, Petitioner, v. U. S. CREDIT LIFE CORPORATION, Respondent.
    Nos. 78-1253/NT4-57, 78-1824/NT4-57A.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 1979.
    Rehearing Denied March 7, 1980.
    James C. Hauser of Greater Orlando Area Legal Services, Inc., Orlando, for petitioners.
    Meiner & Meiner, Orlando, and Frank A. Shepherd, Miami, for respondents, Aetna Finance Co., Beneficial Finance Co. of Orlando, and Liberty Loan Corp.; Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, P. A., Miami, of counsel.
    Joseph M. Paniello and Richard Nielsen of Gregory, Cours, Paniello, Johnson, Hayes & Hoft, Tampa, for respondent, U. S. Life Credit Corp.
    BERANEK, JOHN R., Associate Judge.
    These consolidated petitions for certiorari present the issue of whether a debtor may plead certain affirmative rights established in the Federal Truth In Lending Act, 15 U.S.C. § 1601 et seq., as a defense to a suit on a debt. These affirmative rights were asserted as a plea of common law recoupment in a suit by a creditor to recover a debt, the enforcement of which is governed by 15 U.S.C. § 1601 et seq. The courts below ruled against the debtors/petitioners and in favor of creditors. We find no error and deny certiorari.
    The Federal Truth In Lending Act occupies a position of concurrent federal and state jurisdiction. 15 U.S.C. § 1640(e). Under this federal statute certain obligations are placed upon the creditor in consumer transactions encompassed within the act. If a consumer loan is made and the creditor does not properly disclose various financial matters to the debtor, then the debtor may sue the creditor for twice the finance charges growing out of the transaction. Section 1640 of the act provides for this civil liability which is in the nature of a penalty and in § 1640(e) a one-year statute of limitations is imposed. The debtor is required to bring suit within one year from the occurrence of the creditor’s violation.
    In the present consolidated matters creditors sued to collect certain delinquent consumer loans. In each situation the one-year statute of limitations under § 1640(e) had elapsed. In each case the defendant/debtor filed a plea of common law recoupment asserting disclosure violations of the act and claiming a set-off of up to twice the amount of the finance charges involved. The defendants apparently did not file counterclaims in view of the limitations period. In each case the plea of common law recoupment was determined adversely to the debtor as a matter of law by the County Court. Thereafter appeals to the Circuit Court were taken by the debtors and in each case the Circuit Court ruled in favor of the creditor on the issue of common law recoupment. The correctness of these Circuit Court appellate decisions is now before us on consolidated Petitions for Common Law Certiorari. The issue is whether the one-year statute of limitations bars a defensive plea of recoupment based on the Federal Truth In Lending Act. The issue has been thoroughly briefed and argued.
    Many courts throughout the country have considered this question and numerous well-reasoned decisions have reached conflicting conclusions. The following cases conclude that a debtor may assert common law re-coupment based on the Federal Truth In Lending Act despite the running of the one-year statute of limitations. Wood Acceptance Co. v. King, 18 Ill.App.3d 149, 309 N.E.2d 403 (Ill.App. 1st); Continental Acceptance Corp. v. Rivera, 50 Ohio App.2d 338, 363 N.E.2d 772 (1976); Household Finance Corp. v. Hobbs, 387 A.2d 197 (Super.Ct.Del.1978); Public Loan Company, Inc. v. Hyde, 63 A.D.2d 103, 406 N.Y.S.2d 907 (3d Dept. 1978); Stephens v. Household Finance Corp., 566 P.2d 1163 (Okl.1977). The foregoing is not a complete compilation of authorities but is representative.
    The following cases reach a contrary conclusion. This list is also representative only. Gillis v. Fisher Hardware, 289 So.2d 451 (Fla.1st DCA 1974); Shannon v. Carter, 282 Or. 449, 579 P.2d 1822 (1978); Ken-Lu Enterprises, Inc. v. Neal, 29 N.C.App. 78, 223 S.E.2d 830 (1976); Hodges v. Community Loan and Investment Corp. of North Georgia, 133 Ga.App. 336, 210 S.E.2d 826 (Ga.App.Div. 1); aff’d. as mod., 234 Ga. 427, 216 S.E.2d 274 (1975); Beneficial Finance Co. of Atlantic City v. Swaggerty, 159 N.J. Super. 507, 388 A.2d 647 (1978); Lincoln First Bank of Rochester v. Sielawa, 91 Misc.2d 778, 398 N.Y.S.2d 654 (1977).
    We conclude that the orders entered by the respective Circuit Courts here in their appellate capacity are correct and that there has been no departure from the essential requirements of law. Whether the statutory right to recover twice the finance charges under the Federal Truth In Lending Act may be asserted beyond the one-year statutory limitation is, in our opinion, a legislative decision for Congress. The statute as written provides a oneryear limitation which we find clear and properly enforceable to bar the recoupment defense here asserted.
    Congress well knew that most debtors would become aware of creditor violations in the Truth In Lending Act only when the debtor contacts a lawyer to defend a suit on the debt brought by the creditor. The policy decision of whether the penalty of twice the finance charge is an affirmative cause of action or a defense is one best left to the Legislature rather than the courts. Congress presumably enacted the one-year limitation for some reason and they were aware of the realities of consumer credit transactions as indicated above. See Shannon v. Carter, supra. We are advised by counsel for petitioners that an amendment to the Truth In Lending Act is pending in Congress which would specifically answer the question posed in these cases. We are convinced that the remedy of the petitioners/debtors herein is by a change in the statute. Certiorari is, therefore, denied.
    CERTIORARI DENIED.
    DAUKSCH, C. J., and LETTS, GAVIN K., Associate Judge, concur.

      . Counsel for petitioners advises that an amendment to 15 U.S.C. § 1640(e) has been proposed in Congress as follows:
      Any action under this section may be brought in any United States District Court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation. This subsection does not bar a consumer from asserting a violation of this title in an action to collect a debt which was brought within one year from the date of the occurrence of the violation as a matter of defense bv recoupment or setoff in such action, except as otherwise provided bv state law. (Proposed amendment underscored.)


author: BOOTH, Associate Judge.

text:
    Charles Wilbur MARCUM, Vincent Paul O’Connor, James Joseph O’Brien, a/k/a James Joseph Garcia, Appellants, v. The STATE of Florida, Appellee.
    Nos. EE-246/NT1-1, EE-322/NT1-1A and EE-323/NT1-1B.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1979.
    Rehearing Denied Feb. 18, 1980.
    Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., John Watson, III, Asst. State’s Atty., for appellee.
   BOOTH, Associate Judge.

These cases are before us on appeals from judgments of conviction and sentences imposed in the Circuit Court, Volusia County.

Appellants were jointly charged in eight counts with the first degree murder of a cofelon, Walter Carl Splitt; burglary of the residence of William Green; conspiracy to commit that burglary, or kidnapping, or murder, or robbery; attempted murder of William Green; aggravated assault on James and Betty Daunt; use of a firearm in the commission of a felony; and possession of a firearm by a convicted felon. All charges arose from acts of appellants on February 13, 1976, at or near the residence of William Green and his family. After trial by jury, each defendant was found guilty on all counts except that Marcum was acquitted of possession of a firearm by a convicted felon. The jury recommended a sentence of life imprisonment for first degree murder, and all three defendants were adjudged guilty of first degree murder and burglary and sentenced to consecutive terms of life imprisonment for each of those offenses; adjudged guilty of conspiracy and sentenced to 15 years; adjudged guilty of attempted murder and sentenced to 30 years consecutively; adjudged guilty of two counts of aggravated assault and sentenced to five years consecutively for each -count. O’Connor and O’Brien were each adjudged guilty of possession of a firearm by a convicted felon and sentenced to 15 years.

On appeal to this Court numerous points are raised. We find merit only in the issue which raises the application of Florida Statute, Section 782.04, the Felony-Murder Rule. Appellants rely on the decision of the Second District Court of Appeal in Wright v. State, 344 So.2d 1334 (Fla. 2nd DCA 1977), which set aside a conviction of second degree felony-murder where a cofel-on was killed by a policeman during the commission of the felony. Subsequent to the oral argument in this case, that decision was reversed by the Florida Supreme Court in State v. Wright, 379 So.2d 96 (Fla.1979), wherein the Court held:

“The question involved is whether a surviving co-perpetrator of a robbery is guilty of felony murder in the second degree when a policeman shoots and kills another co-perpetrator during the perpetration of the robbery. We answer in the affirmative.
“The defendant, a person named McRae, and a person named Robertson were involved in the robbery of a store. Defendant and McRae committed the robbery while Robertson waited in the automobile. As they were attempting to leave after the robbery, the police intercepted the trio and a gun battle resulted. The defendant and Robertson were apprehended, but Robertson was fatally wounded by a bullet originating from the gun of one of the policemen.”

The Supreme Court, citing his prior decision in Mikenas v. State, 367 So.2d 606 (Fla.1978), held that the statute was not limited in application to “innocent” persons killed by one perpetrating or attempting to perpetrate a felony.

In the instant case, the facts are that cofelon, Splitt, was shot and killed by Walter Green, a victim of the robbery and attempted murder which was being perpetrated by Splitt and the three appellants. These facts are substantially similar to those in the Wright case and the Mikenas case wherein the cofelon was killed by an officer of the law and convictions of second degree felony-murder upheld. Therefore, under Section 782.04(3), second degree murder is the highest degree of homicide with which the defendants can be convicted.

Marcum and O’Connor contend that they cannot be convicted of any degree of felony-murder because they were not personally present at the scene when the killing occurred, as required under the holding of Hite v. State, 364 So.2d 771 (Fla. 2nd DCA 1978); certiorari denied, 372 So.2d 471 (Fla.1979).

In the Hite case, the appellant was one of three who conspired to commit a robbery. She and another codefendant dropped the third codefendant off near the food market to be robbed and waited at a tavern half a mile away. During the course of the robbery, defendant’s cofelon shot and killed the proprietor of the store. The Court ruled that, in order to be guilty of either first degree or second degree felony murder under the 1974 version of the statute (Chapter 74-384, Section 14, Laws of Florida, effective July 1, 1975), a defendant must be personally present at the commission of the underlying felony. The Hite case further holds that, since the killing was by a .cofel-on, rather than an innocent party, there could be no conviction of second degree felony-murder.

In the Hite case, the evidence was clear that defendant Hite was not personally present at the scene of the robbery when the killing occurred. Assuming, without deciding, that the Hite case is correct and personal presence is required for conviction of any degree of felony-murder, here there is evidence that Marcum and O’Connor were present at the scene.

Two of the cofelons, O’Brien and Splitt, were known to have been inside the Green residence carrying out their planned crime. Splitt was killed in the residence. O’Brien was identified as the man who took Mr. Green’s gun after Green had shot Splitt, left the Green residence and ran toward Mrs. Green as she was going toward a neighbor’s house and then attempted to commandeer the vehicle occupied by the Daunt family, which was passing the Green residence. O’Brien was further identified as the individual who, after being unsuccessful in starting the Daunt vehicle, ran away in an easterly direction and was subsequently apprehended on foot some three miles away from the Green residence. Meanwhile, Officer Grigsby, who had responded to the initial call, saw a late model Cadillac, two door, white over blue, with an 8WW tag, sitting on the median strip of Plaza Drive, a street one block (three-tenths of a mile via streets) from the Green residence. The vehicle was apparently unoccupied. Grigsby testified that he returned a short time later and the Cadillac was gone. It was Marcum who, several days after the shooting, took Splitt’s widow to where the car was; at a motel parking lot near Mar-cum’s residence. This car was identified as being in all respects similar to the one seen by Grigsby on the median strip near the Green residence.

Further testimony supporting the presence of O’Connor and Marcum at the scene of the crime was that of Jerome Raddick, who had been offered a chance to participate in the Green job. On the evening of the crime, Raddick saw Marcum and O’Con-nor leave the Bullpen Bar with Walter Splitt and he saw guns, hand grenades, plastic explosives and masks in the trunk of one of the vehicles being driven by the three men. Raddick first observed the three men in the Bullpen Bar between 5:30 and 6:00 on the evening of February 13 and thereafter observed Marcum and O’Connor return and leave on four separate occasions, remaining each time some twenty to thirty minutes in the bar. Raddick testified that the last time Marcum and O’Connor returned to the bar was between 9:30 and 10:00. At that time they told Raddick their partner had messed up the job and had been killed. The shooting at the Green residence occurred at 9:23. Only those immediately present in the house or grounds would know of the shooting and that death ensued so as to report that information by 9:30 or 10:00.

Those present at the scene as lookouts, or to assist in restraining or abducting the victims, or to assist in the escape are perpetrators of the underlying felony and present at the homicide. The rule as to presence is stated in 40 C.J.S. Homicide Section 9 at page 847, as follows:

“Where several persons join in a common, unlawful design, and each takes the part assigned to him, some to commit the act, others to watch to prevent a surprise and to aid an escape, they are all present at a homicide committed in the course of carrying out the common design.”

Even the Hite case does not require that the homicide must be committed within the range of vision of the felons engaged in the perpetration of the underlying felony in order for the Felony-Murder Rule to apply. Here the jury could have found that the defendants O’Connor and Marcum were present at the scene. Their prompt and accurate knowledge not only of the shooting but of the death of their partner strongly supports that finding.

There was evidence that the crime against the Green family had been well planned; that both the residence and the jewelry store owned by Mr. Green had been “cased” by several of the felons disguised as customers, meter readers, etc., that there had been some unusual phone calls which had prompted Mr. Green to purchase the pistol which he was carrying on the night of the crime; and that the entire Green job was to include an abduction and robbery of the jewelry store. The weapons to be used included hand grenades and plastic explosives, as well as automatic weapons. A hand grenade and plastic handcuffs were found on the deceased felon. Taking all these facts into consideration, the jury was clearly entitled to find that the crime, as planned and participated in by all defendants, contemplated the expendability of the victims as well as a high degree of risk to those committing the crime. These are the factual circumstances which have traditionally formed the basis for the Felony-Murder Rule, and its application in the instant case to O’Connor and Marcum, as well as to O’Brien was proper.

Accordingly, pursuant to Florida Statute, Section 924.34, the judgments of conviction of murder in the first degree are reversed; and the cause remanded to the trial court to enter judgments for murder in the second degree as to all defendants, and to pass sentence accordingly. Douglas v. State, 10 So.2d 731 (Fla.1942); Raynor v. State, 341 So.2d 998 (Fla. 4th DCA 1976).

McCORD and SMITH, Associate Judges, concur.

ON REHEARING

On rehearing, appellants contend that the jury was not properly instructed as to second degree felony-murder under the rule of Hite v. State, 364 So.2d 771 (Fla. 2nd DCA 1978), and that the error, though not objected to, was fundamental, requiring reversal. We have reviewed the entire charge given by the court, including the second degree felony-murder charge set out at footnote two of the original opinion, and find that it was sufficient and without error of any fundamental extent.

The jury returned verdicts of guilty of murder in the first degree, which verdicts cannot stand for the reasons stated in the original opinion. However, our review of the record shows evidence sufficient to support a conviction of the lesser degree of homicide, to-wit, murder in the second degree, and we have ordered judgment entered for that offense pursuant to Florida Statutes, § 924.34. Under that statute, the appellate court, after setting aside a verdict of murder in the first degree as unsupported by the evidence, may enter judgment for second degree murder where that offense is supported by the evidence. Tay lor v. State,, 22 So.2d 639 (Fla.1945), and Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969).

Accordingly, petition for rehearing is DENIED.

McCORD, BOOTH and LARRY G. SMITH, JJ., concur.

      . Hite v. State, 364 So.2d 771, 773 (Fla. 2nd DCA 1978):
      “[T]he clause [of Section 782.04(3), as amended 1974] ‘the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree’ restricted liability for second degree felony-murder to those principals, aiders or abetters who are personally present at the commis- ■ sion of the felony.
      ******
      “In summary then, we hold that for a person to be guilty of second degree felony-murder, he must have been personally present at the commission of one of the enumerated violent felonies and the killing must have been committed by someone other than him or one of his cofelons. Thus appellant was also not guilty of second degree felony-murder because a cofelon shot the victim and because appellant was not personally present at the robbery.”

      . The trial court’s charge to the jury on second degree felony-murder was not objected to below, and is not at issue here. That charge was as follows:
      “When a killing occurs in the perpetration of or in the attempt to perpetrate any robbery, burglary, kidnapping or the unlawful throwing, placing or discharging of a destructive device or bomb, but actual killing is by a person other than the person engaged in the perpetration of or the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree.
      “Such a killing is not murder in the second degree unless it occurs as a natural and reasonably foreseeable result of the perpetration or attempt to perpetrate such crime.”


author: PER CURIAM. DAUKSCH, JAMES C., Jr., Associate Judge,

text:
    David M. MANN, Appellant, v. David J. STEIN, Denise D. Small, and Covenant Development Corporation of Florida, Inc., Appellees.
    No. 78-1270.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1980.
    Rehearing Denied March 12, 1980.
    Judith H. Hayes of Heiman & Heiman, Miami, for appellant.
    Richard A. Purdy of Shailer, Purdy & Driver, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an interlocutory appeal from an order of the trial court appointing a receiver for appellee corporation.

The review of non-final orders of lower tribunals is severely limited by the terms of Rule 9.130, Florida Rules of Appellate Procedure. The language of the rule specifically includes an order granting, continuing, modifying or dissolving an injunction; it does not specifically refer to the appointment of or the refusal to appoint a receiver. Further, the rule provides relief where the issue is the right to immediate possession of property. We think this refers to possession by a party with an adverse interest and not to possession by the court. It would have been a simple matter to make the appointment of or the refusal to appoint a receiver a basis for review of a non-final order. This was not done, and we are of the opinion that it was intentional. Accordingly, we decline to take jurisdiction.

APPEAL DISMISSED.

HERSEY, J., and CROSS, SPENCER C., Associate Judge, concur.

DAUKSCH, JAMES C., Jr., Associate Judge, dissents with opinion.

DAUKSCH, JAMES C., Jr., Associate Judge,

dissenting:

In my opinion we have jurisdiction to review the appealed order so I would not dismiss the appeal. I think the matter should be decided on its merits.