author: BERANEK, Judge.

text:
    RAY SANDSTROM, Appellant, v. STATE of Florida, Appellee.
    No. 79-649.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1981.
    Rehearing Denied Sept. 16, 1981.

      Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by an attorney from a final judgment and sentence of direct criminal contempt. We affirm.

Appellant was defense counsel in a murder prosecution. He was found in contempt and sentenced to thirty days in jail during the trial. The trial court entered the following order:

THIS CAUSE came on before the Court upon demand by the Court of Counsel of the above styled case, Ray Sandstrom, why he should not be found in direct criminal contempt for failure to abide by the Courts rules in regard to his manner of interogation of a witness, Willie Edsón, concerning prior testimony given by Willie Edson and which had previously been transcribed. The State contended that Attorney Sandstrom was misquoting statements allegedly made by the witness. Mr. Sandstrom agreed that at times he would misquote and contended that it was proper for him to do so. The Court instruted him that if he read statements from the transcript that he was to quote exactly. Mr. Sandstrom was not in agreement and refused to comply with the Courts demand and refused to proceed with the interogation. The Court instructed him to proceed with the Courts Order or to release the witness both of which he refused to do. The Court then read Rule of Criminal Procedure 3.830 to the Defendant asking him to respond to why he should not be found in contempt to which Mr. Sandstrom responded and the Court found the response to be unsatisfactory. The Court asked Mr. Sandstrom if he had any evidence to present of mitigating or excusing circumstances. Mr. Sandstrom did not present any excusing or mitigating circumstances and the Court found and thereby adjudged Mr. Sandstrom in direct criminal contempt and sentenced him to thirty (30) days in jail and gave him the opportunity to have the Court vacate the Order by again having the witness placed on the stand and comply with the Court’s Order regarding interogation. Mr. Sandstrom again refused and this Court Ordered the Defendant bodily taken to the jail and placed in custody to serve thirty (30) days for direct criminal contempt of Court. The Court Ordered the jurors to go home, directing them to remain available both at work and at home by disclosing their phone numbers to the respective places. The Court informs the Defendant that it may consider mitigation of the sentence by apologizing to the Court for the disruption that he has caused and by agreeing to continue with the interogation of the witness in accordance with the Court’s order.
DONE AND ORDERED in Chambers, Fort Lauderdale, Broward County, Florida this 14 day of March 1979. (Order reproduced verbatim.')

On appeal, it is asserted that the trial judge should have disqualified himself and that the conduct of appellant was such that a finding of contempt constituted an abuse of discretion. We reject both arguments.

When the State Attorney objected and pointed out that defense counsel was misquoting the transcript, the trial court unequivocally sustained the objection and directed counsel as to the proper method of cross-examination. Instead of accepting this ruling, appellant launched into a vehement and extended dialog with the court. Appellant’s position was that he could pretend to read from the transcript by making up questions and answers and thereby impeach the witness. Counsel repeatedly asserted the trial judge was wrong, that he was right, that his method of cross was a “recognized” method and that he would continue with it. Counsel rudely argued at length to this effect. He refused, in the face of repeated specific orders from the judge, to disclose the page he was pretending to read from and repeatedly urged that he could intentionally misquote if he chose to do so. The court repeatedly ruled this to be improper but appellant directly refused to follow the judge’s instruction. He proclaimed the court was wrong, and that his cross-examination could not be interfered with in any manner. At a point, the judge inquired as to whether counsel would release the witness and cease his cross-examination. Counsel refused to comply and again began his improper questioning. He refused to disclose the page number, refused to quote correctly, and left a pending question before the witness despite the court’s specific instruction that the witness not answer it. The court then again instructed counsel to proceed in four separate direct verbal orders. In response to each of these four separate verbal orders, counsel proclaimed he would not proceed and that he was “waiting for an answer.” Despite numerous efforts by the trial judge, counsel never retreated from his position that he was right and the judge was wrong and that he would cross-examine in his own manner.

Eventually, the court cited appellant for direct criminal contempt, advised him of the charge against him and gave him an opportunity to show cause why he should not be found in contempt. The court also gave him the opportunity to present evidence of mitigating circumstances. When the court formally asked him to state his reasons for his direct disobedience, he simply argued again that he could not be compelled to cross-examine in the fashion ordered by the judge. Even when the court specifically inquired under Rule 3.830 as to whether he wished to offer testimony or evidence, appellant declined to do so and continued to argue the legal issue of cross-examination.

A direct criminal contempt occurring in the presence of a trial judge may be punished immediately and summarily. See Rule of Criminal Procedure 3.830. Under such circumstances, the trial judge need not disqualify himself unless he has become directly and personally embroiled. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) is a leading exposition on the subject of the disqualification of judges in contempt proceedings. The United States Supreme Court stated in relevant part as follows 91 S.Ct. at pages 504 and 505:

Instant treatment of contempt where lawyers are involved may greatly prejudice their clients but it may be the only wise course where others are involved. Moreover, we do not say that the more vicious the attack on the judge the less qualified he is to act. A judge cannot be driven out of a case. Where, however, he does not act the instant the contempt is committed, but waits until the end of the trial, on balance, it is generally wise where the marks of the unseemly conduct have left personal stings to ask a fellow judge to take his place. ...
It is, of course, not every attack on a judge that disqualifies him from sitting. In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921, we ruled that a lawyer’s challenge, though “disruptive, recalcitrant and disagreeable commentary,” was still not “an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.”

Here, the trial judge chose to act immediately rather than waiting till the conclusion of the trial. This was proper and required because counsel would not proceed in accordance with the court's directions. In accordance with the Mayberry decision, instant and immediate punishment for contempt militates against disqualification. Our review of the transcript convinces us that the judge was not required to disqualify himself herein.

The conduct of counsel here was clearly of a character sufficient to warrant the finding of criminal contempt. This Court’s decision in Baisden v. State, 203 So.2d 194 (Fla. 4th DCA 1967), is on point. There, a dispute arose between defense counsel and the trial judge over the propriety of certain questions on cross-examination. This Court stated as follows at page 198:

The proper limitation of cross examination and the range to be permitted during such examination is a matter that in criminal cases as well as in civil cases, lies within the sound discretion of the trial court. Under the circumstances, defense counsel should have trimmed his sails to the judicial wind as prevailed in the courtroom. The controlling principle thus is clear when a defense attorney disobeys the direct command of a judge. The attorney must swallow his disappointment, save the point for review, and wait until later, if it is error, to be corrected. Meanwhile he must submit to the judge. (Citations omitted.)

Here, even if the trial judge’s ruling on the mode of cross-examination had been incorrect, counsel should have complied with it and brought the matter to the appellate court.

Appellant urges before this Court that he could not have been guilty of contempt because he was merely trying to preserve the record as to his unsuccessful attempts at cross-examination. He argues he only declined to proceed with cross-examination and that such conduct cannot be contemptuous as a matter of law. This argument fails because it disregards counsel’s own prior conduct. When held in contempt, appellant was already guilty of contemptuous disobedience to the Court’s orders. A further act of disobedience after the contempt finding was unnecessary. The entire record compels the conclusion that appellant intentionally and steadfastly refused to comply with a lawful court order and that such conduct substantially interfered with the trial of the cause and eventually resulted in a mistrial. We conclude that Rule of Criminal Procedure 3.830 was adequately complied with and that the court did not abuse its discretion in finding defendant in contempt and sentencing him therefor. The judgment and sentence below are affirmed.

AFFIRMED.

GLICKSTEIN, J., and SIMONS, STUART M., Associate Judge, concur.


source: Caselaw Access Project

author: HURLEY, Judge.

license: Public Domain

text:
    BROWARD ATLANTIC PLUMBING CO., d/b/a Atlantic Plumbing Co., Appellant, v. R.L.P., INC., Simon Konover, Robert L. Patron and Marvin M. Patron, Appellees.
    No. 79-613.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1981.
    Rehearing Denied Sept. 9, 1981.

      Romney C. Rogers of Rogers, Morris & Ziegler, Fort Lauderdale, for appellant.
    Glenn N. Smith and Kathleen V. McCarthy of Ruden, Barnett, McClosky & Schus-ter, Fort Lauderdale, for appellees.
   HURLEY, Judge.

Atlantic Plumbing appeals from a final judgment denying foreclosure of its mechanic’s lien. Although the court entered a money judgment for Atlantic against the corporate defendant, it refused to grant a mechanic’s lien or to enter a judgment against the individual defendants. Its ruling was based on the finding that Atlantic had failed to serve a notice to owner as required by Section 713.06(2)(a), Florida Statutes (1975), and had failed to establish privity between the plaintiff/subcontractor and the defendant/owners. We reverse on the issue of privity.

Atlantic Plumbing entered into a contract with R.L.P., Inc., to supply and install plumbing fixtures in a real estate project, Patron Village. The sole stockholders, officers and directors of R.L.P., Inc., were the owners of Patron Village — Simon Konover, Robert L. Patron and Marvin M. Patron. Since R.L.P. did not possess a general contractor’s license, it hired Deyo Construction Company as the official contractor. Deyo, however, did not actively participate in construction and simply visited the site about once a month. In contrast, Robert Patron, president of R.L.P. and co-owner of Patron Village, was on the job daily acting as the general contractor.

Atlantic Plumbing substantially completed its contract, leaving only the installation of 24 dishwashers which Atlantic claims were not timely brought to the job site by R.L.P. It then demanded payment and, when Robert Patron refused, Atlantic filed a claim of lien followed by a suit to foreclose its mechanic’s lien and recover a money judgment against R.L.P. and the individual owners. Robert and Marvin Patron and Simon Konover raised an affirmative defense of failure to give notice to owner under Section 713.06(2)(a), Florida Statutes (1975).

After a non-jury trial, the court entered final judgment against R.L.P., Inc. for the amount claimed less a set off for work not completed. It refused, however, to foreclose the mechanic’s lien on the owners’ property or to enter judgment against the individual defendant/owners, finding that Atlantic had failed to serve the notice to owner which section 713.06(2)(a) requires materialmen and laborers not in privity with the owner to serve, or to establish such privity between the plaintiff/subcontractor and the individual defendant/owners as would eliminate the notice requirement.

We find Boux v. East Hillsborough Apartments, Inc., 218 So.2d 202 (Fla. 2d DCA 1969), to be controlling. There, the court emphasized that the purpose of the notice to owner requirement relevant to those not in privity with the owner is “to protect an owner from the possibility of paying over to his contractor sums which ought to go to a subcontractor who remains unpaid.” It determined that such purpose is fulfilled, and privity is shown, where there is identity of owner and contractor. In such a situation, filing of the notice is not required.

It is undisputed that the three owners in the instant case were also the principals in the contracting corporation. Adopting the reasoning in Boux v. East Hillsborough Apartments, Inc., supra, we conclude that Atlantic has demonstrated its privity with the owners and, consequently, notice to owner was not required.

Accordingly, we reverse and remand for further proceedings consistent herewith.

Reversed and Remanded.

MOORE, J., concurs.

BERANEK, J., concurs in conclusion only.


author: DANIEL S. PEARSON, Judge. HUBBART, Chief Judge

text:
    OWNER’S ADJUSTMENT BUREAU, INC. and Larry Dreyfus, Appellants, v. John H. OTT, Appellee.
    No. 79-2092.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.

      Harold M. Braxton, Miami for appellants.
    Ligman, Martin, Shiley & McGee and Roderick L. McGee, Coral Gables, for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Dreyfus, said to be acting on behalf of Owner’s Adjustment Bureau, Inc., wrote to Ott concerning a claim adjusting dispute. In this letter, Dreyfus stated:

"... a man of your intelligence and superior knowledge of the law of Florida should be cognizant of the fact that you have perjured yourself in yours of October 27, 1977.” (emphasis supplied).

The letter bore notations which indicated that copies had been sent to Tri-State Insurance Company and three persons, Peter and Karin Gaspar and Mr. Lawler, Insurance Commissioner.

Ott, alleging that this statement in the letter was libelous, sued Dreyfus and Owner’s. The trial court entered a summary judgment on liability in Ott’s favor and a final judgment upon the jury’s verdict awarding compensatory and punitive damages.

We reverse both the final judgment and the summary judgment on liability. First, there is absolutely no showing in the record that the persons and entity to which the copies were purportedly sent ever received the letter and, it necessarily follows, no showing that they read the letter. There was, therefore, no proof of publication, a necessary predicate to a finding of defamation and liability. As stated by Dean Prosser:

“Since the interest protected is that of reputation, it is essential to tort liability for either libel or slander that the defamation be communicated to some one other than the person defamed. This element of communication is given the technical name of ‘publication,’.... Where there is no communication to any one but the plaintiff ... no tort action can be maintained upon the theory of defamation. It is not enough that the words are uttered in the presence of others unless they are in fact overheard; nor, although there is some authority to the contrary, is it usually regarded as sufficient that they were sent through the mail on a postcard, or in an unsealed letter, unless it is proved that a third person read them.” Prosser, Law of Torts § 113, at 766-67 (4th ed. 1971).

Tyler v. Garris, 292 So.2d 427 (Fla. 4th DCA 1974). See Maine v. Allstate Insurance Company, 240 So.2d 857 (Fla. 4th DCA 1970). See also F. Harper & F. James, The Law of Torts § 5.15, at 390 (1956).

Second, Dreyfus and Owner's pleaded the affirmative defense of truth, which, in the absence of conclusive evidence negating this defense, precluded a summary judgment on liability. Markham v. Thompson, 368 So.2d 957 (Fla. 3d DCA 1979); Moseley v. Turrell, 354 So.2d 121 (Fla. 3d DCA 1978); First Mortgage Investors v. Boulevard National Bank of Miami, 327 So.2d 830 (Fla. 3d DCA 1976). See Hannah v. James A. Ryder Corp., 380 So.2d 507 (Fla. 3d DCA 1980). Ott disingenuously argues that the conclusive evidence required to negate the defense of truth is found in the proposition that since it is obvious that the “perjury” attributed to him was contained in his letter of October 27, 1977, and was not made under oath or in a proceeding, Ott could not legally be guilty of the crime of perjury, and, therefore, an accusation to that effect could never be true. Ott’s. argument proves too much. If, as he suggests, a statement contained in a letter is so obviously not perjury, so as to make an accusation to that effect untrue, then it is equally obvious that the accusation did not impute the commission of a criminal offense and was not, at least on that basis, a libel per se.

Ott’s argument, moreover, concedes that the words — “you have perjured yourself in yours of October 27, 1977” — are susceptible of only one meaning, that is, that the “perjury” occurred in a letter written by Ott on October 27, 1977. Where a communication is reasonably susceptible of only one meaning, then it is for the court to determine as a matter of law whether it is libelous or not, Wolfson v. Kirk, 273 So.2d 774 (Fla. 4th DCA), cert. denied, 279 So.2d 32 (Fla. 1973); Restatement (Second) of Torts § 614 (1976), and if the court determines the communication is libelous, it is for the court to further determine whether it is libel per se or libel per quod.

While ordinarily an accusation that one has perjured himself would, as a matter of law, be a libel per se, Stewart v. Codrington, 55 Fla. 327, 45 So. 809 (1908), in the present case the accompanying phrase “in yours of October 27, 1977” negates any imputation that the crime of perjury was committed. Scougale v. Sweet, 124 Mich. 311, 82 N.W. 1061 (1900) (holding that, as a matter of law, the commission of the crime of perjury could not be imputed to the plaintiff to whom the defendant wrote, “When you assumed your present office, you took an oath to enforce the laws of the State. To violate an oath is always shameful — particularly so when it relates to official duties. Yet this thing you have done. In legal terms, the violation of an oath is called ‘perjury.’ ”). See generally Annot. 38 A.L.R.2d 161, 180 (1964).

“Words which impute a crime are actionable, not more because they expose the party charged to the danger of being convicted, than of being prosecuted, which even to the innocent, is a grievance; and in every instance where the meaning of what would otherwise have been an unambiguous accusation, has been controlled by circumstances which showed it to be groundless, and thus rendered it harmless: the controlling circumstances were so mingled with the accusation by the accuser himself, as to make the poison carry its antidote along with it. . . .” 38 A.L.R.2d at 181 n. 7, quoting Deford v. Miller, 3 Penr. & W. 103 (1831).

We conclude that in the present case the poison (“you perjured yourself”) carried its own antidote (“in yours of October 27, 1977”) and was, therefore, not a libel per se.

We determine otherwise in respect to Dreyfus’ letter as a whole. The letter is here reproduced:

Dear Mr. Ott:
A man of your intelligence and superior knowledge of the law of Florida should be cognizant of the fact that you have perjured yourself in yours of October 27, 1977- The requirements of filing a proof under contract has been negated by law as long as there is proper notice.
We certainly agree that you have not agreed to liability, which is a nebulous term. More important, by your action and that of an unlicensed adjustor, you have admitted coverage and waived or estopped any measures of denial.
In our opinion and that supported by counsel, we nave a right to request an appraisal when there is an impasse. Again we request the appointment of an appraiser in compliance with Line 123 of the jacket.
Further, we request that Mr. Obler give us a contract which will be given to our insured. 'We suggest that the contract stipulate that Mr. Obler will repair all damage for $18,930.00 to the satisfaction of the insured and mortgagee. This contract should further state a time to commence and when the job should be completed. A penalty clause for non-compliance should also be in this contract.
Once the above is accomplished and proper exhibition of insurance and completion bonds, we feel the repairs could start.
Should you reject our request for the appraisal, we shall request that Hr. Gaspar follow his quest for proper conclusion by the channels of court.
Very truly yours,
OWNERS' ADJUSTMENT BUREAU ld;pr
cc: Mr. Lawler, Insurance Commissioner Miami Service Office .
1350 N.W. 12th Ave., Suite 332
Miami, Fla. 33136
Peter and Karin Gaspar
1539 Garfield St.
Hollywood, Fla.
Tri-State Insurance Company

The letter, by accusing Ott of “perjury,” notwithstanding that the imputation of the crime of perjury is negated, at the very least accuses him of dishonesty in connection with his business as a property claims manager for an insurance adjusting firm. As such, the letter imputes to Ott conduct incompatible with the proper exercise of his lawful business, and its necessary natural and proximate consequence is to cause injury to Ott in his business relations. For these reasons the letter constitutes a libel per se as a matter of law.. Campbell v. Jacksonville Kennel Club, 66 So.2d 495 (Fla. 1953); Air Line Employees Association International v. Turner, 291 So.2d 670 (Fla. 3d DCA 1974); Carter v. Sterling Finance Co., 132 So.2d 430 (Fla. 1st DCA 1961). See Sharp v. Bussey, 137 Fla. 96, 187 So. 779 (1939).

We must, however, for the reasons stated earlier in this opinion, reverse the final judgment and summary judgment on liability and remand the cause to the trial court for further proceedings consistent herewith.

Reversed and remanded.

HUBBART, Chief Judge

(concurring).

I concur in the opinion and judgment of the court and would add only that no issue has been raised in this case as to whether the defendant Dreyfus was in any way at fault in uttering the statements contained in his November 1, 1977 letter. We, therefore, have no occasion to determine whether Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) [holding inter alia that the First Amendment precludes the states from imposing liability without fault in a libel action] applies to a non-media defendant, as here, as well as to a media defendant. See, e. g., Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976); Rest. (2d) Torts, § 580B (1977).

In this case, as in so many others, the parties have tacitly assumed that the law of libel, except as it applies to media defendants, has remained intact after the constitutional revolution wrought by the New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), line of cases. I would suggest that this is not necessarily the case, that, on the contrary, non-media defendants were accorded like constitutional protection along with the media defendant in the New York Times case itself, and that the great constitutional protections of free speech and free press contained in the First Amendment are not restricted to members of the news media, but apply to all persons in this country. Indeed, “[i]t would seem strange to hold that the press, composed of professionals and causing much greater damage because of the wider distribution of the communication, can constitutionally be held liable only for negligence, but that a private person, engaged in a casual private conversation with a single person, can be liable at his peril if the statement turns out to be false, without any regard to his lack of fault.” Rest. (2d) Torts, § 580B, Comment e (1977).

We must leave, however, the resolution of this important question for another day when the issue, unlike this case, has been properly presented below. The parties herein are nonetheless not precluded, as I see it, from subsequently raising the fault issue — should they choose to do so — in further proceedings in this cause.

      . Ott’s letter of October 27, 1977, is a part of the record in this case. We are, however, limited to the four corners of the letter written by Dreyfus — the so-called defamatory instrument — in judging whether the words used therein are libelous or libelous per se. See Wolfson v. Kirk, 273 So.2d 774 (Fla. 4th DCA), cert. denied, 279 So.2d 32 (Fla. 1973).

      . § 837.02, Fla.Stat. (1979); see § 837.012, Fla. Stat. (1979).

      . But where a communication is reasonably susceptible of two meanings, one of which is libelous and one of which is not, it is for the jury to decide whether those who read the language in fact understood it as libelous. Wolfson v. Kirk, supra; Restatement (Second) of Torts, supra; F. Harper & F. James, The Law of Torts § 5.29, at 465 (1956); Prosser, Law of Torts § 111, at 749 (4th ed. 1971). Similarly, where a communication is reasonably susceptible of two meanings, one of which constitutes a libel per se and one of which constitutes a libel per quod, it is for the jury to decide whether the recipients of the communication who read the language understood it as one or the other. If, then, in the present case the words “you have perjured yourself in yours of October 27, 1977” were reasonably susceptible of being understood as accusing Ott of the crime of perjury as well as reasonably susceptible of being understood as accusing Ott of merely lying in a letter, it would be for a jury to decide how in fact the words were taken. But Ott, consistent with the accepted meaning of the words, see XII The Oxford English Dictionary 76 (1933) [in epistolary (now chiefly commercial) communication, the words “yours of’ refers to “your letter of”], has clearly made the question whether the accusation is a libel per se a question for the court.

      .Simply because there may be some technical impediment preventing an actual prosecution for the crime of perjury does not necessarily disqualify the accusation from being a libel per se. See F. Harper & F. James, The Law of Torts § 5.10, at 379 n. 36. But the cases which hold that the inability to prosecute does not affect the character of the libel are to be distinguished from those in which it is evident from the accusation itself that no crime was committed.


author: DANIEL S. PEARSON, Judge.

text:
    Sarah TARSAGIAN, individually and as personal representative of the Estate of Andrew Tarsagian, Deceased, Appellant, v. Flora WATT and Mary Pagel, Appellees.
    No. 80-1839.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.
    Rehearing Denied Sept. 9, 1981.
    Yates & Fann and William F. Fann, Jr., Miami Shores, for appellant.
    Pilafian & Schaffer and Melvin Schaffer, Miami, for appellees.
    Before HUBBART, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Flora Watt and Mary Pagel, the children of Andrew Tarsagian, the decedent, sued to annul the nearly two-year-old marriage of their octogenarian father to Sarah Tarsagi-an and to revoke the probate of his will leaving his modest estate to Sarah. The trial court entered final judgment (a) refusing to annul the marriage because the presumption of the validity of the marriage had not been overcome, and (b) revoking probate of the will finding that it was procured by undue influence exerted by Sarah. The children appeal the former ruling; the wife, the latter.

We affirm that part of the trial court’s judgment leaving the marriage intact. We reverse that part of the judgment revoking probate of the will.

The trial court found that Sarah’s explanation of her minimal activity in procuring the contested will overcame the presumption that Andrew’s will was a result of her undue influence. See In re Estate of Carpenter, 253 So.2d 697 (Fla.1971). But, as it may do, see In re Estate of Carpenter, supra, the trial court found that undue influence was proved by the greater weight of the evidence and without regard to the presumption. In our view, that finding is unsupported by the evidence, which, to the contrary, overwhelmingly establishes that Andrew was not unduly influenced in the making of his will.

Sarah and Andrew met in 1969, and in 1972, after the death of Andrew’s first wife, Andrew moved into Sarah's home. Andrew was then 77, Sarah 62. They lived together until they were married in 1977. During their years together, Andrew was ill; and Sarah, who during her working years was a registered nurse, cared for him. In early 1977, Andrew was seriously injured in an automobile accident. During his stay in the hospital, it was determined that he suffered from leukemia. A month after his discharge from the hospital, he and Sarah married. Shortly after their marriage, Andrew made the will sought to be set aside in this case. Andrew died nearly two years later.

Sarah’s sole activities in connection with the will were to accompany Andrew to the office of a lawyer, whom she had once met, but with whom she had no prior relationship; to sit in the waiting room while Andrew consulted with the lawyer; and after the will was executed, to place it in her safe deposit box, which, in light of the fact that Andrew did not maintain a box, was used by both. The evidence clearly established that she had played absolutely no role in the conduct of Andrew’s financial affairs during their years together.

Courts are not free to treat lightly a testator’s intent merely because he has entered into a December marriage and has chosen to leave his last companion his worldly goods. It is his money and his goods to do with as he chooses, see Lilly v. Hutchins, 355 So.2d 212 (Fla. 2d DCA 1978), and unless the evidence shows that he has been precluded from freely exercising that choice, his wishes are to be respected. Merely because his choice happens to be to bestow his estate upon a second wife, perhaps to the natural disappointment of his children by a first and much longer marriage, does not mean that that choice was not freely made. The evidence in the present case is glaringly insufficient to support the trial court’s conclusion that Andrew’s will was procured by undue influence. Compare Hoffman v. Kohns, 385 So.2d 1064 (Fla. 2d DCA 1980).

The trial court’s order revoking the probate of Andrew’s will is reversed.

Affirmed in part; reversed in part.

      . This finding makes it unnecessary for us to consider whether the presumption of undue influence said to arise when “a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will,” see In re Estate of Carpenter, supra, at 701, was properly invoked. The holding of Goertner v. Gardiner, 125 Fla. 477, 170 So. 112, reh. den., 126 Fla. 412, 170 So. 844 (1936), that the confidential relationship which exists between a husband and wife is not one which may be considered in the law governing will contests, accord, In re Estate of Knight, 108 So.2d 629 (Fla. 1st DCA 1959), is, in our view, still extant. Since a confidential relationship is one necessary requirement which must be met before a presumption of undue influence arises, under Go-ertner the presumption cannot arise in the case of a husband and wife. Were the confidential relationship between spouses not exempted from that presumption of undue influence rule, the presumption would arise in nearly every case in which the spouse is a substantial beneficiary, since the required active procurement would almost always be present. One would naturally expect to find a spouse to be present at the execution of the will, present when the testator expresses a desire to make a will, knowledgeable about the contents of the will prior to its execution, involved in its safekeeping, and perhaps even involved in the recommendation of an attorney-preparer and consultation with an attorney-preparer. These, of course, are among the criteria for determining if one is engaged in active procurement. See In re Estate of Carpenter, supra.


author: PER CURIAM.

text:
    Stephen MACKEY, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1480.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.
    Rehearing Denied Sept. 9, 1981.
    Stephen Mackey, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner Stephen Mackey, 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.


author: HERSEY, Judge.

text:
    FMS MANAGEMENT SYSTEMS, INC., Appellant, v. IDS MORTGAGE CORPORATION, a Delaware Corporation, Lord & Co., Ltd., a Florida corporation, Pall Mall Corporation, a Florida corporation, Harvey C. Ferber, First National Bank of Hollywood, Florida, Mae Sweetman, as Trustee, Fred Foley, Stephen V. Badala, Robert C. Stone, Gerson, Frydman, Aldo Disorbo, Paul Koenig, individually and as trustee, Rochelle Koenig, Appellees.
    No. 80-266.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.
    Rehearing Denied Sept. 9, 1981.
    Martin B. Freedman of Pestcoe & Freedman, P.A., Miami, and Marjorie D. Gadari-an of Jones & Foster, P.A., West Palm Beach, for appellant.
    Kendall B. Coffey of Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, P.A., Miami, for appellee IDS Mortg. Corp.
   HERSEY, Judge.

We find nothing in the final judgment of foreclosure or elsewhere in the documents accompanying this appeal determinative of appellant’s liability for back rent for any period of time. The reservation of jurisdiction does not operate to eliminate any defenses which appellant might otherwise have.

Finding no error, we affirm the final judgment.

AFFIRMED.

DOWNEY and MOORE, JJ., concur.


text:
    FMS MANAGEMENT SYSTEMS, INC., Appellant, v. IDS MORTGAGE CORPORATION, etc., Lord & Co., Ltd., a Florida corporation, et al., Appellees.
    No. 80-1807.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Marjorie D. Gadarian of Jones & Foster, P.A., West Palm Beach, for appellant.
    Kendall B. Coffey and Philip G. Boggs of Greenberg, Traurig, Askew, Hoffman, Lip-off, Quentel & Wolff, P. A., Miami, for appellee-IDS Mortg. Corp.
   HERSEY, Judge.

This is an appeal from a non-final order granting a motion for enforcement of a final judgment. The issue presented is whether the trial court lost jurisdiction when an appeal was taken from the final judgment so that the subsequent order, on appeal here, was improvidently entered.

Appellee, IDS Mortgage Corporation, obtained a Final Judgment of Foreclosure of a mortgage encumbering property in which appellant, FMS Management Systems, Inc., was a tenant. By virtue of a non-disturbance agreement, appellant was permitted to remain in possession under its lease, conditioned upon timely payment of rent and adherence to the other terms of its lease. An appeal was taken from the Final Judgment of Foreclosure. Subsequently, upon failure of appellant to pay rent, appel-lee’s motion to enforce the terms of the judgment requiring payment of rent was granted and, by the order on appeal in this case, appellant’s tenancy was terminated.

Appellant maintains that the filing of a Notice of Appeal directed to the Final Judgment of Foreclosure exhausted the trial court’s jurisdiction. The rule is stated by appellant that “while a judgment is pending on appeal the trial court has no authority to change the status of a case or to interfere with the rights of a party under the judgment without the appellate court’s permission,” relying on Leo Goodwin Foundation, Inc. v. Riggs National Bank of Washington, D. C., 374 So.2d 1018 (Fla. 4th DCA 1979). There are no doubt cases which contain general language to the effect that an appeal terminates the jurisdiction of the lower court to proceed with the subject matter of the appeal until the appeal is determined or unless authorized by the reviewing court. We announced this principle in Strauser v. Strauser, 303 So.2d 663 (Fla. 4th DCA 1974), relied on by appellant. However, we later expressly disapproved the Strauser principle in Waltham A. Condominium Ass’n v. Village Management, Inc., 330 So.2d 227 (Fla. 4th DCA 1976). Again, in General Portland Land Development Co. v. Stevens, 356 So.2d 840 (Fla. 4th DCA 1978) we used language which might be construed as invoking an automatic supersedeas in the event of appeal. We here expressly recede from that notion.

A party seeking to stay enforcement or other proceedings in connection with a judgment must, with the exceptions provided for by the rule, file a motion in the lower tribunal pursuant to Rule 9.310(a), Florida Rules of Appellate Procedure. See Hirsch v. Hirsch, 309 So.2d 47 (Fla. 3d DCA 1975). In the absence of supersedeas or stay, the lower tribunal may proceed in the cause, even as to the subject matter of the appeal, if such subsequent proceedings do not interfere with the power of the appellate court to make its jurisdiction effective as to the order on appeal. Waltham A. Condominium Ass’n. v. Village Management, Inc., supra.

The order in question here does not interfere with this court’s jurisdiction over the final judgment. Accordingly, we affirm.

AFFIRMED.

DOWNEY and MOORE, JJ„ concur.


text:
    Vivian BORGHESE and John J. Borghese, her husband, Appellants, v. T. D. BARTLEY, M. D., Harold Gertner, M. D., and North Florida Regional Hospital, Appellees.
    No. WW-278.
    District Court of Appeal of Florida, First District.
    July 29, 1981.
    Rehearing Denied Sept. 11, 1981.

      Eric E. Wagner, P. A., Ocala, for appellants.
    L. Edward McClellan, Jr., of Pattillo, MacKay & McKeever, P. A., Ocala, and Richard T. Jones, of Jones & Langdon, P. A., Gainesville, for appellees.
   PER CURIAM.

The Borgheses appeal this Summary Final Judgment entered in favor of appellees. We reverse.

Appellant, Vivian Borghese, entered North Florida Regional Hospital to undergo double aorto-coronary bypass surgery. The surgical procedure involved removal of some large veins from Mrs. Borghese’s left upper thigh which were then grafted onto two of the coronary arteries. Prior to surgery, Mrs. Borghese was placed under general anesthesia. When she regained consciousness after surgery, she discovered the presence of a “full thickness burn” on her left lower leg, which, as noted in the hospital reports, was apparently caused by an electrocautery unit supplied by the hospital and used by the physicians during the surgery. However, all those present in the operating room during the surgery denied knowledge of the cause of the burn. The left lower leg was not involved in the surgical procedure.

Mr. and Mrs. Borghese brought the present action for damages alleging negligence on the part of the surgeons and the assisting employees of North Florida Regional Hospital. Appellees filed a Motion for Summary Judgment. At the hearing on this motion, counsel for the Borgheses acknowledged that their case rested entirely upon the theory of res ipsa loquitur and that they did not wish to amend their pleadings to allege specific acts or omissions of negligence on the part of appellees. Appel-lees argued that § 768.45, Florida Statutes, abolished the doctrine of res ipsa loquitur as it relates to health care providers. The trial court, finding no issue of material fact, and noting that the Borgheses intended to rely strictly on a theory of res ipsa loquitur, granted summary judgment in the favor of the surgeons and hospital.

Section 768.45(4), Florida Statutes, provides:

(4) the existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the accepted standard of care by the health care provider. However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

Before enactment of § 768.45(4), the doctrine of res ipsa loquitur was applicable in medical malpractice cases where the patient was in the exclusive control of the hospital and/or treating physician and received injuries unrelated to his treatment, which would not normally occur in the absence of negligence. Troupe v. Evans, 366 So.2d 139 (Fla. 1st DCA 1979), cert. denied, 378 So.2d 343; Goodyear Tire and Rubber Co. v. Hughes Supply Co., Inc., 358 So.2d 1339 (Fla.1978). But a physician’s “unskillfulness in diagnosis or negligence in treatment would not be inferred from the fact that a patient continued to suffer, or even died.” West Coast Hospital Association v. Webb, 52 So.2d 803 (Fla.1951). Appellees contend that § 768.45(4) changed the existing law and completely abolished the use of res ipsa loquitur in actions for injury against health care providers. We disagree.

It is our determination that § 768.-45(4), is essentially a codification of the existing rule regarding the use of res ipsa loquitur in medical malpractice cases; and that the term medical injury contained in the statute, refers to an injury sustained as a direct result of medical treatment or diagnosis, and does not encompass injuries totally unrelated thereto. Thus, when a plaintiff establishes that the injury is outside the scope of medical treatment or diagnosis, and the facts and “circumstances attendant to the injury are such that, in light of past experience, negligence is the probable cause and the defendant is the probable actor,” the doctrine of res ipsa loquitur is applicable. Chenoweth v. Kemp, et al., 396 So.2d 1122, (Fla.1981) 81 FLW 243; Goodyear Tire & Rubber Co., supra.

In the present case, if Mrs. Borghese can establish at trial that her injury occurred while she was under the complete control of the physicians and/or hospital personnel, that the injury was unrelated to the surgical procedure or other medical treatment, and that the injury would not normally occur in the absence of negligence, she would be entitled to rely on the doctrine of res ipsa loquitur. See, Troupe, supra and Webb, supra.

Accordingly, the Summary Final Judgment is REVERSED and this cause is REMANDED to the trial court for proceedings consistent with this opinion.

LARRY G. SMITH, and THOMPSON, JJ„ and OWEN, WILLIAM C. (Ret.), Associate Judge, concur.


author: GRIMES, Judge.

text:
    Timothy NEELY, Appellant, v. STATE of Florida, Appellee.
    No. 80-2311.
    District Court of Appeal of Florida, Second District.
    July 31, 1981.
    Rehearing Denied Aug. 27, 1981.

      Jerry Hill, Public Defender, Bartow and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant seeks reversal of his conviction for possession of methaqualone on the ground that the court should have granted his motion to suppress.

Officer Dibella answered a call from a bar on Madeira Beach. When he arrived, the manager stated that a man whom he identified as appellant was refusing to leave and getting too drunk. The manager also reported that he had heard several complaints that appellant was trying to sell Quaaludes and cocaine on the premises. Dibella, accompanied by Officer Gordon, took appellant and the manager outside. Following the usual procedure for situations of this type, the manager told appellant in the presence of the officers that he did not want him on the property, and the officers advised appellant that if he came back on the property he would be arrested for trespass.

Officer Gordon then asked appellant for some identification so that his name could be put on a report and a record check run on him. As appellant presented some identification, Officer Dibella noticed a bulge in his trousers’ pocket and asked to look in the pocket. Appellant pulled from the pocket “some keys and some change and other things,” but it was evident that there was still something left in the pocket. Dibella pointed at the remaining bulge and asked appellant what it was. Appellant then put his hand in the pocket and pulled out a rolled cellophane baggie containing five white tablets. The officer asked what the pills were, and appellant told him they were Quaaludes for which he had a prescription.

Officer Dibella said that because the bulge in the pocket which he first noticed was a large one, he had thought it might be caused by a gun. However, after appellant had pulled the first items out of his pocket, he knew that the bulge which remained was not caused by a gun or other weapon. He admitted that he had. no prior information that appellant might be carrying a gun and that he had no intention at that time of arresting appellant for the sale of drugs. The appellant’s version of the incident was somewhat different, but since the court denied the motion to suppress, we need only to consider the facts in the light most favorable to the state.

The court denied appellant's motion to suppress the methaqualone. Appellant entered a plea of nolo contendere reserving his right to appeal the denial of the motion to suppress. The appellant argues that the police conducted an illegal search because they had no basis upon which to look in his pocket. He asserts that if the state contends that the search was consensual, it failed to carry the burden of showing by clear and convincing evidence that the search was freely and voluntarily made. Bailey v. State, 310 So.2d 22 (Fla.1975).

At the outset, we beg to differ with appellant’s contention that the officers had no right whatsoever to look in appellant’s pocket. The bulge in the pocket first noticed by the officers looked as if it might have been caused by a gun, and the officers had every right to make a frisk for their own safety under section 901.151, Florida Statutes (1979). Of course, at the point when appellant had removed enough items from his pocket that the officers knew that the remaining bulge could not be a weapon, there was no further right to continue the search. Dunn v. State, 382 So.2d 727 (Fla.2d DCA 1980). The narrow question which remains is whether appellant can complain of having produced the Quaaludes in response to the question about what was left in his pocket. The issue is not so much whether there was a consent to search, but whether there was a search at all. In Lutz v. State, 354 So.2d 141 (Fla. 1st DCA 1978), the court upheld the seizure of a gun which the defendant handed the policeman when he was preparing to conduct a routine pat-down. The court said:

We do not need to reach the question of whether or not there was probable cause to frisk defendant because by all accounts, defendant was never frisked or searched. He voluntarily Opened his coat exposing the concealed firearm to view before the officer frisked him. Therefore, probable cause to frisk and consent to search are not viable issues in this case since there was no illegal search, indeed no search at all.

Id. at 142. On the other hand, in Hunt v. State, 371 So.2d 205 (Fla.2d DCA 1979), when the police, who did not have the right to search the defendant at the time, told him to show them what was in his pocket, we held that there had been a search and that the defendant’s action of taking marijuana out of his pocket did not constitute consent.

This is a close case. If Officer Dibella had told appellant to empty his pocket of the items which caused the bulge to remain after the keys and change were removed, the seizure would have to be quashed because appellant would have been obliged to follow the officer’s directions. See M. J. v. State, 399 So.2d 996 (Fla. 1st DCA 1981). Here, however, appellant went beyond the officers’ inquiry about what caused the bulge and spontaneously pulled the methaqualone tablets out of his pocket. Perhaps if he had not been drinking, he would not have done so, but the fact remains that he did it without coercion from the officers. The officers certainly had a right to inquire about what remained in the pocket, and we can only speculate what their action might have been had they received an unsatisfactory response. On these facts, we cannot say that a search took place. Therefore, the methaqualone was properly seized as contraband when appellant brought it into plain view. Smith v. State, 333 So.2d 91 (Fla. 1st DCA 1976).

AFFIRMED.

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


author: PER CURIAM. ROBERT P. SMITH, Jr., Chief Judge,

text:
    Howard James TIPTON, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-60.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1981.
    Rehearing Denied Sept. 11, 1981.
    Eugene Loftin, Jacksonville, for appellant.
    Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Affirmed.

JOANOS and THOMPSON, JJ., concur.

ROBERT P. SMITH, Jr., C. J., specially concurs, with an opinion.

ROBERT P. SMITH, Jr., Chief Judge,

specially concurring:

I join the Court in affirming Tipton’s conviction of attempted sexual battery upon a fourteen-year-old female, for I agree that the trial court did not err in admitting the State’s proof, through the witness Atkinson, Tipton’s secretary, that Atkinson previously made an out-of-court statement to a detective falsely exculpating Tipton by saying she was present and working with him and the girl all during the time the assault was said to have taken place.

I agree with appellant that the witness Atkinson was in no proper sense an “adverse” witness when called by the prosecutor and interrogated on direct examination, Section 90.608(2), Florida Statutes (1979), because she gave no testimony prejudicial to the State’s case. Therefore her testimony elicited by the State on direct examination, neutral as it was, was not subject? to “impeachment” by proof of her prior statement to the detective. Gibbs v. State, 193 So.2d 460 (Fla.2d DCA 1967); Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976). Yet just as the witness was not “adverse,” the State’s purpose was not to “impeach” her. All of her testimony, tending to show her recanted collaboration with the defendant in giving a false exculpatory story to the detective, was admissible without a finding that Atkinson was an “adverse” witness, because her testimony, considered in the light of the defendant’s own identical exculpatory statement, was substantial evidence of the defendant’s guilty knowledge.


author: MOORE, Judge.

text:
    SOUTH CAROLINA INSURANCE COMPANY, Appellant, v. Steven HEUER and Kathy A. Ford, Appellees.
    No. 80-25.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 1981.
    Rehearing Denied Sept. 15, 1981.
    Marjorie D. Gadarian of Jones & Foster, P.A., West Palm Beach, for appellant.
    Edna L. Caruso, West Palm Beach, and Montgomery, Lytal, Reiter, Denney & Sear-cy, P.A., West Palm Beach, for appellee, Heuer.
   MOORE, Judge.

The appellant, South Carolina Insurance Company, appeals a partial summary judgment determining insurance coverage in a personal injury action.

The appellee, Steven Heuer, sued Kathy Ford for damages incurred in an accident between the motorcycle he was driving and an automobile owned and driven by Ford. The issue before us is whether Kathy Ford was covered under appellant’s automobile insurance policy issued to her parents. It is undisputed that Kathy Ford was a resident of her parents’ household at the time of the accident. The trial court found the policy ambiguous and resolved the ambiguity against the appellant. He therefore entered the summary judgment from which this appeal stems. We disagree and reverse.

The provisions of appellant’s policy which are determinative of this case are:

“Your covered auto” means:

(a) Any vehicle shown in the Declarations.
* * * * sic *
“Family member” means a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child.
* * * * * *
“Covered person” as used in this Part means:
(1) You or any family member for the ownership, maintenance or use of any auto or trailer.
* * * * * *

We do not provide Liability Coverage:

10. For the ownership, maintenance, or use of any vehicle, other than your covered auto, which is owned by or furnished or available for the regular use of any family member. However, this exclusion does not apply to you.

As an aside, we note initially that appellant’s policy is a commendable attempt to rid insurance contracts of the indecipherable jargon which they so often contain. See, National Merchandise Company v. United Service Automobile Association, 400 So.2d 526 (Fla. 1st DCA 1981). There being no cases construing the precise language in this policy, we must rely upon standard principles of insurance contract construction.

Among the most basic of these principles is that ambiguities found in the coverage provisions of a policy must be interpreted in favor of providing coverage. Stuyvesant Insurance Company v. Butler, 314 So.2d 567 (Fla.1975). It is equally true, however, that a court cannot alter the clear terms of a contract, and by doing so place the parties in a position different from that which they bargained for. General Accident F. & L. Assur. Corp. v. Liberty Mutual Insurance Company, 260 So.2d 249 (Fla. 4th DCA 1972).

The terms of an insurance policy should be taken and understood in their ordinary sense and the policy should receive a reasonable, practical and sensible interpretation consistent with the intent of the parties — not a strained, forced or unrealistic construction. Id. at 253.

As with any contract, an insurance policy is an expression of the rights and obligations agreed to by the parties. Particularly with respect to insurance policies, a court needs to view the contract provisions in light of the character of the risks assumed by the insurer. O’Conner v. Safeco Insurance Company of North America, 352 So.2d 1244 (Fla. 1st DCA 1977).

In order to discern the true intent of the parties to an insurance contract, the policy must be considered in its entirety. Individual policy provisions should not be read in isolation. Ellenwood v. Southern United Life Insurance Company, 373 So.2d 392 (Fla. 1st DCA 1979).

With these precepts as guidance, we turn our attention to the provisions of the policy in question. First, we note that Kathy Ford’s automobile, not being listed in the declarations of her parents’ insurance policy, was not a “covered auto” under the policy. Here lies the dispute because the policy also provides that she was a “covered person” under the policy for the use of any automobile. If this were the full extent of the policy’s coverage* provisions, we would hasten to agree with appellee, Heuer, that Kathy Ford was covered under her parents’ policy. As in any policy of insurance, however, coverage cannot be determined without a careful consideration of the exclusions. It is not uncommon for an insurance policy to seemingly grant coverage in one section while excluding such coverage in another. Although it may be a better practice to draft policies without contradictions, as long as the policies are not deceptive and clearly indicate their scope, we must interpret them according to their terms. Shelby Mutual Insurance Company v. LaMarche, 371 So.2d 198 (Fla. 2nd DCA 1979), aff’m., 390 So.2d 325 (Fla.1980). We find no ambiguities existing in the policy before us. Eliminating the irrelevant language, a policy exclusion states: “We do not provide coverage for the ... use of any vehicle other than your covered auto, which is owned by ... any family member.” The automobile driven by Kathy Ford was her own. She was therefore excluded from coverage under her parents’ policy. Such is the clear and unambiguous import of the policy. It is therefore unnecessary to resort to other rules of construction in an effort to interpret the policy otherwise.

Acceptance of appellee’s contention would result in a finding of ambiguity in every insurance policy containing an exclusion. This is not supportable. To the contrary, it has been held that even a named insured may be specifically excluded from coverage. Insurance Company of North America v. Coates, 318 So.2d 474 (Fla. 2nd DCA 1975). Appellee’s contention would also mean that, under the terms of the policy here involved, whenever a family residing together in the same household owned more than one vehicle, it would be necessary to insure only one in order to have coverage on all. We do not accept this contention. See, LaViolette v. Sapp, 278 So.2d 598 (Fla.1973). Quite clearly, exclusionary provisions of a policy limit coverage. As long as the exclusions are clear and unambiguous, an insurer will not be held to cover risks which it specifically rejected. New Hampshire Insurance Company v. Carter , 359 So.2d 52 (Fla. 1st DCA 1978).

The partial summary judgment is reversed and this cause is remanded with directions to enter judgment for the appellant on the issue presented here.

REVERSED and REMANDED.

DOWNEY and HURLEY, JJ., concur.


author: CAMPBELL, Judge.

text:
    Adam LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-811.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1981.
   CAMPBELL, Judge.

Appellant alleges four grounds for post-conviction relief in his rule 3.850 motion. We deem appellant’s allegation that he received an illegal sentence according to Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), the only ground that has merit. Therefore, we affirm appellant’s conviction but remand his sentence for correction in light of Villery.

In Villery, the Florida Supreme Court held that a period of incarceration followed by probation imposed either as a condition of probation or under a true split sentence as authorized by section 948.01(4), Florida Statutes (1979), cannot equal or exceed one year in either instance. The court further held that its decision would apply retroactively. In its holding the court speaks of incarceration as a condition of probation and incarceration under a split sentence as if they were similar judgments, referring to them both as “the so-called split sentence alternative.” 396 So.2d at 1109. They conclude, as they have previously, that section 948.03(2), Florida Statutes (1979), allows a trial judge to include in a probation order any other proper conditions or terms not enumerated in the statute. This section has been commonly cited as the authority under which a trial judge may include incarceration as a condition of probation.

However, Villery goes on to say that section 948.01(4), the statute which provides for a true split sentence alternative, is the specific authority for a trial judge to require a defendant to be incarcerated as a condition of probation. The opinion analyzes how the appellate courts of this state have been concerned with judges committing a defendant to jail for long periods of time as a part of the split sentence alternative. Yet, the cases cited by the court involved either long periods of incarceration as conditions of probation or a long prison sentence imposed after violation and revocation of probation and none dealt with the true split sentence alternative.

The objections raised to long periods of incarceration as conditions of probation are (1) that these periods are punitive in nature which conflict with the rehabilitative purpose of probation and (2) that trial courts should not be able to divest the Parole Board of its exclusive authority to parole a prisoner. While these are certainly valid complaints against incarceration as a condition of probation, as Justice McDonald points out in his concurring opinion in Vil-lery, they are not valid as applied to incarceration imposed as the first half of a true split sentence. While lengthy incarceration may be adverse to the rehabilitative purpose of probation, we note that the objective of the true split sentence was never rehabilitative. On the contrary, it was a method by which a judge could continue supervision over a defendant after the completion of his imprisonment. Although it is argued that incarceration as a condition of probation divests the Parole Commission of its authority, prisoners who are serving time in jail under a true split sentence are eligible for parole just as any other prisoner.

Additionally, the problems of simultaneous parole and probation to which the Villery opinion refers do not occur in a true split sentence situation. If a prisoner is sentenced to five years’ incarceration to be followed by five years of probation, he can be paroled after one year in jail, remaining on parole for four more years and then begin serving his five years of probation.

Be that as it may, the supreme court has determined to treat both forms of penalty in the same fashion. We must now look at the court’s instruction for correcting an illegal “split sentence.” In this regard Chief Justice Sundberg said:

Accordingly, one who has been given a split sentence probation contrary to the mandate of this decision is entitled upon application to have the illegal order corrected. In correcting the order, the trial court has the option either of modifying the order to make it legal or of withdrawing it and imposing a sentence of imprisonment. However, unless a condition of probation is determined to have been violated, the court may not extend the terms of probation either with or without incarceration, nor may the court impose a sentence of imprisonment for a period of time in excess of the original total term of probation. If a condition of probation is found to have been violated, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the defendant on probation. See § 948.06, Fla.Stat. (1979). In modifying probation or in revoking probation and sentencing the probationer, credit must be given for time spent incarcerated pursuant to a split sentence pror bation order. Thus in modifying a probation order, no additional period of incarceration may be imposed on a probationer who has already served one year or more of incarceration.

396 So.2d at 1111-12.

The quoted language allows a court faced with what would now be an illegal split sentence (both the true split sentence and that of incarceration as a condition of probation) two alternatives to correct the sentence where there is no violation of probation involved. It may either modify the illegal sentence or withdraw it entirely and impose a sentence of imprisonment. If the alternative of “modifying” is elected, the court may not impose any additional incarceration on a prisoner who has served one year or more of incarceration. Thus, if the court chooses to modify the sentence of a defendant who has been placed on probation for ten years with a condition of incarceration for five of those ten years and who has served at least one year, the most that can be done will be to specify the remainder of the term as probation since the maximum jail time will have already been served. Likewise, the sentence of a defendant who received five years in prison followed by five years’ probation and who has already served more than a year can only be modified to the extent that it shall order his release from prison and state the length of time he will be required to remain on probation. However, the trial court does have the alternative of selecting the other option, that of withdrawing the previous order altogether and imposing a sentence of imprisonment without any probation to follow. Thus, whether in the case of a true split sentence or that of probation preceded by a period of incarceration, the court may withdraw the previous action entirely and sentence the defendant to be incarcerated for a period of time not to exceed the total of the original sentence of incarceration and probation combined with credit for time already spent in jail.

In this case, appellant was sentenced to five years’ imprisonment to be followed by five years of probation. He has already served three years in jail under that sentence. Because this sentence is illegal under Villery and because Villery is deemed to be retroactive, we affirm appellant’s conviction but remand to the lower court so that it may correct appellant’s sentence. In correcting his sentence, the trial court may now modify it to provide that all or any portion of the remainder of the sentence shall be probation or it may withdraw the original sentence and now sentence appellant to be incarcerated for up to ten years with credit for time served.

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

      . See State v. Jones, 327 So.2d 18 (Fla.1976).

      . Section 948.01(4), Florida Statutes (1979):
      Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.

      . “Section 948.03(1), Florida Statutes (1979), lists the terms and conditions of probation which may be imposed on a defendant. Section 948.03(2), Florida Statutes (1979), states that the enumeration of the terms and conditions in subsection (1) does not prevent the imposition of other conditions the court may consider proper. One of these other possible conditions includes incarceration as provided in section 948.01(4), Florida Statutes (1979): ...” 396 So.2d at 1109.

      . “The harsh effects of extended probation terms of incarceration have been noted with concern on a number of occasions by the district courts of appeal.” 396 So.2d at 1111. See, e. g., Olcott v. State, 378 So.2d 303 (Fla.2d DCA 1979); Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979); Freeman v. State, 329 So.2d 413 (Fla. 4th DCA 1976).

      . Olcott v. State, 378 So.2d 303 (Fla.2d DCA 1979); Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979).

      . Freeman v. State, 329 So.2d 413 (Fla. 4th DCA 1976). Notably, the original sentence in Freeman, which imposed probation with a condition of six months’ incarceration, was labeled a “split sentence probation alternative.” Id. at 414. See State v. Jones, 327 So.2d 18 (Fla. 1976).

      . “Although a short jail or prison sentence may be imposed as a condition of probation if reasonably related to a rehabilitative purpose, State v. Jones, 327 So.2d 18 (Fla.1976), it is doubtful whether a lengthy prison term, as here, can stand as a probationary condition when its primary, if not exclusive purpose is to punish the defendant. See Kominsky v. State, 330 So.2d 800 (Fla. 1st DCA 1976). Moreover, it is further doubtful whether a trial court by this device can divest the Parole Board of its exclusive authority to parole a defendant on a prison sentence.” Shead v. State, 367 So.2d 264, 267-68 (Fla.3d DCA 1979).
      “Nevertheless, a long prison term seems to be contrary to the spirit of probation and may be employed simply as a device to get around what is conceived to be a liberal policy on early parole. [Footnote omitted.]” Olcott v. State, 378 So.2d 303, 305 (Fla.2d DCA 1979).

      . See 396 So.2d at 1112-13 (McDonald, J., concurring in result only).

      . Apparently, the Florida Parole and Probation Commission does not consider for parole any person imprisoned under a condition of probation. See Olcott v. State, 378 So.2d 303, 304 (Fla.2d DCA 1979).

      . The section of the opinion which deals with the simultaneous problem reads as follows:
      "For example, if a prisoner were released on parole for an offense for which he was still on probation, and the defendant were charged with a violation of his parole and probation, would the Parole and Probation Commission be required to stay any hearing for revocation of parole until the trial court decided whether to revoke probation? Could the same incident be used to revoke parole when it was not deemed serious enough to revoke probation? Which condition would control if the parole and probation conditions were inconsistent? Would a prisoner’s eligibility for parole be based on his total period of probation or on only the part for which incarceration was imposed? We can only conclude that the legislature did not address these significant questions because it never contemplated the concurrent operation of parole and probation for the same offense.” 396 So.2d at 1111.

      . In essence then the only time that an illegal sentence under Villery can actually be modified to reflect a legal sentence is if the modification is done prior to the time the defendant has served one year in jail. The court may modify at anytime, but if modified after the defendant has served at least a year in jail, the modified sentence will never truly reflect a legal sentence as determined by Villery.


text:
    Austin Lee ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1201.
    District Court of Appeal of Florida, Second District.
    Aug. 7, 1981.
   PER CURIAM.

In the instant case appellant alleges that he was sentenced to five years imprisonment to be followed by five years probation. Because this is illegal under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), and because Villery is deemed to be retroactive, we affirm appellant’s conviction but remand to the lower court so that it may correct appellant’s sentence. In correcting his sentence, the trial court may sentence appellant to be incarcerated for up to ten years with credit for time served. See Lewis v. State, 402 So.2d 482 (Fla.2d DCA 1981).

GRIMES, A.C.J., and OTT and DAN-AHY, JJ., concur.


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

text:
    Omega D. GRANT, Appellant, v. CREDITHRIFT OF AMERICA, INC., and Dale Carson, Sheriff, Appellees.
    No. YY-46.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1981.

      Donald B. Freeman, Jacksonville Area Legal Aid, Inc., Jacksonville, for appellant.
    No appearance for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

Despite having notice in regular statutory form that Omega Grant claimed a homestead interest in the house and lot on Rhode Island Drive, the Jacksonville sheriff put the property up for sale to satisfy a judgment in favor of Credithrift against Ms. Grant and her former husband, who owned the place as tenants in common. That is the sheriff’s practice; when property to be sold to satisfy a debt is claimed homestead, the sheriff conducts a sale despite the claim but then refuses to give the buyer a deed. When as here one debtor’s undivided interest in the land is indisputably subject to sale, but the homesteader’s interest is not, the effect of the sheriff’s practice is to require the buyer to sue the homesteader, putting her claim to proof, as an incident to the buyer’s suit to identify and secure a deed for the nonhomestead interest. In its effect on the homesteader, in this case Ms. Grant, that practice violates the letter and spirit of Florida’s statutes exempting homestead property from forced sale, so we reverse.

In January 1979 Credithrift obtained a final judgment for about $1,000 against Omega Grant and her husband, and took out a writ of execution. In April of that year the Grants were divorced, but Ms. Grant was awarded use of the former marital home until the youngest of her three minor children reaches age 18. Following the divorce, each spouse had an undivided one-half interest in the property. In late September, Ms. Grant received notice that a sheriff’s sale of her home was scheduled for October 31 to satisfy Credithrift’s judgment. On October 22, following the procedure specified by section 222.02, Florida Statutes (1979), Ms. Grant filed an affidavit with the sheriff claiming a homestead interest in one-half the property and its exemption from forced sale. Nevertheless, Sheriff Carson went on with the sale, but then refused to issue a deed to Credithrift, the high bidder.

Credithrift eventually sued the sheriff and both the Grants, seeking an identification of the nonexempt property and a deed to that portion. Ms. Grant cross-claimed against Carson asking for a declaration that his levy and forced sale practices were illegal. The trial court found that appellant’s one-half interest was exempt from sale, but also held that Carson acted properly in subjecting Ms. Grant’s claimed homestead interest to sale, for Ms. Grant had the burden to establish her homestead claim. The court evidently concluded that Ms. Grant had the opportunity to establish her claim either in Credithrift’s postsale litigation or in a suit that Ms. Grant might file pursuant to other sections of Chapter 222.

Initially, we address the sheriff’s possible argument that this case should be dismissed as moot because the trial court vindicated appellant’s homestead claim and she is no longer subject to the sheriff’s challenged practice. Should we decline on this ground to consider the question presented, no homesteader could ever secure appellate review of the sheriff’s practice, for the circuit court in every proper case would already have determined retrospectively that the homesteader’s interest was exempt from the forced sale to which it was subjected. Because the challenged practice is thus “capable of repetition, yet evading review,” the issue requires resolution. Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147, 161 (1973); Ocala Star Banner Corp. v. Sturgis, 388 So.2d 1367, 1369 (Fla. 5th DCA 1980).

Chapter 222 implements Florida’s constitutional protection against forced sale of homestead property to satisfy judgment creditors. Before levy, § 222.01 provides that a property owner “may” make a signed, written declaration that certain property qualifies as homestead and record this declaration in circuit court. Ms. Grant concedes that she did not follow this procedure. However, she did comply with the procedures under § 222.02 before the scheduled October 31 sale. Section 222.02 provides:

Whenever a levy is made upon the lands ... of such head of a family whose homestead has not been set apart and selected [under § 222.01] such person ... may in writing notify the officer making such levy, by notice under oath made before any officer of this state duly.authorized to administer the same, at any time before the day appointed for the sale thereof, of what he regards as his homestead, with a description thereof, and the remainder only shall be subject to sale under such levy, (emphasis added)

Ms. Grant’s failure to file a “preventive” prelevy designation of homestead under § 222.01 does not preclude her from asserting homestead rights once she receives word that her home is about to be auctioned off to strangers to satisfy a debt. Absent notice that we are in need of this protection against forced sale of our homes, few of us are likely to travel down to the courthouse and make a § 222.01 designation just in case it might prove handy some day. Compliance with either statute — recording a prelevy designation in circuit court under § 222.01 or filing a postlevy sworn statement with the levying officer under § 222.-02 — is effective to set apart and designate one’s homestead.

The question then becomes what effect a timely § 222.02 designation has on the sheriff’s imminent sale. We recognize that the sheriff has a ministerial duty to levy on property described in writs of execution. Section 30.30(1), Fla. Stat. But § 222.02 clearly tempers that duty, and states without qualification that once a sheriff receives the affidavit claiming the exemption in proper form, the unclaimed “remainder only shall be subject to sale.”

The trial court erred in concluding that Chapter 222 places the burden on the claimant to do something more to establish his homestead claim, such as seeking a circuit court judgment declaring through § 222.08 that the property is indeed homestead, or enjoining the sale under § 222.09. Avila South Condominium Ass’n, Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977), cited in the trial court’s judgment, involved the different question of whether plaintiffs could claim violation of their constitutional homestead rights when their complaint did not allege facts establishing the condominiums as homesteads at the appropriate time. The ease did not involve construction of Chapter 222. Moreover, appellant’s affidavit in this- case did set forth facts that would establish the homestead character of her property.

Mindful of the special affection and protection Florida courts have traditionally bestowed on the homestead, we think the proper condition of a homesteader who has filed the required affidavit with the levying officer should be one of repose and security in the home, a “refuge from the stresses and strains of misfortune.” Collins v. Collins, 150 Fla. 374, 377, 7 So.2d 443, 444 (1942); see also Barlow v. Barlow, 156 Fla. 458, 23 So.2d 723 (1945).

The sheriff’s practice of selling claimed homestead interests along with nonexempt interests, and leaving homesteaders to unravel their entangled affairs in postsale litigation, with all accompanying expense and anxiety, is irreconcilable with the constitutionally favored status of the Florida homestead. Ms. Grant and her three children, already disrupted by a recent divorce, were beset by doubt as to whether they had any claim at all to their home. As the Supreme Court noted long ago, levy and advertisement of sale of exempt homestead property causes “unnecessary anxiety and disquiet to the owner and his family.” Lewton v. Hower, 18 Fla. 872, 877 (1882). The sheriff’s sale also placed a cloud on title to the newly divorced mother’s interest in the property, which was likely to affect its market value had she needed to sell her interest to support her family prior to final judgment by the circuit court. Had she chosen to seek affirmative removal of the cloud on title, appellant would have faced legal costs that were entirely unnecessary. As it was, appellant did incur the costs of participating as a code-fendant in the suit filed by Credithrift to wrest the deed from the sheriff. And aside from these untoward effects on the family living on exempt homestead property, the sheriff’s practice required litigation that the parties might have chosen to avoid.

Under Chapter 222, the sheriff is a neutral participant in the forced sale process. He may sell only the land that is not designated by properly drawn affidavit as homestead. The statutes give him no authority to presume that the homestead claim is unfounded or to force the parties into court to sort things out after the sale. When the homestead claim affidavit is filed, the creditor has a means, clearly provided under § 222.10, to challenge the homestead claim, should he wish to do so. That choice is to be made by the creditor, however, not by the levying officer. Insofar as the circuit court found the sheriff’s practices proper, the final judgment is REVERSED.

JOANOS and THOMPSON, JJ., concur.

      . Lamentably, counsel for Sheriff Carson neither filed a brief nor made an appearance at oral argument, so we have not had the benefit of any arguments he might have made. Appel-lee Credithrift likewise declined to participate through counsel, stating that it was not involved in the controversy raised on appeal.

      . Art. X, § 4(a), Fla. Const.

      . Maines & Maines, Our Legal Chameleon Revisited: Florida’s Homestead Exemption, 30 U.Fla.L.Rev. 227, 284 (1978).

      . Section 222.01, Fla. Stat. (1979):
      Whenever any person, being the head of a family, residing in this state desires to avail himself of the benefit of the provisions of the constitution and laws exempting property as a homestead from forced sale under any process of law, he may make a statement, in writing, containing a description of the real property, mobile home, or modular home claimed to be exempt and declaring that the same is the homestead of the party in whose behalf such claim shall be made. Such statement shall be signed by the person making the same and recorded in the circuit court.

      . Section 222.10, Fla. Stat. (1979):
      The circuit courts have equity jurisdiction upon bill filed by a creditor or other person interested in enforcing any unsatisfied judgment or decree, to determine whether any property, real or personal, claimed to be exempt, is so exempt, and in case it be not exempt, the court shall, by its decree subject it, or so much thereof as may be necessary, to the satisfaction of said judgment or decree and may enjoin the sheriff or other officer from setting apart as exempt property, real or personal, which is not exempt, and may annul all exemptions made and set apart by the sheriff or other officer.


text:
    Mary Cheek ROWE, Appellant, v. STATE of Florida, Appellee.
    No. WW-262.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1981.
    Rehearing Denied Sept. 9, 1981.

      William T. Lassiter, Jr., Jacksonville, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The judgment of conviction is AFFIRMED.

However, in light of our prior order reversing the trial court’s grant of bail pending appeal by appellant, the following question is certified to the Florida Supreme Court as one of great public importance, Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure:

Does Fla.R.Crim.P. 3.691 prohibit the granting of bail pending appeal to a person convicted of a capital offense when that person is sentenced to life imprisonment?

See Rowe v. State, 394 So.2d 1059 (Fla. 1st DCA 1981).

AFFIRMED.

ROBERT SMITH, C. J., and JOANOS and THOMPSON, JJ., concur.


author: WENTWORTH, Judge.

text:
    STATE DEPARTMENT OF TRANSPORTATION, et al., Appellants, v. Daniel HOULIHAN, Appellee.
    No. YY-228.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1981.
    Rehearing Denied Sept. 9, 1981.
    W. Michael Miller and Wendell J. Kiser of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Edward H. Hurt, Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appel-lee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order and allege that the deputy erred in the determination of claimant’s compensation rate. We conclude that the deputy did err by utilizing an inapplicable statute.

Section 440.15(2)(a), Florida Statutes (1978), provides that, for temporary total disability, a claimant is entitled to 60% of his average weekly wage. In 1979 the legislature amended this provision so that a claimant is now entitled to 66%% of his average weekly wage, and it was initially provided that the 1979 amendments to Chapter 440 would have an effective date of July 1, 1979. See Chapter 79-40, § 127 (1979). However, the legislature subsequently amended Chapter 79-40 to provide for an effective date of August 1, 1979 (with certain specified exceptions which are not involved in the present case). See Chapter 79-312, § 23 (1979).

The applicable compensation rate is a substantive matter which becomes fixed on the date of claimant’s injury. Cf., Phillips v. City of West Palm Beach, 70 So.2d 345 (Fla.1954). In the present case the claimant sustained injury on July 25, 1979, and is thus entitled to the compensation rate in effect on that date. Since Chapter 79-312, § 23, amended the 1979 legislature’s prior enactment and established an effective date of August 1, 1979, for the amendment to § 440.15(2)(a), the 1978 enactment remained in effect on the date of claimant’s injury and the appropriate compensation rate thus should have been 60% of the average weekly wage rather than the 66%% rate utilized by the deputy.

Gunite Works Inc. v. Lovett, 392 So.2d 910 (Fla.1st DCA 1980), cited by claimant, is inapplicable in this instance because Gunite involved a different statute with a self-contained specific effective date; § 440.15(2)(a) (1979) contains no similar provision and is dependent upon the general effective date provision which was aménded by Chapter 79-312, § 23, to August 1, 1979. The 1979 amendment to § 440.15(2)(a) is thus inapplicable in the present case and the deputy erred in utilizing the amended compensation rate.

The order appealed is hereby amended to reflect a compensation rate based on 60% of claimant’s average weekly wage, pursuant to § 440.15(2)(a), Florida Statutes (1978), and the order is affirmed as amended.

BOOTH and SHAW, JJ., concur.


text:
    Elmer J. HUDSON, Individually, and Jack Hudson and Elmer J. Hudson, dba Hudson Contractors, Appellants, v. C. B. DYKES, Buddy Godwin, and Escambia County, a Political Subdivision of the State of Florida, Appellees.
    No. WW-162.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1981.

      John R. Grass, Pensacola, for appellants.
    J. Dixon Bridgers, III of Carlton, Fields, Ward, Emmanual, Smith & Cutler, P.A., Pensacola, for appellees.
   PER CURIAM.

This is an appeal from a Summary Final Judgment, entered in an action for false imprisonment. We affirm.

Appellants performed certain plumbing work on a private residence without obtaining a surety bond, certificate of qualification, or plumbing permit. The reason appellants did not obtain the necessary permits, etc., was allegedly due to the assurances of appellee/Godwin, an Escambia County Building Inspector, that no permits would be required for the job. After completion of the work, final inspection was made by Godwin and another inspector, the work was approved, and the residence was certified for occupancy.

Several months later, appellant/Elmer Hudson was contacted by appellee/Dykes, Chief Plumbing and Gas Inspector for Es-cambia County, who asked Hudson why he had failed to obtain the necessary surety bond, certificate and permit and advised him to obtain the necessary documents at that time. Hudson refused to do so on the grounds that the work had been finally inspected and approved, and that Godwin had informed him that no permit was required for the work.

After several more weeks had elapsed and Hudson had not obtained the required documents, Dykes contacted the State’s Attorney’s Office, informed them that Hudson had performed certain plumbing work without acquiring the necessary permits, etc., and delivered a sworn affidavit to that effect. On the basis of this affidavit Hudson was subsequently arrested by law enforcement officers and charged with plumbing without a permit, surety bond, or certificate of qualification.

Hudson received a jury trial on these misdemeanor charges. The trial court directed a verdict in Hudson’s favor on the charge of plumbing without a permit, and the jury acquitted him of the remaining charges. Hudson then brought the instant action against appellees, alleging that, as a result of appellees’ fraudulent misrepresentations, he was falsely arrested and imprisoned. Appellees filed a Motion for Summary Judgment with supporting affidavits. The lower court granted the motion.

Appellees did not actually detain either of appellants, nor did they “instigate” or “directly procure” Elmer Hudson’s arrest. Pokorny v. First Federal Savings and Loan Association, 382 So.2d 678 (Fla.1980). Dykes merely supplied information to the prosecuting authorities indicating that a violation of the plumbing code had occurred. This is not sufficient to support a cause of action for false imprisonment.

The court in Pokorny stated:

We hold that under Florida law a private citizen may not be held liable in tort where he neither actually detained another nor instigated the other’s arrest by law enforcement officers. If the private citizen makes an honest, good faith mistake in reporting an incident, the mere fact that his communication to an officer may have caused the victim’s arrest does not make him liable when he did not in fact request any detention.

Id. at 682. Compare, Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699 (Fla.1944); Washington County Kennel Club, Inc. v. Edge, 216 So.2d 512 (Fla. 1st DCA 1968); and Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla. 3rd DCA 1977).

While here Dykes was acting in his official capacity as Chief Plumbing Inspector rather than as a “private citizen,” the trial court concluded as a matter of law that Dykes had reasonable grounds to believe Hudson was guilty of the charges, and that Dykes was simply carrying out the legal duties of his office in enforcing the plumbing code. The undisputed facts support this conclusion and appellees have failed to demonstrate error on the part of the trial court.

Further, in Pokorny the court pointed out at page 683 that Florida courts have never recognized a separate tort for negligently swearing out an arrest warrant, and that such cases may be brought only in the form of actions for malicious prosecution. We note that the trial court’s finding that Dykes had probable cause to believe a crime had been committed when he reported his beliefs to the State Attorney’s Office, would be a complete defense to an action for malicious prosecution.

Finally, appellants have failed to demonstrate the existence of any issue of fact which would be material to this action for false imprisonment.

Accordingly, the Summary Final Judgment is AFFIRMED.

McCORD, SHIVERS and JOANOS, JJ., concur.