author: ANSTEAD, Judge.

text:
    In re ESTATE of Diana Lynn SHINE, Deceased.
    No. 79-1859.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Rehearing Denied Dec. 2, 1980.
    J. B. Patterson of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for appellant Bobbye C. Shine.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P. A., and Edna L. Caruso, West Palm Beach, for appellee John Gray.
   ANSTEAD, Judge.

At issue is whether the trial court erred in determining that Frank and Diana Shine died simultaneously for purposes of probate of their respective estates. Under Section 732.601(1), Florida Statutes (1979), when the devise of property depends on the priority of death of two persons and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each shall pass as if that person had survived. In this case there was evidence presented by the appellant which indicated that Diana died before Frank. However, there was also expert medical testimony presented which indicated that such evidence was inconclusive as to the issue of whether Diana died before Frank or whether they died simultaneously. Under such circumstances and considering that Section 732.601(1) expressly requires the trial court to determine not whether there is any evidence, but rather whether such evidence is sufficient to conclude that there were not simultaneous deaths, we do not believe the trial court erred.

Accordingly, the judgment of the trial court is affirmed.

DOWNEY and BERANEK, JJ., concur.


source: Caselaw Access Project

author: GRIMES, Acting Chief Judge.

license: Public Domain

text:
    Louis PINO and Diane Pino, Appellants, v. Fred KOELBER, an Individual, the City of Cape Coral, and the Aetna Insurance Company, a Foreign Corporation, Appellees.
    No. 79-2245.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1980.
    Rehearing Denied Nov. 12, 1980.

      John R. Snow of Pankow & Snow, Fort Myers, for appellants.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   GRIMES, Acting Chief Judge.

This is an appeal from a judgment for the defendants in a civil action for assault and battery. The primary issues are whether the court erred in allowing testimony concerning the lack of propensity for violence of the defendant Koelber and in permitting the introduction of specific evidence of collateral acts of violence on the part of the injured plaintiff.

Evidence presented at trial demonstrated that at approximately 1:45 on the morning of April 22,1977, Louis Pino was driving his automobile on Palm Tree Boulevard in Cape Coral. After following Pino for a short distance, Officer Koelber of the Cape Coral police suspected him of driving under the influence of alcohol and ordered him to stop. Pino testified that Koelber told him to exit his vehicle, and, as he did, struck him in the right cheek with a flashlight causing severe injuries. Pino said he made no motion toward the officer and was standing next to his vehicle with his hands at his side when Koelber struck him. Koel-ber, however, testified that Pino came toward him with his fist raised and that he struck Pino in self defense. The jury rendered a verdict in favor of Koelber as well as the City of Cape Coral and its insurer.

Appellants contend that the court erred in having admitted over their objection evidence of Koelber’s reputation for peace and quiet and lack of violence. They also argue that the court should have sustained their objection to testimony concerning two separate events, one before and one after the incident in question, offered by appellees to prove Pino’s propensity to react violently when confronted by persons in authority. Since both of these issues involve character evidence, it would be helpful to first consider the general rules pertaining to the admissibility of such evidence.

When a person’s character is an essential element in the case, evidence of his character is always admissible because it is in issue. 1 S. Gard, Jones on Evidence § 4:34 (6th ed. 1972). On the other hand, evidence of one’s character which is offered only as tending to prove the probability that he acted in a manner consistent with that character on a particular occasion is generally inadmissible. McCormick on Evidence § 188 (2d ed. 1972). The reason for the rule is that when character is introduced only as circumstantial evidence of conduct, there is too much danger of surprise, prejudice and distraction from the issues.

There are, however, some well recognized exceptions to the rule of inadmissibility, notably in criminal cases. The accused may always produce evidence of his good character so long as it relates to a trait involved in the crime with which the state has charged him. Id. § 191. Likewise, when there is evidence of self defense, the accused is entitled to introduce evidence of the victim’s reputation for violence on the issue of who was the first aggressor. Id. § 193.

In most civil cases, the majority of courts follow the general rule of refusing to permit character evidence when character is not an issue in the case. 1 J. Wigmore, Evidence § 64 (3d ed. 1940). However, perhaps because civil assault and battery actions are somewhat akin to their criminal counterparts, many courts apply the criminal rules of admissibility of character evidence to those cases. 1 S. Gard, supra at § 4:34 (6th ed. 1972). Thus, McCormick supra at Section 192 states:

Civil actions for assault and battery seem often to be treated as in a class by themselves. When the issue is merely whether the defendant committed the act charged, then the courts would presumably admit or exclude defendant’s evidence of good reputation according to their alignment with the majority or minority view on the general question, as discussed above. But when the defendant pleads self-defence, he may show the plaintiff’s reputation for turbulence if he proves it was known to him, on the issue of reasonable apprehension. Similarly, when on a plea of self-defence or otherwise there is an issue as to who committed the first act of aggression, most courts (regardless of their alignment on the general question) seem to admit evidence of the good or bad reputation of both plaintiff and defendant for peacefulness as shedding light on their probable acts. This cannot be justified, as is sometimes attempted, on the ground that character is here “in issue”-the issue is clearly one of conduct-but probably there is in these cases a special need even beyond that in most cases of charges of crime in civil actions, for knowing the dispositions of the parties.

As it relates to the admissibility of evidence of Koelber’s reputation for peace and quiet and lack of violence, what is the law in Florida? A defendant in a criminal case can introduce evidence of his good character and reputation where such evidence has reference to a trait involved in the offense charged. Norman v. State, 156 So.2d 186 (Fla. 3d DCA 1963). Thus, a criminal defendant accused of assault or battery is entitled to introduce evidence of his lack of propensity toward violence. Seabrook v. State, 348 So.2d 663 (Fla. 2d DCA 1977).

If we were free to make our own determination, we would be inclined to apply the same rule to a civil case for assault and battery where there is an issue of who was the first aggressor because evidence of the lack of propensity of the defendant for violence ought to be just as relevant as in a criminal case. See Niemeyer v. McCarty, 221 Ind. 688, 51 N.E.2d 365 (1943). However, our supreme court appears to have foreclosed this result in Pandula v. Fonseca, 145 Fla. 395, 199 So. 358 (1940), which was a civil case for assault and batter. In affirming the refusal to charge the jury that in reaching its verdict it could consider evidence which the defendant had introduced concerning his good reputation for truth and veracity and as a law abiding citizen, the court said that “evidence of good character or reputation is not relevant in the first instance in a civil action or where the reputation of the party has not first been attacked by evidence of bad character.” 145 Fla. 400, 199 So. at 360. Accordingly, the court should not have admitted evidence of Koelber’s reputation for peace and quiet and for lack of violence.

With respect to the second point, Florida permits a defendant in a criminal case to introduce evidence of the violent reputation or character of a victim providing there is a showing of self defense on the part of the defendant. Hodge v. State, 315 So.2d 507 (Fla. 1st DCA 1975). One legitimate basis for the admission of such evidence is for the purpose of showing that the victim was the first aggressor. Fine v. State, 70 Fla. 412, 70 So. 379 (1915). When a defendant offers evidence for this purpose, it is unnecessary for him to show that he had prior knowledge of the victim’s propensities. Banks v. State, 351 So.2d 1071 (Fla. 4th DCA 1977). However, while evidence of specific violent acts of a victim are admissible where it can be shown that the defendant knew of such acts at the time of the alleged crime, evidence of this type is inadmissible where the defendant has never heard of the victim before the incident in question. Williams v. State, 252 So.2d 243 (Fla. 4th DCA 1971). There are no cases in Florida which specifically deal with the admissibility of evidence of the plaintiff’s character in a civil case for assault and battery.

Pino and Koelber were unknown to each other prior to this incident. Therefore, even if this were a criminal case in which Koelber was charged with having attacked Pino, evidence of specific acts of violence on the part of Pino would not have been admissible. Since the tendency to admit character evidence in civil cases is generally more restrictive, we are convinced that the court should not have permitted evidence of Pino’s specific acts of violence.

Because this case is going to have to be retried, we will address the question of whether Koelber would be permitted tó introduce evidence of Pino’s character through witnesses who would testify to his reputation for violence. On this point, we are able to follow our predilection to treat a civil case for assault and battery in the same manner as a criminal case. We believe that the broad statement in Pandula v. Fonseca quoted above can be limited because in that case self defense had not been raised so there was no issue of who was the first aggressor. Therefore, evidence of Pino’s reputation for violence would be admissible as tending to show him to be the first aggressor.

We reverse the judgment and remand the case for a new trial.

DANAHY and CAMPBELL, JJ., concur.

      . The new Florida Evidence Code is not applicable to this case because this action accrued before the effective date of the code. § 90.-103(2), Fla.Stat. (1979). Yet, both of the conclusions we have reached to reverse this case coincide with the result which the code would dictate. §§ 90.404(1), 90.405, Fla.Stat. (1979). Apparently, however, the code would even preclude reputation evidence of Pino’s propensity for violence because his character is not an issue in the case. § 90.404(1), Fla.Stat. (1979).


author: DANIEL S. PEARSON, Judge. BASKIN, Judge

text:
    Tammy JENKINS, etc., et al., Appellants, v. CITY OF MIAMI BEACH, etc., et al., Appellees.
    No. 79-1491.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Rehearing Denied Nov. 24, 1980.
    Nachwalter, Christie & Falk, Jay M. Levy, Miami, for appellants.
    Preddy, Kutner & Hardy and Howard K. Cherna, Miami, for appellees.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Tammy Jenkins, a young girl, was injured late at night in Stillwater Park. The park is owned by the City of Miami Beach. The injury occurred when a young boy threw a piece of copper coil which he had pulled free from a park water fountain. The coil hit Tammy in the eye. Tammy’s mother, as her natural guardian, brought suit against the City. The suit reached its premature end when the trial court entered a summary final judgment in favor of the City. Tammy seeks to revive it here.

In her effort to defeat the entry of the summary final judgment, Tammy contends that (1) the City’s failure to supervise the park at night despite its knowledge that it was frequented by minors was the proximate cause of Tammy’s injury; and (2) the City’s failure to properly maintain the water fountain (allowing the copper coil to become loose enough to be pulled free) was the proximate cause of Tammy’s injury, since the young boy’s intervening act was arguably foreseeable given the City’s admitted knowledge of previous acts of vandalism and “unruly and undisciplined conduct” engaged in by minors in the park at night.

We reject both contentions. Under the four-part inquiry laid down in Evangel ical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), commended to our use in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), it is apparent that the City’s decision to provide no supervision in Stillwater Park at night is a planning or discretionary governmental decision for which the City cannot be held liable in tort. Wong v. City of Miami, 237 So.2d 132 (Fla. 1970); Hernandez v. City of Miami, 305 So.2d 277 (Fla. 3d DCA 1974). Compare Pitts v. Metropolitan Dade County, 374 So.2d 996 (Fla. 3d DCA 1979). However, the very same inquiry requires us to conclude that the City’s alleged negligent maintenance of a water fountain in the park is operational level activity for which it can be held liable. Commercial Carrier Corporation v. Indian River County, supra; Cheney v. Dade County, 371 So.2d 1010 (Fla.1979). In the present case, however, liability for the alleged negligent maintenance of the water fountain can only attach if the intervening criminal act of the young boy was foreseeable. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla. 1978); Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976); Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980). The City’s knowledge of previous acts of vandalism committed in the park makes it foreseeable that willful and malicious destruction of property may occur. The City’s knowledge that minors engaged in “unruly and undisciplined conduct” makes it foreseeable that minors will engage in conduct difficult to govern or control. But such foreseeability is, without more, unrelated to the alleged negligence of the City.

The question whether the boy’s act, clearly an intervening cause of Tammy’s injury, was foreseeable so as to render the City liable can only be answered affirmatively if “the harm that occurred was within the scope of the danger attributable to the defendant’s negligent conduct.” Gibson v. Avis Rent-A-Car Systems, Inc., 386 So.2d 520 (Fla.1980). The record before us does not reflect that the City had knowledge that its failure to properly maintain the water fountain had in the past led to this type of injury, or that “in the field of human experience,” allowing a loose copper coil on the water fountain had so frequently resulted in its being torn free and used to assault others that the City should have expected such a thing to occur in its park. Gibson v. Avis Rent-A-Car Systems, Inc., supra. In short, the boy’s intervening act was not, as a matter of law, foreseeable.

Accordingly, the summary final judgment entered in favor of the City of Miami Beach is affirmed.

Affirmed.

BASKIN, Judge

(dissenting).

The majority is correct that the city’s decision to provide no supervision in Still-water Park is a discretionary decision for which, under Section 768.28, Florida Statutes (1975), no tort liability may attach. Wong v. City of Miami, 237 So.2d 132 (Fla. 1970).

Maintaining the water pump is, however, an operational level function so that sovereign immunity is waived if the city is negligent and that negligence is the proximate cause of appellant’s injury. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

If the boy’s act of throwing the copper coil was not foreseeable, it can be characterized a superceding intervening cause. On the other hand, if the injury to appellant was foreseeable, the causal chain remains unbroken, and the city may be held liable for its negligence, the proximate cause of the injury.

Summary judgment should be granted only when there is no genuine issue of material fact. All inferences must be made in favor of the non-moving party. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977). The foreseeability of the loose copper coil being thrown by a boy in a park where minors played and vagrancy had occurred is a genuine issue of material fact. If reasonable men might differ, the determination of foreseeability should rest with the jury. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977).

I would, therefore, reverse the entry of the summary judgment and remand for further proceedings.

      . As applied to the present case, the inquiry is (1) does the decision to provide no supervision in the park at night involve a basic governmental policy? (2) is the decision essential to accomplish that policy? (3) does the decision require the exercise of basic policy evaluation or judgment? (4) does the City have the lawful authority to make the decision? We answer all four questions affirmatively and thus classify the decision as a planning one which, regardless of its wisdom, cannot give rise to a tort claim.

      . The appellant relies principally on Rhabb v. New York City Housing Authority, 41 N.Y.2d 200, 391 N.Y.S.2d 540, 359 N.E.2d 1335 (1976), which recites the rule that a municipality may be obliged to furnish park supervision and can be held liable in tort for its failure to do so. Of course, no such rule exists in Florida. Apart from the obvious fact that the New York rule has little precedential value, it appears that the Rhabb rule is based on the proposition that the operation of a park by a municipality is a quasi-private, not governmental, function, a distinction that was obliterated by the Florida Supreme Court in Commercial Carrier Corporation v. Indian River County, supra.


author: COWART, Judge.

text:
    Harold Lee BOULER, Appellant, v. STATE of Florida, Appellee.
    No. 79-869/T4-505.
    District Court of Appeal of Florida, Fifth District.
    Oct. 16, 1980.
    Rehearing Denied Dec. 1, 1980.

      James M. Campbell, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

As a result of information obtained by a wiretap, police and a K-9 drug dog waited at an airport until appellant and his companion, Margo Lacy, arrived. After appellant was in line to purchase a ticket and check his luggage the drug dog, examining persons in the line, reacted to the appellant’s bag and to the appellant. Appellant was frisked and he and Margo taken to an office where, after appellant removed his coat, he was taken to another room for about twenty minutes. Upon appellant’s return to the office, police officers took his coat from Margo’s lap and found illegal drugs in the coat’s inner pocket. Later the drug dog reacted to appellant’s vehicle in the parking lot and based thereon a search warrant was obtained for the vehicle in which was found a suitcase containing contraband drugs.

Appellant contends (1) the wiretap order was illegal because the information upon which it was based was both illegally obtained and stale; (2) the evidence obtained by the wiretap was inadmissible in evidence because appellant did not receive notice of the wiretap within the ninety day period provided by section 934.09(7)(e), Florida Statutes (1977); (3) that the indications by the drug dog were not sufficient probable cause for either his arrest or for the issuance of a search warrant for his vehicle; and (4) that the evidence is legally insufficient to prove his actual or constructive possession of the contraband drugs in his coat pocket and in the suitcase in his vehicle.

Some of the more current information upon which the wiretap order was based was obtained by police listening in on a telephone conversation between appellant and a confidential informant with the latter’s consent. This was not an illegal interception as one party consented. § 934.03(2)(c), Fla.Stat. (1977); Shayne v. State, 384 So.2d 711 (Fla. 3d DCA 1980); State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980). In addition, the wiretap affidavit as a whole indicated a continuing pattern of criminal activity with sufficient currency as to be legally fresh and viable. Rodriguez v. State, 297 So.2d 15 (Fla.1974); Hudson v. State, 368 So.2d 899 (Fla. 3d DCA 1979); State v. Manning, 379 So.2d 1307 (Fla. 4th DCA 1980).

Appellant has demonstrated no prejudice accruing to him by reason of the delayed service of notice of the wiretap required by section 934.09(7)(e), Florida Statutes (1977). Under these circumstances failure to meet the notice provisions of this statute have been held to not render the resulting evidence inadmissible. Hicks v. Florida, 359 So.2d 475 (Fla. 1st DCA 1978); Quintana v. State, 352 So.2d 587 (Fla. 3d DCA 1977).

Two recent Florida cases, State v. Goodley, 381 So.2d 180 (Fla. 3d DCA 1980) and Mata v. State, 380 So.2d 1157 (Fla. 3d DCA 1980), have recognized that a trained narcotics dog’s indications that contraband is present can be sufficient alone to establish probable cause as to that fact.

Appellant’s contentions that the evidence is insufficient to prove his possession of contraband drugs in his coat and his vehicle are based on argument confined to the exact moment of time the drugs were found and observed by the police and his contention that this is a circumstantial evidence case in which the state is required by proof to exclude every “possible” hypothesis of innocence. Appellant suggests that a possible hypothesis of innocence is that someone put the contraband in his coat after he removed it and into his vehicle after he left it in the parking lot. The judge and jury were not limited to such a restricted view of the evidence presented. For example, the dog also reacted to appellant while he had his coat on and Margo, the only other person shown to have been in possession of appellant’s coat, testified that she did not put anything into the coat. Also, the jury may have been impressed with evidence that appellant’s vehicle was found locked and that the four-suiter Pegasus luggage therein containing contraband drugs was the same luggage purchased that very day by the appellant and that the key to his vehicle was found on the floor next to the appellant’s left foot when he was apprehended in the ticket line at the airport. The total convincing force and effect of the evidence, as well as the reasonableness of the suggested hypotheses of innocence, is for the jury to weigh under proper instructions. The jury can accept or reject all or any part of the testimony of any witness. The wiretap order was valid, the evidence it produced was admissible, there was probable cause to justify both appellant’s arrest and the issuance of the search warrant for his vehicle, and, there being ample competent, substantial evidence to legally support guilty verdicts, the trial court’s denial of appellant’s motion for acquittal was proper; therefore, the judgment of conviction is

AFFIRMED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . In construing the federal statute, 18 U.S.C. 2518(8)(d), containing identical language to the Florida notice provision, federal courts have taken a similar view. U. S. v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977); U. S. v. Fury, 554 F.2d 522 (2d Cir. 1977), cert. denied 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977).

      . Federal cases have reached a similar result. See U. S. v. Solis, 536 F.2d 880 (9th Cir. 1976); U. S. v. Bronstein, 521 F.2d 459 (2d Cir. 1975); and U. S. v. Fulero, 498 F.2d 748 (D.C.Cir. 1974).


author: PER CURIAM.

text:
    Robin OROSZ, Appellant, v. STATE of Florida, Appellee.
    No. OO-376.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.
    Rehearing Denied Dec. 1, 1980.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Orosz appeals, urging that the trial court erred in its instructions to the jury panel and in dismissing a juror without the express consent of defendant. We affirm.

During the preliminary instructions to the jury panel the trial court stated:

It is the constitutionally guaranteed right of every citizen to make his defense to a charge of crime in open court according to the rules and to have the facts concerning his alleged crime heard, weighed, and considered and determined by a jury of his peers.

Standing alone, this statement could, under certain circumstances, constitute error and we caution the trial court to scrupulously avoid such comments. In this case, shortly after making the statement, the court instructed the jury on the defendant’s right to remain silent specifying that the defendant did not have to prove his innocence or furnish any evidence. The court later instructed on the presumption of innocence and the state’s burden of proving each material allegation beyond and to the exclusion of every reasonable doubt. He reiterated that the defendant need not prove anything and that the entire burden is on the state to overcome the presumption of innocence. Under these circumstances any error the court may have committed was cured.

Additionally, we note that appellant did not object and did not move for a mistrial when the comment was made as is required in the absence of fundamental error. Clark v. State, 363 So.2d 331 (Fla.1978).

We also find no error with regard to appellant’s second point. During the trial, the court noticed that one of the jurors appeared to be sleeping and called this to the attention of counsel, both of whom indicated they wished to proceed with the jury as constituted.

At the close of the evidence, the court again inquired of counsel and appellant stated he wished to continue with the same jury. The court decided to continue its observation of the juror during final instructions and then make its decision. After an off-the-record discussion, the court dismissed the juror and substituted an alternate. There was no record objection, and no record acquiescence.

While off-the-record discussions are not favored, Magill v. State, 386 So.2d 1188 (Fla.1980) defendant has not shown reversible error.

A trial court has the duty to insure that a defendant receives a fair and impartial trial and that jurors are attentive to the evidence presented. The conduct of jurors is the responsibility of the court and the court is allowed discretion in dealing with any problems that arise. Walker v. State, 330 So.2d 110 (Fla. 3d DCA 1976). Removal of the juror and substitution of the alternate was not an abuse of discretion. After continued observation over a significant portion of the trial, the court concluded that the juror was not attentive and would be unable to deal fairly with the evidence. Even if the court were wrong, the error was harmless. The juror was replaced by a duly selected alternate who had been present during the entire proceedings and appellant has not shown that he was prejudiced by the substitution. State v. Tresvant, 359 So.2d 524 (Fla. 3d DCA 1978) cert. denied 368 So.2d 1375 (Fla.1979).

AFFIRMED.

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


text:
    Woodrow Ray CHERRY, Appellant, v. STATE of Florida, Appellee.
    No. PP-141.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.
    Rehearing Denied Nov. 21, 1980.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   LILES, WOODIE A., Associate Judge (Retired).

Cherry was charged by information with attempted first degree murder, together with displaying or using a firearm in violation of Section 790.07(2), Florida Statutes (1977). He plead not guilty; and following a trial, the jury found him guilty of aggravated assault with a firearm. Motion for new trial was denied, and the judge sentenced him to seven years in prison with the requirement that he serve three years before being considered eligible for parole.

Cherry appeals to this Court and assigns six points for reversal and discharge. First, we note that the sentence of seven years is beyond the allowable penalty as set forth in Section 784.021, Florida Statutes. It has been determined that the enhanced penalty statute does not apply to the conviction of aggravated assault, since the offense of aggravated assault is an assault with a weapon and already an enhanced penalty statute. Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978).

Appellant urges he was not charged with the crime for which he was convicted and aggravated assault with a firearm is not a lesser included offense of attempted first-degree murder. We agree that the element of fear which must be present in the crime of aggravated assault with a firearm is not contained in the information. Likewise, it was not proven by the evidence. However, the Court gave a charge on the lesser included offense to the jury, and the defense failed to make a timely objection. To the contrary, when the court invited comment and further recommended objections, the defense stood mute. It has been held in Odom v. State, 375 So.2d 1079 (Fla. 1st DCA 1979) that unless objections are made in such an instance as is present here, it does not constitute fundamental error, and therefore the defendant is estopped to assert error on appeal. Similarly, in Blow v. State, 386 So.2d 872 (Fla. 1st DCA 1980), Judge Booth, writing for the Court, held that in the absence of an objection by the defendant, the trial court properly charged on aggravated assault. Based upon the Odom and Blow cases, we must affirm the conviction.

Appellee urges that this Court should follow Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978) and determine that the element of fear of harm was present in this case. In Kimbrough, there were five shots fired, unlike the present case. Here, only one shot was fired from a weapon that the victim did not see, and he was not even aware that he was in danger. Therefore, Kimbrough is not controlling since there was no proof of the element of fear. We have reviewed the other points raised by Appellant and find them to be without merit.

For the above-mentioned reasons, the case is affirmed in part and remanded in part with directions to impose sentence pursuant to Section 784.021, Florida Statutes.

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


text:
    M. Lucius WALKER et ux., Appellants, v. Ulysses C. GLOVER and City of Jacksonville, Appellees.
    No. VV-128.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.
    Rehearing Denied Nov. 17, 1980.
    E. K. Mcllrath, Jacksonville, for appellants.
    William E. Falck, of Greene & Greene, P.A., Jacksonville, for appellees.
   PER CURIAM.

Considering the nature of the proceeding in which the controversy between Walker and Glover arose and was adjudicated, we find that this court’s decision on an earlier appeal, Walker v. City of Jacksonville, 360 So.2d 52 (Fla. 1st DCA 1978), and our remand for further proceedings consistent with that decision, did not foreclose the trial court from finding beneficial title vested in Glover by means of a constructive trust arising when Walker’s adverse claim was asserted. Lucom v. Potter, 131 So.2d 724 (Fla. 1961).

AFFIRMED.

ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ., concur.


text:
    Carrie DILLON, as Personal Representative of the Estate of Edward Lee Dillon, Jr., deceased, Appellant, v. Karen Michele McELYEA and Nationwide Mutual Fire Insurance Company, Appellees.
    No. TT-326.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1980.
   ORDER

On September 16, 1980, appellant was directed to show cause why this appeal should not be dismissed for failure to comply with the appellate rules. Appellant’s initial brief had not been filed at that time though it was to have been served on or before March 27, 1980. In response to our order, appellant filed her initial brief and stated that "... this matter has been delayed in an attempt to reach a resolution of the issues raised by the litigation.”

Although we do not find this response establishes good cause for appellant’s failure to comply with the appellate rules, we do not believe that appellant should be punished for dereliction of her counsel. See Winstead v. Adams, 363 So.2d 807 (Fla. 1st DCA 1978). However, appellant’s attorney, PAUL M. HARDEN, is hereby reprimanded for his flagrant abuse of the appellate process.

The show cause order is discharged and the appeal will proceed to a conclusion on its merits in accordance with the appellate rules.


author: SCHWARTZ, Judge.

text:
    Alexander Humphrey MAJOR, Appellant, v. The STATE of Florida, Appellee.
    No. 79-20.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Rehearing Denied Nov. 24, 1980.
    Fromberg, Fromberg & Roth and Jeffrey Michael Cohen, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   ON MOTION FOR REHEARING GRANTED

SCHWARTZ, Judge.

This is an appeal from a conviction for possession of cocaine pursuant to a nolo plea which reserved the right to appellate review of the denial of the defendant’s motion to suppress the drugs in question. The cocaine was found by an airport narcotics squad officer in a Benzedrex inhaler which the officer had secured from Major’s tote bag. The basis of the ruling below was that the defendant had consented to the search. Even considered in the required light most favorable to the state, the record does not support this finding. We therefore reverse the judgment below.

Officer Johnson, who conducted the war-rantless search, stated only that when asked if he “would mind” if the officers checked his tote bag,

“Mr. Major consented by asking a question, ‘Do you mind if I open it?’ and I replied, ‘No. Go ahead.’ ” [e. s.]

The defendant never thereafter even surrendered possession of the tote bag. Instead, obviously out of a desire to forestall any more “searching” inquiry into its contents, he continued to hold the bag while he removed various items (none of which contained contraband) and displayed them to the police. Without further conversation, Johnson reached into the tote bag, and, after “rummaging” around for a moment, seized the inhaler which Major had deliberately not himself removed and which therefore remained inside.

The most that can be said about Major’s response to the officer’s actual search of the tote bag is that he did not actively or physically resist it. But, as we pointed out in Taylor v. State, 355 So.2d 180, 183 (Fla. 3d DCA 1978), cert. denied, 361 So.2d 835 (Fla. 1978):

A distinction is recognized in the law between submission to the apparent authority of a law enforcement officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather, for a person to waive his search and seizure rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search. Bailey v. State, 319 So.2d 22, 27 (Fla.1975); Talavera v. State, 186 So.2d 811 (Fla. 2d DCA 1966). [e. s.]

See also, Correa v. State, 389 So.2d 1204 (Fla. 3d DCA 1980). Major’s only verbal statement was a request that he himself be permitted to “open” the bag; his conduct likewise evinced the direct antithesis of a willingness for the officers to search it. It is plain that these circumstances provide no evidence at all, much less the clear and convincing showing required by Florida law, Norman v. State, 379 So.2d 643, 647 (Fla.1980), that the defendant permitted, invited or agreed to the police search. As in the remarkably similar cases of Luxenburg v. State, 384 So.2d 742 (Fla. 1st DCA 1980) and Ratfield v. State, 362 So.2d 138, 140 (Fla. 1st DCA 1978), see also, Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978), we therefore hold that the defendant did not validly consent to the warrantless search. As there is no other even arguable basis to support the seizure of the cocaine, the judgment below is consequently reversed and the cause is remanded with directions to discharge the defendant.

Reversed and remanded.

      . Royer v. State, 389 So.2d 1007, at note 2 (Fla. 3d DCA 1980) (en banc).

      . The parties have extensively argued the questions of (a) whether Major had been improperly “stopped” by the officers and (b) if so, whether the fact that, as in Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979), he was told he had a right to refuse to agree dissipated the presumption that any subsequent consent was involuntary. See, Norman v. State, supra; compare Royer v. State, supra, at 1020, with State v. Parsons, 389 So.2d 1207 (Fla. 3d DCA 1980). We do not reach these issues because of our conclusion that the defendant gave no consent at all-voluntary or involuntary-to the search in question.


author: BASKIN, Judge.

text:
    Gilberto CORREA, Appellant, v. The STATE of Florida, Appellee.
    No. 79-829.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Rehearing Denied Nov. 24, 1980.

      John H. Lipinski, Pollack, Komorowski, Casuso & McHale, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   BASKIN, Judge.

In this appeal, defendant Correa questions the denial by the trial court of his motion to suppress. Defendant pled no contest to charges of possession with intent to sell a controlled substance (cocaine) and reserved his right to appeal. The trial court found defendant had voluntarily consented to the search. We hold the record does not support the trial court’s decision, and we reverse.

Defendant Correa, traveling to Hawaii from Miami International Airport with only a tote bag and no other luggage, was asked by two officers for identification. He produced a Pan American identification card in his correct name identifying him as a Pan American employee. The officers asked him to accompany them to a less congested area. When defendant Correa left his tote bag behind, he was told to bring it with him.

Detective Johnson requested permission to search the tote bag. At the hearing on the motion to suppress, Detective Johnson did not testify. Officer Sadtler testified that Detective Johnson advised defendant he could refuse to be searched, but Officer Sadtler did not hear defendant Correa respond and did not know whether defendant Correa had heard or understood what was said. Defendant Correa testified that he did not remember being told he had a right to refuse permission to search and would not have allowed the search if he had known his rights. Examination disclosed that the bag contained a packet of cocaine rolled up inside some clothing.

Our review of the record leads us to the conclusion that the trial court erred in finding that defendant Correa consented to the search. When defendant was asked to accompany the police officers, he agreed to do so only because he did not feel that he had a choice. He was told to bring his bag with him. He did not consider refusing permission to a police officer because “when a police officer says to you T want to ask you some questions and I want to look in your bag’, that is exactly what you have to do.” He testified that he did not know he could refuse the search in the face of a show of authority.

The case before this court falls under the well recognized principles of law recognizing a distinction “between submission to the apparent authority of a law enforcement officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather for a person to waive his search and seizure rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search. Bailey v. State, 319 So.2d 22, 27 (Fla.1975); Talavera v. State, 186 So.2d 811 (Fla.2d DCA 1966).” Taylor v. State, 355 So.2d 180, 183 (Fla.3d DCA 1978), cert. denied, 361 So.2d 835 (Fla.1978); Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978).

Defendant Correa’s testimony was that he did not hear or understand his right to refuse the search. That testimony was unrebutted. Officér Sadtler testified he heard defendant being given his rights, but Detective Johnson did not testify. Officer Sadtler could not say whether defendant Correa heard or understood his rights. At no time did defendant Correa verbally consent to the search. The state, therefore, failed to meet its burden of proving consent by clear and convincing evidence. Raffield v. State, 362 So.2d 138 (Fla. 1st DCA 1978).

We need not reach the issues concerning any unlawful detention prior to the search because our holding that defendant Correa gave no consent makes the determination of those issues unnecessary. We reverse the judgment below and remand the cause with directions to discharge the defendant.

Reversed and remanded.


text:
    Samuel SHERADSKY, Appellant, v. Edward N. MOORE, Stephen F. Kessler, Leon A. Roth and Miriam Beckerman, Appellees.
    No. 80-241.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Rehearing Denied Nov. 24, 1980.
    Samuel Sheradsky, Miami, in pro. per.
    Simon, Schindler & Tripp and Tobias Simon, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The parties are former law partners who, upon the dissolution of their partnership, undertook to divide the responsibility for closing out then pending cases and collecting fees therefrom. The only agreement between them was a partnership agreement which called for each of the partners to receive a certain percentage of the partnership’s net income. The trial court found that, in addition to a partner being entitled to receive his or her percentage of all fees collected on pre-dissolution cases, the “collecting” partner was entitled to an additional twenty per cent of the fees collected by such partner as the overhead expenses attributable to his working on the case and collecting the fee. Both sides agree that the trial court was wrong. Sheradsky, on his appeal, claims he was entitled not to a mere twenty per cent, but to 41.12 per cent off the top of the fees collected by him, that being the historical overhead expense of the former firm. Moore and the remaining partners, on their cross-appeal, claim that neither Sheradsky nor they were entitled to any additional amount for their closing out and collecting efforts. We agree with the appellees.

The final judgment under review is reversed upon our holding that (1) a law partner in dissolution owes a duty to his former firm to conclude the firm’s business pending at time of dissolution and is not entitled to extra compensation for this activity in the absence of a specific agreement among the partners which provides therefor, Welsh v. Carroll, 378 So.2d 1255 (Fla.3d DCA 1980); Kreutzer v. Wallace, 342 So.2d 981 (Fla.3d DCA 1977); Frates v. Nichols, 167 So.2d 77 (Fla.3d DCA 1964); and (2) in this context, overhead expenses are extra compensation.

Finding no error in the trial court’s order reserving ruling on Sheradsky’s motion to tax costs, we affirm that order. Roberts v. Askew, 260 So.2d 492 (Fla.1972). The final judgment of the trial court is reversed with directions to enter judgment in favor of the appellees in accordance with this opinion.

Affirmed in part; reversed in part.


author: BARKDULL, Judge.

text:
    The STATE of Florida, Appellant, v. Lance PARSONS, Appellee.
    No. 80-681.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Rehearing Denied Nov. 26, 1980.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellant.
    Joseph Mincberg, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   BARKDULL, Judge.

After the defendant was arrested, he was informed that he did not have to give consent to a search of his bag at Miami International Airport, but if he did not give his consent the police officers would attempt to secure a search warrant. Thereafter, the defendant executed a written consent form to search a bag which had been checked in connection with an airplane flight, to which bag the defendant held a claim check. The search resulted in the discovery of narcotics paraphernalia and contraband in the bag. A subsequent search of the defendant revealed contraband on his person.

The trial court granted a motion to suppress the tangible evidence, based upon a finding of no probable cause to arrest the defendant and, therefore, the consent was tainted under the reasoning of Bailey v. State, 319 So.2d 22 (Fla.1975); Taylor v. State, 355 So.2d 180 (Fla.3d DCA 1978); State v. Frost, 374 So.2d 593 (Fla.3d DCA 1978); United States v. Jones, 475 F.2d 723 (5th Cir. 1973).

We reverse as to all that occurred after the execution of the waiver and find that same was voluntarily signed. Husted v. State, 370 So.2d 853 (Fla.3d DCA 1979); State v. Champion, 383 So.2d 984 (Fla.4th DCA 1980); Bretti v. Wainwright, 439 F.2d 1042 (5th Cir. 1971), cert. denied, 404 U.S. 943, 92 S.Ct. 293, 30 L.Ed.2d 257 (1971). The defendant was told he did not have to execute the waiver. Compare State v. Cobb, 243 S.E.2d 759 (N.C.1978).

Therefore, the order granting the motion to suppress is reversed and this cause is remanded for further proceedings in light of this opinion.

Reversed and remanded, with directions.


text:
    J. M. J., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 00-48.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1980.

      Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

J.M.J. appeals a commitment order adjudicating him delinquent for violating the probation terms of a previous order prohibiting truant and runaway behavior and withholding adjudication of delinquency for an act of contempt. The contemptuous act was disobedience to an oral order prohibiting runaway and truant behavior in a dependency case originating from a yet earlier occurrence of such behavior.

Appellant argues the order is reversible because a delinquency petition was never filed and because a finding of delinquency in this case, rather than dependency, frustrates the plain legislative intent of chapter 39, designating truant and runaway behavior as dependency. § 39.01(9), Fla.Stat. (Supp.1978). The state responds that a delinquency petition in substantial compliance with the pertinent statutes and rules was filed and that the contempt was properly based upon J.M.J.’s willful violation of a court order. § 39.01(8). We agree that no valid delinquency petition exists upon which to base an adjudication of delinquency and that, in any event, under the circumstances of this case, appellant cannot be adjudicated a delinquent for committing the contempt alleged here.

An adjudication of delinquency must be made pursuant to the provisions of chapter 39. § 39.01(8), supra. Chapter 39 via section 39.05(1) requires that:

All proceedings seeking a finding that a child has committed a delinquent act shall be initiated by the state by the filing of a petition for delinquency by the state attorney.

The only pleading filed by a proper authority was a “Petition for Rule to Show Cause.” This petition fails to mention delinquency, the necessary facts indicating juvenile court jurisdiction, and the residence and names of J.M.J.’s parents. § 39.05(5); Fla.R.Juv.P. 8.110(a)(1) and (2). The petition apparently conforms to Rule 8.280 outlining the initial procedure for prosecuting indirect contempts and was not intended to conform with the requirements of a proper delinquency petition. Thus, the adjudication of delinquency is void because there is no petition of delinquency to support it. § 39.05(1), supra.

Furthermore, although section 39.-01(8), supra, generally permits contempts to be treated as delinquent acts, the scheme of section 39.01(9), supra, indicates the specific acts committed here should be treated as acts of dependency.

One of the purposes of the Florida Juvenile Justice Act is:

To assure to all children brought to the attention of the courts, either as a result of their misconduct or because of neglect or mistreatment by those responsible for their care, the care, guidance, and control, preferably in each child’s own home, which will best serve the moral, emotional, mental, and physical welfare of the child and the best interests of the state. [Emphasis supplied.]

§ 39.001(2)(b). The Act is to be liberally interpreted and construed in conformity with its declared purposes. § 39.001(3). Notably, delinquent children are those who have usually committed crimes. See § 39.-01(8) and (34). In contrast, dependent children include those neglected and those formerly known as ungovernable. Compare § 39.01(9), Fla.Stat. (Supp.1978) with 39.-01(9), Fla.Stat. (1977). Further, distinguishing between delinquent and dependent acts has important consequences for a child. It is impermissible to detain a runaway child in a cell with a child charged with having committed a crime. See § 39.402(4). Also, the court may commit a delinquent to the custody of the department until the age of 19, not 18. Compare § 39.11(l)(c) with § 39.41(l)(c). Undoubtedly, the delinquent child incurs a stigma very much like that attached to the word “criminal.” See State In Interest of M.S., 73 N.J. 238, 374 A.2d 445, 448 (N.J.1977). It is apparent that the legislature, in deliberate wisdom, chose to classify persistent runaways and habitual truants only as dependent children, providing the court with a flexible range of placement options to meet the child’s need for supervision. § 39.41. Thus, we hold the delinquency adjudication under chapter 39 is invalid under the facts presented in this case.

The order of commitment, adjudicating J.M.J. delinquent and ordering disposition, is vacated.

ERVIN and SHAW, JJ., concur.

WOODROW M. MELVIN (Ret.), Associate Judge, dissents without opinion.

      . § 39.01(9) reads in part:
      “Child who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:
      (c) To have persistently run away from his parents or legal guardian.
      (d) To be habitually truant from school while being subject to compulsory school attendance. [Emphasis supplied.]

      . § 39.01(8) reads:
      “Child who has committed a delinquent act” means a child who, pursuant to the provisions of this chapter, is found by a court to have committed a felony, a misdemeanor, contempt of court, or a violation of a local penal ordinance, other than a juvenile traffic offense, and whose case has not been prosecuted as an adult case. [Emphasis supplied.]

      .The state urges that numerous “Petitions” substantially complied with Fla.R.Juv.P. 8.110 and § 39.05. However, none of these were signed by a representative of the state attorney’s office and moreover, all wholly failed to allege sufficient facts to allege delinquency. Rule 8.110(a)(1); § 39.05(5). Plainly, these petitions sought only continued detention. See § 39.032; Rule 8.040.

      . We do not have before us the question of the inherent power of the court to punish a juvenile for contempt outside the ambit of the juvenile statutes. Application of Balucan, 44 Haw. 271, 353 P.2d 631 (Haw.1960); Young v. Knight, 329 S.W.2d 195 (Ky.1959); In re Williams, 306 F.Supp. 617 (D.C.1969); Bryant v. State, 256 Ind. 587, 271 N.E.2d 127 (1971); In Re Grand Jury Proceedings, 491 F.2d 42 (D.C.Cir.1974); Thomas v. State, 21 Md.App. 572, 320 A.2d 538 (1974); State v. Tripp, 36 Or.App. 141, 583 P.2d 591 (1978); In Re Doe, 118 N.H. 422, 387 A.2d 802 (1978). Rather, the Department of Health and Rehabilitative Services requested the court handle the case as one for “contempt of court, a delinquent offense.” Also, the order of disposition withheld adjudication of “delinquency,” the petition alleged a violation of probation was reportedly filed pursuant to chapter 39, and the order under review committed J.M.J. pursuant to § 39.11(3). Thus, it appears the court intended to employ chapter 39 mechanisms to deal with J.M.J.’s behavior. Additionally, the state does not contend, nor has it ever contended, that the order is sustainable under the inherent powers of the court to punish for contempt.


text:
    Richard Don MILLER, Appellant, v. STATE of Florida, Appellee.
    No. PP-386.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1980.
    Rehearing Denied Dec. 1, 1980.

      Michael J. Minerva, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant Miller was convicted of burglary and brings this appeal. We affirm although several issues merit discussion.

Appellant urges the trial court erred in refusing to instruct the jury that the state had to prove the burglary occurred at “approximately 4:15 a. m.”, as stated in its bill of particulars. Appellant’s alibi witness, his roommate, stated that when he returned home at 3:30 a. m. on October 26, 1977, he found appellant with an injured leg and took him to the hospital. Appellant testified he injured his leg earlier the evening of October 25,1977, while climbing the fuel oil drums outside his apartment to adjust the release valve. The state’s witness Hutto testified he and appellant burglarized the pharmacy “somewhere between 1:00 and 3:00 a. m.; approximately 2:00 a. m.” The state’s other rebuttal witness, a records custodian at the hospital, testified appellant was admitted to the hospital at 6:48 a. m.

We do not agree that the state’s proof varied materially from the bill of particulars, or that appellant was prejudiced in his defense by the state’s failure to pinpoint the time of the offense with mathematical precision, or that there was other than harmless error in the trial judge’s refusal to instruct on the approximate time of day of the offense. In our view, the state’s evidence did show the burglary occurred at “approximately 4:15 a. m.”. There was no evidence the pharmacy was burglarized other than between 1:00 a. m., and 7:00 a. m., when appellant was admitted to the hospital.

Cases cited by appellant are not on point. State v. Beamon, 298 So.2d 376 (Fla.1974), and Jackson v. State, 350 So.2d 808 (Fla. 2d DCA 1977), held that the state was bound to prove the exact date of the offense as in the bill of particulars. In State v. Witherspoon, 366 So.2d 487 (Fla. 3d DCA 1979), the trial judge had ordered the defendant discharged because the state’s proof was that the offense occurred during a time of day other than that specified in the bill of particulars, and the appellate court held the state could not prosecute the defendant again under a new information specifying a broader time frame within which the offense allegedly took place. Witherspoon did not question the propriety of the trial judge’s initial discharge of the appellant. See also Lynch v. State, 293 So.2d 44 (Fla.1974), where the jury was instructed the offense took place between 1:00 and 5:00 a. m. as per the bill of particulars, and State v. Mayor, 378 So.2d 1324 (Fla. 3d DCA 1980), where the state’s proof that the crime occurred at 2:00 a. m. varied materially from the bill of particulars’ statement that it occurred at 2:00 p. m.

As to the purported error in permitting the state’s rebuttal witness to testify, appellant argues the witness’s trial testimony was compromised by threats of prosecution. That witness had at first agreed to testify on behalf of the state, and was granted statutory immunity in exchange for his agreement. Section 914.04, Florida Statutes (1979). There was nothing improper in the state’s filing charges against him upon his refusal. Those charges eventually led to the witness’s incriminating testimony at trial. Here there were no threats of prosecution for perjury, such as in Lee v. State, 324 So.2d 694 (Fla. 1st DCA 1976) and State v. Davis, 334 So.2d 823 (Fla. 1st DCA 1976), which there had the effect of overpowering the witness’s will.

Similarly, the failure of the state to comply with the defense’s demand for discovery by not providing it with the name of the rebuttal witness was not error. The trial court made a thorough inquiry into the circumstances relating to the rule’s violation and determined defendant had not been prejudiced. This procedure fully complied with Richardson v. State, 246 So.2d 771 (Fla.1971). Defendant and the rebuttal witness were close friends, and defense counsel knew how to contact him. Moreover, at the time of trial, he knew the witness would be called and about what he would testify. “The circumstances establishing non-prejudice . . . affirmatively [appear] in the record.” Boynton v. State, 378 So.2d 1309, 1310 (Fla. 1st DCA 1980).

We have examined the remaining points raised, find them unavailing and affirm the judgment of conviction in its entirety.

ERVIN, LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    CITY OF CORAL GABLES (Self-insured), Appellant, v. Officer Gerald A. WILLIAMS, Appellee.
    No. SS-424.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1980.
    Rehearing Denied Dec. 1, 1980.

      Joseph V. Niemoeller, of Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart, Miami, for appellant.
    Jere N. Chait, of Canner & Chait, Miami, for appellee.
   PER CURIAM.

The order of the deputy commissioner finding the claimant, a police officer employed by the City of Coral Gables, was within the course and scope of his employment when he sustained certain injuries resulting from an accident while en route from his home to his place of employment is reversed. The accident occurred in an unincorporated area of Dade County, Florida, outside the limits of the City of Coral Gables. Accordingly, his injuries did not arise out of and in the course of his employment. See City of Miami Beach v. Valeriani, 137 So.2d 226 (Fla.1962).

REVERSED.

ERVIN, LARRY G. SMITH and SHIVERS, JJ., concur.


author: WENTWORTH, Judge.

text:
    Ronald Lara CAVE, Petitioner, v. STATE of Florida and Hon. Charles E. Miner, etc., Respondents.
    No. YY-89.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1980.
    Rehearing Denied Dec. 1, 1980.
    Gordon D. Cherr, Frates, Jacobs, Farrar, Novey, Blanton & Poole, Tallahassee, for petitioner.
    William N. Meggs, Asst. State’s Atty., for respondents.
   WENTWORTH, Judge.

Petitioner, a resident of the State of Washington, was arrested in Tallahassee, Florida, on December 1, 1979, on a charge of armed robbery. He was released on bond the following day and returned to his home in Washington. His Washington address was known to Florida authorities.

Petitioner failed to appear for arraignment in Florida, and a capias was issued for his arrest. He remained in Washington and was arrested by Washington authorities on March 23, 1980, based on the unresolved charges pending in Florida. He refused to waive extradition, Florida authorities undertook extradition proceedings, and custody was reobtained on June 20, 1980.

On August 29, 1980, five days before his scheduled trial date, petitioner filed a motion for discharge in the trial court, essentially alleging that the State of Florida had failed to bring him to trial within the 180 days mandated by Rule 3.191(a)(1), Fla.R. Crim.P. Petitioner further asserted that from the time of his release on bond in Florida to the time of his arrest by Washington authorities 112 days later, he was continuously available for trial. He asserted that the extradition proceeding tolled, but did not erase, the time elapsed for speedy trial purposes. Petitioner contended that when Florida authorities gained custody of him on June 20,1980, the state had 68 days remaining in which to bring petitioner to trial before the time would expire on August 27, 1980. Petitioner accordingly moved for discharge, concluding that the trial court was without jurisdiction to try him on September 4, 1980.

Following a hearing and consideration of testimony, the trial judge denied the petitioner’s motion. Petitioner’s trial on September 4th resulted in a mistrial. Petitioner seeks the issuance of a writ prohibiting retrial upon the same grounds raised in his motion for discharge denied by the trial court.

In resolving this cause, we find Rule 3.191(e), Fla.R.Crim.P., governs. See State v. Kovach, 350 So.2d 801 (Fla. 2nd DCA 1977). In pertinent part, Rule 3.191(e) states:

If an accused . . . acts to make himself unavailable for trial, the right to trial within the time herein provided shall on motion by the State be voidable by the court in the interests of Justice. Upon such accused ... being retaken into custody, the time within which trial is to commence shall be as herein provided and begin anew, [emphasis added]

Petitioner’s refusal to waive extradition was an act on his part making himself unavailable for trial. Upon being retaken into custody, under the clear terms of the rule, the time within which the trial is to commence shall begin anew. See State ex rel. Mullins v. Trettis, 316 So.2d 617 (Fla. 2nd DCA 1975). We find no reason not to apply the plain meaning of those emphasized words.

Because less than 180 days had expired from the time the State of Florida reob-tained custody of the petitioner until he was brought to trial, we find no reason to interfere with the trial court’s ruling or exercise of jurisdiction in this cause. The Petition for Writ of Prohibition is accordingly denied.

JOANOS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.

      . This conclusion makes unnecessary the consideration of alternative evidentiary grounds which might also support the order in question.


author: LARRY G. SMITH, Judge.

text:
    Bobby H. WESTBERRY, Appellant, v. COPELAND SAUSAGE COMPANY, a subsidiary of Schweigert Meat Company, a subsidiary of Green Giant Company, and National Surety Corporation, Fireman’s Fund Insurance Company and Travelers Insurance Company, Appellees.
    No. SS-356.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1980.
    Rehearing Denied Dec. 1, 1980.

      Stephen H. Kurvin of Sale, Bryant, Thompson & Kurvin, Panama City, for appellant.
    C. Douglas Brown of Isler, Brown, Smoak & Watson, Panama City, for appellees Green Giant Co. and Travelers Ins. Co.
    Jeffrey C. Bassett of Barron, Redding, Boggs, Hughes & Fite, Panama City, for appellees Copeland Sausage & Nat. Sur. Corp.
   LARRY G. SMITH, Judge.

Appellant-claimant presents two issues for consideration on his appeal from an order dismissing his worker’s compensation claim. He first contends that the deputy commissioner committed a factual error in finding that claimant’s injuries were the result of a non-compensable accident; and secondly, that claimant’s notice of injury was sufficient to satisfy the requirements of Section 440.185(a). We remand for further findings.

Unfortunately, our review is frustrated by the order’s facially contradictory findings on the occurrence or nonoccurrence of a compensable accident, as pointed out by appellant. We also view the order as deficient in failing to rule on the issue of adequacy of notice of injury, although the notice to controvert, pretrial stipulation and pretrial order clearly show that this was an issue to be determined in the proceeding.

Florida Workers’ Compensation Rules of Procedure (temporary 1979), Rule 14, provides:

The order of the deputy shall set forth findings of fact, conclusions of law and the deputy’s determination of the claim or other ruling.

See Section 440.25(3)(e), Florida Statutes (1977).

The duty of the deputy commissioner in setting forth his findings is fully explained in Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1977), requiring no further elaboration by this court. Recent decisions of the now abolished Industrial Relations Commission, and of this court, emphasize the need for careful attention to the requirements of the statute and the rule in preparation of orders. Mike Hunter Inc. v. Daniels, IRC Order 2-3346 (February 13, 1978) held it was error not to rule on the issue of notice, which was raised in the notice to controvert and the pretrial stipulation. Atlantic Cold Storage v. Hernandez, IRC Order 2-3071 (November 22,1976), emphasized that it is incumbent upon the deputy commissioner to rule on all issues ripe for adjudication. This court remanded for clarification an order which failed to specify whether the claimant was partially or totally disabled. Sambo’s Restaurant v. Horn, 381 So.2d 330 (Fla. 1st DCA 1980). And in Kennedy v. Tyson, 382 So.2d 820 (Fla. 1st DCA 1980), where the order did not clearly reveal the deputy commissioner’s application of the correct law, this court determined that the order “lacks the degree of specificity necessary to enable us to determine how he arrived at his conclusion,” making it necessary to reverse and remand.

The above cases are cited by way of illustration. The order here for review by no means suffers from each of the deficiencies mentioned in these cases. But it is deficient in failing to rule on the notice issue. And in regard to the occurrence of a com-pensable accident, paragraph 3 of the order states, as a finding of fact: “On August 18, 1977, while working with one of his salesman, Manual Bernardo, Jr., in Chiefland, Florida, he fell from the back of a refrigerated truck.” Then follows what appears to be a recitation of the testimony and evidence presented, along with some conclusions of the deputy commissioner from which we gather that he disbelieved either the claimant’s contention that he fell from the back of a truck while on the job, or he disbelieved that if the claimant did fall from the job he could fail to associate his subsequent pain and suffering with that accident for a period of some ten months during which he failed to mention this fall to his treating physicians. Thus we are led to conclude .that the quoted sentence, and other “findings,” are intended to be something else. Neither the parties nor this court should be left to speculate as to exactly what facts are determined to be true. While a summary of the evidence on a given issue might be helpful in explaining the posture of the case and the conclusions reached by the deputy, such a recitation cannot be substituted for specific findings of ultimate facts. Ball v. Mann, 75 So.2d 758 (Fla.1954); Charlton v. Dan Brosnaham Construction Company, 108 So.2d 624 (Fla. 3rd DCA 1959).

REVERSED and REMANDED for entry of an order containing specific findings on the compensable injury issue, and findings and conclusions on the question of notice of injury.

ERVIN and SHIVERS, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Lawrence CLARK, Appellee.
    No. 79-1738.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Rehearing Denied Nov. 24, 1980.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Joseph C. Segor, Asst. Public Defender, for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. An arrest for trespass under Section 810.08(1), Florida Statutes (1977), as for other cases, must be based on facts which lead a reasonable person to believe that an offense has been committed, Albo v. State, 379 So.2d 648 (Fla.1980); Benefield v. State, 160 So.2d 706 (Fla.1964), and not upon suspicion. Betancourt v. State, 224 So.2d 378 (Fla.3d DCA 1969).


text:
    Ronald L. BARRIAT and Industrial Fire and Casualty Insurance Co., Appellants, v. Autley F. SALAHUD-DIN et al., Appellees.
    No. 80-512.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.

      Jeanne Heyward, Goodhart & Rosner, Miami, for appellants.
    Brian Hal Leslie, North Miami, for appel-lees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an interlocutory appeal by Industrial Fire and Casualty Insurance Company (the insurer) and Barriat (the insured) from the trial court’s order refusing to abate further proceedings until service of process was effected upon Barriat, an indispensable party to the action. See Kephart v. Pickens, 271 So.2d 163 (Fla. 4th DCA 1972).

In January 1978, the plaintiffs, Salahud-Din, Sr. and Jr., and Barriat were involved in an automobile accident. Barriat, a resident of Florida at the time of the accident, supplied his home address and place of employment to police investigating the accident. In July 1979, the Salahud-Dins sued Barriat and Industrial. Summonses to Bar-riat issued to the addresses supplied by him a year and a half earlier were returned unserved, with the notations that Barriat was not listed as a resident of the apartment complex and did not work at the place of employment. A month later, the plaintiffs unsuccessfully attempted to serve Bar-riat at an address last known to Industrial. The return indicated that Barriat was not listed as a resident of this apartment complex or known to the manager. Based upon these abortive efforts to effect service on Barriat, the plaintiffs’ attorney filed an affidavit in support of substituted service, alleging that he had good reason to believe that Barriat “is not within the State of Florida or is concealing his whereabouts.” The trial court, implicitly finding that a sufficient predicate for substituted service had been laid, denied the defendants’ motion to abate further proceedings. We reverse.

A party seeking to effect substituted service of process under a long-arm statute has the burden of presenting facts which clearly justify the applicability of the statute. See AB CTC v. Morejon, 324 So.2d 625 (Fla.1976). In Bird v. International Graphics, Inc., 362 So.2d 316 (Fla.3d DCA 1978), we held that the failure to locate a defendant at three addresses is not enough to establish that the defendant was concealing his whereabouts. While in Bird no affidavit was filed to show that a diligent search and inquiry had been made, the filing of an affidavit, as in the present case, which merely says that Barriat could not be found at a residence and job which antedated the attempted service by a year and a half, and was not at still another residence, does not, as the plaintiffs contend, make Bird distinguishable. The conclusory statement that a diligent search was made falls short of setting forth facts from which a court may conclude that a diligent search has indeed been made. See Robinson v. Cornelius, 377 So.2d 776 (Fla. 4th DCA 1979).

Accordingly, the order of the trial court is reversed with directions to abate further proceedings until either personal service of process is effected on Barriat or a legally sufficient showing is made by the plaintiffs which would authorize substituted service of process upon the Secretary of State pursuant to Section 48.171, Florida Statutes (1979).

Reversed and remanded.


text:
    Johnnye Mae WILLIAMS, Appellant, v. HILLSBOROUGH COUNTY SCHOOL BOARD and Insurance Company of North America, Appellees.
    No. RR-290.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1980.
    Matías Blanco, Jr., of Blanco & Tropp, Tampa, for appellant.
    Richard G. Davis, of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., Tampa, for appellees.
   PER CURIAM.

Johnnye Mae Williams appeals from an order of the Judge of Industrial Claims urging the judge erred in holding that mental injuries resulting only from emotional causes, without physical trauma, are not compensable under the Florida Workers’ Compensation Act. We find no error.

At a hearing, appellant made an offer of proof. The offer included the following alleged facts. Ms. Williams taught hairdressing and cosmetology for approximately 25 years in the Hillsborough County School System. In the summer of 1974, she left her employment for about two weeks with a non-industrial illness. When she returned to her class she noticed a change in the attitude of her students. She alleges that the students were abusive and resentful. According to the offer, this attitude was eventually expressed by fellow students, administrators and by Ms. Williams’ supervisors. Ms. Williams alleges these individuals conspired to intentionally embarrass and humiliate her in an effort to obtain her resignation. Ms. Williams withstood the stress of this abuse until August of 1975 when she was dismissed. After a civil service hearing, in April 1976, Ms. Williams was reinstated with full back pay. Upon her return to work she said that the alleged conspiracy of her employers to force her to resign continued. After she had been back at work for three weeks Ms. Williams suffered a nervous breakdown. Ms. Williams is presently totally disabled, suffering from a psychoneurotic depressive reaction with conversion features.

A claim for compensation was filed with the Bureau of Workmen’s Compensation on November 22, 1978. Ms. Williams contends her disability is compensable even though she suffered no physical trauma. The employer/carrier moved to dismiss the claim on the ground no accident, as defined in the act, had occurred. The judge of industrial claims dismissed the claim stating it failed to show a compensable injury under the Workmen’s Compensation Law. We agree.

Florida’s Workers’ Compensation Law, Section 440.09, Florida Statutes, limits compensation coverage to disability or death resulting from an “injury arising out of and in the course of employment”. Section 440.02(6) defines “injury” as “. . . personal injury or death by accident arising out of and in the course of employment. . .. The term “accident” is defined in Section 440.-02(18) as “. . . only an unexpected or unusual event or result, happening suddenly”. That section goes on to state that a “. . . mental or nervous injury due to fright or excitement only, .. . shall be deemed not to be an injury by accident arising out of the employment”.

It has long been recognized in Florida that there must be an actual physical injury upon which to predicate compensation for neurosis. Superior Mili Work v. Gabel, 89 So.2d 794 (Fla.1956); Watson v. Melman, Inc., 106 So.2d 433 (Fla. 3rd DCA 1958), Arosa Knitting Corp., Travelers Ins. Co. v. Martinez, IRC Order 2-3444 (1978); Osceola County Board v. Gagnon, IRC Order 2-2874 (1974), cert. denied 338 So.2d 842 (Fla.1976); Cf. Tintera v. Armour and Company, 362 So.2d 1344 (Fla.1978); General Telephone Co., American Motorists Inc. Co. v. Bass, IRC Order 2-3643 (1978). While the alleged injuries are not encompassed within the Florida Workers’ Compensation Act, those injured under such circumstances or other situations not covered by the act are free to pursue common-law remedies. Grice v. Suwannee Lumber Manufacturing Company, 113 So.2d 742 (Fla. 1st DCA 1959).

The order appealed is AFFIRMED.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: MILLS, Chief Judge.

text:
    COLONIAL AND SEMORAN SHELL SERVICE and American Home Group & New Hampshire Insurance Company, Appellants, v. Vaughn GRISSOM, Appellee.
    No. SS-104.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1980.
    Bernard J. Zimmerman and Jose R. Rodriguez of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Ronald J. Langa of Maher, Overchuck & Langa, Orlando, for appellee.
   MILLS, Chief Judge.

The Employer/Carrier appeals from a workers’ compensation order awarding 50 percent permanent partial disability. We reverse.

The relevant medical testimony was that the claimant had sustained between 10 and 15 percent permanent physical impairment of the body as a whole. Other evidence focused on a work search by claimant and his difficulties in obtaining émployment because of his compensable injury. In the order, the Judge of Industrial Claims did not state whether the award was based on a finding of a permanent impairment or of loss of wage earning capacity.

If the finding was based on permanent impairment, it is erroneous because Section 440.25(3)(b), Florida Statutes (1978), which was in effect at the time of this industrial accident, prohibits the Judge from making a finding of a degree of physical impairment that is greater than the greatest permanent impairment rating given by a physician. On the other hand, if the finding was based on loss of wage earning capacity, the order is defective because there was no finding that claimant sustained any permanent anatomical impairment. Agrico Chemical Company v. Laws, 384 So.2d 722 (Fla. 1st DCA 1980). Thus, we must reverse and remand for entry of a proper order or for other proceedings consistent with this opinion.

Since the award on which attorneys fees are based must be reversed and remanded for further consideration, the attorneys fees provision must also be reversed and remanded for reconsideration.

REVERSED and REMANDED with directions.

McCORD and THOMPSON, JJ., concur.


text:
    Fanny HAMMEL, d/b/a Royal Construction Cleaning/Century Village East, Inc., Appellants, v. Florence PITTMAN, Appellee.
    No. SS-214.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1980.

      Thomas E. Kingcade of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, P. A., Palm Beach, and Randall J. DeHayes, House Counsel, West Palm Beach, for appellants.
    Louisa Smith-Adam of Montgomery, Ly-tal, Reiter, Denney and Search, P. A., West Palm Beach, for appellee.
   PER CURIAM.

Century Village East, Inc. appeals the deputy’s order finding that appellee was an employee of Fanny Hammel, d/b/a Royal Construction Cleaning and that Fanny Hammel was a subcontractor of Century Village East, Inc., the owner and general contractor responsible for workers’ compensation coverage for the appellee. We fully agree that claimant was not an independent contractor, but we must reverse on the ground that Century Village East, Inc. is not an employer within the meaning of Section 440.10(1), Florida Statutes (1977).

The status of an independent contractor depends upon the parties’ dealings with each other and the existence of a sufficient group of favorable factors to establish the relation. Cantor v. Cochran, 184 So.2d 173, 174 (Fla.1966). Although there were factors pointing in each direction, suffice it to say that the regularity of appel-lee’s employment, the type of labor performed, and Hammel’s ability to fire appel-lee without liability, justify the finding of an employer-employee relationship versus an independent contractor relationship. Cantor v. Cochran; Brewer v. Cueto, 379 So.2d 1322 (Fla. 1st DCA 1980).

Although the deputy properly concluded that appellee was an employee of Hammel, this does not settle the issue of whether Century Village East, Inc. was liable to appellee for workers’ compensation benefits. The evidence revealed that Century Village East, Inc. was not only the general contractor, but that it was building condominiums for itself for resale. Under Section 440.10, in case a contractor sublets any part of his contract work to a subcontractor, all of the employees of the subcontractor engaged on such work are deemed to be employed in the same business, and the contractor is liable for payment of workers’ compensation to the employees, except to employees of a subcontractor who has secured the same. In this instance there is no contractor-subcontractor relationship between Century Village East, Inc. and appellee’s employer, Hammel, because Century Village East, Inc. had no primary obligation under a contract, which it passed on to Hammel as subcontractor. Jones v. Florida Power Corporation, 72 So.2d 285 (Fla.1954); Southseas Plantation, Ltd. v. Acevedo, 387 So.2d 1035 (Fla. 1st DCA 1980); State v. Luckie, 145 So.2d 239 (Fla. 1st DCA 1962). Accordingly, that portion of the order requiring Century Village East, Inc., as employer, to pay workers’ compensation benefits must be reversed.

ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ., concur.


text:
    SOUTHEAST FIRST NATIONAL BANK OF MIAMI, Appellant, v. THE FLORIDA BAR, Appellee.
    No. 79-1856.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    William E. Sadowski, Miami, for appellant.
    Paige & Catlin and H. James Catlin, Jr., Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The trial court’s Summary Final Judgment, from which this appeal is taken, provides, in pertinent part:

“The Florida Bar, Plaintiff herein, seeks a summary final judgment against Defendant, Southeast First National Bank of Miami. The signature of the payee to a check was forged by his Florida attorney. The Defendant paid the check bearing the forged endorsement to the attorney who converted the funds to his own use. The payee filed a claim with the Plaintiff and received payment of $4,300 from the Client’s [sic] Security Fund maintained by The Florida Bar pursuant to Article XVII of the Integration Rule. Payee executed and delivered to Plaintiff an Assignment and Subrogation Agreement .... The Integration Rule specifically authorized the Plaintiff to take assignments of causes of action as a condition to payments from the security fund. Plaintiff seeks to recover from the Defendant the $4,300 it paid to the payee. The payee would be entitled to recover from the Defendant for conversion of the check as a result of its payment on a forged and unauthorized endorsement. Fla.Stat. 673.3-419(l)(c) [sic]. See Fidelity National Bank v. Valachovis, 163 So.2d 33 (Fla. DCA 2 1964) [sic]. Ergo, Plaintiff as assignee of the payee’s cause of action, is entitled to recover from Defendant the sum of $4,300 which is the amount of the actual loss sustained by payee. (The check was in the sum of $5,000.). There is no proof that the payee was negligent. (Assuming, arguendo this would constitute a defense.) There is no genuine issue of a material fact. The Defendant contends, inter alia, that the Article XVII of the Integration Rule and Article XVI of the By-Laws of The Florida Bar, concerning the Clients’ Security Fund, are unconstitutional as violative of the equal protection and due process clauses of the United States and State of Florida Constitutions. The Court rejects this argument as being without merit. I find that Plaintiff is entitled to a summary final judgment as a matter of law.... ”

We affirm the judgment of the trial court. The Florida Bar Integration Rule, article XVII, section 1 (the Rule), does not, as Southeast contends, limit The Florida Bar to proceeding only against an offending attorney. The Rule, amended in 1970, reads, in pertinent part:

“The Florida Bar or its Board of Governors may take assignments of the causes of action of claimants as a condition to said payments.”

The 1966 version of the same Rule provided:

“The Florida Bar shall exert every reasonable effort to recover from the offending lawyer such amounts as shall have been paid to a client on any claim against such lawyer.” (emphasis supplied).

Any doubt about the intended scope of the Bar’s recovery rights under the 1970 Rule is resolved by comparison with the former rule. It is abundantly clear that the Bar may seek to recover, under the assignment received from a claimant to whom it has made payment, on any cause of action which would have been available to the claimant-assignor.

Southeast’s reliance upon the Florida Bar Integration Rule By-laws, article XVI, section 4(e), which provides:

“As a condition precedent to the grant of monetary relief, the applicant shall make an assignment in favor of the Bar of the subrogation rights or the judgment or decree . . . obtained by the applicant against the offending member or members . . . .” (emphasis supplied),

is similarly unavailing. The By-law was enacted in 1966 prior to the present version of the controlling Integration Rule. Florida Bar Integration Rule, article VII, requires that by-laws, which are adopted by the Bar’s Board of Governors pursuant to the Rule, be consistent with the Rule. Thus, even if, arguendo, this By-law were read to mean, as suggested by Southeast, that only subrogation rights against the offending attorney are assignable, the Rule which, as we have stated, is not so limited, would control.

We reject Southeast’s arguments that its constitutional rights to equal protection and due process are violated by the Rule, which permits the Bar in its unbridled discretion to seek recovery against Southeast, itself a victim of the actions of the offending attorney. Reimbursement to claimants from the Clients’ Security Fund are a matter of grace, not of right or obligation. The decision to pay a claimant and the decision to sue on an assignment are within the sole and unfettered discretion of the Bar. No cognizable constitutional right of Southeast’s is affected by the Bar’s exercise of its prerogative to proceed against Southeast. Cf. Bell v. State, 369 So.2d 932 (Fla.1979) (no denial of equal protection by prosecutor’s decision to prosecute some but not other participants in crime); Sullivan v. Askew, 348 So.2d 312 (Fla.), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977) (no constitutional right of prisoner seeking clemency from death sentence is offended by the unrestricted discretion vested in the executive); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (neither the prosecutor’s discretion in the decision to charge one with a capital offense or to accept a plea to a lesser offense, nor the executive’s discretion to commute a death sentence offends the Constitution); Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962) (the conscious exercise of selectivity in enforcing a criminal habitual offender statute, not based on an arbitrary classification, does not offend the equal protection clause).

Affirmed.

      . The Bar suggests that the By-law is consistent with the Rule and contemplates the assignment of subrogation rights against anyone and judgment against attorneys. Such a reading would make the By-law consistent with the Rule, but we need not reach this issue.


text:
    Thomas TEW, on behalf of himself and all other taxpayers of Dade County, Florida, Appellant, v. The SCHOOL BOARD OF DADE COUNTY, Florida, Appellee.
    No. 80-1666.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Tew, Critchlow, Sonberg, Traum & Fried-bauer and Thomas Tew, Miami, for appellant.
    Frank A. Howard, Jr. and Madelyn P. Schere, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Tew, suing solely in his capacity as an ad valorem taxpayer, filed a complaint challenging the use of Dade County School Board funds for the public education of recently arrived “refugee” children. Because no constitutional or statutory provision expressly forbids such expenditures, we agree with the trial court which, in dismissing the cause with prejudice, held that the plaintiff-appellant did not have standing to maintain the action. Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917); Paul v. Blake, 376 So.2d 256 (Fla. 3d DCA 1979).

Affirmed.


author: DAUKSCH, Chief Justice.

text:
    William Henry BENNETT, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-637/T4-458.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 1980.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   ON MOTION TO DISMISS COUNSEL

DAUKSCH, Chief Justice.

Appellant has filed a motion allegedly on his own to have this court discharge his court-appointed attorney on the alleged grounds his attorney did not file an adequate brief and thus was not presenting his case fully. He also asks that we strike the brief filed by the attorney and allow him to file his own brief, after we order his court-appointed trial counsel and appellate counsel to furnish him with the record of the proceedings at the trial level.

Upon receipt of appellant’s motion, we requested his lawyer to respond to the motion! The response was that counsel has no objection to being removed and that appellant “has an absolute right to represent himself,” citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The attorney did not respond to the allegations that he did not properly present all the issues to be raised on appeal. We have no way of knowing at this point whether the attorney has adequately represented appellant in this appeal and will not be able to determine that question until this case is decided upon full review. However, we do know that abilities of appellate counsel, Mr. Jon May, from other appeals in this court and have never found him to present a case in an incompetent fashion.

The question for us to decide is whether an appellant always has an absolute right to represent himself on appeal. We answer the question by saying he does not. Here, the appellant requested and accepted the public’s gracious, albeit constitutionally mandated, dole for many professional services, including his trial lawyer and all the attendant costs there, as well as on appeal. Presumably, once the brief in his behalf was filed, where he perhaps thought a loophole would be found to extricate him from his predicament, he found instead there was little chance of his victory, so he decided to attack on a different course. We cannot allow this tactic to succeed lest the orderly administration of this court and the integrity of appellate proceedings be disrupted. See Chapman v. United States, 553 F.2d 886 (5th Cir. 1977). See also United States v. Lawrence, 605 F.2d 1321 (4th Cir. 1979), cert. denied, 444 U.S. 1084, 100 S.Ct. 1041, 62 L.Ed.2d 720 (1980). Had appellant requested the right to represent himself from the outset and demonstrated himself at least limitedly capable of doing so, we would have decided otherwise. Faretta; Lawrence; United States v. Dunlop, 577 F.2d 867 (4th Cir.), cert. denied, 439 U.S. 858, 99 S.Ct. 174, 58 L.Ed.2d 166 (1978); United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977).

Although not determinative, it is not unnoticed the appellant’s motion was prepared by something entitled “Avon Park Correctional Institution’s Law Library, A.P.C.I. Law Clinic.” If we were to inquire into appellant’s ability to represent himself as was discussed in Faretta in the context of an intelligent waiver of counsel, we might be forced to look further into the background. All of this would be too disruptive of the administration of justice, both for appellant and the other litigants before this court. This is not to say that incompetent counsel should not or could not be removed upon a clear showing of neglect or willful misrepresentation, but it is to say there is no substantial allegation of that in this case. A criminal appellant cannot have his appointed counsel discharged at his whim, especially after the appellant’s work has been done and the case is about ready for disposition.

MOTION DENIED.

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


author: COBB, Judge.

text:
    Jerry ALLENDER, as Trustee, Appellant, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF TITUSVILLE, Titusville, Florida, a corporation organized and existing under the laws of the United States of America, Appellee.
    No. 79-247.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 1980.
    Gilbert S. Goshorn, Jr., of Goshorn & Miller, P. A., Titusville, for appellant.
    Stephen M. Brewer, of Henderson & Matheny, Titusville, for appellee.
   COBB, Judge.

Jerry Allender appeals from a final summary judgment in favor of First Federal Savings & Loan Association. The trial court ordered that a deficiency judgment held by the Savings & Loan against Bryan Gordon, Jr., from a separate case, is a valid lien against two parcels of specifically described property, superior to any interest of Allender or Gordon. The Brevard County Sheriff was ordered to levy upon and sell the property to satisfy the lien of the Savings & Loan.

According to the record, Gordon transferred the property to Allender, as trustee, by deeds dated February 13, 1974 and January 29, 1976. According to Allender’s deposition, he received oral notification of an assignment by Gordon of his interest in the property sometime in 1975 or early 1976. There is a document from Gordon dated January 30, 1976, assigning to AMS, Inc., all of Gordon’s interest in the property and giving authority to transfer the ownership of the property to AMS, Inc., as of September 15, 1975. The Savings and Loan’s original deficiency judgment against Gordon is dated January 25, 1977. There are no allegations in the complaint, nor does the record reveal that a certified copy of this deficiency judgment was recorded. After the Savings and Loan filed the present action and a lis pendens, Allender received the written assignment and executed a quitclaim deed of the property to AMS, Inc.

In his first point on appeal, appellant argues that imposition of a section 55.10, Florida Statutes (1979), lien is improper absent a showing that a certified copy of the judgment was filed in the public records as required by section 55.10(1). Smith v. Venus Condominium Ass’n, Inc., 352 So.2d 1169 (Fla.1978). The Savings and Loan notes that this issue was raised for the first time on appeal and that section 55.10 is inapplicable since this action is in the nature of a creditor’s bill and not an attempt to impose a statutory lien. Since we must reverse and remand on the second point, appellant will have the opportunity to raise the issue of the sufficiency of the complaint as a creditor’s bill before the trial court; and the trial court will have the first chance to rule on the application of the requirement of a showing of exhaustion of legal remedies or the exceptions where equity has exclusive jurisdiction.

As to appellant’s second point, we agree that the record shows material questions of fact which preclude summary judgment, concerning the validity and effectiveness of the deeds from Gordon to Allen-der, as trustee, as well as the assignment with directions to transfer Gordon’s beneficial interest in the property, which may have predated entry of the deficiency judgment. As a matter of law, the purported assignment does not appear invalid on its face. A beneficial interest is assignable, Preston v. City Nat. Bank of Miami, 294 So.2d 11 (Fla.3d DCA 1974), and the assignment meets the witness requirements of section 689.01, Florida Statutes (1979). Even if the assignment were invalid, we find no basis in this record for disregarding the deeds from Gordon to Allender which predated the deficiency judgment, and the deeds from Allender to AMS, Inc. (although subsequent to the lis pendens). The complaint does not allege fraudulent conveyance to defeat the rights of creditors, which, once properly pleaded and proved, might support the result reached by the trial court. Accordingly, the summary final judgment is reversed and the cause remanded for proceedings consistent with this opinion.

REVERSED and REMANDED.

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

      . The January 29, 1976 deed has an attached schedule which states “AS A RESULT OF A DISSOLUTION OF MARRIAGE BETWEEN DOROTHY C. GORDON AND BRYAN GORDON, JR., THIS DEED IS GIVEN PURSUANT TO THE PROPERTY SETTLEMENT AGREEMENT BETWEEN THE PARTIES.”

      . Except for fundamental error, issues must be tried before the trial court and matters raised for the first time on appeal will not be considered. E. g., Hartley v. Florida E. Coast Ry. Co., 339 So.2d 630 (Fla. 1976); Jaruagua Enterprises, Inc. v. Dom, Inc., 339 So.2d 702 (Fla.3d DCA 1976); J. E. Morton v. Rifai, 339 So.2d 707 (Fla. 1st DCA 1976).

      . See generally Robinson v. Springfield Co., 21 Fla. 203 (1885); 13 Fla.Jur.2d Creditor’s Rights §§ 280, 287 (1979).

      . See First State Bank v. Fitch, 105 Fla. 435, 141 So. 299 (1932); Clafin v. Ambrose, 37 Fla. 78, 19 So. 628 (1896); 13 Fla.Jur.2d Creditors’ Rights § 289 (1979); see also Hillsborough County v. Dickenson, 125 Fla. 181, 169 So. 734 (1936); First Nat. Bank of Chipley v. Peel, 107 Fla. 413, 145 So. 177 (1933); Macfarlane v. Dorsey, 49 Fla. 341, 38 So. 512 (1905); 19 Fla.Jur. Judgments and Decrees § 196 (1958).

      . Holl v. Talcott, 191 So.2d 40 (Fla.1966).


author: PER CURIAM. HURLEY, Judge,

text:
    STATE of Florida, Appellant, v. Scott P. COREY, Appellee.
    No. 80-188.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1980.
    David H. Bludworth, State Atty., and Robert M. Gross, Asst. State Atty., West Palm Beach, for appellant.
    Hayward D. Gay, of Jones & Foster, P.A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ANSTEAD, J., and WARREN, LAMAR, Associate Judge, concur.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring.

The trial court suppressed contraband/evidence found in defendant’s carry-on luggage because it determined that the search was not conducted with defendant’s voluntary consent. Since “consent” is a question of fact and inasmuch as the trial court’s finding is supported by substantial competent evidence, I join in the court’s affirmance.

Nonetheless, I am troubled with the state’s contention that defendant’s imminent departure from the airport constituted an exigent circumstance so as to justify an immediate search. Both in its brief and during oral argument, the state adhered to the position that at the time of the search of defendant’s luggage, the police did not have probable cause to believe that the defendant was transporting drugs. As I view the facts, the case began with a citizen-police encounter which did not implicate defendant’s Fourth Amendment rights. See United States v. Mendenhall, - U.S. -, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Further, during the course of their discussion with the defendant I believe the police gathered sufficient information to create a founded suspicion that defendant was transporting drugs. At this point, after having determined defendant’s true identity and address, and with the requisite founded suspicion, the police had at least one other alternative-they could have detained defendant’s luggage for further investigation. See United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970) and United States v. Klein, 626 F.2d 22 (7th Cir. 1980).