text:
    S. A. HODGES v. Catherine Parker PITTMAN, etc., et al.
    78-737.
    Supreme Court of Alabama.
    May 23, 1980.
    Champ Lyons, Jr. and Larry U. Sims of Coale, Helmsing, Lyons & Sims, Mobile, for appellant.
    Irvin J. Langford and George W. Fink-bohner, Jr. of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee Catherine Parker Pittman, etc.
    Erling Riis, Jr. and Ronald P. Davis of Vickers, Riis, Murray & Curran, Mobile, for appellees Pittman Equipment Company, Inc., Wyman G. Rainey, William W. Lamar and Isaac L. Dennis.
   FAULKNER, Justice.

This is an appeal from a judgment of the Circuit Court of Mobile County, holding that a buy-sell agreement of capital stock of a closely held corporation was null and void. We reverse.

In October, 1977, the stockholders of Pittman Equipment Co., Inc., consisting of James B. Pittman, S. A. Hodges, Wyman G. Rainey, William W. Lamar, and Isaac L. Dennis, and the Corporation entered into an agreement to impose restrictions on the transfer or other disposition of the shares of the Corporation; to grant options to purchase such shares; to provide a method for purchasing the share interest of a deceased stockholder and to make provision for the adequate financing of the purchase of shares of a deceased or retiring stockholder. The consideration was the mutual agreements and covenants set forth in the agreement.

The provision for disposition of the stock of a deceased stockholder is here for construction.

Item 2 of the agreement provides:

2. Option to purchase shares on death. Upon the death of any Shareholder, all the shares of such Shareholder shall be subject to purchase as provided in this paragraph. Within thirty' (30) days after the appointment of the legal representatives of such deceased Shareholder, a meeting of the Shareholders shall be called by the Corporation, at which meeting the Corporation shall determine whether or not it shall exercise its option to purchase all or any part of the shares of such deceased Shareholder. The purchase price shall be as provided in sub-paragraph 3(d) hereof and may be made from the Corporation’s surplus or from the proceeds of insurance owned by the Corporation on the life of a deceased Shareholder. In the event the Corporation does not exercise its option to acquire all or any part of the remaining shares of a deceased Shareholder, then the remaining shares of such deceased Shareholder shall be offered for sale and shall be subject to the option on the part of each of the other Shareholders to purchase a proportionate share, at the purchase price as determined in sub-paragraph 3(d) hereof. In the event that all the shares of the deceased Shareholder so offered for sale are not purchased by the Corporation or other Shareholders pursuant to the provisions of this Agreement, then all restrictions imposed by this Agreement upon such shares shall forthwith terminate.

Item 3(d) states the purchase price of the stock in the event of exercise of the option to purchase.

(d) Purchase Price. The term “purchase price” shall mean the value of a share of stock established at the annual meeting of the Shareholders each year. The value so established shall be noted in the minutes of that meeting and shall be conclusive and binding on each party hereto and all those that may ever become beneficial owners of stock of the Corporation hereafter. Provided, however, in the event the book value of a share of stock of the Corporation as determined by the Federal Income Tax Return of the Corporation shall exceed the value of a share of stock established at the Shareholders meeting, then that book value shall be the “purchase price”, as herein defined.

On October 30,1978, James B. Pittman, a 60% owner of the company’s stock died. Subsequently, his wife, Catherine was appointed executrix of his estate. On December 15, a special stockholders and directors meeting was held to consider the corporation’s option to purchase Pittman’s stock pursuant to the buy-sell agreement. Catherine did not attend the meeting. She gave her proxy to her attorneys.

The directors adopted a resolution that the Corporation exercise its option to purchase Pittman’s stock. A stockholder’s resolution authorizing the Corporation to purchase Pittman’s stock failed to pass when Catherine’s proxy, holder of a 60% interest, voted against the resolution. Hodges, a holder of 500 shares, then stated that he exercised his personal option to buy his proportionate share of the stock from Pittman’s estate pursuant to the agreement. He called upon the Estate’s representatives to offer and to produce the proportionate shares for sale. They declined.

On the same date that the stockholders and directors meeting was held, Catherine Pittman as executrix of the estate of James B. Pittman, filed a declaratory judgment action against Pittman Equipment Co., Hodges, Rainey, Dennis, and Lamar requesting that the court declare the buy-sell agreement was null and void. Hodges, by answer, denied the invalidity of the buy-sell agreement and counterclaimed and cross-claimed against Catherine and his co-defendants the Corporation, Rainey, Lamar, and Dennis in a derivative action for the corporation to enforce the agreement, and for á declaratory judgment that he had validly exercised his option to purchase his proportionate share of the stock under the agreement. He also requested a temporary restraining order and a preliminary injunction to stop stock transfers, shareholder meetings, and disbursements of insurance proceeds due the Corporation on the death of James B. Pittman.

The Corporation and the individual defendants Lamar, Dennis, and Rainey answered in Catherine’s suit, and admitted that the buy-sell agreement was void. After an evidentiary hearing, Hodges’ motions for injunctive relief were denied.

At the pretrial conference Catherine’s attorney directed the trial court’s attention toward two of the issues she asserted in her complaint: 1) the legislature had abolished the right of a corporation to restrict the alienation of its stock; and 2) the agreement lacked mutuality. (The other issues she had raised were a failure to meet a condition precedent in setting the purchase price and unreasonableness in failure to include the insurance proceeds in a determination of the book value of the stock.) Subsequently, Mrs. Pittman conceded that the legislature had not abolished the Corporation’s right to restrict transfers of its stock. Hodges contends that he indicated to the trial court that he would submit to the court for determination whether the agreement was void as a matter of law without testimony being taken, but only on the issue of lack of mutuality. Catherine, the Corporation and the individual defendants contend that the agreement was submitted not only on the mutuality issue but also on the condition precedent and unreasonableness issues. The trial judge issued a decree that the buy-sell agreement was void as a matter of law. Hodges appeals.

Contrary to the contentions of the appel-lees, Catherine Pittman, the Corporation, and the other individual defendants, we are restricted to review the judgment of the trial judge as rendered by him. His judgment declared that the buy-sell agreement was “null, void and unenforceable as a matter of law.” Thus, the other issues are not before us.

The appellees lean heavily on Security Life and Accident Ins. Co. v. Carlovitz, 251 Ala. 508, 38 So.2d 274 (1949), as their authority that the agreement lacks mutuality. That case, in our opinion, does not control the mutuality issue in this one. The issue in Security Life was the validity of a corporate by-law — not an agreement between stockholders and the corporation. The bylaw provided that a stockholder could block the transfer of stock by another stockholder by signifying his desire to purchase. Moreover, by signifying his desire to purchase, the stockholder who blocked the sale was not bound to purchase the stock. Thus, he could either prevent any transfer for an indefinite period, or force a transfer on his terms. The Court concluded that the bylaw proviso lacked mutuality, and was, therefore invalid. But, by reaching this conclusion, the Court recognized the validity of first option agreements when the option is exercised within a reasonable time, citing Christy & McLean, The Transfer of Stock, Second Edition, § 39, p. 75.

We turn now to the construction of the buy-sell agreement before us. We note, first, that the agreement was signed by all of the stockholders, and on behalf of the Corporation by its president; second, provisions restricting the sale of the stock were duly placed on the certificates; third, a plan of ownership should certain events occur, was implemented which maintained the personal relationships of the stockholders; fourth, there were no unreasonable restraints on alienation of the stock; and fifth, the agreement was supported by the mutual agreements and covenants of the corporation and stockholders, therefore, there was no lack of mutuality.

Although unmentioned in briefs, we observe that Item 8 provides:

Except as herein otherwise provided, this Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their personal representatives, successors and assigns. It is specifically understood and agreed that each and every owner of stock, including subsequent owners, shall be bound by the provisions contained in this Agreement, including specifically, but not limited to the restriction on the sale or encumbrance of stock, and the option to purchase shares.

We conclude, and hold, that the agreement is binding and enforceable.

We pretermit discussion of the issue of whether the insurance proceeds owned by the Corporation should be included as an asset to determine the book value of the stock. We do not construe the trial judge’s order as having decided that issue.

The judgment of the trial court holding the buy-sell agreement to be null, void and unenforceable is reversed, and the cause remanded.

REVERSED and REMANDED.

TORBERT, C. J., and ALMON, EMBRY and BEATTY, JJ., concur.


source: Caselaw Access Project

author: TORBERT, Chief Justice.

license: Public Domain

text:
    Reed E. STONE v. UNITED STATES STEEL CORPORATION.
    78-741.
    Supreme Court of Alabama.
    May 23, 1980.
    Robert B. Roden of Jones & Roden, Birmingham, for appellant.
    T. Thomas Cottingham of Thomas, Tal-iaferro, Forman, Burr & Murray, Birmingham, for appellee.
   TORBERT, Chief Justice.

This is a personal injury action brought by Reed E. Stone, an employee of the American Bridge Division of the United States Steel Corporation (U. S. Steel), based on Code 1975, § 25-5-11. The facts which gave rise to this cause of action are as follows: On June 14, 1977, the plaintiff/appellant, Reed E. Stone, was an employee of U. S. Steel engaged in the removal of cooling towers at its Fairfield Works. On that date Mr. Stone stepped upon a steel plate covering a vat containing by-products of the steel manufacturing process including hot tar, water, ammonia liquor and various other chemicals. When he stepped upon the plate, it gave in, causing him to fall into the vat and sustain serious burns. The basis of the plaintiff’s suit is that the defendant negligently or wantonly allowed a dangerous condition to exist without proper safeguards, that the defendant failed to supervise and inspect the premises with regard to safety, that the defendant failed to provide a safe place to work, and that the defendant failed to warn plaintiff of the dangerous condition on the premises. On January 10, 1979, the circuit court granted U. S. Steel’s motion for summary judgment, based upon the fact that Reed E. Stone was an employee of U. S. Steel, which paid Stone workmen’s compensation benefits and his medical and hospital expenses pursuant to our workmen’s compensation laws.

The defendant contended that plaintiff’s action was not an action for negligence against third parties, but rather was an action for negligence against the defendant, U. S. Steel, who was at the time the employer of the plaintiff, and that such actions are barred by Code 1975, §§ 25-5-52 and 25-5-53.

Plaintiff/appellant asserts two basic theories for holding U. S. Steel liable: (1) U. S. Steel is a separate legal entity both economically and otherwise from American Bridge, a division of U. S. Steel, and (2) that U. S. Steel is liable as the owner of the premises and the manufacturer of the steel plate in question under the dual capacity doctrine. Appellant’s first theory is without merit because “Dual capacity will not be found merely because the employer has a number of departments or divisions that perhaps are quite separate in their functions and operations.” A. Larson, 2A The Law of Workmen’s Compensation, § 72.80, p. 14-115 (1976). Professor Larson cites cases from other jurisdictions where similar dual capacity doctrine arguments have been made and rejected.

Appellant’s second theory rises or falls with the determination of whether the employer undertook “any special independent relationship toward [its employee] other than that of employer-employee.” Mapson v. Montgomery White Trucks, Inc., 357 So.2d 971 (Ala.1978). The determinative question is thus whether U. S. Steel was wearing two hats or operating in a dual capacity.

Professor Larson explained dual capacity as follows:

Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.

A. Larson, 2A The Law of Workmen’s Compensation, § 72.80, p. 14-112 (1976).

In Mapson, supra, we held that because the employer did not undertake a special relationship other than employer-employee with Mapson and because the injury arose from the very nature of Mapson’s employment (working on defective and damaged trucks) the dual capacity doctrine did not apply. In the instant case, U. S. Steel undertook no special relationship with Stone, and Stone’s injuries arose out of the very nature of his work (removal of cooling towers from steel plants). By the same rationale as we employed in Mapson, the dual capacity doctrine is not applicable.

This Court recently held that “the employer does not lose its employer status— for immunity purposes- — by qualifying under the Workmen’s Compensation Act as a self-insurer and, in that capacity, performing or failing to perform safety inspections.” Adair v. Moretti-Harrah Marble Company, Inc., 381 So.2d 181 (Ala.1980).

In accord with the principles announced by this Court in Adair, supra, and Mapson, supra, we hold that U. S. Steel was not operating in a dual capacity as employer-safety inspector, or employer-manufacturer, or employer-owner in a sense that would bring the dual capacity doctrine into play. The trial court properly granted defendant’s motion for summary judgment because his action is barred by Code 1975, §§ 25-5-52 and 25-5-53.

AFFIRMED.

FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.


author: DeCARLO, Judge.

text:
    Aaron Jake PATTON v. STATE
    6 Div. 47.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.
    Rehearing Denied March 18, 1980.
    William B. Lloyd of Lloyd, Ennis & Lloyd, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

The appellant was charged with unlawfully selling, furnishing, or giving away heroin, in violation of the Alabama Uniform Controlled Substances Act. After a trial by jury, he was found guilty and sentenced to fifteen years imprisonment. Notice of appeal was given, and a motion for a new trial was made and subsequently denied.

The State’s evidence showed that Deputy James R. Donald, an undercover agent with the United Narcotics Detail Operation, met Deputy Gary Harris on July 21, Í978, and was told to go to 621 Yellow Bird Lane, Birmingham, Alabama, where Donald was to attempt to make a drug purchase. Donald was given one-hundred and twenty-five dollars to be used to buy the drug. According to Donald, when he arrived at the address, the defendant identified by Donald in court admitted him into the house and, subsequently, sold him one teaspoonful of heroin, which the appellant wrapped in aluminum foil. Donald testified that he paid the defendant one-hundred and twenty-five dollars for the heroin.

Donald again met Harris, and the substance in the aluminum foil was turned over to him. Donald stated that the substance in the aluminum foil was placed in an evidence envelope and initialed by both of the officers.

During cross-examination, Donald acknowledged that he did not see the appellant’s wife. The witness did not recall seeing any children. Further, he said that, the appellant never left the room while the sale was being made. He merely took some aluminum foil from a shelf over the washing machine and, using a spoon, measured out an amount of heroin, which he then wrapped and gave to Donald. Donald stated that he was sure he had made no buys that day other than the one he had made from the appellant.

Jefferson County Deputy Gary Harris, who, on July 21, 1978, was employed with United Narcotics Detail, stated that he instructed Donald to attempt to purchase heroin from the appellant. According to Harris, he followed Donald to 621 Yellow Bird Lane, where he arrived at approximately 6:12 P.M. Harris said that he drove by the residence and saw Donald go to the door. Further, Harris testified that he did not see Donald walk out of the house, but did see him drive away from the residence in his car. Harris followed Donald back to the parking lot at 6600 Belview Drive. According to Harris, Donald at that time gave the witness a small tin foil packet. He opened the packet and saw that it contained a “light brown powdery substance.” Harris said that he placed the packet in a small evidence envelope and sealed it. Further, he testified that he and Donald initialed the seams of the evidence envelope and that it was placed in the trunk of Harris’ car.

Harris stated that the envelope was kept in the trunk of his car from Friday, July 21, 1978, until Monday, July 24,1978, when the evidence envelope was turned over to the State Toxicologist.

During cross-examination, Harris acknowledged that he did not work during the days when the heroin remained in the trunk of his car. Further, he did not remember using the car between Friday evening, July 21, 1978, and Monday morning, July 24, 1978. Also, he said that the car remained parked in the driveway of his residence and, as far as he knew, he had the only key to the trunk of the car.

Jerrell Wayne Burrow was employed by the Birmingham Division of the Alabama Department of Forensic Sciences, which was formerly known as the Department of Toxicology. He testified that on July 24, 1978, he received, from Deputy Harris, an envelope with an aluminum foil packet inside. According to Burrow, the packet contained 1.099 grams of light brown powder, which an analysis revealed was heroin. During the trial, he identified the envelope with the packet, marked as State’s Exhibit No. 1.

Deputy Harris was recalled to the stand, and he also identified the envelope marked as State’s Exhibit No. 1. He testified that he recognized the envelope and that his initials appeared on it.

Deputy Donald was also recalled to the stand, and he identified State’s Exhibit No. 1. He testified that he recognized the envelope and indicated that his initials appeared on the envelope.

At the end of Donald’s testimony, objection was made to State’s Exhibit No. 1, on the ground that the chain of evidence was not “connected.” The objection was overruled, and the State rested its case. Appellant, at that time, moved to exclude the evidence on the ground that a prima facie case was not made, but this motion was also overruled.

The appellant did not take the stand, but his wife, Mary Patton, was called as a witness. She testified that she lived at 621 Yellow Bird Lane in Hueytown, Jefferson County, Alabama, with the appellant and their three children. The witness stated that she usually arrived home from work about 5:00 P.M. She did not recall anyone coming to the house on the evening of July 21, 1978. Further, she stated that she had never seen Officer Donald before and had not seen him at her house on the day in question. According to Mrs. Patton, her children were in the den on the night of July 21, 1978. She stated that the family owned a vicious dog which guarded the house by biting anyone who knocked on the door. Further, she testified that the small room containing the washing machine and dryer did not have any shelves and, to her knowledge, her husband did not keep any aluminum foil in that room.

Mrs. Patton stated that she had not observed any powder of any type which was contained in State’s Exhibit No. 1.

At the end of Mrs. Patton’s testimony, the defense rested. Subsequently, closing arguments were presented by both parties.

I

The appellant contends that the chain of custody of the package of heroin was not sufficiently connected to justify its admission into evidence. He maintains that the depositing of the package of heroin over the weekend in the trunk of the automobile owned by the law enforcement agency did not provide sufficient security to assure that no one tampered with the evidence. Because Deputy Harris was not certain whether he had the only keys to the automobile, the appellant argues it was reasonable to assume that others in the law enforcement agency may have had access to a set of keys to the vehicle driven by Harris. Also, he argues that a conflict in testimony between the amount of heroin measured at the time of the sale and the amount ultimately examined by the toxicologist “increases the likelihood of unauthorized excess.”

In support of this contention, the appellant has cited Motes v. State, Ala.Cr.App., 356 So.2d 712, a case in which this court upheld the admissibility of evidence which had previously been locked in an automobile trunk. However, in Motes, the evidence had been placed in a lock-box inside the locked automobile trunk, and the only person having access to both keys was one police officer. In the present case, testimony showed that Harris and Donald had sealed the packet of heroin in an evidence envelope, which they initialed and locked in the trunk of Harris’ car. No evidence that the envelope had been tampered with was presented, nor was there presented any evidence that any person other than Harris had access to the car. In fact, Officer Harris testified that, “as far as [he] knew” he had the only set of keys to the automobile, which remained in his driveway over the weekend. Nothing which would indicate that continuity of possession had been disturbed was shown.

As was shown in Henry v. State, 57 Ala.App. 383, 328 So.2d 634, the fact that others may have had keys to a cabinet containing evidence did not render insufficient the chain of custody to establish a jury question “as to the accuracy of the exhibit’s identification.” As in Henry, the testimony in the present case contained nothing to indicate that “the continuity of the possession has been disturbed.”

The possession and custody of the package of heroin by Harris were sufficiently established. No missing link in the chain of identification due to the fact that the heroin had been locked in Harris’ car from Friday evening until Monday morning was shown. The fact that the evidence, a packet of heroin, was placed in the trunk for some two days would not disturb the continuity of possession without some evidence of an intervening force.

In Mullins v. State, 56 Ala.App. 460, 323 So.2d 109, testimony showed that, on February 18,1973, a State Trooper had placed a sealed envelope containing marijuana in the trunk of his car and that, on February 22, 1973, he turned the envelope over to the State Toxicologist for examination. During the trial in Mullins, the officer testified that, prior to placing the evidence in the trunk of his automobile, the marijuana was placed in an envelope, and it was sealed and initialed. This court in Mullins, stated:

“The identification and continuity of possession were sufficiently shown affording ample assurance of the authenticity of the envelope and its contents and the analysis conducted by the Toxicologist.”

In the present case, the evidence shows that the package of heroin was placed in an evidence envelope, sealed and initialed by the two officers. Because it remained locked in Harris’ automobile trunk for two days and because there was no evidence of outside interference or tampering with the contents, we believe ample assurance of the authenticity of the envelope and its contents was shown. A conflict in testimony regarding the amount of drug received by Deputy Donald is not conclusively shown. From the record we find:

“Q. What did he do?
“A. He gave me, you know — I told him I wanted a teaspoon. So, he took some in a teaspoon and dumped it on a piece of aluminum foil.”

This testimony does not show whether the amount of heroin was in fact a “full teaspoon.” Further, this testimony is not in conflict with the following testimony of the toxicologist:

“Q. Would you say that it is may be a half a teaspoon or a little less?
“A. Possibly, yes. It is enough to see. Quite a bit to see in the teaspoon.
“Q. But not nearly what would be considered a full teaspoon if you have a teaspoon measuring device?
“A. Not having put it in a teaspoon and everything, I wouldn’t know if it would cover it up level with the top of the teaspoon or not.
“Q. It would be something less than a teaspoon?
“A. Right.”

We do not believe that the foregoing testimony of Donald and the toxicologist would support a contention of inauthenticity of the evidence envelope and its contents.

As was stated in Blakely v. State, Ala.Cr.App., 344 So.2d 812.

“To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.” [Emphasis added].

In our judgment, the facts in the present case show more than a reasonable possibility to believe that the heroin turned over to the toxicologist was the same heroin previously purchased from the appellant two days before. Therefore, the evidence was properly admitted.

II

In closing argument, the prosecuting attorney made the following remarks to the jury:

“MR. TUCKER: Your job is to find this man guilty and let every drug dealer in Hueytown, Bessemer, Pleasant Grove or anywhere else in the State, know that we are not going to put up with heroin in our community. We are not going to put up with it getting in the veins of our children.”

Defense counsel objected to the argument as being improper. He now maintains that this was an appeal to the passion and prejudice of the jury and was unsupported by the evidence. He insists that the remarks denied to the appellant his right to a fair and impartial trial.

The appellant relies on two cases, Williams v. State, 42 Ala. 563, 171 So.2d 474, and Racine v. State, 290 Ala. 225, 275 So.2d 655, to support his insistence of error. Williams involved a prosecution for violation of the prohibition law by a grocery clerk who allegedly sold whiskey to an alcohol beverage control officer. The solicitor, in his remarks to the jury, commented, “A kid could have got it . . After objections by the defense attorney were overruled, the prosecuting attorney stated, “It could go uncontrolled in the hands of children and we can form our reasonable inference of the testimony.”

The court in Williams, supra, said that, although the trial court attempted to instruct the jury on the subject of “inference from the evidence,” no inference regarding children and whiskey could be drawn from the evidence presented.

Racine, supra, involved a prosecution for selling lysergic-acid-diethylamide [LSD]. The defendant had given LSD to a friend, who in turn sold it to an undercover agent. The district attorney, in his closing argument, called the defendant a man “who makes money from turning everyone else on.” The prosecuting attorney added that he “didn’t know whether they would give the LSD to five-year-olds just to make $60.00.” The Supreme Court of Alabama stated that the remark was unsupported by the record and was impermissible because it was an appeal “to passion and prejudice, in light of its reference to the sensitive subject of children.”

In the present case, we do not believe that by “clear implication,” the above quoted statement by the prosecutor directly charges that the appellant had sold heroin to children. The trial judge is in a far better position than we to determine the impropriety of closing remarks because we review from a “cold record.” It may be said that an inference that the comment indicated a sale of heroin to children could be drawn. However, the remarks could also be understood as a comment on the evils associated with the sale of heroin. In this light, the comment could be viewed as an appeal for law enforcement. See Diamond v. State, Ala.Cr.App., 363 So.2d 109, and the cases cited therein.

Ill

In the present case, there is legal evidence to show that the appellant did sell heroin to an undercover officer, and any conflicting testimony by the appellant’s wife would only present a question for the jury to decide. Under the facts in this case, there was sufficient legal evidence from which a jury could, by fair inference, find the accused guilty. Under these circumstances, this court has no right to disturb the verdict. Therefore, overruling by the trial court of the motion to exclude and the motion for a new trial was not improper. Rider v. State, 56 Ala.App. 137, 319 So.2d 756; Simms v. State, 56 Ala.App. 156, 320 So.2d 89; Young v. State, 283 Ala. 676, 220 So.2d 843.

After examining the record and transcript of evidence, we find no error prejudicial to appellant, therefore the judgment of conviction by the Jefferson Circuit Court, Bessemer Division is affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Aaron Jake PATTON. (re Aaron Jake Patton v. State of Alabama).
    79-483.
    Supreme Court of Alabama.
    May 30, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J„ and MADDOX, JONES and BEATTY, JJ., concur.


author: ADKINS, Acting Chief Justice.

text:
    FLORIDA PRESTRESSED CONCRETE ASSOCIATION, INC., Petitioner, v. FLORIDA PUBLIC SERVICE COMMISSION, Respondent.
    No. 57855.
    Supreme Court of Florida.
    April 24, 1980.
    Rehearing Denied June 16, 1980.
    Felix A. Johnston, Jr. of Woods, Johnston & Erwin, Tallahassee, for petitioner.
    Prentice P. Pruitt, Legal Director, and M. Robert Christ, Harry D. Boswell and Paul Sexton, Staff Counsels, Tallahassee, for respondent.
   ADKINS, Acting Chief Justice.

Upon consideration of the briefs and record in this cause, the Court finds that the petition for writ of certiorari should be and is hereby denied.

It is so ordered.

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


author: •SUNDBERG, Justice.

text:
    Richard Austin GREENE, Appellant, v. Raymond D. MASSEY, etc., Appellee.
    No. 57207.
    Supreme Court of Florida.
    May 8, 1980.

      John T. Chandler, Fort Pierce, for appellant.
    Jim Smith, Atty. Gen., and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   •SUNDBERG, Justice.

This case comes to us on certification from the United States Court of Appeals for the Fifth Circuit pursuant to section 25.031, Florida Statutes (1979), and Florida Rule of Appellate Procedure 9.510. In the certification opinion, reported at 595 F.2d 221, the Fifth Circuit Court related the applicable facts and the questions certified, which are quoted below:

II.Statement of facts. On November 25,1965, a Florida jury found Greene and a codefendant guilty of first degree murder. On appeal from this conviction the Supreme Court of Florida reversed, 4-3, and ordered a new trial. Sosa v. State, Fla., 1968, 215 So.2d 736. In a brief per curiam opinion, the Court stated, “[Ajfter a careful review of the voluminous evidence here we are of the view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree, and that the interests of justice require a new trial.” Id. at 737.
Three of the Justices who joined in the per curiam opinion filed a “special concurrence” in which reversible trial error was found. Id. at 737-746. In concluding their special concurrence, the Justices declared, “For the reasons stated the judgments should be reversed and remanded for a new trial so we have agreed to the Per Curiam order doing so.” Id. at 746.
Seeking to avoid a second trial, Greene and his codefendant unsuccessfully sought a Writ of Prohibition in the Florida trial court. They argued that the Double Jeopardy Clause barred the state from retrying defendants for the same offense. The Second District Court of Appeal of Florida also denied the Writ. Sosa v. Maxwell, Fla.App., 1970, 234 So.2d 690. The Court determined that the Supreme Court of Florida’s reversal of the first conviction was not based on insufficient evidence but rather “appears to be based on a finding that the evidence, though technically sufficient, is so tenuous as to prompt an appellate court to exercise its discretion and, in the interest of justice, grant a new trial.” Id. at 691. Such a reversal, the Court stated, did not have double jeopardy consequences. On writ of certiorari, the Supreme Court of Florida denied the writ without opinion.
Greene was then retried, and he and his codefendant were again convicted of first degree murder. The Fourth District Court of Appeal of Florida affirmed this second conviction, holding that res judica-ta barred reconsideration of petitioner’s double jeopardy argument. Sosa v. State, Fla.Dist.Ct.App., 1974, 302 So.2d 202. A petition for writ of certiorari was subsequently denied by the United States Supreme Court. Greene v. Florida, 1975, 421 U.S. 932, 95 S.Ct. 1660, 44 L.Ed.2d 89.
Following his unsuccessful direct appeal, Greene raised his double jeopardy claim in a habeas petition in the United States District Court. The District Court denied the petition. This denial was subsequently affirmed by the United States Court of Appeals for the Fifth Circuit on the grounds that a reversal for insufficient evidence did not bar retrial for the same offense. Greene v. Massey, 5 Cir., 1977, 546 F.2d 51.
This holding was reversed by the United States Supreme Court in Greene v. Massey, 1978, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15. The Supreme Court remanded the case to the Fifth Circuit for reconsideration in light of Greene and Burks v. United States, 1978, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d [1], Observing the “varying interpretations” that could be placed upon the Supreme Court of Florida decision reversing Greene’s original conviction, the Court suggested certification to the Supreme Court of Florida as one means of reaching a definitive interpretation of the holding in that case. Greene v. Massey, 437 U.S. at 26, 98 S.Ct. 2151.
III. Questions to be certified.
1. Under Florida law, what is the effect of a per curiam opinion with a special concurrence from a majority of the Justices joining in the per curiam opinion?
2. Under Florida law, what weight, if any, is to be attached to a Florida District Court of Appeal’s interpretation of a decision of the Supreme Court of Florida?
3. Under Florida law, what is the legal significance of a reversal “in the interests of justice”?
4. Under Florida law, what is the precedential effect of a holding in which only a plurality of justices join?
5. Upon what grounds did the Supreme Court of Florida reverse the convictions in Sosa v. State, Fla., 1968, 215 So.2d 736?
(a) Was the reversal solely on the grounds of insufficient evidence? or
(b) Was the reversal solely on the grounds of trial error? or
(c) Was the reversal based upon a combination of (a) and (b)?
(d) If not (a), (b), or (c), upon what grounds was the reversal based?

Our response to the certified questions is as follows:

Question 1. An opinion joined in by a majority of the members of the Court constitutes the law of the case. A concurring opinion does not constitute the law of the case nor the basis of the ultimate decision unless concurred in by a majority of the Court. Lindsay v. Cotton, 123 So.2d 745 (Fla. 3d DCA 1960); Ephrem v. Phillips, 99 So.2d 257 (Fla. 1st DCA 1957) (on rehearing), cert. denied, 101 So.2d 816 (Fla. 1958).

The situation here is unlike that in Carter v. Sparkman, 335 So.2d 802 (Fla. 1976), where a majority of the Court joined in both the opinion of Justice Roberts and the concurring opinion of Justice England. In Sosa v. State, 215 So.2d 736 (Fla.1968), once the three members of the Court who joined in the special concurring opinion joined in the per curiam opinion, that opinion became the majority opinion of the Court in that case. The special concurring opinion has no precedential value and it cannot serve to condition or limit the concurrence in the per curiam opinion by the three who joined in the special concurring opinion.

There is a procedure by which those who joined in the special concurring opinion would not have been bound by the language of the per curiam opinion. Had there simply been entered a judgment of reversal and a remand for a new trial with each of the justices concurring for the reason stated in separate opinions, then none would be bound by any opinion except that in which he joined. In that event, however, there would have been a judgment by the Court disposing of the case, but no opinion of the Court. In contrast, here there was a per curiam opinion which gained a majority and this opinion constitutes the only opinion of the Court.

Question 2. As noted by the Fifth Circuit Court in its certification opinion, Greene and his codefendant unsuccessfully sought a writ of prohibition to prevent a retrial upon reversal of his conviction by this Court in Sosa v. State, 215 So.2d 736 (Fla.1968). Their argument that such a retrial would violate the double jeopardy clause was rejected by the trial court and the District Court of Appeal, Second District, in Sosa v. Maxwell, 234 So.2d 690 (Fla. 2d DCA 1970). On certiorari from the district court decision, this Court declined to exercise its jurisdiction. Greene v. Maxwell, 240 So.2d 640 (Fla.1970). At that point the decision of the district court became the law of the case with respect to the double jeopardy claim, at least insofar as the courts of the State of Florida are concerned. As a result, upon appeal from their conviction on retrial, the District Court of Appeal, Fourth District, properly declined to reconsider the same double jeopardy claim on the basis the prior district court decision was res judicata. Sosa v. State, 302 So.2d 202 (Fla. 4th DCA 1974).

Although the district court of appeal is without authority to overrule or modify either conclusions of fact or interpretation of law reached by this Court, it may in subsequent proceedings pass on issues which have not necessarily been determined and become the law of the case. Goodman v. Olsen 365 So.2d 393 (Fla. 3d DCA 1978). In this case the District Court of Appeal, Second District, interpreted our original decision in Sosa v. State, 215 So.2d 736, in order to adjudicate Greene’s double jeopardy claim which had not been previously decided by this Court. Upon this Court's denial of certiorari, the district court’s decision became the law of the case. Accordingly, in any subsequent proceeding on the same case, the decision of the District Court of Appeal, Second District, at 234 So.2d 690, interpreting our original opinion in Sosa v. State, 215 So.2d 736, is controlling in Florida with respect to the double jeopardy issue.

Question 3. We have already stated that the decision of the District Court of Appeal, Second District, constitutes the law of the case. Since under the circumstances a response to the question posed would not be “determinative of the cause,” we decline to undertake an academic discussion of the significance of a reversal “in the interests of justice.” See § 25.031, Fla.Stat. (1979), and Fla.R.App.P. 9.510.

Question 4. We do not believe that the precedential effect of a holding in which only a plurality of the justices join is at issue here since a majority of the justices of the Court did in fact join in a majority opinion. Therefore, we do not address this question.

Question 5. We decline to revisit our original decision in Sosa v. State, 215 So.2d 736, by delving behind the face of the per curiam opinion in an attempt to define more clearly the intent of this Court in that decision. Greene and his codefendant had sought, and were denied, direct review of the decision of the District Court of Appeal, Second District, in their petition for certio-rari to this Court. It would not now be appropriate for us to play the role of advocate in second guessing our predecessors in their reasons for denial of the writ. All points of law which have been adjudicated become the law of the case and are, except in exceptional circumstances, no longer open for discussion or consideration in subsequent proceedings in the case. Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965).

Accordingly, having responded to the certified questions found by us to be within the contemplation of section 25.031, Florida Statutes (1979), and Florida Rule of Appellate Procedure 9.510, we direct the Clerk of the Court to return the case file and transmit a true copy of this opinion to the United States Court of Appeals for the Fifth Circuit.

It is so ordered.

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


author: PER CURIAM. ADKINS, Justice,

text:
    THE FLORIDA BAR, Petitioner, v. W. H. P., Respondent/Petitioner.
    No. 55588.
    Supreme Court of Florida.
    May 15, 1980.

      Leon B. Cheek, Bar Counsel, Altamonte Springs, David G. McGunegle, Branch Staff Counsel, Orlando, and John A. Boggs, Asst. Staff Counsel, Tallahassee, for petitioner.
    W. H. P., in pro. per.
   PER CURIAM.

The petitioner, W.H.P., respondent before the referee, asks us to review a report of the referee in grievance proceedings recommending that petitioner be privately reprimanded by the board of governors and that petitioner make restitution to his client in the amount of $200 plus the interest from November 1,1976. The report of the referee contains the following findings of fact:

B. In April of 1976, the Legal Aid Society of the Orange County Bar Association, referred a legal aid client, L.M. to Respondent for representation in a domestic relations matter. The referral letter advised Respondent not to charge the client a fee but noted that Respondent was not precluded from seeking a fee from the adverse party. Any question of client eligibility was requested to be in writing. Respondent does not recall whether or not he read the letter in its entirety. Nevertheless, he undertook the representation of L.M. and filed a Petition for Dissolution of Marriage in her behalf. At the outset, Respondent filed a Certificate of Attorney along with his client’s Certificate of Indigency whereby Respondent certified that he has not been paid or promised payment of any remuneration from L.M. for his services and that he intended to represent her without compensation. Respondent admits that his client was led to believe that no charge would be assessed for such representation.
Respondent, during the course of his representation never questioned his client’s eligibility as a legal aid client.
C. It appears that the Husband, S.M., also applied to the Legal Aid Society for legal assistance on or about April 28, 1976. S.M. was referred to J.T., an Orlando attorney, for representation. It was later determined that S.M. did not meet the economic guidelines of indigen-cy; thus, J. T. requested and received a written waiver from the Legal Aid Society permitting him to continue with his representation on a fee bases.
D. During the period June through October of 1976, various temporary hearings were held and negotiations took place respecting settlement of the marital affairs. It appears that counsel for both sides represented their clients vigorously and competently. A Settlement Agreement was executed on or about November 4th and a Final Judgment of Dissolution entered November 22, 1976.
E. During the latter part of negotiations, L.M. made certain concessions in exchange for S.M.’s agreement to give her full title to the house and satisfy his delinquent obligation for temporary child support. As one of these concessions, L.M. agreed to withdraw her claim for attorney’s fees against her husband.
F. Prior to the final hearing, temporary support checks were mailed from the Clerk’s office to Respondent as counsel for L.M. In late November, Respondent’s secretary called L.M. and asked her to come in and endorse support checks to-talling $259.00. L.M. endorsed the checks and W.H.P. issued his check to her in the amount of $59.00, retaining $200.00 of the support funds as an attorney’s fee.
G. L.M. later complained to the Legal Aid Society that she had been charged a fee. By letter to L.M. dated December 7, 1976 Respondent informed her that he would refund the $200.00 but would then require her to pay an attorney’s fee of $600.00; and that he was prepared to place a lien on her property and pursue collection methods to obtain the full amount. Respondent has not returned any of the money to L.M.

Petitioner asserts that he has a personal right to attorney’s fees. In support of this assertion he cites section 61.16 of Florida Statutes (1977). This statute does give an attorney a personal (in his own name) enforceable action for fees, but only after a court has entered a discretionary order which directs payment directly to the attorney. There was no such order issued here. It follows that petitioner has no statutory personal right to attorney’s fees in the dissolution case.

The referral letter from the Legal Aid Society of Orange County, Inc., by which petitioner was appointed counsel for his clients stated that he should not charge the client a fee for his services. This did not preclude him from seeking a fee from the opposing party. Under the Legal Aid Society’s guidelines and according to directions contained in the referral letter, any deviation from non-fee status was to be by written request and waiver. Petitioner admittedly did not comply with these guidelines. By failing to secure a waiver of the Society’s guidelines, petitioner was precluded from asserting any fee claim against his client.

Petitioner accepted representation of an indigent Legal Aid client on a non-fee basis. He had no legal or personal basis for charging his client a fee. By charging his client a fee without seeking a waiver as prescribed in the guidelines, petitioner violated Florida Bar Integration Rule, article 11, Rule 11.02(3)(a) and Florida Bar Code of Professional Responsibility Disciplinary rule 2-106(C) and 7-101(A)(2).

We approve the findings of guilt recommended by the referee. Petitioner shall submit personally to the Board of Governors of The Florida Bar to receive the recommended private reprimand.

Costs in the amount of $587.55 are taxed against petitioner.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

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

ADKINS, Justice,

dissenting.

Admittedly petitioner had a right to seek attorney’s fees against the husband. However, during the negotiations which resulted in L.M. acquiring full title to the house, she agreed to withdraw her claim for attorney’s fees against the husband. Petitioner says that L.M. agreed to pay his fee in lieu of trying to collect'the attorney’s fee from her husband so as not to endanger the settlement which she thought highly advantageous to her. This was denied by L.M.

Although petitioner should have followed the better course and secured a waiver from the Legal Aid Society, I do not believe that his securing the $200 fee was in any way unethical. Under the circumstances of this case, particularly in view of the property settlement, I do not believe that the failure to secure the waiver is a sufficient ground upon which to base grievance procedures.

In my opinion the grievance proceedings should be dismissed and costs should be taxed against the Florida Bar.

BOYD, J., concurs.


author: ALDERMAN, Justice.

text:
    THE FLORIDA BAR, Petitioner, v. John DOE, Respondent. THE FLORIDA BAR, Petitioner, v. Richard ROE, Respondent.
    Nos. 58697, 58698.
    Supreme Court of Florida.
    May 15, 1980.

      Wilson J. Foster, Jr., Bar Counsel, Tallahassee, for The Florida Bar, petitioner.
    Mallory E. Horne of Horne, Rhodes, Jaf-fry, Horne & Carrouth, Tallahassee, for John Doe, and Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for Richard Roe, respondents.
   ALDERMAN, Justice.

The Florida Bar seeks reversal of orders of the circuit court, Second Judicial Circuit, denying the Bar’s motions to have two members of The Florida Bar held in contempt of court and to compel their testimony before a Bar referee in a Bar disciplinary proceeding against another accused lawyer.

The two lawyers, Doe and Roe, were originally charged in that disciplinary proceeding, but the complaints against them were dismissed on the authority of Ciravolo v. The Florida Bar, 361 So.2d 121 (Fla.1978), because a state attorney, pursuant to section 914.04, Florida Statutes (1973), had purported to grant them immunity not only from criminal prosecution but also from Bar disciplinary proceedings with respect to testimony they had given under oath in 1974 and 1975. In 1979, the Bar obtained further grants of immunity from prosecution for Doe and Roe from the state attorney for Leon County and the state attorney for Dade County. These grants purport to immunize Doe and Roe from criminal prosecution for prior perjury or for the use of their prior testimony in any subsequent criminal proceedings for perjury by inconsistent statements in violation of section 837.021, Florida Statutes (1977).

On September 12, 1979, pursuant to Bar subpoena, Doe appeared before The Florida Bar referee as a witness in the disciplinary proceeding against the accused lawyer. Doe, however, refused to answer questions concerning matters about which he had previously testified. Roe, also subpoenaed by the Bar, was relieved of the duty of appearing personally on September 12 in light of his representation that he also would invoke his right against self-incrimination and refuse to testify. Doe and Roe refused to testify because of their expressed concern that in the event any testimony given by them proved to be inconsistent with any earlier testimony, the criminal sanctions of section 837.021, would be invoked and disciplinary sanctions of the Bar would be imposed. The referee found that they were without adequate excuse for their refusal to testify and directed Bar counsel to take appropriate action to compel their testimony. The Bar’s subsequent petitions to the circuit court, requesting that Doe and Roe be held in contempt of court and be compelled to testify in the disciplinary proceeding against the accused lawyer, were denied.

The Bar contends that the recently obtained immunity grants from the Leon County state attorney and the Dade County state attorney protect respondents from criminal prosecution for perjury by inconsistent statements and that the privilege against self-incrimination is now not available to them because they have been immunized from criminal prosecution. In response, Doe and Roe contend that the recent grants of immunity are not valid and effective because the conditions precedent to the grant of immunity set forth in section 914.04, Florida Statutes, do not exist in the present case. Here there is no valid subpoena or subpoena duces tecum returnable before any court having felony trial jurisdiction, grand jury, or state attorney in regard to any investigation or proceeding, or for trial for a violation of a criminal statute. Respondents also contend that they can properly refuse to testify because of their fifth amendment right against self-incrimination where their testimony would incriminate them by exposing them to Bar disciplinary action. They state that they may make an inadvertent inconsistent statement which would subject them to criminal prosecution under section 837.021 and to Bar discipline.

The original immunity granted Doe and Roe from both criminal prosecution and Bar disciplinary proceedings did immunize them from Bar discipline. Doe and Roe’s situation was identical to that of Ciravolo and Feldman who had likewise relied on a state attorney’s purported grant of immunity from Bar discipline. In Ciravolo v. The Florida Bar, we held that a grant of immunity under section 914.04, Florida Statutes (1975), does not immunize an attorney from Bar disciplinary proceedings, but we refrained from applying this holding to Cira-volo and Feldman because their giving of testimony was predicated on a justifiable interpretation of our precedent existing at the time they were given immunity.

We find it unnecessary to reach the question of the validity of the purported grants of immunity from criminal prosecution by the state attorney for Leon and Dade Counties because we hold that the original granting of immunity to Doe and Roe from criminal prosecution and Bar discipline encompassed the prohibition of using any of the statements previously made by them under oath in 1974 and 1975 as a basis for prosecution of them under section 837.021 or as a basis for Bar discipline for perjury by later contradictory statements. The initial immunization given which caused respondents to testify carries forward and protects them from now having their prior statements used against them to show inconsistency with their present testimony. See McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975), and Feldman v. State, 348 So.2d 415 (Fla. 1st DCA 1977). Therefore, it was unnecessary to obtain further grants of immunity.

Because they are immune from criminal prosecution and Bar discipline based on inconsistent statements, it does not follow, however, that if they now commit perjury, in violation of section 837.02, Florida Statutes (1979), provable by evidence other than their prior inconsistent statements, they escape prosecution or Bar discipline. To the contrary, if they now make statements under oath which are proven to be false by evidence independent of their previous statements, they could subject themselves to perjury prosecution and Bar discipline. The law is clear that Doe and Roe may not invoke the fifth amendment privilege against self-incrimination for untruthful statements they now may make in the pending disciplinary proceeding. Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911); United States v. Wilcox, 450 F.2d 1131 (5th Cir. 1971); United States v. Orta, 253 F.2d 312 (5th Cir. 1958); Feldman v. State; McDonald v. State.

Accordingly, respondents are hereby ordered to testify.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and McDONALD, JJ., concur.

ADKINS, J., dissents.

      . Respondents have been given fictitious names to preserve the confidentiality which was ordered by the circuit court in the contempt proceeding.

      . Section 914.04 provides:
      No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding. (Emphasis added.)


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. William Richard MERWIN, Respondent.
    No. 58709.
    Supreme Court of Florida.
    May 15, 1980.
    John A. Weiss, Bar Counsel, Tallahassee, for petitioner.
    David U. Tumin, Jacksonville, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of rule 11.02(3)(a) of the Integration Rule of The Florida Bar and Disciplinary Rules 1 ■ 102(A)(4) and 1-102(A)(6) of the Code of Professional Responsibility of The Florida Bar. We approve the Petition, and we hereby reprimand Respondent, William Richard Merwin, for these violations. The publication of this order in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $257.31 are hereby taxed against the Respondent, payable within 90 days of the Court’s order.

It is so ordered.

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


author: ORR, GEORGE, Associate Judge.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Clark W. SETCHFIELD, Grace A. Swain, as Personal Representative of the Estate of John Jacob Arnie, Deceased, Robin Lynn Celinko, and Stephen G. Watts, as Administrator Pendente Lite of the Estate of Betty Louise Smith, Deceased, Appellees.
    No. 79-971.
    District Court of Appeal of Florida, Second District.
    April 16, 1980.
    Rehearing Denied June 3, 1980.
    John W. Williams and Jeffrey R. Fuller of Williams, Brasfield & Wertz, P. A., St. Petersburg, for appellant.
    Alex D. Finch, Clearwater, for appellee Setchfield.
    Robert J. McDermott, Largo, for appellee Swain.
   ORR, GEORGE, Associate Judge.

The court below granted the motion to dismiss with prejudice the appellant’s action for declaratory relief. After reviewing the complaint, we hold that appellant’s complaint did state a cause of action and reverse the judgment below.

The Declaratory Decree Act, Section 86.011, Florida Statutes (1977), should be liberally construed toward its purpose. The supreme court in May v. Holley, 59 So.2d 636, 639 (Fla.1952), set out the criteria for determining the appropriateness of a declaratory judgment. A court may render a declaratory judgment of “ ‘any immunity, power, privilege or right’ or ‘any fact upon which the existence or nonexistence of such immunity, power, privilege or right does or may depend.’ ”

Furthermore, the courts have often held that “disagreements as to the coverage of insurance, although not purely factual disputes, are a proper subject for declaratory judgment.” Perez v. State Auto Insurance Association, 270 So.2d 377 (Fla. 3d DCA 1972).

Since in the case at bar the validity and effectiveness of the endorsement or instrument allegedly terminating the insurance contract is at issue, the same is a proper subject for declaratory judgment.

REVERSED and REMANDED.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


text:
    Robert Theodore LEE, Appellant, v. STATE of Florida, Appellee.
    No. 78-2369/T4-278.
    District Court of Appeal of Florida, Fifth District.
    April 30, 1980.
    Rehearing Denied June 3, 1980.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Defendant appeals from a judgment of conviction entered by the Circuit Court for Brevard County, Florida.

As to the convictions in Count I Burglary, section 810.02(1), (3), Florida Statutes (1979), and Count II Theft of a Firearm, section 812.014(l)(a), (b), (2)(b)(3), Florida Statutes (1977), we find no error and affirm.

Defendant was acquitted of the charge specified in Count III.

Count IV charged defendant with aggravated battery under section 784.03(l)(a), (b) and 784.045(l)(b), Florida Statutes (1979). The jury found defendant guilty of the lesser included offense of battery, but the judgment showed a conviction for aggravated battery. The State concedes this to be error. The judgment reflects that no sentence was imposed for this offense. We reverse the conviction and remand for correction of the judgment to conform to the jury’s verdict.

Affirmed in part, reversed in part and remanded.

DAUKSCH, C. J., and ORFINGER and UPCHURCH, JJ., concur.


author: SHARP, Judge.

text:
    Leo Clyde SAXON, Appellant, v. STATE of Florida, Appellee.
    No. 80-170.
    District Court of Appeal of Florida, Fifth District.
    April 30, 1980.
    Rehearing Denied May 30, 1980.
    Leo Clyde Saxon, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

The petitioner pro se appeals from an order of the trial court denying his petition to vacate his judgment and sentence. He claims his plea was not voluntarily entered, one of the express grounds for collateral attack set forth in Rule 3.850 of the Florida Rules of Criminal Procedure. Petitioner alleged he was ill and under heavy sedation. On the date he entered his “nolo” plea he had just been released from the hospital. He had a duodenal ulcer, suffered considerable bleeding, was “stabilized” in the hospital and released. The hospital records attached do not indicate whether pain-killers or sedatives were given to the petitioner.

The motion, however, is defective on its face because it does not state whether an appeal was taken, and whether other post-conviction remedies were sought, as required by Rule 8.850(b) and (c). We therefore affirm the lower court’s order, but without prejudice to the petitioner to refile upon compliance with Rule 3.850(b) and (c). Catlett v. State, 367 So.2d 735 (Fla. 4th DCA 1979); Scott v. State, 364 So.2d 67 (Fla. 4th DCA 1978).

CROSS and UPCHURCH, JJ., concur.


text:
    U. S. INDUSTRIES, INC., a Delaware Corporation, and Milton Shores, Appellants, v. BAND BOX BEACH SHOP, INC., a Florida Corporation, Appellee.
    Nos. 79-1229/T4-581, 79-1242/T4-581A.
    District Court of Appeal of Florida, Fifth District.
    May 7, 1980.
    Rehearing Denied May 30, 1980.
    Stephen P. Kanar, of Troutman, Parrish & Kanar, P.A., Winter Park, for appellant U.S. Industries.
    Milton Shore, pro se.
    Joseph S. Gillin, Jr., of Storms, Krasny, Normile, Dettmer & Gillin, P.A., Melbourne, for appellee.
   SHARP, Judge.

AFFIRMED on the authority of Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937) and Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972).

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


text:
    STATE of Florida, Appellant, v. Lawrence J. HAMMOND, Appellee.
    No. 79-2054.
    District Court of Appeal of Florida, Second District.
    May 7, 1980.
    Rehearing Denied June 4, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
    Thomas P. McAlvanah of Gibbs & McAl-vanah, Dade City, for appellee.
   PER CURIAM.

Affirmed. See Norman v. State, 379 So.2d 643 (Fla.1980).

RYDER, Acting C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    In re the ESTATE of Jose R. VALDES, Deceased. Susanna VALDES, Appellant, v. Joseph A. VALDES, as Personal Representative of the Estate of Jose R. Valdes, Deceased, Appellee.
    No. 78-1928.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Rehearing Denied June 18, 1980.
    Alfred J. Anton, Miami, for appellant.
    Rosenberg, Rosenberg, Reisman & Glass and Stephen H. Reisman, Miami, Feldman, Eden & Allen, Key West, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The final judgment in this cause is reversed with directions that, upon remand to the trial court, the excluded testimonial evidence be admitted and leave is hereby given for additional testimony to be taken at that time; a reevaluation of all the testimonial evidence shall be made at the close of the proceedings. Our decision is based upon our determination that the appellant-widow has sufficiently demonstrated that under the facts of the case, where there was no timely, proper objection, Section 90.602, Florida Statutes (1978), does not preclude the admission of the heretofore-excluded testimony and further testimony, if such is deemed necessary. See Mathews v. Hines, 444 F.Supp. 1201 (M.D.Fla.1978); In re Bechtel’s Estate, 348 So.2d 927 (Fla.1977); Laragione v. Hagan, 195 So.2d 246 (Fla. 2d DCA 1967), affirmed 205 So.2d 289 (Fla. 1967); Allstate Insurance Company v. Doody, 193 So.2d 687 (Fla. 3d DCA 1967); Bordacs v. Kimmel, 139 So.2d 506 (Fla. 3d DCA 1962).

Reversed and remanded with directions.

      . This section, commonly known as the “Dead-man’s Statute,” provides protection for the estates of the deceased and the insane by making certain interested persons incompetent to testify in an action against the estate regarding oral communications with the deceased or insane person; Section 90.602, as replacing repealed Section 90.05, is substantially a restatement of that section, and the same class of persons is protected.


author: PER CURIAM. NESBITT, Judge

text:
    Fabian Augusto CABASCANGO, Appellant, v. Robert I. ZERLIN and Rhoda Zerlin, his wife, et al., Appellees.
    No. 79-1027.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Rehearing Denied June 10, 1980.

      Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Brumer, Cohen, Logan, Kandell & Redlus, Miami, for appellees.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

In this interlocutory appeal Fabian Au-gusto Cabascango, defendant below, appeals from an order denying his amended motion to set aside a default and final judgment entered in favor of appellees, Robert I. Zerlin and Rhoda Zerlin, his wife. The suit was for damages which resulted from an automobile collision.

The default and final judgment was entered against the appellant/defendant for his failure to appear or file any paper pleadings in the cause, notwithstanding appellant counsel’s contention that pleadings were filed on behalf of appellant’s insurance carrier, Lumberman’s Mutual Casualty Company, and appellant, individually. (Lumberman’s was later allowed to withdraw.)

It is appellant’s contention in this appeal that the trial court erred in refusing to set aside the final judgment which was entered pursuant to a default when no notice of application for default had been served upon appellant; appellant alleges that he previously filed pleadings in the cause and that no notice of trial or any papers had been served upon counsel of record after the entry of the default.

After hearing upon appellant’s motion to set aside the default and final judgment based upon the contentions heretofore set forth, the trial court entered its order denying the motion. It is from this order that this appeal is taken.

We have carefully considered the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated. Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978). The order appealed is affirmed.

Affirmed.

NESBITT, Judge

(dissenting).

I dissent on the authority of Gould v. Ruzakowski, 322 So.2d 567 (Fla. 3d DCA 1975).


text:
    Ian MARKOFSKY, Appellant, v. Gertrude MARKOFSKY, Appellee.
    Nos. 79-2293, 79-2396.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Rehearing Denied June 10, 1980.

      Barranco, Darlson, Daniel & Bluestein and Steven Kellough, Miami, for appellant.
    Morton R. Goudiss, Miami Beach, for ap-pellee.
    Before HUBBART, NESBITT and DANIEL PEARSON, JJ.
   PER CURIAM.

The order under review is affirmed upon a holding that: (a) the wife Gertrude Markofsky, although a Canadian citizen, established on this record the requisite six months residency requirement in Florida to bring this marriage dissolution action, Pawley v. Pawley, 46 So.2d 464, 471 (Fla.1950); Perez v. Perez, 164 So.2d 561 (Fla. 3d DCA 1964); § 61.021, Fla.Stat. (1979); and (b) the trial court was not required, either as a matter of jurisdiction or comity, to dismiss the instant marriage dissolution action in deference to prior Canadian divorce proceedings involving the parties as the parties and the parties’ minor children are, and have been for a considerable time, residents of Florida. Schrey v. Schrey, 354 So.2d 405 (Fla. 4th DCA 1978).


text:
    Monique Tremblay GIRARD, Appellant, v. Dr. Real TREMBLAY et al., Appellees.
    No. 78-2181.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Rehearing Denied June 16, 1980.

      David S. Wieder, Miami, for appellant.
    Bailey & Dawes and William Berger, Miami, for appellees.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final summary judgment under review, which was entered in a quiet title action below, is affirmed upon a holding that the appellant has no title or right of title to the Miami realty in question by virtue of the subject Canadian trust agreement [see paragraph VII(e) therein] because the said trust agreement did not comply with the Florida statutory requirements [§ 689.01 Fla.Stat. (1979)], for conveying an interest in the said Miami realty [as the appellant concedes at paragraph 10 of her complaint below] and thus was ineffective to create any rights in the appellant under Florida law as to the said Miami realty. Walker v. City of Jacksonville, 360 So.2d 52 (Fla. 1st DCA 1978); Santos v. Bogh, 334 So.2d 833 (Fla. 3d DCA 1976); Kyle v. Kyle, 128 So.2d 427, 429 (Fla. 2d DCA 1961).


text:
    FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Evelio CRUZ, as personal representative of the Estate of Jose L. Cruz, deceased, and Evelio Cruz, Individually and Hilda Cruz, Individually, Appellees.
    Nos. 79-1030, 79-1031.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Rehearing Denied June 18, 1980.
    James F. Dougherty, II, Miami, for appellant.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

By this consolidated appeal appellant/defendant seeks review of an adverse final summary judgment, and order denying appellant’s motion to vacate the judgment and for leave to file an amended answer in an action arising out of an insurance dispute.

The judgment, in pertinent part, reads as follows:

“This cause came before me on plaintiff’s motion for Summary Judgment and the Defendant’s Cross Motion for Summary Judgment and upon hearing argument by counsel and the Court having reviewed the pleadings, stipulations, exhibits and affidavits contained in the Court file, and the Court being otherwise fully advised in the premises, it is hereby Ordered and Adjudged:
“1. That Plaintiffs’ Motion for Summary Judgment be and the same is hereby GRANTED.
“2. That the Defendant’s Cross Motion for Summary Judgment be and the same is hereby DENIED.
“3. That the Court finds that as a matter of law that the automobile owned and operated by Robert A. Lyons was an uninsured motor vehicle at the time of the subject automobile accident; that consequently, Plaintiffs are afforded $10,000.00 uninsured motorist coverage limits under the subject insurance policy, in addition to $1,000.00 personal injury protection coverage limits for funeral expenses, and Plaintiffs are entitled to total sum of $11,000.00 previously paid by the Defendant to Plaintiffs under the policy.
“4. That the sum of $11,000, to-wit: $1,000 personal injury protection policy limits and $10,000 uninsured motorist policy limits previously paid to Plaintiffs by Defendant and deposited by Plaintiffs in an interest bearing account per Order of Court shall remain in said account pending a further hearing as to whether the Defendant is entitled to an Equitable Distribution on the $10,000 uninsured Motorist Coverage limits in the possession of the Plaintiffs or whether the Defendant has waived or destroyed any right of sub-rogation, if any, it may have had on the Plaintiffs’ settlement with McKenzie Tank Lines, Inc. and Carriers Insurance Company.”

Our examination and consideration of the record on appeal, briefs and argument of counsel convinces us that there is no genuine triable issue of material fact and that appellees were entitled to a judgment as a matter of law. State Farm Mutual Automobile Insurance Company v. Colonial Penn Insurance Company, 379 So.2d 1036 (Fla. 3d DCA 1980); Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla. 1978); United States Fidelity & Guaranty Company v. Curry, 371 So.2d 677 (Fla. 3d DCA 1979); Boulnois v. State Farm Mutual Automobile Insurance Company, 286 So.2d 264 (Fla. 4th DCA 1973); Allstate Insurance Company v. Chastain, 251 So.2d 354 (Fla. 3d DCA 1971), cert. discharged, 263 So.2d 578 (Fla.1972).

Accordingly, the orders appealed are hereby affirmed.

Affirmed.


text:
    Michael WISOTSKI, Appellant, v. The Honorable Patricia COCALIS in her official capacity as County Judge of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Appellee.
    No. 78-2264.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Bruce L. Randall, Fort Lauderdale, for appellant.
    Michael J. Satz, State’s Atty., Seventeenth Judicial Circuit of Florida, and Patti L. Englander, Asst. State’s Atty., Fort Lauderdale, for appellee.
   PER CURIAM.

We treat this “appeal” from an order of the Circuit Court denying a suggestion for writ of prohibition to the County Court as a petition for certiorari. Finding that the petitioner has failed to demonstrate a departure from the essential requirements of law, the petition is denied.

CERTIORARI DENIED.

MOORE, BERANEK and HURLEY, JJ., concur.


text:
    Andrew HAPGOOD, Appellant, v. STATE of Florida, Appellee.
    No. 79-1789.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This cause is remanded to the trial court with directions to determine the dollar amount of restitution found to be due and thereafter modify the order appealed from by specifying the total amount to be repaid and the manner of payment.

As so modified the order appealed from is affirmed.

AFFIRMED and remanded with directions.

DOWNEY, MOORE and HERSEY, JJ., concur.


text:
    Leslie Frankel SIMON, Appellant, v. Abraham PAYCHER, and Loeb, Rhoades, Hornblower, and Landmark First National Bank, Appellees.
    No. 79-1878.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Elliot L. Miller, Miami, for appellant.
    John T. Kinsey of English, McCaughan & O’Bryan, Fort Lauderdale, for appellee Landmark First Nat. Bank.
   PER CURIAM.

AFFIRMED. See Florida Rules of Civil Procedure 1.510(f).

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


text:
    STATE of Florida, Appellant, v. George BENNINGTON, Appellee.
    No. 79-1892.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearing Denied June 18, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Marc E. Kirk, Asst. Atty. Gen., West Palm Beach, for appellant.
    Paul M. Rashkind of Sams, Gerstein & Ward, P. A., Miami, for appellee.
   PER CURIAM.

The State appeals the denial of its oral motion to tax costs against the appellee made pursuant to Section 939.01, Florida Statutes (1977). We affirm.

Upon proper motion, Section 939.01 requires the court to include the appropriate costs of prosecution in a judgment rendered against a convicted person. However, the defendant is entitled to prior notice and an opportunity to prepare and be heard on the issue. Cf. Reeves v. State, 372 So.2d 1016 (Fla. 2nd DCA 1979) (probationer entitled to notice prior to imposing condition of restitution). Due process requires the motion to be in writing and served on the defendant a reasonable time before the hearing on the motion. Fla.R.Crim.P. 3.060.

The failure of the State to file a written motion, giving the defendant an opportunity to prepare and be heard concerning the motion deprived the defendant of procedural due process. Accordingly, the trial court correctly denied the motion.

AFFIRMED.

MOORE, GLICKSTEIN and HURLEY, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    Johnnie WIGGINS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. NN-382.
    District Court of Appeal of Florida, First District.
    May 23, 1980.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Richard W. Prospect and Doris E. Jenkins, Asst. Attys. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

On this appeal from appellant’s conviction on two counts of uttering a forged instrument, appellant claims he should be discharged because he was not brought to trial within the period prescribed by the speedy trial rule, Fla.R.Crim.P. 3.191. We agree. The State’s contention is that the period of the rule did not begin to run until August 25, 1978, when appellant was formally arrested on the charges of which he is now convicted. We find, on the contrary, that the period began to run on August 4, 1978, when appellant was taken into custody as a suspect on these and related charges, was advised of his constitutional rights, and was interrogated. Appellant then confessed to these and related charges. Appellant was then in custody on all those charges, though he was then formally arrested on only one of them, which subsequently was dismissed. See State v. N. B., 360 So.2d 162 (Fla. 1st DCA 1978), cert. dismissed, 365 So.2d 713 (Fla.1978); Deloach v. State, 338 So.2d 1141 (Fla. 1st DCA 1976).

The convictions are REVERSED and appellant is DISCHARGED.

ERVIN and WENTWORTH, JJ., concur.


text:
    A. P. WEEKLEY et al., Appellants, v. SANTA ROSA COUNTY, Fla. et al., Appellees.
    No. OO-156.
    District Court of Appeal of Florida, First District.
    May 23, 1980.
    Thomas G. Morton, Jr., Milton, for appellants.
    Jack Locklin, Jr., of Johnson, Green & Westmoreland, Milton, for appellees.
   ROBERT P. SMITH, Jr., Judge.

We find no basis in the record for concluding that the 1977 judgment decided or otherwise foreclosed issues in the related controversy between the parties which was resolved by the 1979 judgment now appealed. We also find substantial competent evidence to support the trial court’s finding that the County acquired, by compliance with Section 95.361(1), Florida Statutes (1979), the dedicated roads and appurtenances, including the described ditches, in the contested property. We find no error.

AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.


text:
    German Fidel CUETO and Midland Insurance Company, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1831.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Stone, Sostchin & Gonzalez and Gisela Cardonne, Miami, for appellants.
    Janet Reno, State’s Atty., and John P. Durant, Asst. State’s Atty., for appellee.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Section 903.28, Florida Statutes (1977); and Allied Bond Agency, Inc. v. State, 358 So.2d 246 (Fla. 4th DCA 1978).


text:
    Thomas Albert PANNIER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-973.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Rehearing Denied June 19, 1980.

      Thomas Albert Pannier, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL PEARSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. Castle v. State, 305 So.2d 794 (Fla. 1st DCA 1974), affirmed 330 So.2d 10 (Fla.1976); Wildie v. State, 326 So.2d 198 (Fla. 4th DCA 1976).


text:
    Sydney ALWAIS, as the Guardian of the minors Michael Alwais and Robin Alwais, and as Personal Representative of the Estate of Stanley Alwais, Deceased, Appellant, v. Dr. A. Donald McLANE, Appellee.
    No. 79-159.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.
    David Jack Palgon of Engel & Palgon, P. A., Miami, for appellant.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellee.
   PER CURIAM.

We find no error by the trial court except in its failure to itemize the costs allowed in its order taxing costs. See Sims v. Barnes, 289 So.2d 753 (Fla. 1st DCA 1974). Upon remand the trial court is directed to reconsider the motion to tax costs taking into consideration this court’s decision in County of St. Lucie v. Browning, 358 So.2d 253 (Fla.4th DCA 1978) and to enter an order specifically setting out the items and amounts allowed.

Accordingly, this cause is affirmed in part and reversed in part and remanded with directions for further proceedings in accordance with this opinion.

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


text:
    Julius FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-703.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Rozier v. State, 343 So.2d 972 (Fla.1st DCA 1977).

ANSTEAD, MOORE and HURLEY, JJ., concur.


text:
    Myron WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 79-375.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.
    James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a conviction of burglary of a structure entered by the Circuit Court of St. Johns County, Florida. The public defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for the appellant and representing to this Court that no reversible error appears. On January 31, 1980, this Court gave the appellant thirty (30) days within which to file a brief on his own behalf. No such brief has been filed. The Court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the public defender to withdraw is hereby granted, and the judgment and sentence are hereby

AFFIRMED.

COBB, UPCHURCH and SHARP, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Karl Thomas MANNING, Appellant, v. STATE of Florida, Appellee.
    No. 78-2255/T4-258.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED. The phrase “at hard labor” is hereby stricken from the sentence as surplusage. Edwards v. State, 373 So.2d 388 (Fla. 4th DCA 1979).

DAUKSCH, C. J., and ORFINGER and SHARP, JJ., concur.


text:
    Jack G. FAUP, Appellant, v. Elaine Ross FAUP, Appellee.
    No. 79-258/T4-384.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.

      Michael E. Hamlin and Edward R. Kirkland, Orlando, for appellant.
    George E. Adams of Adams & Hill, Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

DAUKSCH, C. J., and COBB and OR-FINGER, JJ., concur.


text:
    Craig T. McCARTY, Appellant, v. STATE of Florida, Appellee.
    No. OO-180.
    District Court of Appeal of Florida, First District.
    May 30, 1980.
    Nicholas G. Peterson, Fort Walton Beach, for appellant.
    Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

McCarty’s appeal, originally filed with that of Mary Ida Maddan Brown, see Brown v. State, 377 So.2d 819 (Fla.App. 1979), was severed due to procedural problems and McCarty allowed to file separate briefs. The only issue presented by McCarty is whether the trial court erred in denying defendant’s motion to suppress evidence.

The underlying factual situation being the same as that presented in Brown, supra, this appeal is controlled by that decision.

Accordingly, McCarty’s conviction for possession of marijuana in excess of five grams is reversed and the cause remanded for proceedings consistent with this and the Brown decision.

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


text:
    Richard C. CASSIANI a/k/a Richard Meyers, Appellant, v. STATE of Florida, Appellee.
    No. UU-15.
    District Court of Appeal of Florida, First District.
    May 30, 1980.
    Richard C. Cassiani, pro se, for appellant.
    Jim Smith, Atty. Gen., and Curtis A. Golden, State’s Atty., for appellee.
   PER CURIAM.

Cassiani appeals the denial of his motion for post-conviction relief, arguing that he was denied his right to a speedy trial. We affirm and note that Cassiani pleaded nolo contendere, without reserving the right to appeal any ruling by the trial judge, to three counts of armed robbery with a firearm.

By pleading nolo contendere he waived his right to appeal any ruling by the trial court made prior to his plea. Robinson v. State, 373 So.2d 898 (Fla.1979); Rule 9.140(b), Fla.R.Appellate P. Having waived his right to appeal this ruling, he may not now attack it in his motion for post-conviction relief.

Accordingly, the order is affirmed.

ROBERT P. SMITH, Jr., ERVIN and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    TRI-COUNTY COMMUNITY COUNCIL and Nationwide Insurance Co., Appellants, v. Karo GILLIS, Appellee.
    No. QQ-186.
    District Court of Appeal of Florida, First District.
    June 2, 1980.
    Jeffrey A. Cramer of Carlton, Fields, Ward, Emmanual, Smith & Cutler, Tampa, for appellants.
    W. Fleming Ward, DeFuniak Springs, for appellee.
   WENTWORTH, Judge.

Appellants raise three points on appeal. Our determination of their second point renders the other points moot. Appellants argue that the deputy commissioner erred in denying their motion for leave to present additional evidence. We agree and reverse the order with instructions that the deputy commissioner allow appellants to present additional evidence in rebuttal of the additional evidence presented by claimant at the request of the deputy.

After the final hearing in this case, the deputy commissioner sent a letter to the parties instructing them that he was continuing the case. He instructed claimant to take additional deposition testimony of Dr. Rencher, specifically asking him questions as to causation and maximum medical improvement. Appellants moved to be allowed to present evidence in rebuttal of Dr. Rencher’s additional testimony. The motion was denied.

In Exxon Company v. Alexis, 370 So.2d 1128 (Fla.1978), the Supreme Court held that there was no reversible error when a deputy commissioner allows a party to reopen his case, so long as the other party is not prejudiced thereby. In Exxon, the court found no prejudice because the other party was allowed to present rebuttal evidence following the additional evidence allowed by the deputy commissioner.

In the situation presented here the deputy commissioner on his own motion reopened the case. That distinction does not support departure from the principle recognized in Exxon. When a party is allowed to present additional evidence, the opposing party should be allowed to present rebuttal evidence.

Accordingly, the order is reversed and the cause remanded for proceedings consistent with this opinion.

ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.


text:
    ALLEGHENY MUTUAL CASUALTY COMPANY and Mark Wingo, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1357.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Stone, Sostchin & Gonzalez and Gisela Cardonne, Miami, for appellant.
    Janet Reno, State’s Atty, and John P. Durant, Asst. State’s Atty, for appellee.
    Before HUBBART, NESBITT and DANIEL PEARSON, JJ.
   PER CURIAM.

Affirmed. Resolute Insurance Co. v. State, 289 So.2d 456 (Fla.3d DCA 1974).


text:
    Charles R. BLALOCK, Appellant, v. Barbara BLALOCK, Appellee.
    No. 79-1971.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellant.
    Friedman & Rosenberg and Abraham B. Rosenberg, Hollywood, for appellee.
    Before SCHWARTZ and DANIEL PEARSON, JJ, and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    Manuel MENENDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2155.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Bennett H. Brummer, Public Defender, and Samek & Besser, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen, and Steven R. Jacob, Asst. Atty. Gen, for appellee.
    Before BARKDULL, HENDRY and HUBBART, JJ.
   PER CURIAM.

Appellant was charged by information with kidnapping. A jury found him guilty of false imprisonment, a lesser included offense. Judgment was entered pursuant to the jury verdict and a sentence of five years in the state penitentiary was imposed.

Appellant seeks reversal of his conviction on the ground that the trial court erred in denying his motion for mistrial that was made because of prosecutorial comments made during closing arguments were so prejudicial as to violate appellant’s sixth and fourteenth amendment rights to a fair trial.

We find no merit in these contentions. Therefore the judgment and sentence are affirmed.

Affirmed.


author: BASKIN, Judge.

text:
    William LADNER and Judith Ladner, his wife, Appellants, v. PLAZA DEL PRADO CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 80-731.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Tew, Critchlow, Sonberg, Traum & Fried-bauer and Steven R. Reininger, Miami, for appellants.
    Michael L. Hyman, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

We reverse the decision of the trial court granting the condominium association a temporary mandatory injunction requiring the Ladners to restore the terrace of their apartment to its original condition. Ordering the Ladners to remove their nonconforming, differently colored terrace railings constitutes selective enforcement of the rules contained in the declaration of condominium and the bylaws contrary to White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979). Furthermore, no irreparable harm to appellee has been shown. Department of Health and Rehabilitative Services v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977).

Reversed and remanded for further proceedings.


author: RYDER, Judge.

text:
    Charles MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 78-2085.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.

      B. Robert Ohle, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Charles Monroe appeals from his convictions of battery of a law enforcement officer and obstructing or opposing an officer without violence. The appellant raises three points on appeal; we find two of the appellant’s points to be without merit but agree with the appellant’s third point in which he contends that the trial court erred by not giving a requested jury instruction on defense of others.

On June 26, 1978, two undercover police officers attempted to arrest the appellant’s brother. The appellant, who claimed he did not know the two men chasing his brother were police officers, attempted to aid his brother. Although there was substantial evidence which tended to prove that the appellant probably knew that the men were in fact police officers, the appellant testified on his own behalf that he did not know that the men were police officers. As this was the appellant’s theory of defense, and since there was evidence to support that theory, however tenuous it might have been, the appellant was entitled to the requested jury instruction on defense of others.

In the case sub judice we are constrained to hold the trial Court in error in refusing to give the jury the requested instruction . . However, disdainfully the trial Judge may have felt about the merits of such defense from a factual standpoint, however even we may feel about it, is beside the point. It was for the jury and the jury alone to pass upon it as a recognized defense to a criminal charge. And if there was “evidence introduced in support thereof” . . . , the defendant was “entitled to have the jury instructed on the law applicable to his theory of defense.”

Koontz v. State, 204 So.2d 224, 227 (Fla. 2d DCA 1967). Accord, Laythe v. State, 330 So.2d 113 (Fla. 3d DCA 1976).

The trial judge erred by refusing to give the requested jury instruction on the defense of others. Accordingly, the judgment and sentence is reversed and the case remanded for a new trial.

HOBSON, Acting C. J., and DANAHY, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    Donald Everett MANGUM, Appellant, v. STATE of Florida, Appellee.
    No. 79-916.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.
    Jack 0. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant Donald Everett Mangum appeals an order withholding adjudication on a charge of first degree arson and placing him on three years probation after a plea of nolo contendere. Appellant argues that pri- or to the Florida Supreme Court’s opinion in Brown v. State, 376 So.2d 382 (Fla.1979), the trial judge accepted his nolo contendere plea which included the reservation of the right to appeal a nondispositive issue. Appellant requests that this cause be remanded to the trial court in order to give appellant an opportunity to withdraw his plea in light of the inability of the judicial system to provide him with the right to appeal his reserved issue.

Under Brown v. State, only legally dis-positive issues may be reserved for appeal following a nolo contendere plea. We find that appellant did not reserve a legally dis-positive issue and, therefore, is not entitled to an appeal.

Since appellant’s plea was entered before the Brown decision, this case is remanded to the trial court with instructions that appellant be afforded an opportunity to seek to withdraw his plea. See Pittman v. State, 382 So.2d 1227, No. 79-642 (Fla.2d DCA, Oct. 17, 1979), on rehearing (Fla.2d DCA Jan. 30, 1980), rehearing denied (Fla.2d DCA May 8, 1980).

OTT and RYDER, JJ., concur.


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. Leroy Dennis HARDEN, Appellee.
    No. 79-1684.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    No appearance, for appellee.
   SCHEB, Judge.

A grand jury charged Leroy Dennis Harden with first degree murder by an indictment which alleged:

The Grand Jurors of the County of Hills-borough, State of Florida, charge that LEROY DENNIS HARDEN, on the 12th day of May, 1979, in the County and State aforesaid, unlawfully and from a premeditated design to effect the death of TYRONE JOHNSON, did murder the said TYRONE JOHNSON by shooting him with a firearm, a more detailed description of which is to the Grand Jurors unknown, contrary to the form of the statute in such cases made and provided, to-wit: Florida Statute 782.04.

Pursuant to Florida Rule of Criminal Procedure 3.190(b), Harden moved to dismiss the indictment on the ground that it failed to allege that either he or Johnson were persons or human beings. The trial court granted the motion and this appeal ensued.

The indictment for first degree murder is in substantial compliance with the statutory form which does not require designation of the victim or the accused as persons or human beings. § 923.03(l)(a), Fla.Stat. (1979). In Lee v. State, 115 Fla. 30, 155 So. 123 (Fla.1934), the Florida Supreme Court upheld a trial court’s denial of a defendant’s motion to quash an indictment for failure to allege that the victim was a human being. We perceive no reason to distinguish between a victim or an accused with regard to this type of allegation.

Accordingly, we vacate the order appealed from and reinstate the indictment.

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