author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. David Lawrence ADAMOSKY, Oscar Herman Pimienta Lopez, Carlos Alberto Castano, Lawrence Montozzi and Elizabeth Santos Destefano, Appellees.
    No. 80-164.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.
    Rehearing Denied Jan. 13, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Edward J. O’Donnell and John Lipinski, North Miami, for appellees David Lawrence Adamosky, Lawrence Montozzi and Elizabeth Destefano.
    Jerome Bill Ullman, Miami, for appellees Oscar Lopez and Carlos Alberto Castaño.
   HERSEY, Judge.

The state appeals an order suppressing as evidence cocaine which was found in the trunk of an automobile.

At approximately 8:30 p. m. on September 7, 1979, confidential informant George Alvarez advised the base operator for the local Federal Drug Enforcement Agency [F.D.E.A.] that Mario Pimienta, brother of defendant Oscar Pimienta, was going to be involved in a cocaine transaction later that evening at 2220 S.W. 67th Lane, Miramar. Alvarez then spoke directly by telephone to Agent Francar, informing Francar that he was with Mario who would be handling a transaction for ten kilos of cocaine that night and that Oscar was transporting the cocaine from Miami to Broward in a red Nova automobile. Subsequently, Alvarez advised the base operator that he had left the house to pick up some ice and that another vehicle would be leaving to take a sample of cocaine to a Burger King. Still later, Alvarez informed the base operator that he had observed a half of a kilo of cocaine in the trunk of the Nova, which was parked in front of the house.

All of the informant’s communications were relayed by the base operator to the officers, including Francar, who had initiated surveillance of the residence at the specified address. Francar had advised the other agents of the contents of his conversation with Alvarez.

The red Nova was observed at the residence in question. During the course of surveillance, several people came out of the house, opened the trunk of the Nova and stood there. They then returned to the house. Subsequently, two males exited the house, entered the Nova and began to drive away.

The Nova was stopped by the F.D.E.A. agents and its occupants, defendants Casta-ño and Lopez, were arrested. After obtaining the trunk key from Lopez, the officers opened the trunk of the Nova and found half a kilo of cocaine in a plastic bag which had been placed inside a brown paper sack. The paper sack was open at the top.

Those persons inside the house, the remaining defendants, were also arrested.

Initially, I note that three of the defendants had no standing to challenge the search. Being neither occupants of the ear nor claiming a possessory interest therein, they had no reasonable expectation of privacy. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Norman v. State, 388 So.2d 613 (Fla.3d DCA 1980).

More importantly, though, the trial court’s conclusion that there was no probable cause to search because the testimony did not explain how the informant obtained the information on which the search was based is not supported by substantial competent evidence. Alvarez told the agents that he was with Mario, later, that he was leaving the house to get some ice and finally, that he observed cocaine in the trunk of the Nova parked in front of the house. Thus, it is obvious that Alvarez was with Mario Pimienta at the specified address and that he was privy to the planning of the drug transaction.

Further, there was sufficient evidence of the informant’s reliability as well as the reliability of the information he relayed. As revealed by the facts, much of the information provided by Alvarez was corroborated by the officers’ observations.

Lastly, there were exigent circumstances which, when coupled with the probable cause, support the warrantless search of the automobile. The inherent nature of a moving automobile constitutes an exigent circumstance making its search upon probable cause but without a warrant constitutionally reasonable. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); G.J.S. v. State, 393 So.2d 14 (Fla. 5th DCA 1980). Here, not only was a moving and moveable vehicle involved, butf one of the participants to the transaction had fled, thereby posing a threat to preservation of the contraband.

The facts supporting probable cause to search also provided a basis for a valid arrest of Lopez. Therefore, use of the trunk key obtained from Lopez did not taint the seizure of the cocaine, making it a fruit of an illegal arrest.

Accordingly, the order of suppression is reversed and this cause is remanded for trial.

BERANEK, J., concurs.

MOORE, J., dissents without opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kenneth M. BRAY and K. Howard Weiner, et al., Petitioners, v. James MARSHALL, Respondent.
    Nos. 81-1018, 81-1020.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.
    Rehearing Denied Jan. 18, 1982.
    Margaret L. Cooper of Jones & Foster, West Palm Beach, for petitioners, Bray and Weiner.
    Douglas E. Thompson of Farish, Farish & Romani, West Palm Beach, for petitioners, Mental Health Boards, Wymbs and Reyner.
    Christian D. Searcy of Montgomery, Ly-tal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for respondent.
   PER CURIAM.

These are consolidated petitions for writs of certiorari. We deny the petitions.

Respondent filed an amended complaint in three counts against petitioners. In Count I he alleged that in 1974 he had been hired by Mental Health District Board No. 20 as business manager for a term which extended to his 65th birthday and could be terminated only in accordance with “State Merit System Rules”; that pursuant to Section 394.69(3), Florida Statutes (1976), District Boards 18 and 20 merged together to form District Board 9 which assumed all of Board 20’s responsibilities as of January 1, 1977; that the four individual petitioners conspired to discharge respondent in January, 1977; that Board 9 fired respondent on January 10, 1977 without good cause and due process, and not according to the “Merit System”; that respondent asked the executive committee of Board 9 for reconsideration of his firing, which was denied; and that respondent has been damaged by Board 9’s breach of contract. Respondent seeks damages against Boards 9 and 20.

In Count II, respondent seeks compensatory and punitive damages for defamation against Boards 9 and 20, two directors of Board 9 (Wymbs and Reyner) and two HRS employees (Bray and Weiner) and alleges that the four individual representatives conspired at a secret meeting to oust respondent; that one of four representatives, Weiner, prepared a report of an audit that was made for the purpose of trying to find reasons to justify respondent’s termination; that the report was “slanted, unfair and biased"; that petitioners called a meeting of Board 9 to which the press and county officials were invited and at which the defamatory report was made public; and that the publication of the report prevented respondent from obtaining employment in his professional field as well as other damages.

In Count III respondent alleges that prior to 1974 he was employed as an internal auditor for HRS; that as long as he satisfactorily performed his job with HRS he would be secure in his employment until age 65; that Board 20 induced him to leave his employment by HRS and become employed by Board 20 by promising him the same duration of employment and requirements for involuntary termination which he previously enjoyed; that the officers and directors of Board 9 in December, 1976, assured him of continued employment, causing respondent to notify prospective employers that he was unavailable; that Boards 9 and 20 are promissorily and otherwise estopped from denying respondent the benefits he would have obtained under the State Merit System; and that from the date of his firing respondent has lost all of his salary, fringe benefits and raises which damages should be determined against Boards 9 and 20.

Petitioners moved for summary judgment. As to Count I they argued respondent did not exhaust administrative remedies provided by Chapter 110, Florida Statutes. At the time of respondent’s discharge, Section 110.061, Florida Statutes (1976) provided that any employee who had permanent status in the Career Service could be dismissed only for cause and could file a written appeal to the Career Service Commission within 20 days of receipt, by certified mail, of the notice of dismissal.

As to Counts II and III, petitioners argued that respondent had failed to allege or show that he had presented a written claim to Boards 9 and 20 and the Department of Insurance within three years of his discharge ' as required by Section 768.28(6), Florida Statutes (1976); that he had not pled any facts to establish estoppel against application of the statute; and that orders in a federal action brought by respondent against petitioners were res judicata on the point.

The trial court denied summary judgment but abated the action and granted respondent leave to pursue whatever administrative remedies he has available.

Boards 9 and 20, Wymbs and Reyner, contend the trial court should have dismissed the action for failure of respondent to exhaust his administrative remedies rather than abating the action; that by not so dismissing, the order does not conform to the essential requirement of law; and that the expense to be incurred in the defense of the present action is not remediable by appeal after judgment. Petitioners Bray and Weiner argue that we should order the trial court to enter summary final judgment as to Count I — in which no relief is sought as to the two petitioners — and they contend the irremediable injury here is in failing to obtain a final adjudication in state court which would preclude consideration of the matter in the ongoing federal action.

The individual petitioners have no standing to contest the abating of the action because of a failure to exhaust administrative remedies. The only relief sought against any of the individual petitioners is in Count II, a claim for defamation, which is clearly not involved in any consideration of dismissal of Count I.

As for Boards 9 and 20, we do not consider an order of abatement in these circumstances to be a departure from the essential requirements of law. Petitioners cite a number of cases for the general proposition that failure to exhaust administrative remedies requires dismissal but none of the cases cited involved a choice between abatement and dismissal. Moreover, dismissal in this case could not be as to all counts.

Finally, the Boards have failed to show any harm being caused by the order which is not curable by plenary appeal after final judgment.

Accordingly, the petitions are denied,

PETITION FOR WRIT OF CERTIORARI DENIED,

ANSTEAD, MOORE and GLICKSTEIN, JJ., concur.

      . The parties make reference to Sections 110.-227, 110.305(7) and 110.227. None of these sections were in existence at the time of respondent’s discharge.

      . In the federal action, the trial court granted Boards 9 and 20’s motion to dismiss respondent’s amended complaint with leave to amend to allege facts which would amount to a waiver or estoppel of the claim notice requirements.

      . See, for example, Florida Power Corporation v. Advance Mobile Homes, Inc., 386 So.2d 897 (Fla. 5th DCA 1980), cited by petitioners, in which judgment for appellee was reversed and dismissal was ordered on remand. In the present case, certiorari was not sought from the trial court’s order of July 15, 1980, which denied without prejudice to renew after discovery the motion to dismiss of Boards 9 and 20 and Wymbs and Reyner. Petitioners did not renew that motion after some discovery but, instead, moved for summary judgment.


author: DOWNEY, Judge.

text:
    STATE of Florida, Petitioner, v. M. M. and S. E., minor children, Respondents.
    No. 81-1387.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.
    Rehearing Denied Jan. 20, 1982.

      Paul H. Zacks, Sp. Asst. Atty. Gen., Fort Lauderdale, for petitioner.
    Ellis S. Rubin, Miami, for respondents.
   DOWNEY, Judge.

The State of Florida, by a petition for writ of common law certiorari, seeks review of a circuit court order that, in effect, found the parents of two minors, M. M. and S. E., were maintaining a private school in the family domicile.

At the outset, it is necessary for us to determine the aspect of our jurisdiction the State is invoking. The question we face is whether the order the State attacks is a final order that, pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A), we must review, or an interlocutory order that, pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(A), we may, in the exercise of our discretion, review. The following factors guide us in determining our jurisdiction.

This litigation began when a visiting teacher for the School Board of Broward County filed in the Family Division of Bro-ward County Circuit Court, pursuant to Section 39.404, Florida Statutes (1981), petitions representing that each of the minors was “a dependent child [within the purview of Section 39.01(9)(d)] for reason of . . . persistent truancy” and that the court had jurisdiction because the minors violated Section 232.01(l)(a), by being truant (S. E. on 15 occasions in February 1981 and 11 occasions in March 1981 — M. M: on 16 occasions in February 1981 and 11 occasions in March 1981) from the high school in which they were enrolled.

Section 232.01(l)(a), Florida Statutes (1981), provides that:

“All children who have attained the age of 6 years or who will have attained the age of 6 years by February 1 of any school year or who are older than 6 years of age but who have not attained the age of 16 years, except as hereinafter provided, are required to attend school regularly during the entire school term.”

The minors’ main defense to the charge was that they should not be considered truants because they were attending a private school their parents had established. This defense is important because a child cannot be a truant if he is attending a private school. Section 232.02(3), Florida Statutes (1981).

After holding evidentiary hearings on the dependency petitions, the court entered an order on June 30, 1981, that provided: (1) the minors were adjudicated “to be dependent children and within the jurisdiction of this Court”; (2) directed

“[t]hat‘ commencing with the school year 1981-1982 the children shall attend a school each and everyday (sic) for 180 school days as set forth by Florida Statute 228.041(13); said children may attend [the private school their parents had established] provided said school is complying with all applicable provisions of the Florida Statutes.”;

(3) the foregoing provision would apply to S. E. for the first quarter of the school year since S. E. would “attain the age of 16 years in July 1981”; and (4) the court would “review this matter on Friday, November 6, 1981” to determine, in sum, if provision (2) (quoted above) were being complied with.

Our examination of the circuit court’s order in light of the dependency petitions and the proceedings in the circuit court leads us to conclude that, while it retained jurisdiction to assure compliance with a crucial provision of its order, the circuit court had resolved the issues raised by the dependency petitions and had thus concluded its judicial labor; the order in question is therefore final and we are obliged to review it by way of plenary appeal. See 3 Fla.Jur.2d, Appellate Review, § 56. We therefore treat the State’s petition for writ of certiorari as a notice of appeal. Fla.R.App.P. 9.040(c).

As indicated above, the dependency petitions that began this litigation alleged the minors’ numerous truancies in February and March 1981 violated Section 232.-01(l)(a), and the minors responded by taking the position, among others, that they were attending a private school their parents had established in the family home. The circuit court articulated the key issue before it thus: “Can the parents establish a private school in their home pursuant to Florida Statute 232.02(3) without a certified teacher or tutor?” In its entirety, Section 232.02 provides:

“Regular attendance is the actual attendance of a pupil during the school day as defined by law and regulations of the state board. Regular attendance within the intent of s. 232.01 may be achieved by attendance at:
(1) A public school supported by public funds;
(2) A parochial or denominational school;
(3) A private school supported in whole or in part by tuition charges or by endowments or gifts; and
(4) At home with a private tutor who meets all requirements prescribed by law and regulations of the state board for private tutors.”

It is undisputed that neither the parents nor a sister of the minors (who purportedly instructed the minors on occasion) was a certified teacher or tutor.

The circuit court based its finding that the parents were maintaining a private school (for the exclusive use of the minor respondents) in their home primarily upon the virtual absence of any statutes or administrative rules regulating nonpublic schools (in contrast with the numerous statutes controlling public schools).

That there is no statutory authority regulating the establishment of private schools in Florida does not mean that Florida parents, unqualified to be private tutors, can proclaim their homes to be private schools and withdraw their offspring from public schools. We reach this conclusion because of the following rule of statutory construction, which we apply to Section 232.02:

In the interpretation of a statute, it will be presumed that the legislature intended every part thereof for a purpose, and that it had some purpose in introducing the particular language used in an enactment. The maxim “ut res magis valeat quam pereat” requires not merely that the statute should be given effect as a whole, but that effect should be given to each of its provisions. Significance and effect should be accorded every part of the statute, if this can be done without destroying or perverting the sense or effect of the law or the general policy that dictated its enactment. In general, therefore, that construction is favored which gives effect to every clause and every part of the statute, thus producing a consistent and harmonious whole. A construction that would leave without effect any part of the language used should be rejected if possible. 30 Fla.Jur., Statutes, § 118 (footnotes omitted).

If we were to hold that the parents of the minors in the present case could, pursuant to Section 232.02(3), establish a private school in their own home for the purpose of educating the minors, we would violate the foregoing rule of statutory construction by failing to give effect to Section 232.02(4).

This is so for the reason that the Legislature, in Section 232.02, clearly intended to distinguish between private schools on the one hand and home instruction by a private tutor on the other. If “private school,” as that term is used in Section 232.02(3) necessarily comprehended a parent or private tutor instructing at home, there would have been no necessity for the Legislature to enact Section 232.-02(4). People v. Turner, 121 Cal.App.2d Supp. 861, 263 P.2d 685, 688 (1953). Since the Legislature saw fit to incorporate subsections (3) and (4) in Section 232.02, both sub-sections must be given effect in accordance with the above quoted rule of statutory construction.

The record indicates that the mother of the minors is the instructor of the minors, although upon occasion an elder sister of the minors acted as their tutor. The record further indicates that the only students enrolled in the parents’ “private school” are the minor appellees and that no one else would be permitted to attend the “school.”

Under these circumstances it is clear that the mother was acting as a private tutor to the minor appellees. Because she was acting as a private tutor, her system of private instruction for the sole benefit of the two minor appellees cannot be a private school within the meaning of Section 232.-02(3).

For the foregoing reasons we hold that the minor appellees’ parents did not establish a private school in their home and that the minors cannot comply with Section 232.01 by remaining at home and receiving instruction from their mother who is not a qualified private tutor under Section 232.-02(4).

We therefore reverse the final order under review in all respects save the adjudication that the minor appellees are dependent children within the jurisdiction of the family division of the circuit court.

REVERSED IN PART AND AFFIRMED IN PART.

MOORE and HERSEY, JJ., concur.


author: NESBITT, Judge.

text:
    Robert G. MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1428.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Rehearing Denied Jan. 21, 1982.
    Joel Hirschhorn and Harry M. Solomon, Miami, for appellant.
    Jim Smith, Atty. Gen. and Leonard L. Elias, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

This is an appeal from a final order discharging a writ of habeas corpus and quashing the amended petition therefor and remanding the appellant to the custody of the State of Florida to abide extradition.

This is the second successive extradition proceeding involving the appellant. In a prior extradition proceeding, the appellant sought a writ of habeas corpus in the circuit court and following the discharge of the writ and quash of the petition, he perfected an appeal to this court. During the pend-ency of that appeal, the rendition warrant for the appellant’s arrest was recalled by the Governor of Florida, pursuant to Section 941.21, Florida Statutes (1979), based upon the underlying withdrawal of the requisition warrant by the Governor of Connecticut. As a result, the first appeal was dismissed as moot. Moore v. State, 384 So.2d 1385 (Fla. 3d DCA 1980).

A second requisition warrant was issued by the Governor of Connecticut and the Governor of Florida again issued a rendition warrant to abide appellant’s extradition to the Governor of Connecticut. The . appellant applied to the circuit court for a writ of habeas corpus which was issued. Prior to the return date, he filed an amended petition. After hearing, the trial court denied the petition for writ of habeas corpus and discharged the writ of habeas corpus previously issued. This appeal followed.

The requisition warrant which was relied upon for the rendition warrant contained a sworn application which read in part:

No other application has been made, nor has any other requisition been issued for this person, growing out of the transaction set out in the present complaint.

The appellant contends that the trial court erred in discharging the writ of habeas corpus because that statement was a material misrepresentation of fact or one that was made with reckless disregard of the truth. We do not agree.

First, it is clear that the release of a person on extradition proceedings under the present circumstances is not a bar to a second extradition proceeding. See, Bassing v. Cady, 208 U.S. 386, 28 S.Ct. 392, 52 L.Ed. 540 (1908); Kurtz v. State, 22 Fla. 36 (1886).

When extradition is sought, a written demand is filed in accordance with Section 941.03, Florida Statutes (1979). The governor examines the demand to see that it contains the allegations required by Section 941.03, supra. Upon determining that the demand should be honored, the governor issues a warrant of arrest. A fugitive who opposes extradition may seek a writ of habeas corpus. § 941.10, Fla.Stat. (1979). Our scope of review of a habeas corpus proceeding is exceedingly narrow. The role of the judiciary in habeas corpus proceedings is limited to a determination that the jurisdictional prerequisites to the issuance of his warrant exist. These are (a) the extradition documents on their face are in order; (b) the petitioner has been charged with a crime in the demanding state; (c) the petitioner is the person named in the request for extradition; and (d) the petitioner is a fugitive. Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521, 527 (1978); Fauls v. Sheriff of Leon County, 394 So.2d 117, 118 (Fla.1981).

In the present case, no challenge has been made to any of these four requirements. The alleged material misrepresentation, of which the appellant complains, does not relate to any allegations required under Section 941.03, Florida Statutes (1979). Since the executive warrant was regular on its face and complied with the essential requirements, it constitutes evidence of the facts therein stated and of the authority of the officer to arrest and detain the petitioner. State ex rel. Huston v. Clark, 121 Fla. 161, 163 So. 471 (1935); State ex rel. Sklaroff v. Purdy, 219 So.2d 723 (Fla.3d DCA 1969). Consequently, when the jurisdictional requirements were met, a prima facie case of regularity of extradition was established. State v. Gale, 312 So.2d 824 (Fla.4th DCA 1975), cert. denied, 327 So.2d 32 (Fla.1976). No evidence was presented by the petitioner to rebut the jurisdictional basis of the proceedings and therefore he failed to overcome the state’s prima facie showing of the propriety of extradition. State ex rel. Sklaroff v. Purdy, supra.

For the foregoing reasons, we affirm.

      . The appellant urges that the governor of the rendition state has the authority under Section 941.04, Florida Statutes (1979) to make an investigation into a case. We do not reach that argument because our only concern here is with the permissible scope of this court’s inquiry on review of a habeas corpus proceeding.


author: FERGUSON, Judge.

text:
    AMERICAN RISK ASSURANCE COMPANY, Appellant, v. Mary BENRUBE, Appellee.
    No. 81-366.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Rehearing Denied Jan. 12, 1982.
    Ponzoli & Wassenberg and Ronald P. Ponzoli, Miami, for appellant.
    Samuel Sheres, Hollywood, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

American Risk Assurance Company appeals from an order of summary judgment wherein the trial court found as a matter of law that appellant as personal injury insurer was liable to appellee, Mary Benrube, for medical bills already paid by Medicare. We affirm.

The facts are as follows. On November 3, 1979, the appellee, a seventy-nine year old widow, was struck by a vehicle while crossing an intersection. Appellee was severely injured and was hospitalized for several weeks. Though eligible for personal injury benefits provided by appellant as insurer of the owner of the vehicle, appellee filed a claim for her medical bills with Medicare under Part A Medicare, 42 U.S. C.A. §§ 1395c, 1395(i — /) and Part B Medicare, 42 U.S.C.A. § 1395j-Blue Cross/Blue Shield. Medicare and Blue Cross/Blue Shield paid a substantial portion of appel-lee’s medical bills, and pursuant to Section 627.736(l)(a), Florida Statutes (1971) (repealed effective July 1, 1982), American Risk paid eighty-percent of the remaining medical bills. Appellant refused to pay Benrube for any of the bills already paid for by Medicare or Blue Cross/Blue Shield because the policy guidelines of American Risk provide that American Risk will not be liable for duplicate payments. The guidelines also provide that, “the insurer paying such [duplicate] benefits shall be entitled to recover from A.R.A. its equitable pro rata share of the benefits paid and expense incurred in processing the claim.” The trial court found that as a matter of law American Risk was the primary insurer and had an obligation to pay appellee for medical expenses incurred up to the limits of its policy regardless of the Medicare payments. It is undisputed that the medical expenses incurred by appellee are far above the limits of appellee’s policy.

Though we agree with appellant that, as a general rule, the Florida legislature has attempted to eliminate duplication of benefits from the Florida Automobile Reparations Reform Act, Sections 627.730-627.741, Florida Statutes (1979) (repealed effective July 1, 1982), we find no such intent with respect to payments made by Medicare. Section 627.736(4), Florida Statutes has been revised, and in 1977 and 1979 that Section provided that benefits received under any workers’ compensation law or Medicaid as provided under 42 U.S.C.A. § 1396 et seq., should be credited against payments under the insurance policy. As subsequently amended, Section 627.736(4), Florida Statutes (Supp.1980), the statute still limits credits to benefits received under the workers’ compensation law or Medicaid. We do not view the omission of payments made by Medicare as mere oversight.

In Section 627.739(2), Florida Statutes (1979) (repealed effective July 1, 1982), the legislature expressly provides that as to the named insured and dependent relatives residing in the same household, the named insured could elect, in exchange for premium modifications, that benefits payable under Medicare, 42 U.S.C.A. § 1395, be deducted from those benefits otherwise payable pursuant to Section 627.736(1). This statutory provision does not limit Benrube’s ability to receive payments under the policy because Benrube is neither the named insured nor a dependent relative of the named insured residing in the same household. American Risk admits in its brief on appeal that the $8,000.00 deductible of its insured does not apply to Benrube who is neither the named insured nor the dependent relative living in the insured’s household, and, therefore, Benrube had available to her the full $10,000.00 of the policy benefits. The same logic and rule applies to Section 627.739(2) and any election to limit duplicate payments from Medicare; duplicate payments may not be prohibited with respect to others than the insured and dependent relatives residing in his household. The clear impact of Section 627.739(2) is that duplicate payments are, in fact, contemplated because the insurance company is the primary insurer.

The United States Government may not pay a Medicare claim pursuant to 42 U.S. C.A. § 1395y where payment has been made or can reasonably be expected to be made. Further, any payment under the title is conditioned on reimbursement to the appropriate trust when notice or other information is received that payment for such item or service has been made pursuant to a state law or plan. There is no language in the act which can be interpreted as relieving a primary carrier, either temporarily or permanently, from its responsibility to make prompt payment of valid claims.

On December 5, 1980, subsequent to this case, Congress passed Public Law 96-499, § 953, which clarified 42 U.S.C.A. § 1395y(b) and provided for reimbursement when duplicate payment is made under any workmen’s compensation law or plan, or under an automobile or liability insurance policy or plan including a self-insured plan, or under no-fault insurance. The revised statute also permits waiver of reimbursement under certain circumstances by the Secretary of HEW. We note, without discussing the legal merits, that a practical effect of the ability of the Secretary of HEW to waive reimbursement for duplicate payments under certain circumstances is to provide an aged or disabled beneficiary with additional sums in order to pay those portions of medical expenses and other disability losses not usually covered by other plans when that person’s medical expenses have exceeded the policy limits of the no-fault insurance. The waiver authority is consistent with prior judicial determinations that Medicare is a social welfare program and not an insurance or reimbursement plan within the ordinary meaning of these terms. Atkins v. Allstate Insurance Co., 382 So.2d 1276 (Fla. 3d DCA 1980). Even if there were deemed to be no waiver provision prior to December 5, 1980, it is up to the federal government to seek reimbursement.

Accordingly, we hold that the non-duplication provision in the American Risk policy guidelines cannot apply to Medicare benefits received by a person who is neither the insured nor dependent relative living in the insured’s household. A private insurer may not refuse to pay benefits for which it is primarily liable for the reason that those expenses have been paid by Medicare.

Affirmed.


text:
    Linda Joyce EARNEST, n/k/a Linda Castillo, Appellant, v. SOUTHEASTERN FIDELITY INSURANCE COMPANY, Appellee.
    No. 81-1347.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Rehearing Denied Jan. 21, 1982.
    See also Fla.App., 378 So.2d 787 and Fla.App., 395 So.2d 230.
    Sidney L. Syna, for appellant.
    Haddad & Josephs and Michael Seth Cohen, for appellee.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

This is an appeal by Linda Earnest from an order of the Circuit Court of Dade County denying Her attorney’s fees and pre-judgment interest in an action brought by the appellee against her. The action sought a declaratory judgment that she was not entitled to the $20,000 uninsured motorist coverage provided in appellee’s policy issued to her father who owned the vehicle in which she was a passenger when she sustained the injuries for which she sued.

We find no merit in appellant’s claim for pre-judgment interest and affirm the trial court’s order denying such claim. Southeast Title and Insurance Co. v. Austin, 202 So.2d 179 (Fla.1967).

As to the order denying appellant’s motion for attorney’s fees in the trial court, we reverse and remand to the trial court for the entry of an order allowing appellant a reasonable attorney’s fee for her attorney’s services rendered in connection with her recovery of damages under the policy of insurance and for his services relative to her claim for attorney’s fees in the trial court.

Appellant’s entitlement to attorney’s fees arises under section 627.428(1), Florida Statutes (1979). The question of whether appellant was covered by the policy issued to her father has been answered in the affirmative on prior remand of this cause and is not an issue in the present appeal. The statute has been interpreted as creating liability against an insurer for attorney’s fees incurred by an individual who, while not the named insured, is in a first-party relationship to the insurer against whom he has been forced to litigate the coverage issue. E.g., United States Fidelity & Guaranty Co. v. State Farm Mut. Auto. Ins. Co., 369 So.2d 410 (Fla. 3d DCA 1979) (insurer responsible for attorney’s fees of resident spouse of named insured); Smith v. Conlon, 355 So.2d 859 (Fla. 3d DCA 1978) (insurer liable for attorney’s fees of individual unrelated to named insured, on jury finding that he used car of named insured with permission); but cf. Roberts v. Carter, 350 So.2d 78 (Fla.1977) (adverse party’s insurer not liable for attorney’s fees of injured plaintiff/third-party beneficiary where coverage was denied and insurer ultimately held responsible). We believe the • case at bar presents a proper situation for an award of attorney’s fees to appellant as she was in effect “standing in the shoes” of the insured and thus does not come within the proscription that “the attorney fee provision of § 627.428 was not intended to benefit the party injured by the insured automobile ...” Wilder v. Wright, 278 So.2d 1 (Fla.1973); see also Roberts v. Carter, supra.

Affirmed in part and reversed in part with directions. It is so ordered.

      . 627.428 Attorney fee.—
      (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the ■named beneficiary under a policy or contract executed by the-insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

      . Southeastern Fidelity Insurance Co. v. Earnest, 395 So.2d 230 (Fla. 3d DCA 1981).


text:
    SAMUEL K. WHITE and Margaret H. White, his wife, Appellants, v. The MOORINGS DEVELOPMENT COMPANY, a Florida Corporation, Appellee.
    No. 81-399.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Rehearing Denied Jan. 25, 1982.
    John R. Gould of Gould, Cooksey, Fennell & Appleby, Professional Ass’n, Vero Beach, for appellants.
    Thomas Thatcher and Alan S. Polackwich of Smith, O’Haire, Quinn & Garris, Vero Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Mills v. Mills, 339 So.2d 681 (Fla. 1st DCA 1976).

LETTS, C. J., and ANSTEAD and HERSEY, JJ., concur.


text:
    Kenneth NORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-273.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.
    Jerry Hill, Public Defender, Bartow,, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. The sole issue raised on appeal is,whether appellant’s sentence is illegal under Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980). This point is raised for the first time on appeal, and because Villery suggests that our supreme court contemplated that this issue be brought to the attention of the trial court in the first instance, we do not consider it on this appeal. However, this affirmance is without prejudice to appellant’s raising this issue in the trial court by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.

BOARDMAN, A. C. J., and RYDER and CAMPBELL, JJ., concur.


author: ERVIN, Judge.

text:
    BUDGET LUXURY INNS, INC. d/b/a Day’s Inn, American Mutual Liability Insurance Company and Sentry Insurance Company, Appellants, v. Ethel BOSTON, Appellee.
    No. YY-456.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1981.
    Rehearing Denied Jan. 18, 1982.

      Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, Clifford L. Somers of Miller, McKendree & Somers, Tampa, for appellants.
    Joseph L. Thury of Antinori & Thury, Tampa, for appellee.
   ERVIN, Judge.

In this workers’ compensation action, the appellants assign four points as requiring reversal. Because we agree with the appellants on their first point that the deputy lacked jurisdiction to modify the final compensation order pursuant to Section 440.28, Florida Statutes (1975), we need not address the remaining points raised.

The claimant suffered two industrial accidents: the first in September, 1975, when she slipped and fell on her back, and the second in March, 1976, when a box fell on her from a shelf. The employer was insured by appellant Sentry Insurance Company (Sentry) for the 1975 accident and by appellant American Mutual Liability Insurance Co. (American) for the 1976 accident. In the original order, the JIC found that the claimant reached MMI on July 13, 1976, with a resulting 10% PPD of the body and found each carrier responsible for one-half of the PPD benefits for the treating physicians were unable to apportion the disability caused by each accident. The carriers were also required to provide diagnostic testing, under the supervision of two specifically named doctors, and were further required, if one of the two doctors requested a myelogram, to share equally in such costs.

Subsequently, Sentry mailed claimant a check representing the lump-sum payment of all permanent benefits awarded. The claimant received and cashed this check on June 3, 1977. American mailed three separate checks on June 10, 1977 to claimant’s attorney, representing its share of the benefits and compensation owed to the claimant, although the record contained no evidence indicating the date the claimant received or cashed those checks. Later, from August 4-9, 1977, the claimant was hospitalized; during that time she underwent a myelo-gram and other diagnostic testing. The carriers paid for these hospital and medical bills and continued to furnish medical treatment to the claimant thereafter through the date of the hearing on the petition to modify.

On June 19, 1979, the claimant filed a petition for modification of the original order, alleging a substantial change in her condition as to medical problems and treatment, and requesting PPD benefits. After conducting a hearing on this claim, the deputy commissioner held that both carriers were estopped from asserting the two-year limitation period in Section 440.28 because they failed to pay the claimant TTD benefits mandated by the original, continuing order for the six-day period that the claimant was hospitalized in August, 1977, and that this failure tolled the running of the statute of limitations. The deputy additionally found that the statute of limitations’ defense was not available to American because it did not comply with Section 440.20(1), Florida Statutes (1975), in that the evidence showed only that the checks were mailed to claimant’s attorney — -not to claimant. He thereupon modified the original order by directing both e/cs (1) to pay claimant PTD benefits from the date previously established to be that of MMI, or July 13, 1976, (2) to provide continuing medical benefits as needed, and (3) to pay claimant’s costs and attorney’s fees.

We agree with the appellants that the deputy improperly estopped the appellants from asserting the limitation period in Section 440.28. That limitation period is an absolute jurisdictional requirement; not an affirmative defense that may be waived by the parties. Frank M. Murphy Corp. v. Rogers, 8. FCR 176 (January 30, 1974). See also Hughes v. Denny’s Restaurant, 328 So.2d 830 (Fla.1976); Bowman v. Food Fair Stores, 400 So.2d 793 (Fla.1981).

The claimant also argues that her receipt of medical benefits under the original, continuing order tolled the running of the statute. This argument, however, ignores Mansell v. Mulberry Construction Co., 196 So.2d 436 (Fla.1967), holding that remedial treatment provided by an e/c should not be considered a “payment of compensation” so as to toll the running of the limitation period in Section 440.28. See also Dean v. McLeod, 270 So.2d 726 (Fla.1972). Mansell recognizes that only a claimant’s last receipt of medical benefits within two years before the filing of a claim tolls the limitation period provided in Section 440.13(3)(b), stating that a claim may be filed within two years after the last remedial attention furnished by the e/c. Here, the claimant’s petition to modify, as it relates to a'requested change in compensation benefits, was governed by the provisions of Section 440.28 —not by Section 440.13(3)(b), Florida Statutes (1975).

The deputy was also incorrect in holding that the limitation period did not apply to American because the carrier did not pay claimant directly, as required by Section 440.20(1), but rather claimant’s attorney. That statute is inapplicable, however, because, as we have previously observed in note one, supra, it applies only to situations in which compensation is paid without an award, and not to situations in which “liability to pay compensation is controverted by the employer.” Moreover, although there was no evidence that claimant actually received the checks, there was undisputed evidence that American mailed the checks to claimant’s counsel on June 10, 1977. Proof of the carrier’s mailing of disability checks to a claimant constitutes proof of payment sufficient to start the running of the limitation period provided in Section 440.28. See Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla.1973).

Finally, the claimant contends that her claim should be considered a new claim for additional benefits pursuant to Section 440.19(l)(a). Yet, Section 440.19(l)(a) is also inapplicable since it authorizes a claim under circumstances where payments are initially made without an award “in which case further claims may be made within two years after payment of compensation or remedial treatment.” Jones v. Ludman Corp., 190 So.2d 760, 761 (Fla.1956). Here, as in Jones, medical payments were made pursuant to an award and thus Section 440.-19(l)(a) is also inapplicable.

Accordingly, that portion of the order directing the appellants to pay PTD benefits is reversed; that portion, however, relating to the requirement that the appellants furnish such future remedial or palliative treatments to claimant in the manner and period required by law is affirmed since the request for modification as to such treatments was timely filed. Finally, the order as it relates to the payment of reasonable attorney’s fees and costs is affirmed.

WENTWORTH and JOANOS, JJ., concur.

      . Requiring that “[c]ompensation . . . shall be paid periodically, promptly in the usual manner and directly to the person entitled thereto, without an award, except where liability to pay ... is controverted . . . . ”

      . Permitting a JIC to modify an order upon a change in condition at any time before two years have expired after the date of last payment of compensation pursuant to a compensation order.

      . Providing that a claim may be filed within two years after either payment of compensation or remedial treatment is furnished to a claimant without an award. Note that Section 440.19 (Supp.1980), which currently provides for the time and procedure for filing claims, has substantially amended the statute.


author: ORFINGER, Judge.

text:
    Stacy Clyde JOLLIE, Appellant, v. STATE of Florida, Appellee.
    No. 78-2415/T4-286.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Pursuant to the Mandate of the Supreme Court of Florida, 405 So.2d 418, issued in this cause on November 24, 1981, the opinion of this court filed March 26, 1980, 381 So.2d 351 (Fla. 5th DCA 1980), is withdrawn. The judgment of conviction is reversed and the cause is remanded to the trial court for a new trial. See Murray v. State, 403 So.2d 417 (Fla.1981) [1981 FLW 530]; Tascano v. State, 393 So.2d 540 (Fla.1980).

REVERSED and REMANDED for a new trial.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: COWART, Judge.

text:
    Carl RIDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1454.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

We find the proof of appellant’s possession of property recently stolen was sufficient to give rise to an inference that he not only stole the property but also committed the burglary which was necessary to accomplish the theft. See State v. Young, 217 So.2d 567 (Fla.1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969). See also Shaw v. State, 209 So.2d 477 (Fla. 1st DCA 1968). The inference of guilt arises only when the accused’s possession of recently stolen property is personal and exclusive, Griffin v. State, 370 So.2d 860 (Fla. 1st DCA 1979), or from the defendant’s distinct and conscious assertion of possession, Palmer v. State, 323 So.2d 612 (Fla. 1st DCA 1975). Appellant’s possession at the time that he sold some of the stolen property meets both characterizations.

The reasonableness of an accused’s explanation of his possession of recently stolen property is a question of fact for the jury, or the judge in a non-jury trial, to be considered in connection with all other facts and circumstances submitted in the trial of the case. Borghese v. State, 158 So.2d 785, 786 (Fla.3d DCA 1963). A trial judge is not bound, as a matter of law, to accept as true a defendant’s explanation of his possession of recently stolen property when tendered on a motion under Florida Rule of Criminal Procedure 3.190(c)(4). State v. Carroll, 404 So.2d 844 (Fla. 5th DCA 1981). Likewise, the trial judge is not bound on a motion for a judgment of acquittal, made at the close of all evidence in a case, to accept as true as a matter of law a defendant’s explanation of his possession of recently stolen property. Accordingly, appellant’s conviction and sentence on the burglary charge is affirmed.

However, appellant was convicted and sentenced of both grand theft of, and trafficking in, the same stolen property. Section 812.025, Florida Statutes (1979), prohibits a guilty verdict on both counts charging these two statutory offenses as to the same property. While the State was properly not required to elect between these counts, we read Florida Rule of Criminal Procedure 3.505 with section 812.025, Florida Statutes (1979), to require that the trial judge should have instructed the jury that guilty verdicts could not be returned as to both counts. As this was not done this court, rather than the jury, must now relieve appellant of one of the two convictions and we find no law exactly in point indicating which of the two convictions and sentences should be reversed and vacated. Since we uphold appellant’s conviction of burglary as based on the inference that he committed the theft, which in turn is based on the inference arising from his possession of recently stolen property, it is somewhat illogical to uphold the conviction of burglary and void the conviction of the theft upon which it is based.

Cases involving the voiding of one of two convictions because of double jeopardy concepts and cases under the now repealed “single transaction rule” are not directly applicable. However, since dealing in stolen property is a felony of the second degree, § 812.019, Fla.Stat. (1979), and grand theft of the second degree is but a felony of the third degree, § 812.014(2)(b), Fla.Stat. (1979), and the State has convinced the jury beyond a reasonable doubt as to both, we reverse the less serious conviction. Accordingly, appellant’s convictions and sentences for burglary, §§ 810.02(1); 810.02(3), Fla. Stat. (1979), and dealing (trafficking) in stolen property, § 812.019, Fla.Stat. (1979), are affirmed and his conviction and sentence on grand theft, § 812.014(2)(b), Fla. Stat. (1979), is reversed and set aside.

AFFIRMED in part and REVERSED in part.

COBB and SHARP, JJ., concur.

      . In effect, this is an exception to the rule prohibiting the jury from basing one inference upon another inference.

      . See § 775.021(4), Fla.Stat. (1979); Gonzalez v. State, 367 So.2d 1008 (Fla.1979); State v. Munford, 357 So.2d 706 (Fla.1978); Portee v. State, 392 So.2d 314 (Fla.2d DCA 1980).

      . As to the burglary charge, appellant was sentenced to a straight term of years in prison. As to the trafficking offense the accused was placed on probation for a straight term of years consecutive to the confinement on the burglary charge. As to the grand theft charge the accused was sentenced to five years confinement split two and one-half years in confinement followed by probation for two and one-half years. This latter sentence violates the dictates of Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). Therefore our vacation of that sentence solves that problem and yet does not interfere with the apparent sentencing scheme of the trial judge as gleaned from the sentences imposed on the burglary and trafficking charges.


text:
    Albert Theodore MANTOOTH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-1487.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.
    James B. Gibson, Public Defender', and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty.-i Gen., Daytona Beach, for appellee.
   PER CURIAM.

We find no reversible error in the trial proceedings, so the judgment of conviction is affirmed.

Appellant is correct, however, in his assertion that the sentence of five years in prison followed by three years of probation violates the dictates of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). The sentence is therefore vacated and the cause remanded for résen-tencing.

Judgment AFFIRMED. Sentence VACATED and REMANDED.

ORFINGER, SHARP and COWART, JJ., concur.


text:
    Paul A. DURDEN, Appellant, v. STATE of Florida, Appellee.
    No. 81-264.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.

      James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant pleaded guilty to a charge of robbery committed on September 18, 1980. He appeals the sentence of ten years imprisonment, contending that because he was seventeen years old when the crime was committed, he was entitled to be classified as a youthful offender under section 958.-04(2), Florida Statutes (1979).

Appellant met the eligibility requirements of section 958.04(1) and was thus mandatorily entitled to be classified as a youthful offender under section 958.04(2), if (a) he had not been previously found guilty of a felony; or (b) he had never been adjudicated guilty for an act which would be a capital, life or first degree felony if committed by an adult. State v. Goodson, 403 So.2d 1337 (Fla.1981); Evans v. State, 398 So.2d 1018 (Fla. 5th DCA 1981).

Appellant’s predisposition report shows two prior adjudications of delinquency for burglary, so if either of these acts would be first degree felonies if committed by adults, appellant would not have been entitled to the mandatory benefits of the act. The record does not disclose that either burglary could have been classified as a first degree felony, and the burden would be on the State to show that they were.

The sentence of ten years imprisonment is vacated and the cause remanded for re-sentencing in accordance with section 958.-05, Florida Statutes (1979), unless the State demonstrates to the satisfaction of the trial court that appellant does not meet the criteria of section 958.04(2Xa) or (b).

REMANDED for resentencing.

SHARP and COWART, JJ., concur.

      . The statute has since been amended, effective October 1, 1980, but the amended statute does not apply to this case.

      . § 810.02(2), Florida Statutes (1979).


author: DAUKSCH, Chief Judge.

text:
    Sonnie Boy OATS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-304.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

The judgment in this case is reversed on the authority of Tascano v. State, 393 So.2d 540 (Fla.1980), and this cause is remanded to the Circuit Court for a new trial.

REVERSED AND REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: COBB, Judge.

text:
    Edward James MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 81-311.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The primary issue raised by this appeal concerns the propriety of requiring a defendant to proceed to trial pro se as a result of his rejection of appointed counsel and failure to obtain private counsel. Although the issue is clear, its resolution is difficult, for it touches upon one of the most complex legal problems confronting trial judges: how to protect the procedural and substantive rights of a balky and hostile defendant who is at odds with his own counsel or who rejects, either expressly or by his conduct, all representation.

In the instant case the defendant, Edward James Mitchell, was charged on May 22, 1980, with multiple counts of grand theft. Thereafter, based upon the defendant’s request and affidavit of indigency, the trial court appointed the public defender to represent Mitchell. A member of that office, Anthony M. Caeavio, commenced handling the case. On August 28, 1980, Caca-vio filed a motion requesting the court to relieve “him and the office of Public Defender” from further responsibility in the case on the basis that the defendant “rejects counsel’s advice and refuses to cooperate fully with counsel” and “has become so adverse and hostile that he necessarily cannot be counseled by the Public Defender’s office without a conflict of interest.” The motion asked the court to appoint substitute counsel per section 27.53(3), Florida Statutes.

This motion was not acted upon by the trial court. The “conflict,” which was never explained or inquired into by the trial court, apparently was resolved temporarily by having another assistant public defender, one James Thurman, take over the case from Caeavio. Mitchell then became displeased with Thurman, also. Thurman appeared with Mitchell for the scheduled trial on September 9, 1980. The public defender himself, Robert Pierce, was present to assist Thurman at the prior special request to appoint substitute counsel.

When the court called the case on September 9th, Mitchell asked to make a statement to the court. This was allowed outside the presence of the jury. Mitchell then stated that he did not want Thurman as his lawyer “because I don’t feel he can give me the proper representation.” No further explanation was ever afforded the court for Mitchell’s rejection of Thurman. Apparently Mitchell previously had conveyed his dissatisfaction to the court, prompting the court to have Pierce available along with Thurman. The court explained this to Mitchell and asked him, “Now, are you telling me that you don’t want these either?”

Mitchell, obviously under the erroneous impression that he had a selective choice of attorneys, said that he had not talked yet with Pierce and that Pierce did not know anything about the case. The court then advised Mitchell that both Thurman and Pierce would be participating in the trial, and Mitchell then reiterated that he did not want Thurman. The following exchange then transpired:

THE COURT: Do you desire for me to discharge the public defender’s office to represent you?
DEFENDANT EDWARD JAMES MITCHELL: They ain’t going to give me another lawyer?
THE COURT: No, sir.
DEFENDANT EDWARD JAMES MITCHELL: I don’t want Mr. Thurman to represent me.
THE COURT: All right. Mr. Thurman, I hereby discharge the public defender’s office and you may go about your way. Thank you, very much. Mr. Pierce, I appreciate you coming today, you may go about your way also.
MR. PIERCE: Thank you, your Honor.
MR. THURMAN: Thank you, your Hon- or.
DEFENDANT EDWARD JAMES MITCHELL: Why you going to dismiss Mr. Pierce, I didn’t say I didn’t want him, I said I didn’t want Mr. Thurman.
THE COURT: You may leave, Mr. Pierce.

At this point the trial court advised Mitchell that he had elected to utilize his constitutional right to defend himself in person, and asked if he was ready to go forward with the scheduled trial. Mitchell protested the dismissal of Pierce, since it was only Thurman he did not want at that point in time. Mitchell then asked for a continuance in order to “contact my people” so they could try to get him a lawyer. After further discussion, the court granted the continuance until the following month.

When Mitchell next returned to court on October 28, 1980, he still did not have an attorney. He requested an opportunity to call his mother at that time to ascertain whether or not she had retained counsel for him. There was no explanation offered by Mitchell as to his failure during the interval between September 9 and October 28 to contact counsel. The trial court said it had been through this scene with Mitchell before, and denied the request. Again, the court inquired of Mitchell as to whether or not he wanted Thurman to represent him. Mitchell definitely did not. He still wanted to talk with Pierce, however. The case then proceeded to trial with Mitchell acting as his own attorney, resulting in conviction on four counts of theft.

Florida Rule of Criminal Procedure 3.111(d) provides:

(d) Waiver of Counsel
(1) The failure of a defendant to request appointment of counsel or his announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any stage of the proceedings.
(2) A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into accused’s comprehension of that offer and his capacity to make that choice intelligently and understandingly has been made.
(3) No waiver shall be accepted where it appears that the defendant is unable to make an intelligent and understanding choice because of his mental condition, age, education, experience, the nature or complexity of the case, or other factors.
(4) A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than two attesting witnesses. Said witnesses shall attest the voluntary exécution thereof.
(5) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.

The key case in regard to the constitutional considerations relative to self-representation in criminal matters is Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In that case, the United States Supreme Court said:

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S. [458], at 464-465, 58 S.Ct. [1019], at 1023 [82 L.Ed. 1461]. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. [269], at 279, 63 S.Ct. [236], at 242 [87 L.Ed. 268],

Faretta v. California, 95 S.Ct. 2541.

In the instant case the trial judge failed to comply with either the Florida rule or the Faretta standard. There was no inquiry into Mitchell’s capacity to intelligently and understandingly make the choice. Cf. Williams v. State, 337 So.2d 846 (Fla. 2d DCA 1976). More specifically, there was no inquiry of record as to Mitchell’s mental condition, age, education or experience.

While the record strongly suggests that nothing the trial court could have done, short of discharge of the defendant, would have satisfied Mitchell, the indicated requirements were not met. We can understand, and perhaps even concur in, the trial court’s finding that the conduct of the defendant Mitchell constituted a rejection of court-appointed counsel. But without the inquiry required in Rule 3.111(d) or the appearance of private counsel, the public defender (whether Cacavio, Thurman or Pierce) should not have been discharged, even though that defender’s ensuing task might have been unpleasant. Mitchell had no right to pick and choose an appointed attorney, and the trouble in this case was that this fact was never fully impressed on him. It was an all or nothing proposition— the office of the public defender or no one. If no one, then the rule sets forth the requisite procedure.

Accordingly, the conviction is reversed and this case remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DAUKSCH, C. J. and FRANK D. UP-CHURCH, Jr., J., concur.

      . See Huckelbury v. State, 337 So.2d 400 (Fla. 2d DCA 1976).


text:
    Joseph L. GELABERT, Appellant, v. STATE of Florida, Appellee.
    No. 81-380.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

The issue on this appeal is whether evidence is admissible to contradict, and thereby impeach, a witness (particularly a defendant testifying in a criminal case) as to a factual matter that is not material to an ultimate issue in the case and is not otherwise admissible to discredit the witness (i.e., does not show bias, corruption or incompetency).

Appellant was charged with aggravated assault, § 784.021(l)(a), Fla.Stat. (1979), and improper exhibition of a dangerous weapon, § 790.10, Fla.Stat. (1979), as the result of a police officer, while responding to a report of a domestic disturbance, entering appellant’s home and being confronted by the appellant wielding a butcher knife. Apparently the State’s position was that appellant threatened the police officer under the mistaken impression that the officer was appellant’s older son James who, estranged from the family and at odds with appellant, was supposed to be living in a foster home and not to be near appellant’s home. Appellant disputed this characterization of the encounter and testified he was using the knife to fix a toy box for his youngest son Joseph. Over objection, the State was permitted on cross examination to question appellant at length concerning his relationship with his estranged son James including asking him if he, appellant, ever threatened James with a weapon. Appellant admitted only to having chased James with a stick. On rebuttal, the State, again over objection, was permitted to call and elicit testimony from appellant’s neighbor that she had seen appellant chase James with a knife in his hands several weeks before the date of the alleged assault on the police officer. The jury acquitted the appellant of aggravated assault but convicted the appellant on the weapon exhibition charge.

On this appeal, appellant claims the questions to him on cross-examination as to his relationship with his son James and the rebuttal testimony of the neighbor were both inadmissible and prejudicial. We agree and reverse.

Since the right to ask any particular question on cross-examination when it relates to a collateral matter is normally within the discretion of the trial court, any denial of an objection to the question normally is not considered so prejudicial as to require reversal. However, when a question, posed on cross-examination, relates only to a matter collateral and non-material to any issue at trial, the witness’ answer to the question is deemed conclusive. Consequently, the witness cannot be impeached with regard to this testimony by any of the normal means of subsequent impeachment, including contradiction testimony by another witness. Although stated various ways, this general evidentiary philosophy of exclusion has been a part of Florida jurisprudence for many years. Thus, it has been said:

But the answer of a witness on cross-examination respecting any fact irrelevant to the issue will be conclusive, and no such question can be put on cross-examination merely for the purpose of impeaching his credit by contradicting him. Stewart v. State, 42 Fla. 591, 28 So. 815, 816 (1960).

The reasoning behind the rule has been attributed to the evidentiary philosophy that a party cannot impeach his own witness and when the question is outside the scope of direct examination and on a collateral matter, the cross-examiner adopts the witness as his own. However, commentators prefer to attribute the basis to substantial policy considerations: unfair surprise, undue prejudice, confusion of the issues, and finally, time wasting and its adverse effect on judicial economy. The admissibility of contradictory evidence turns then on whether the issue is considered collateral or not. One proposed test is “could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradictions?” There are generally two types of evidence that pass this test and are thus admissible: (1) facts relevant to a particular issue (which would therefore be admissible irregardless of their impeachment value) and (2) facts which discredit a witness by pointing out the witness’ bias, corruption, or lack of competency (i.e., personal knowledge of the facts, ability to understand an oath, and ability to relate the facts at trial). It should be noted that, except for a judgment of conviction of a crime, evidence of the general immoral character of a witness is excluded from this second category. This second qualification to the general rule of exclusion, thereby allowing contradiction testimony, has likewise been a part of Florida jurisprudence for many years. As stated in Fields v. State, 46 Fla. 84, 35 So. 185, 186 (1903);

“For the purpose of discrediting a witness, a wide range of cross-examination is permitted as a matter of right in regard to his motives, interest, or animus as connected with the cause or the parties thereto, upon which matters he may be contradicted by other evidence.”

The above case law and philosophy relating to impeachment is incorporated into the Florida Evidence Code in section 90.608, Florida Statutes (1979), which provides in part:

90.608 Who may impeach.—
(1) Any party, except the party calling the witness, may attack the credibility of a witness by:
(a) Introducing statements of the witness which are inconsistent with his present testimony.
(b) Showing that the witness is biased.
(c) Attacking the character of the witness in accordance with the provisions of s. 90.609 or s. 90.610.
id) Showing a defect of capacity, ability or opportunity in the witness to observe, remember, or recount the matters about which he testified.
(e) Proof by other witnesses that material facts are not as testified to by the witness being impeached.
[emphasis added]

Contradictory testimony that falls within the first category (as set out above) is admissible under section 90.608(l)(e). With regard to the second category, evidence of bias (and implicitly corruption) is allowed under section 90.608(l)(b), evidence of lack of competency is allowed under section 90.-608(l)(d), and evidence of the witness’ general immoral character is allowed under 90.-608(l)(c) but limited to evidence of the witness’ reputation for untruthfulness by section 90.609 or evidence of a prior conviction by section 90.610.

In the instant case, the charges were based on appellant allegedly threatening a deputy with a knife when the deputy entered appellant’s home. Although the two charges encompassed various issues, evidence of appellant’s relationship with his estranged son and whether he had ever threatened him with a weapon or not was completely collateral to any of them. Whether or not appellant had ever threatened his son with a weapon was not an element of either crime or an issue by itself; neither did it tend to show bias, corruption, or lack of competency on the appellant’s part, nor was it admissible as to appellant’s character. It was error to permit appellant’s cross-examination as to whether he had ever threatened his son James with a weapon; the State having received an answer to its improper inquiry, the error was compounded by allowing appellant’s neighbor’s contradictory (impeaching) testimony on rebuttal.

The testimony relating to the appellant’s alleged assault on his son could have been held against him by the jury because it not only tended to impermissibly discredit appellant, but also was evidence of bad character and a propensity toward violence, both of which are inadmissible matters. In view of the fact that the charges in this case related to an alleged assault on a police officer with a knife, we are compelled to the opinion that these errors were not harmless but injuriously affected the substantial right of the appellant to be tried only on admissible evidence material to proper issues in the cause. See § 59.041 and § 924.33, Fla.Stat. (1979).

REVERSED AND REMANDED FOR A NEW TRIAL.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . For other examples, see Stinson v. State, 76 Fla. 421, 80 So. 506 (1918), Herndon v. State, 73 Fla. 451, 74 So. 511 (1917), Johnson v. State, 68 Fla. 528, 67 So. 100 (1914), and Myers v. State, 31 So. 275, 43 Fla. 500 (1901).

      . This reasoning was applied in Eldridge v. State, 27 Fla. 162, 9 So. 448 (1891), wherein the court stated
      The rules of evidence permit, in the discretion of the trial judge, a great latitude on cross-examination, when in his judgment such a course is essential to the discovery of truth; but they do not permit an inquiry into collateral matters in no way connected with the issue, for the purpose of contradicting a witness. A party has no right, on cross-examination, to interrogate a witness as to a distinct collateral fact for the purpose of contradicting him, and if such an examination is permitted by the judge under the latitude allowed on cross-examination as to such matter, the party examining makes the witness his own.
      9 So. at 452.

        .See, e.g., McCormick on Evidence § 47 (2nd ed. 1972); HIA Wigmore on Evidence §§ 1000-03 (Chadbourn rev. 1970).

      . This test is taken from the majority opinion in Attorney General v. Hitchcock, 1 Exch. 91, 104 (1847). Based on its definiteness, concreteness, and ease of application, it is chosen by Wigmore as the best test. IIIA Wigmore on Evidence § 1003 (Chadboum rev. 1970).


text:
    Robert I. O’NEAL, Appellant, v. Fran A. O’NEAL, Appellee.
    No. 81-468.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.
    Franklin T.. Walden of Massey, Alper & Walden, P. A., Altamonte Springs, for appellant.
    J. Chester Kerr, Kissimmee, for appellee.
   PER CURIAM.

The.judgment appealed from is affirmed. We repeat our admonition as enunciated in Moore v. Moore, 401 So.2d 841 (Fla. 5th DCA 1981): “In the future we urge that the trial courts expressly state their reservation of jurisdiction in these cases without resort to ‘nominal’ alimony awards.” Id. at 842.

AFFIRMED.

DAUKSCH, Chief Judge, and FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


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

text:
    Norman Delbert KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 81-548.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.

      James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Chief, Appellate Division, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Norman Kelly appeals from an order withholding an adjudication of guilt and placing him on probation. We REVERSE.

Two off-duty deputies working as security guards at a skating rink saw Kelly standing next to his automobile in the parking lot. Kelly was drinking a bottle of beer and he appeared intoxicated. The guards asked appellant to either enter the skating rink or to leave. Kelly replied that he could drink his beer anywhere he wanted but he otherwise created no disturbance.

The guards then requested identification. To comply, Kelly looked inside the car for his wallet. The car was full of clothes and other personal items. While moving some clothes, an amber-colored prescription bottle came into view. When one of the guards asked him for. the bottle, Kelly refused. The guards grabbed the bottle and opened it to ascertain its contents. The bottle contained a single white tablet later identified as methaqualone, a controlled substance.

Kelly was charged with unlawful possession of a controlled substance. Prior to trial, his motion to suppress the evidence was denied. On appeal, Kelly contends that he was illegally detained, that he did not consent to a search of his automobile or to a seizure of the evidence and that the deputies did not have probable cause to seize the evidence; therefore, he argues that his motion to suppress should have been granted.

The state argues that when Kelly refused to obey the guard’s request, he was committing a trespass and therefore the guard had the right to temporarily detain him for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); § 901.151, Fla.Stat. (1979).

Section 810.09, Florida Statutes (1979), provides in part as follows:

(1) Whoever, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance as to which notice against entering or remaining is ■ given, either by actual communication to the offender or by posting, fencing, or cultivation as described in s. 810.011, commits the offense of trespass on property other than a structure or conveyance.
* * * * * *
(2)(b) If the offender defies an order to leave, personally communicated to him by the owner of the premises or by an authorized person, ... he is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.

Contrary to Kelly’s assertion, his conduct indicates that he did not intend to comply with the request of the deputies. Appellant was asked to go inside the skating rink or leave by the deputies who, as security guards, were “authorized persons” within the purview of section 810.09. The only evidence of Kelly’s response was his reply that he “could drink his beer wherever he wanted to.” This response reasonably indicates that appellant was defying or intended to defy the order from the deputies. In these circumstances, a limited intrusion to ascertain Kelly’s identity while investigating a possible trespass was justified. See Mayo v. State, 382 So.2d 327 (Fla. 1st DCA 1980).

Under the “stop and frisk” statute, however,the right to search does not automatically follow once the right to detain is established. Schnick v. State, 362 So.2d 423 (Fla. 4th DCA 1978). Here, Kelly’s automobile was searched without a warrant. To be reasonable, the search must have been conducted within a recognized exception to the warrant requirement. See, e.g., Norman v. State, 379 So.2d 643 (Fla.1980).

The state seeks to justify the search and seizure of the amber colored prescription bottle from Kelly’s automobile on what it terms the “plain view” exception to the warrant requirement. In Ensor v. State, 403 So.2d 349 (Fla.1981), a factually similar case, the supreme court recently discussed the confusion between the term “plain view” and what is properly termed “open view.” The court distinguished the “plain view” doctrine as established in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), from other situations in which officers observe contraband.

In Ensor, police officers had stopped a vehicle for a traffic violation. While the passengers were being questioned outside the vehicle, two other officers looked into the vehicle with their flashlights. One officer spotted a portion of a white object protruding from under the floormat. From squatting and looking into the already opened passenger door, the officer determined the object to be a pistol. At that point, the officer entered the vehicle and retrieved the weapon.

The supreme court characterized this set of facts as an “open-view” situation involving a “pre-intrusion”:

Here, the officer is located outside of a constitutionally protected area and is looking inside that area. If the officer observes contraband in this situation, it only furnishes him probable cause to seize the item. He must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband. As with the non-intrusion situation, the term ‘plain view’ should not be employed here to prevent confusion.

403 So.2d at 352.

The court further determined that, on seeing the firearm in “open view” through the open car door, the officer had probable cause to believe that the felony of possessing a concealed firearm was being committed in his presence. The officer then needed a warrant or warrant exception before he could enter the vehicle and seize the firearm. Under the facts, the court held that the officer was legally justified in seizing the firearm without a warrant under the “automobile exception” to the warrant requirement, the basis for the warrantless entry being the exigency of the “movable” vehicle. Id. at 352 and authorities cited therein.

The present case also involves the “pre-intrusion” situation. The deputies, while waiting for appellant to produce identification, were standing in a non-protected area and were looking inside a constitutionally protected area. Unlike Ensor, however, the deputies here did not have probable cause to believe that the offense of possession of a controlled substance was being committed in their presence.

At the time of the seizure in the present case, the deputy saw only an amber-colored prescription bottle. He did not see any substance inside the bottle which would warrant a belief that controlled substances drugs were involved. Thus, unlike State v. Hall, 376 So.2d 276 (Fla.3d DCA 1979), cited by the state, the “incriminating nature” of the item was not “readily apparent.” Rather, the item here was seizéd and then its contents were examined to determine whether it contained contraband. As in Carr v. State, 353 So.2d 958 (Fla.2d DCA 1978), the facts within the deputy’s knowledge at the time of the seizure do not meet the standard of probable cause.

We conclude that whether the detention of appellant for investigatory purposes was proper is not controlling. The seizure of the prescription bottle was not based on probable cause and therefore the warrant-less search and seizure was unreasonable. The order appealed is REVERSED and this cause REMANDED with directions to discharge appellant.

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

      . The state also argued that the deputies could have suspected Kelly of committing the offenses of loitering or disorderly intoxication. We find no merit in these contentions.

      . The true “plain view” doctrine involves a situation in which an officer is legally inside, by warrant or warrant exception, a constitutionally protected area and inadvertently observes contraband also in the protected area. 403 So.2d at 352.


text:
    Margaret NORFOLK, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, an insurance corporation, Appellee.
    No. 81-590.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.
    Joseph G. Will of Smith & Schoder, Day-tona Beach, for appellant.
    Scott Shea and Robert K. Rouse, Jr., of Smalbeiri, Eubank, Johnson, Rosier & Bus-sey, P.A., Daytona Beach, for appellee.
   COBB, Judge.

The appellant, Margaret Norfolk, was injured in an automobile accident in 1977. At the time of the accident, she was married and her husband had a family policy of automobile insurance with the defendant/appellee, Nationwide Mutual Fire Insurance Company. That policy, under which the husband of the appellant was the named insured, included PIP coverage.

Initial PIP payments were made to Margaret Norfolk. Thereafter, a dispute arose as to the cause of her injury and the payments were stopped by Nationwide. Margaret Norfolk filed suit against Nationwide, including in her complaint a demand for attorney fees. Nationwide moved to strike that claim on the ground that Norfolk was not one of the parties entitled to collect attorney fees from an insurer. The trial court, following a literal interpretation of language used by the Florida Supreme Court in Roberts v. Carter, 350 So.2d 78 (Fla.1977), granted the motion and struck the claim for attorney fees. Settlement of the case specifically reserved this issue for appellate review.

The issue is whether or not an insured under a family automobile policy, as opposed to a third-party beneficiary, is entitled to recover attorney fees against an insurer denying coverage pursuant to section 627.428(1), Florida Statutes (1977). That provision is:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

In the Roberts case the issue was whether or not an injured third-party claimant, hence a third-party beneficiary under the insured’s policy, would be entitled to an award of attorney fees in a successful action against the tortfeasor and the tort-feasor’s carrier, which had denied coverage. The Florida Supreme Court, in deciding adversely to the third-party beneficiary claimant, used the following language:

To eliminate any remaining confusion, we now reaffirm Wilder [v. Wright, 269 So.2d 434 (Fla.App.)] and hold that an award of attorney’s fees under section 627.428(1) is available only to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured. [Emphasis added.]

350 So.2d at 79.

Unfortunately, rather than eliminating confusion, the above language, and especially the phrase “contracting insured,” has created substantial confusion among the appellate courts. While the issue in the Roberts case was whether a third-party beneficiary had the right to make a claim for attorney fees against the carrier, subsequent actions raised the issue of whether an insured under the policy, other than the named insured, has the right to claim attorney fees. Two appellate courts have followed a strict interpretation of the language used in Roberts and have denied the right to claim attorney fees to an insured person other than the named insured. See Aetna Life Ins. Co. v. Sievert, 361 So.2d 747 (Fla. 1st DCA 1978), and Aetna Life & Cas. Co. v. Stanger, 367 So.2d 728 (Fla. 4th DCA 1979). On the other hand, the Third District Court of Appeal, in United States Fidelity & Guaranty Co. v. State Farm Mut. Automobile Ins. Co., 369 So.2d 410 (Fla. 3d DCA 1979), held that the Florida Supreme Court’s use of the phrase “the contracting insured” was probably inadvertent and was not meant to limit the language of the statute, which refers to “an insured.”

The trial court below, following a literal construction of the Roberts language, struck the claim of Margaret Norfolk for attorney fees. We agree with the interpretation of the Third District Court of Appeal. In view of the clear language of the statute, we believe that the Supreme Court’s choice of language in reference to “the contracting insured” was inadvertent, and was intended to refer to insureds under the contract as opposed to the third-party beneficiaries of the contract discussed in Roberts. Otherwise, the Florida Supreme Court would be guilty of rewriting the clear provisions of section 627.428(1), Florida Statutes, which it lacks legislative authority to do.

Accordingly, we reverse the order of the trial court, but certify our decision herein to be in direct conflict with Aetna Life Ins. Co. v. Sievert and Aetna Life & Cas. Co. v. Stanger.

REVERSED and REMANDED for further proceedings consistent herewith.

DAUKSCH, C. J., and COWART, J., concur.


text:
    Patricia Dale ROBBINS, Petitioner, v. The Honorable Frederick PFEIFFER, Circuit Judge of the Circuit Court in and for Orange County, Florida, Orlando Executive Park, Inc., and Howard Johnson Company, Respondents.
    No. 81-1420.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.
    Rehearing Denied Jan. 20, 1982.
    Charles R. Morgan of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for petitioner.
    Ronald M. Owen of Parker, Johnson, Owen & McGuire, Orlando, for respondent, Orlando Executive Park, Inc.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for respondent, Howard Johnson Co.
   ORFINGER, Judge.

The issue before us is whether a trial court has jurisdiction to order a stay of execution on a money judgment under Florida Rule of Civil Procedure 1.550(b), after the judgment has been affirmed by this court and the mandate issued, pending discretionary review by the Supreme Court of this court’s opinion and decision.

A final money judgment was entered in the trial court on June 25, 1979 awarding plaintiff (petitioner here) compensatory damages, but denying her claim for punitive damages. On appeal the judgment was affirmed in its entirety. See 402 So.2d 442 (Fla.5th DCA 1981). This court’s mandate issued on September 14, 1981, after an application to stay the mandate and for a stay pending review was denied. The Supreme Court denied a similar application for stay on September 29, 1981.

Thereafter, defendants moved the trial court for a stay of execution under Rule 1.550(b), pending determination by the Supreme Court of their application for discretionary review, and at a hearing held November 5,1981, to which petitioner objected on the ground of lack of jurisdiction, the trial court announced that it would enter such stay, and directed the preparation of a formal order. Prior to the entry of such order, petitioner filed the instant petition for writ of prohibition, contending that the trial court had no jurisdiction to stay execution in the posture of the proceedings here. Because the petition demonstrated a preliminary basis for relief, this court issued an order to show cause on November 5, 1981. This order has the effect in prohibition proceedings of staying all further proceedings in the lower tribunal. Fla.R.App.P. 9.100(f). Notwithstanding our. order, on November 10,1981, the trial court entered a written order staying execution pending review by the Supreme Court.

In response to our order to show cause, respondents now say that prohibition will not lie to prohibit an action already taken, because there are other appropriate remedies, citing English v. McCrary, 348 So.2d 293 (Fla.1977). Under different circumstances this position would be correct, but in view of the facts of this case, this argument overlooks the fact that the order of November 10, 1981 is a nullity as having been entered without jurisdiction. Rule. 9.100(f). It would indeed be anomalous to hold that prohibition could be frustrated by merely ignoring an order of the appellate court which requires that all proceedings be stayed, because such would permit the trial court to defeat the appellate jurisdiction of this court. If the trial court order of November 10, 1981, has made prohibition an improper or inappropriate remedy, we need only treat the petition as one also for certio-rari. Fla.R.App.P. 9.040(c).

The judgment of an appellate court, when it issues a mandate, is a final judgment in the cause and compliance therewith by the lower court is a purely ministerial act. O. P. Corporation v. The Village of North Palm Beach, 302 So.2d 130 (Fla.1974). In the absence of a stay ordered by the appellate court, the issuance of a mandate affirming a judgment entitles the holder of that judgment to a writ of execution as a matter of right. Murphy v. Murphy, 378 So.2d 27 (Fla.3d DCA 1980). Thus a stay of execution on a judgment which this court has affirmed and as to which our mandate has been issued would, in effect, be an avoidance of our mandate as to which the trial court has no jurisdiction, notwithstanding the attempt by respondent to secure discretionary review by the Supreme Court. See King v. L. & L. Investors, Inc., 136 So.2d 671 (Fla.3d DCA 1962). The fact that petitioner has also asked the Supreme Court to review the denial of her claim for punitive damages adds nothing to the trial court’s jurisdiction here. The subject of the petition for discretionary review is no longer the trial court’s judgment, but the decision of this court. Thus, a further stay could only be granted by this court or by the Supreme Court, and both courts have denied such stay. The trial court did not have jurisdiction to overrule such determinations. Cf. Aetna Insurance Company v. Buchanan, 372 So.2d 172 (Fla.2d DCA 1979).

The trial court had no jurisdiction to stay execution on the judgment, and its order of November 10, 1981, is hereby quashed. However, believing that the trial court will not act further in this direction, we withhold the issuance of a formal writ of prohibition at this time.

It is so ordered.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

      . The operative portion of the order says:
      “... execution on the judgment entered herein shall be stayed pending review proceedings in the Supreme Court of this action. The Clerk of the Circuit Court in and for the Ninth Judicial Circuit of Orange County, Florida, is hereby directed to refrain from issuing any writs of execution on the subject Judgment until this Order is rescinded or overturned, and execution on any writs previously issued is hereby stayed.”


text:
    Walter SERMONS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1058.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1981.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant raising the violation of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981) on a Florida Rule of Criminal Procedure 3.850 motion.

HOBSON, A. C. J., and BOARDMAN and OTT, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Keith R. LONG, Appellant, v. STATE of Florida, Appellee.
    No. 81-1144.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1981.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

After trial by jury, appellant was convicted of the theft of certain items from Cooper Radio Company. He argues on appeal that the trial court erred in allowing testimony concerning his alleged commission of crimes of a similar nature. We agree and reverse.

An employee of Cooper Radio Company testified that a string of unsolved thefts had occurred in the store. The relevant portions of his testimony are as follows:

Q [By the prosecutor] Tell us why your suspicion that this man [appellant] was different from anyone else who walked in your store.
A Because we had, we had — another employee of the store had seen him — one of the employee’s sons — excuse me — had seen him steal something before, and we were suspicious of him from that.
Q Did you see him on any other occasion which would make you suspicious of him if he came into your store again?
A We had had a string of thefts occur in the store of small items, expensive items, like tape recorders, photograph cartridges, things like that, disappear. We had never seen anyone [sic] take them, but we noticed that at least one of the items one day, which was in a place near where the defendant had been walking, we noticed a few hours after he had left that unit was missing. ...
. .. [A]s a result of that, we tried to keep closer scrutiny on him when he came into the store, because he would come into the store once in a while, he would buy a few things, .. . and then he would take a long time walking around the store.
Q So is it because of these early incidents that you kept a particular close eye on him this time . . .?
A Yes.... [W]e had made, arrangements with the police to call them the next time that he was in the store.

This testimony was admitted over the timely objection of appellant’s trial attorney.

In Dibble v. State, 347 So.2d 1096 (Fla.2d DCA 1977), this court reversed a conviction because testimony implied that the defendant there had been involved in similar criminal activities in the past. We stated:

In Williams v. State, 110 So.2d 654 (Fla.1959), it was held that similar fact evidence of a prior crime is admissible if relevant, except to prove bad character or criminal propensities. However, prior to evidence of an independent crime being admissible, it is essential to show that the former crime was committed and committed by the person on trial. Norris v. State, 158 So.2d 803 (Fla. 1st DCA 1963) and State v. Norris, 168 So.2d 541 (Fla.1964).

Id. at 1097.

The testimony characterizing appellant as a shoplifting suspect was a clear violation of the Williams Rule. Moreover, there was no proof that appellant had committed any previous thefts. Thus, this testimony was inadmissible. Williams, supra; Norris, supra. It was also highly prejudicial, so that reversal is required here.

Accordingly, the judgment and sentence is REVERSED and the cause REMANDED for new trial.

CAMPBELL and SCHOONOVER, JJ., concur.

      . We note that appellant was charged with grand theft but convicted of the lesser included offense of petit theft. On remand, therefore, he may, of course, only be tried for the offense of petit theft.