text:
    Bryan F. JENNINGS, Appellant, v. STATE of Florida, Appellee.
    No. 59299.
    Supreme Court of Florida.
    April 8, 1982.

      James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Division, Asst. Public Defender and Michael S. Becker, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen. and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of conviction of first-degree murder, kidnapping, and sexual battery. Agreeing with the recommendation of the jury, the trial court sentenced the appellant, Bryan Jennings, to death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We remand for a new trial.

On May 11, 1979 the nude body of six-year-old Rebecca Kunash was found floating in a Brevard County canal. The autopsy showed that she had been raped, that her skull was fractured, and that the cause of death was asphyxiation. The evidence presented at trial indicates that Jennings broke into the girl’s bedroom, held his hand over her mouth and nose until she was unconscious, and then, outside, twice threw her down, striking her head on the pavement. He then took her to a nearby canal where he sexually assaulted her and held her underwater for ten minutes.

At the time of the crime, Jennings was on leave from the Marine Corps, staying in Merritt Island with his family. He has a juvenile record of several arrests and convictions for burglary and trespassing and admits to having a problem involving voyeurism. A short while after the crime, Jennings was arrested on a traffic warrant from Orange County. He was awakened in his cell at 1:00 a. m. on May 12 and questioned about the Kunash murder. After being read his rights, he indicated that he wanted an attorney. The investigator continued to explain Jennings’ rights and indicated his willingness to and hope of continuing the questioning at that time. Jennings agreed to talk if given a brief recess. About five minutes later, he returned to the interrogation room and agreed to be questioned without his attorney.

Jennings denied involvement in the crime until pressed by the investigator with the evidence. He then broke down and made an incriminating statement. As a result of this statement, the police obtained some clothes, pictures, and hand-drawn maps that were later introduced into evidence.

Prior to trial the state announced that it intended to call Allen Kruger as a witness. While in jail Kruger had overheard statements made by Jennings to a cellmate. Hearing of this proposed witness, the assistant public defender representing Jennings sought to withdraw because the public defender, through another assistant, had represented Kruger. At this time Kruger had been convicted of second-degree murder and was awaiting sentencing. The trial judge refused to allow counsel to withdraw and both the Fourth District Court of Appeal and this Court denied writs of certiora-ri to review that decision. A petition for federal habeas corpus relief on the motion to withdraw was denied for failure to exhaust state remedies because the defendant had not yet been tried.

At trial Kruger, who had been sentenced by that time, testified about the conversation. In it, according to Kruger, Jennings admitted the killing and detailed how he had beaten and killed the girl. Jennings’ counsel refused to cross-examine Kruger, contending that there was a conflict of interest because the public defender had represented Kruger and that to cross-examine him would constitute a violation of the code of professional responsibility. The trial judge admonished counsel to cross-examine, but he persisted and no cross-examination occurred.

Kruger’s testimony was critical in that the statement about which he testified was the only direct evidence of premeditation. While there was circumstantial evidence of premeditation and evidence of felony murder, we cannot say that the jury would have convicted Jennings of first-degree murder without hearing that statement.

Thus, Jennings was deprived of the benefit of cross-examination of a vital and material witness. The opportunity for full and complete cross-examination of critical witnesses is fundamental to a fair trial, which Jennings did not receive. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). See Coco v. State, 62 So.2d 892 (Fla.1953), cert. denied, 349 U.S. 931, 75 S.Ct. 774, 99 L.Ed. 1261 (1955). We do not, in this proceeding, determine the correctness of the public defender’s position because such resolution does not affect the fact that Jennings did not receive a fair trial. That question is better answered in some other proceeding.

Although a new trial is required, we feel obliged to address one other question that will reoccur in a new trial. This is the admissibility of the statement Jennings made as a result of police interrogation and the evidence secured as a consequence thereof. Although we are concerned with some of the language in the majority opinion of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), considering the totality of the circumstances, including the questions and statements of the interrogating officers and the responses thereto, we find that the court properly found the statement to be admissible.

The prelude to the interrogation concerning the crime concluded with an unequivocal agreement to proceed without counsel. Although the continued dialogue between the detectives and the defendant might have been a subtle attempt to have the defendant waive his right to counsel, we can discern no improper persuasion or acts on their part. To sustain Jennings’ contention, we would have to say that his request for counsel was unequivocal, plus find that, before the officers could have any dialogue, Jennings would have to have initiated it. We hold that a suspect can waive the presence of counsel even though he has indicated a prior desire to have counsel if the waiver is not coerced, is freely given, and is a continuation of the original dialogue. These circumstances distinguish this case from Edwards. See Nash v. Estelle, 597 F.2d 513 (5th Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979). We find the confession and the fruits of it properly admitted.

The verdict and sentence are vacated, and the case is remanded for a new trial.

It is so ordered.

ADKINS, BOYD, OVERTON, ALDERMAN, MCDONALD and EHRLICH, JJ., concur.

SUNDBERG, Chief Justice,

concurring as to retrial, but dissenting as to admission of statement:

Although I concur with the granting of a new trial for the reasons articulated by the majority, I dissent from the majority’s holding Jennings’ statement admissible at that retrial. I do not believe Jennings’ request for counsel was scrupulously honored as required by Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . There is evidence that the defendant had an unstable mental condition; his statements to the police disavow any intention to commit murder. Plucking a sleeping child from her bedroom through a window, raping, and then killing her is an extremely atrocious set of circumstances, but, nevertheless, could result in a conviction less than first-degree murder.

      . The following dialogue preceded the statement:
      BY MR. HUDEPOHL: Today’s date is May the 12th, 1979, and the time is 0-1-0-8 hours. Present are myself, Agent Hudepohl, and Agent Porter, Brevard County Sheriff’s Department, Homicide Squad and Bryan Frederick Jennings.
      Q Bryan, for the record, would you please state your full name?
      A Bryan Frederick Jennings.
      Q Bryan, we would like to interview you in regards to a murder that occurred in Brevard County on 5-11-79, in which you are a suspect.
      A Me?
      Q Yes, you; do you understand—
      A Yeah
      Q Okay. I want to advise you of your rights here. This is Brevard County Sheriffs Department interrogation preamble. It states that I, Bryan Frederick Jennings, am aware that I am a suspect for first degree murder. I have been advised and have had explained to me prior to answering any questions, or making any statement either oral or written, that I am entitled to be represented by legal counsel or lawyer. I have also been advised that if I am without funds with which to secure counsel, the State of Florida will furnish me with an attorney. Do you understand that?
      A Uh-huh.
      Q It has been explained to me that any statement I make or questions that I answer must be free and voluntary without threat of punishment or promise of reward. Do you understand that?
      A Uh-huh.
      Q I am aware that I have the right to remain silent and not bear witness against myself as guaranteed by the Constitution of the United States of America.
      A Uh-huh.
      Q It has been explained to me that any statement made by me, either oral or written, can and will be used as evidence against me in court. Do you understand that?
      A Yeah.
      Q It has also been explained to me that I may have an attorney present to represent me now or at any time during this interview and interrogation; do you understand that?
      A Yeah.
      Q Okay. I understand that this interview and interrogation can and will be terminated at any time upon my request. A. Okay.
      Q Are you willing to proceed without an at-
      torney being present to represent you? In other words, do you want to go ahead and talk to us now?
      A Yeah, but let me wake up a little bit first. This is not good when I just woke up. No, I don’t think so; I definitely have to have a lawyer for this. This is too heavy for me to do.
      Q Are you fully awake and understand everything that I’m saying to you?
      A I’m still half asleep right now, but I’m awake enough to, hey, this is a heavy charge, and I’m not even going to sit here and take this on myself to try and talk about it. Huh-uh, not this kid. Now if it was something like burglary, I wouldn’t mind it. But, I mean, Christ, this — you’re talking about fucking murder, man.
      MR. PORTER: That’s right, we are.
      THE WITNESS: Jesus, look, I’ve done a lot of things, and lot of them weren’t always nice. I ain’t never killed nobody, and especially not no seven year old girl.
      Q (BY MR. HUDEPOHL) Well, it’s your right to exercise however you want to do it, you know. All we — all—you know we’re giving you the opportunity to talk to us, but we’re required by law to advise you of what your rights are before we do. You know, we’re more than willing to sit here and listen to your side of the story and ask you questions and let you answer them, but we have to advise you of your rights. And before we can ask you any questions, you have to intelligently waive those rights. Now, you know, I’ll — if you like, and if it’s your decision not to talk to us without a lawyer, fine, we’ll terminate the interview. If it’s your decision that you want me to read, reread something, or whatever you want, you just, you tell us, but we have to know. It’s your decision to make, Bryan, you know; I can’t make it for you. Like I say, we’re here giving you the opportunity to talk about it and, you know, it’s your decision to make.
      A All right. Tell me — tell you what, give me about five minutes, walk down here to the bathroom to get some water and clear my head a little bit—
      Q Absolutely.
      A —and we’ll talk.
      Q Okay. Let the record reflect that the time is thirteen-fourteen hours and Bryan has indicated he would like to get a drink of water and use the bathroom or whatever, and we’ll continue the interview. The tape recorder will be shut off at this time.
      (Whereupon the tape recorder was turned off, turned back on at a later time, and the following proceedings were had:)
      Q (BY MR. HUDEPOHL) Okay. Let the record reflect that the tape recorder has been turned back on. We’re back in the interview room at the jail, time is thirteen-seventeen hours — correction, zero-one-twelve — zero-one-seventeen hours. Bryan, you — you’re awake now?
      A Yeah.
      Q Okay. You — what you do went and had a drink of water?
      A Yeah, and washed my face and—
      Q Got a cigarette?
      A Yeah.
      Q You all set now?
      A Yeah.
      Q Okay, would you like for me to read this rights over to you again?.
      A No, that’s — I—
      Q You understand what they are?
      A Yeah.
      Q Okay. I’ll ask you the question again. Are you willing to proceed without an attorney being present to represent you?
      A At this time, yes.
      MR. PORTER: And any time you want to stop, stop.
      THE WITNESS: Okay.
      Q (BY MR. HUDEPOHL) All right. Would you sign that right there, please?


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    Robert B. NELLE, et al., Petitioners, v. LOCH HAVEN HOMEOWNERS’ ASSOCIATION, INC., et al., Respondents.
    No. 59919.
    Supreme Court of Florida.
    April 8, 1982.
    William H. Walker, St. Petersburg, for petitioners.
    Paul C. Zempel, Clearwater, for respondents.
   ADKINS, Justice.

The second district acknowledges that two of its sister courts have taken an approach different from the one adopted by the second district in Nelle v. Loch Haven Homeowners’ Association, 389 So.2d 697 (Fla. 2d DCA 1980). See Finchum v. Vogel, 194 So.2d 49 (Fla. 4th DCA 1966), and Ortega Co. v. Justiss, 175 So.2d 554 (Fla. 1st DCA 1965). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Property owners in Loch Haven Subdivision acquired their respective lots subject to duly recorded deed restrictions. These restrictions are comprehensive and detailed. Nelle v. Loch Haven Homeowners’ Association, 389 So.2d at 698. Three of these restrictions are particularly pertinent to the resolution of the legal issue here in question.

g. These covenants and restrictions are real covenants and restrictions and are to run with the land, and shall be binding on all parties and owners, and on all parties claiming under them ....
h. If any person, firm or corporation, or their heirs, successors or assigns, shall violate or attempt to violate any of the restrictions before their expiration, it shall be lawful for any other person or persons owning any part or parcel of any above described land to prosecute and proceeding [sic] at law or in equity against the person violating or attempting to violate any such covenant or restriction and to either prevent him or them from doing [sic] or to recover damages or other dues for such violation.
k. The .Developer shall have the right and authority to approve exceptions or variations from these restrictions without notice or liability to the owners of other lots or any persons or authority whatsoever.

These covenants present the question of whether the developer’s reservation of the right to approve exceptions to the restrictive covenants prevents enforcement of the remaining covenants by a remote grantee.

Ordinarily, restrictive covenants are unenforceable by one not a party to the conveyance unless the covenants were made by a common grantor for the benefit of all grantees. Osius v. Barton, 109 Fla. 556, 147 So. 862 (1933). One method of demonstrating this beneficial intent of the grantor is through a common, uniform, or scheme of restriction imposed on the property transferred out of the common grantor. Id. 147 So. at 866. Thus, a remote grantee may enforce restrictive covenants against another remote grantee when a common grantor intended to create a uniform building plan or scheme of restrictions. Batman v. Creighton, 101 So.2d 587 (Fla. 2d DCA 1958).

In the past, reservation of the right to modify subdivision restrictions negated the existence of a common, uniform building plan thereby preventing enforcement of the restriction by a remote grantee. Finchum v. Vogel. See also Carranor Woods Property Owners’ Association v. Driscoll, 106 Ohio App. 95, 153 N.E.2d 681 (1957). We disagree with this rule and affirm the modern view adopted by the second district.

Traditionally, reservation of the right to modify restrictions, without some limit, allowed the grantor to entirely change the character of the subdivision at the grantor’s whim with no corresponding benefit to the grantee. Thus, there was no assurance that the subdivision would remain subject to the restrictions which supplied the mutual benefit or consideration necessary to allow enforcement. More recently, however, courts have begun to require that the reserved power be exercised in a reasonable manner so as not to destroy the general plan. Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowner’s, Inc., 303 So.2d 665 (Fla. 4th DCA 1974); Johnson v. Three Bays Properties # 2, Inc., 159 So.2d 924 (Fla. 3d DCA 1964). Reading this reasonableness requirement into the reservation of power to modify undercuts the grantor’s unfettered control and provides the mutual burden and benefit to both grantor and grantees necessary to sustain the covenants. The subdivision will substantially retain the character and restrictions contemplated by the grantor and each grantee at the conveyance.

There may be times, however, when the grantor reserves too much power or other factors support a finding that a common building plan was not intended. Because this intent is critical we cannot subscribe to the “all or nothing” rule previously held. We, therefore, hold that a reservation by the developer of the power to approve exceptions to the restrictive covenants is merely one factor to be considered in determining whether the developer intended to establish a uniform plan of development.

We find that the restrictions in the instant case show an intent on the part of the developer to establish a uniform plan of development. They are comprehensive and detailed. Moreover, the language of covenant g. expresses an intent that the covenants are to run with the land and be binding on and enforceable by all parties and owners. Plaintiffs are entitled to continue their suit for permanent injunction.

In light of the foregoing, the decision of the Second District Court of Appeal is approved.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

SUNDBERG, C. J., dissents.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Patrick H. RAHE, Respondent.
    Nos. 60848, 61184.
    Supreme Court of Florida.
    April 8, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, John A. Boggs and Patricia J. Brown, Bar Counsels, Tampa, James R. Case, Chairman, Sixth Judicial Circuit Grievance Committee “C”, Clearwater, and Mary Lou Wagstaff, Chairwoman, Sixth Judicial Circuit Grievance Committee “C”, Largo, of The Florida Bar, for complainant.
    Richard T. Earle, Jr. of Earle & Earle, St. Petersburg, for respondent.
   PER CURIAM.

This matter is before the Court on Motion for Approval of Conditional Guilty Plea for Consent Judgment to violations of Disciplinary Rules 6-101(A)(3) and 1-102(A)(1), (4), (5) and (6) of the Code of Professional Responsibility of The Florida Bar. We approve the Motion, and hereby reprimand respondent, Patrick H. Rahe, for these violations. The publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $538.90 are hereby taxed against the respondent.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, McDONALD and EHRLICH, JJ., concur.


author: McDONALD, Justice.

text:
    Pauline T. RAINES, et al., Petitioners, v. PALM BEACH LEISUREVILLE COMMUNITY ASSOCIATION, INC., etc., Respondents.
    No. 60918.
    Supreme Court of Florida.
    April 8, 1982.

      Marshall B. Wood, Jr. and Robert T. Scott of Wood, Cobb, Murphy & Craig, West Palm Beach, Gunster, Yoakley, Criser & Hersey, Palm Beach, and Edna L. Caruso, West Palm Beach, for petitioners.
    Mark B. Schorr of Becker, Poliakoff & Streitfeld, Fort Lauderdale, for respondents.
    Helen C. Ellis, Div. of Florida Land Sales and Condominiums, Dept, of Business Regulation, Tallahassee, for amicus curiae.
    Albert G. Caruana and David M. Wells of Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff, Miami, Stephen W. Metz, Tallahassee, and Robert M. Rhodes of Messer, Rhodes, Vickers & Hart, Tallahassee, for the Florida Home Builders Association, amicus curiae.
   McDONALD, Justice.

We granted review in this case in order to answer the following question:

WHETHER A COMMUNITY ASSOCIATION WHICH HAS AND EXERCISES ADMINISTRATIVE AND MANAGEMENT POWERS AND DUTIES IN A REAL ESTATE DEVELOPMENT COMPRISED OF CONDOMINIUM AND OTHER FORMS OF REAL PROPERTY OWNERSHIP IS GOVERNED BY CHAPTER 718 OF THE FLORIDA STATUTES, THUS ENTITLING EACH PROPERTY OWNER IN THE DEVELOPMENT TO THE BENEFITS AND PROTECTIONS THEREOF?

We decline to answer the question as framed and dispose of this case by affirming that the respondent association is not an association within the meaning of sections 718.103(2) and 718.303(1), Florida Statutes (1979). The district court properly concluded that the respondent association is not liable for attorneys’ fees under section 718.-303(1).

Leisureville is a planned community consisting of 1803 improved lots with single-family homes and 502 condominium apartments. Each of the 21 apartment buildings has its own condominium association, while the respondent community association is a maintenance/management entity for the entire community. In 1972 a group of apartment owners filed a class action against the respondent association and the single-family lot owners claiming that the association had improperly assessed maintenance fees. The trial court found for the association, but the district court reversed. Raines v. Palm Beach Leisureville Community Association, 317 So.2d 814 (Fla. 4th DCA 1975). On remand a special master found that an improper method of assessment had been used and that the respondents owed the apartment owners $303,-762.40. The trial court adopted the special master’s report, and, at a subsequent hearing, granted the petitioners’ motion for attorneys’ fees. On appeal of this order, the district court found the respondent association not to be an association within the meaning of the condominium statute and reversed the trial court’s award of attorneys’ fees. Palm Beach Leisureville Community Association, Inc. v. Raines, 398 So.2d 471 (Fla. 4th DCA 1981). Two weeks after issuing its opinion, the district court certified its question to this Court.

The purposes of chapter 718 are to give statutory recognition to the condominium form of ownership and to establish procedures for the creation, sale, and operation of condominiums. § 718.102. As pointed out by the district court, a condominium association derives its powers, duties, and responsibilities from chapter 718 and from the association’s declaration of restrictions and bylaws. Each of the 21 apartment buildings, through its separate declaration, is a condominium, and each apartment owner is subject to the condominium form of ownership. The declaration of restrictions for the single-family lots, on the other hand, do not create a condominium form of ownership.

The respondent association derives its powers from its articles of incorporation and from the declarations of restrictions governing both the condominium apartments and the single-family lots. Although the association has broad powers, it is not “the corporate entity responsible for the operation of a condominium.” § 718.103(2). The individual condominium associations fit within this definition, but the respondent association does not.

It might well be that other associations similar to this one would be associations as defined by the statute. We can find, however, no legislative intent to cover the instant management association. The legislature might decide to include this type of association within the scope of chapter 718 in the future, but we conclude that the respondent association presently does not come within the ambit of the condominium statute. We approve the district court’s opinion.

It is so ordered.

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


text:
    The ACD CORPORATION OF FLORIDA; Western Employers Insurance Company, formerly Leatherby Insurance Company, Appellants, v. Freeman WALKER, Appellee.
    No. VV-279.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.
    Edward Almeyda of Cornell & Almeyda, P. A., Miami, for appellants.
    Irwin F. Kosdan, Miami, for appellee.
   On Attorney’s Fees

PER CURIAM.

Upon consideration, claimant’s request for attorney’s fees is denied. We have previously determined that Rule 9.400(b), Fla. R.App.P., requires that a motion for attorney’s fees be filed separately. See Florida Dept. of Commerce v. Davies, 379 So.2d 1313 (Fla. 1st DCA 1980); Wallace v. Walton Context Building, 383 So.2d 729 (Fla. 1st DCA 1980); Munroe Memorial Hospital v. Thompson, 388 So.2d 1338 (Fla. 1st DCA 1980).

SHIVERS, SHAW and THOMPSON, JJ., concur.


text:
    Thomas Raphael FASENMYER, Appellant, v. STATE of Florida, Appellee.
    No. YY-162.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1981.
    As Corrected on Denial of Rehearing Nov. 9, 1981.
    Quentin T. Till, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Upon our review of the complete record of appellant’s conviction for breaking and entering, we find insufficient admissible evidence of a breaking and that the highest offense sustained by the record on that charge is that of entering without breaking with intent to commit a felony. No error affects appellant’s other convictions. The breaking and entering judgment is therefore REVERSED and the case is REMANDED for entry of an appropriate judgment and for resentencing.

ROBERT P. SMITH, Jr., C. J., and McCORD and MILLS, JJ., concur.


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

text:
    Curtis Lee GARVIN, Appellant, v. STATE of Florida, Appellee.
    No. YY-240.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1981.
    Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Contending he should have been sentenced as a youthful offender, Section 958.-04(2), Fla.Stat. (1979), Garvin challenges the 20-year prison sentence imposed following his conviction for armed robbery with a firearm. We reverse.

Garvin was charged in three separate cases — three informations separately filed, but consolidated for simultaneous disposition below — with three offenses: armed robbery with a firearm, armed robbery on a different date, and being an accessory after the fact to a third attempted robbery. By negotiated agreement between his counsel and the prosecution, Garvin pleaded guilty in the first ease to the charge of armed robbery with a firearm and guilty in the second case to the lesser offense of attempted unarmed robbery, with the understanding and agreement that on the first charge he would receive a sentence of 20 years in the Florida State prison, including a mandatory minimum of three years, and that on the second charge he would receive a five-year concurrent sentence. By the same agreement the State nolle prossed the third information.

By his motion to correct an alleged illegal sentence in the first case and by this appeal in that case alone, Garvin claims youthful offender status because he was 18 at the time of sentencing and had not been found guilty of a felony prior to that sentencing. Section 958.04(2)(a), Fla.Stat. (1979). At sentencing for both offenses, however, the trial court treated Garvin as an adult, apparently concluding that armed robbery with a firearm is a life felony, which precludes youthful offender sentencing. Section 958.04(l)(c), Fla.Stat. (1979). First the court adjudicated Garvin guilty of armed robbery with a firearm and imposed the 20-year sentence. After explaining his appeal rights, the court then adjudicated him guilty of attempted unarmed robbery and imposed the five-year concurrent sentence.

The trial court erroneously concluded that armed robbery with a firearm is a life felony. Section 812.13(2)(a), Fla.Stat. (1979), classifies armed robbery with a firearm as a first degree felony. The fact that the crime is punishable by life imprisonment does not convert a first degree felony into a life felony. The Florida statutes provide that the classification of a crime as a “life” or “first degree” felony is determined by the designation provided by each specific criminal offense statute, not by the term of imprisonment. Section 775.081(1), Fla.Stat. (1979). Section 775.082(3)(b) expressly recognizes that a first degree felony may be punishable by life. Lee v. State, 399 So.2d 1027 (Fla. 1st DCA 1981). Nor can the firearm enhancement statute, Section 775.087(1)(a), be applied to increase this offense to a life felony. Richardson v. State, 398 So.2d 1010 (Fla. 1st DCA 1981).

It follows from this Court’s decision in Abram v. State, 405 So.2d 992 (Fla. 1st DCA 1981), that Garvin was entitled to youthful offender sentencing for armed robbery with a firearm, the first offense for which Garvin was adjudicated guilty and was sentenced. We follow that precedent reluctantly, for we feel that in practical effect if not in precise form Garvin was simultaneously adjudicated guilty of two felonies, and for that cause he was disqualified for youthful offender sentencing; at sentencing for each felony he had “previously been found guilty of” another felony. Section 958.04(2)(a), Fla.Stat. (1979). We think “the legislature contemplated mandatory classification for young persons committing their first and only felony.” Goodson v. State, 392 So.2d 1335, 1338 (Fla. 1st DCA 1980), aff’d, 400 So.2d 791 (Fla.1981). When sentences are imposed on the same day at the same court session for multiple felonies, it should make no difference to the defendant’s youthful offender status whether the judge chooses (as in Goodson) first to adjudicate guilt on all offenses to be adjudicated and then to sentence or, as here, to adjudicate guilt and sentence on each offense consecutively.

We recognize that so holding would conflict with Abram, in which the panel held that a defendant adjudicated guilty and sentenced for one felony and then “moments later” adjudicated guilty and sentenced for a second felony must be treated as a youthful offender for purposes of the first sentence. For the reasons intimated by the majority and expressed by the dissenter in that case, we think such artificial temporal distinctions should not control the sentencing in these cases. Following Abram here completely dissolves the bargained agreement by which the State, in exchange for Garvin’s pleas, dismissed one information and acquiesced in a plea to a lesser included charge on a second information. And following Abram invalidates only that part of the bargained sentence that discomfits Garvin; it leaves the secondary five-year concurrent sentence standing and irremediable, for that case was not brought here by Garvin’s appeal. The trial judge here, being free to adjudicate guilt on both felonies prior to any sentencing, would no doubt have followed that procedure had he had the benefit of Abram at the time of sentencing.

We follow Abram despite our concerns over its correctness because that decision is now under review in the Supreme Court. We are also mindful of the recent decision of a panel of this court in Humphry v. State, 402 So.2d 1322 (Fla. 1st DCA 1981), which read Abram as requiring youthful offender treatment for the first felony of all multiple felony sentencing situations, regardless of the sequence of adjudications and sentencing. We find it inappropriate to render a decision requiring en banc proceedings in this Court when the Supreme Court’s jurisdiction has already attached for consideration of similar questions. See Henderson Sign Service v. Dept. of Transportation, 390 So.2d 159, 161 (Fla. 1st DCA 1980). Since the Supreme Court’s recent Goodson decision does not appear to address the issue raised here, we do certify the following question to the Supreme Court as one of great public importance:

For purposes of sentencing on the first felony, is a person mandatorily classified as a youthful offender under Section 958.04(2)(a), Florida Statutes (1979), when at the same proceeding he is first adjudicated guilty of a qualifying felony and sentenced for it and then adjudicated guilty of a second felony and sentenced?

REVERSED.

McCORD and MILLS, JJ., concur.


author: PER CURIAM. SHIVERS, Judge,

text:
    Louise YELL, Appellant, v. RAINTREE NURSERIES, INC. and Shelby Mutual Insurance Company, Appellees.
    No. SS-422.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.
    Rehearing Denied Nov. 20, 1981.
    John M. Schwartz, Titusville, for appellant.
    James B. Cantrell of Pitts, Eubanks & Ross, P.A., Orlando, for appellees.
   PER CURIAM.

AFFIRMED.

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

SHIVERS, J., dissents with written opinion.

SHIVERS, Judge,

dissenting.

I would reverse. The sequence of events establishes the accident as a logical cause of the tumor, shifting the burden to the employer. See Wilhelm v. Westminster Presbyterian Church, 235 So.2d 726 (Fla. 1970).

Here there is a step-by-step progression from the time the claimant injured her eye until the removal of the pseudotumor and literal blindness in the claimant’s eye. The evidence indicates claimant had no previous eye problem except for the wearing of eyeglasses and that she has not injured her eye in any other manner.

I respectfully dissent.


author: PER CURIAM. THOMPSON, Judge, specially

text:
    Joseph John FLYNN, Appellant, v. STATE of Florida, Appellee.
    No. AE-15.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.

      Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from an order which vacated a prior illegal sentence and imposed a new sentence. We affirm.

The appellant had originally received a split sentence for grand larceny as authorized by Section 948.01(4), Florida Statutes (1979). Under that sentence, he was to serve five years in prison, with the condition that after having served two years, the remainder of the sentence would be suspended and the appellant would be placed on probation for three years. After this sentence was imposed, Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla. 1981), was decided. In Villery, the supreme court held that

incarceration, pursuant to the split sentence alternatives found in sections 948.-01(4) and 948.03(2), which equals or exceeds one year is invalid. This applies to incarceration as a condition of probation as well as to incarceration followed by a specified period of probation. We further hold that this decision applies retroactively. Accordingly, one who has been given a split sentence probation contrary to the mandate of this decision is entitled upon application to have the illegal order corrected. In correcting the order, the trial court has the option either of modifying the order to make it legal or of withdrawing it and imposing a sentence of imprisonment. However, unless a condition of probation is determined to have been violated, the court may not extend the term of probation either with or without incarceration, nor mav the court impose a sentence of imprisonment for a period of time in excess of the original total term of probation, (e. s.)

396 So.2d at 1112.

Pursuant to Villery, appellant applied to the trial court for a correction of his split sentence. The trial court withdrew the original sentence and resentenced the appellant to five years in prison (with credit for time previously served).

Appellant first contends that the above underscored words from Villery precluded the lower court from imposing a sentence in excess of the probationary term of three years. We disagree. This court has earlier construed Viller/s prohibition against trial courts imposing “sentence[s] of imprisonment for a period of time in excess of the original total term of probation ... ”, 396 So.2d at 1112, as meaning “the entire term previously imposed, including the conditional period of incarceration.” Williams v. State, 405 So.2d 436 (Fla. 1st DCA 1981). Therefore, consistent with Williams' interpretation of Villery, we agree with the lower court that the maximum sentence it was authorized to impose was five years, with credit for time previously served.

The appellant also contends that in imposing the new sentence, the trial court was limited by the holding in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), to the effect that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” Id. at 726, 89 S.Ct. at 2081. The primary consideration offered by the Court in fashioning this rule was that

it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where . . . the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, “penalizing those who choose to exercise” constitutional rights, “would be patently unconstitutional.”

Id. at 723-24, 89 S.Ct. at 2079-80, quoting United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968). To the extent that Pearce supports the proposition that one should not be penalized for exercising one’s legal rights, Pearce is applicable to the instant case. A prisoner should not be penalized for exercising his legal right to have an illegal sentence vacated. But at the same time, a trial court is not constitutionally precluded from imposing a new sentence which is greater than the original one, in view of events subsequent to the imposition of the original sentence “that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ ” Pearce, 395 U.S. at 723, 89 S.Ct. at 2079, quoting Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949).

Assuming, without deciding, that the new sentence herein is more severe — although the new sentence of imprisonment does not exceed the entire term previously imposed — it is nevertheless constitutionally valid. The record in this case reflects that after the appellant’s release from prison and prior to his resentencing, four different violation of probation affidavits had been filed, each charging him with violating from three to five conditions of his probation. In its order on the appellant’s motion to correct his sentence, the trial court found that a violation of probation charge was pending against the appellant, and that the appellant had been charged with and had admitted earlier violations of his probation. It also determined that it was not necessary for it to entertain further violations of probation proceedings, and thereupon sentenced appellant to five years less the time previously served. In so doing, the trial court took into consideration the factors set forth in Pearce; therefore the imposition of the new sentence did not deprive the appellant of any due process or equal protection rights.

AFFIRMED.

ERVIN and SHAW, JJ., concur.

THOMPSON, J., specially concurring.

THOMPSON, Judge, specially

concurring.

I concur with the majority opinion as it relates to the appellant’s constitutional argument on resentencing. I agree with the conclusion reached by the majority on the maximum sentence that may be imposed but disagree with their interpretation of Villery. In my judgment, the supreme court in Villery did clearly distinguish between true split sentences imposed pursuant to § 948.01(4), Fla.Stat. and incarceration as a condition of probation imposed by order pursuant to § 948.01(3), Fla.Stat., when it said that:

Two basic alternatives are available to the trial judge at the time of sentencing. He may either sentence the defendant or he may place him on probation.
We agree with the District Court of Appeal, Third District, in McGowan v. State, supra, that incarceration as a condition of probation does not constitute a sentence. See also Olcott v. State, 378 So.2d 303 (Fla. 2d DCA 1979); Bracey v. State, 356 So.2d 72 (Fla. 1st DCA 1978). A sentence and probation are discrete concepts which serve wholly different functions.

396 So.2d at 1110

Probation with or without incarceration as a condition of probation may be ordered pursuant to § 948.01(3) with or without an adjudication of guilt. But in either case the trial court stays or withholds the imposition of sentence on a defendant. The appellant in this case received a true split sentence pursuant to § 948.01(4), not an order of probation. The sentence received provided in part as follows:

it is the sentence of the law and judgment of the court that you be committed to the custody of the Division of Corrections of the State of Florida to be imprisoned for the term of five years, after serving two years of said sentence, balance to be suspended, with credit for two days jail time (1-10-78 to 1-11-78) then placed on three years probation.

Relying on the emphasized language from Villery in the majority opinion, i. e., “nor may the court impose a sentence of imprisonment for a period of time in excess of the original total term of probation,” the appellant contends that he can only be re-sentenced to a maximum term of three years (i. e., the original term of probation), less credit for the time previously served.

At first glance, the appellant’s position appears to be supported by an isolated reading of the emphasized language in Villery. However, as noted above, a careful reading of Villery readily shows that in some portions of the opinion, the court refers to true split sentences, while in other portions, the court refers to “incarceration as a condition of probation, also known as the split sentence probation alternative.” 396 So.2d at 1109. Given this context, Villery’s prohibition against imposing a sentence of imprisonment in excess of the original total term of probation can only apply to incarceration as a condition of probation. This construction of Villery is fully supported by the fact that when the supreme court discusses the preceding prohibition, the court prefaces its discussion by stating that “[accordingly, one who has been given a split sentence probation [i. e., incarceration as a condition of probation] contrary to the mandate of this decision is entitled ... to have the illegal order [not sentence] corrected.” 396 So.2d at 1111-12. (emphasis supplied) The court then states that the trial court, “[i]n correcting the order [not sentence], ... [may not] impose a sentence of imprisonment for a period of time in excess of the original total term of probation.” Id. at 1112. (emphasis supplied)

To ignore this construction of Villery would result in ludicrous consequences. For example, assume that a defendant received a true split sentence of 35 years, with the provision that after having served 30 years in prison, the balance of the sentence would be suspended and the defendant would be placed on probation for five years. Under the argument advanced by the appellant, when this defendant moves to correct his sentence pursuant to Villery, the trial court, after withdrawing the original sentence, could only sentence the defendant to five years imprisonment. It cannot be inferred that the Florida Supreme Court could have possibly intended such a result. In correcting a true split sentence, the trial court may impose any sentence of imprisonment not exceeding the total term of the original sentence in prison and the probation imposed, less credit for time previously served. Lewis v. State, 402 So.2d 482, 485 (Fla. 2d DCA 1981).

In support of this construction, it might also be pointed out that the emphasized language relied on by the appellant is a verbatim repetition of a portion of the original Villery decision reported at 396 So.2d 1107, 1112. In the original opinion, the court was considering only facts which involved incarceration as a condition of probation under § 948.01(3), and not a true split sentence. When the court prohibited the imposition of “a sentence of imprisonment for a period of time in excess of the original term of probation,” the court was referring only to a limitation on the trial court when it resentenced a prisoner because of “an illegal probation order ... . ” 396 So.2d at 1112. This prohibitive language was carried over to Villery revisited, but it is not applicable to a true split sentence. ' • •

       For instance, assume that before Villery, a defendant was placed on probation for five years, with the condition that he be incarcerated for the first two years. After Villery, the trial court could withdraw this order of probation and sentence the defendant to spend up to five years in prison (i. e., the original total term of probation), less credit for time previously served.


text:
    James Raymond GANGLOFF, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-995, 80-1199.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied May 19, 1982.
    Fred Haddad and Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We find no reversible error and affirm. As to the appellant’s claim of error for failure of the trial court to instruct on penalties we affirm for the same reasons as those set out in our opinion issued today in the case of Miller v. State, 410 So.2d 557 (Fla. 4th DCA 1982). For the same reasons discussed in Miller we certify the following question of great public importance to the Supreme Court:

May the harmless error rule be applied where the only penalty instruction requested is for the main offense charged and the defendant is subsequently convicted of a lesser included offense?

ANSTEAD and HURLEY, JJ., and MINER, CHARLES E., Jr., Associate Judge, concur.


author: GRIMES, Judge.

text:
    William WERBER, Appellant, v. IMPERIAL GOLF CLUB, INC., Charles Pfister, John Riblet, James Van Horn, Norman Fitter, Betty Murphy and Betty Mills Smith, Appellees.
    No. 81-1649.
    District Court of Appeal of Florida, Second District.
    March 3, 1982.
    Rehearing Denied March 30, 1982.
    Louis S. Erickson and Richard D. Spark-man of Sparkman, Erickson & Quinn, P.A., Naples, for appellant.
    Gerald W. Pierce and James A. Franklin, Jr. of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees Imperial Golf Club, Inc., Charles Pfister, John Riblet, James Van Horn, Betty Murphy, and Betty Mills Smith.
    William A. Gillen, Jr. of Shackleford, Farrior, Stallings and Evans, P.A., Tampa, for appellee Norman Fitter.
   GRIMES, Judge.

This appeal from a summary judgment involves a dispute between a social club organized as a for-profit corporation and one of its member-shareholders.

At the time of the summary judgment, the pleadings and discovery on file reflected that Imperial Golf Club, Inc., was a Florida corporation organized and chartered in 1972 as a corporation for profit. Its articles of incorporation authorized it to issue twelve shares of Class A stock and three hundred shares of Class B stock and provided that both classes of stock would have the same rights and privileges except that Class B would not have voting rights. All of the authorized shares of stock were issued prior to June 1974. One share of Class B stock was issued to William Werber.

In 1978 and 1979, the directors of the corporation allowed the issuance of an additional two hundred fifty shares of Class B stock. Mr. Werber became aware of this fact in April 1980, and he began questioning the directors concerning the propriety of this action. The directors thereafter scheduled a special shareholders meeting and mailed proxies to the shareholders of the corporation. The purpose of the meeting was to approve an amendment ratifying the issuance of the two hundred fifty shares of Class B stock.

Mr. Werber objected to the holding of the special shareholders meeting because, he asserted, the proxies did not adequately inform the shareholders of their rights. He filed the present action on May 16, 1980, as a derivative suit against the corporation and the directors for mismanagement. Among other things, he alleged that the directors had realized a personal profit from the unauthorized sale of the additional stock. As part of his suit, he requested a temporary injunction to halt the May 23 meeting. The court held an emergency hearing on May 20, 1980, but denied the motion for injunction.

The shareholders held the special meeting on May 23, 1980, at which they approved the proposed amendment to the articles of incorporation. On that same date, pursuant to prior notice to Mr. Werber, the directors held a special meeting at which they voted to expel Mr. Werber from Imperial Golf Club. Along with the notice of expulsion, the directors tendered a check in the amount of $2,500 to Werber and requested that he surrender his stock certificate. Werber never cashed the check, and he refused to surrender the certificate. On June 6, 1980, he filed a first amended complaint, alleging substantially the same matters as in the original complaint. However, he added a fifth count against the directors demanding compensatory and punitive damages for their wrongful termination of his membership.

The pivotal issue in this appeal is whether the directors could expel Mr. Werber from the corporation and thereby deprive him of standing to carry on the prosecution of his case. In support of the summary judgment, appellees rely on the proposition that except for ensuring a proper notice and hearing, courts will not ordinarily interfere with the expulsion of a member from a social club. Thus, in State ex rel. Barfield v. Florida Yacht Club, 106 So.2d 207, 211 (Fla. 1st DCA 1958), cert. denied, 111 So.2d 40 (Fla.1959), the court said:

We agree that the courts should leave to the members of a private social club or to the proper board to which the members have lawfully delegated that power, the right to determine whether the action of a member has been such that, in the opinion of such Board, it would interfere with the pleasant, friendly and congenial social relationship between the members. In the absence of a clear allegation and convincing proof, if the case reaches that stage, of fraud or bad faith, the action of the members or duly delegated board should not be reviewed by the courts.

Accord, Everglades Protective Syndicate v. Makinney, 391 So.2d 262 (Fla. 4th DCA 1981).

The resolution of this appeal is not quite so simple. All of the cases cited by appel-lees in support of the foregoing proposition involved nonprofit corporations which did not issue stock. While the primary function of Imperial Golf Club, Inc., appears to have been the operation of a social club, it was incorporated and maintains its status as a for-profit corporation under the authority of chapter 607, Florida Statutes (1981). Mr. Werber not only holds membership in the club, but he also owns one share of the Class B common stock which carries all privileges except the right to vote.

The purported authority to expel Mr. Werber and to acquire his stock was apparently based upon a portion of the bylaws which authorizes the board of directors to promulgate rules and regulations concerning expulsion of members and upon several sections of the rules and regulations including one which reads:

Resignation . .. any member may be suspended or expelled from membership for any of the following reasons:
(1) Failure to pay in accordance with the By-Laws any indebtedness due to the Club.
(2) A violation of the house rules by a member or his immediate family or guest.
(3) Conduct unbecoming a member of the Imperial Golf Club.
(4) For any reason or cause which, in the judgment of the Board of Directors, has or could have a detrimental effect on the well being of the membership of the Imperial Golf Club.
In the event of expulsion from membership, the expelled member shall immediately deliver his stock certificate to the President or Comptroller of the Club and he shall be paid for his stock in accordance with the By-Laws.

It may be that the club had sufficient authority under its bylaws and rules and regulations to seek Mr. Werber’s ouster from membership, but on this record there has been no showing that it had the right to take his stock. The authority of a corporation to redeem or involuntarily reacquire its stock must be set forth in the articles of incorporation. See §§ 607.044, .164, Fla. Stat. (1981); 18 Am.Jur.2d Corporations § 473 (1965). Appellees cannot rely on the fact that the club’s articles of incorporation are absent from this record because as mov-ants for summary judgment they had the burden of showing the nonexistence of issues of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Thus, as the record now stands, appellees had no right to acquire Mr. Werber’s stock unless he was willing to sell it to them. Hence, he has standing to carry on the derivative action asserted in counts I through IV.

We do not say that the rule with respect to judicial intervention into the expulsion of members in a nonprofit social club is always inapplicable to for-profit corporations. If one’s membership rights are severable from his stock ownership, we see no reason why the same rule should not apply. Insofar as this appeal is concerned, we cannot tell at this juncture whether Mr. Werber’s membership rights are severable from his stock ownership. Moreover, we cannot say, as a matter of law, that his allegations in count V that the real reason he was expelled from membership was because he brought a derivative suit against the directors for mismanagement, if proven, would not constitute “fraud or bad faith” as contemplated in State ex rel. Barfield v. Florida Yacht Club, 106 So.2d at 211.

We reverse the summary judgment and remand the case for further proceedings.

SCHEB, C. J., and SCHOONOVER, J., concur.

      . For this reason, there is no need for us to now decide the issue argued in the briefs with respect to whether Mr. Werber could have continued to maintain his derivative suit which complains of prior mismanagement if his stock had been validly taken away from him. Compare Schilling v. Belcher, 582 F.2d 995 (5th Cir. 1978), with DiGiovanni v. All-Pro Golf, Inc., 332 So.2d 91 (Fla.2d DCA 1976),


author: FERGUSON, Judge.

text:
    Edgar WEBB, Appellant, v. Dr. William C. PRIEST, Dr. Carlos Fernandez; South Florida Emergency Inc., a Florida professional association; Parkway General Hospital, Inc., a Florida corporation, Dr. Michael J. Haimo, Appellees.
    No. 80-1091.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    As Amended on Denial of Rehearing May 10, 1982.

      Allen D. Fuller, Miami Beach, Philip Freidin, Greene & Cooper and Robyn Greene, Miami, for appellant.
    Pelzner, Schwedock, Finkelstein & Klaus-ner and Peter S. Schwedock, Stephens, Lynn, Chernay & Klein and Robert M. Klein, Miami, for appellees.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Edgar Webb, appeals from final judgments entered in a medical malpractice action in favor of appellees, defendants below. A jury returned verdicts in favor of the defendant doctors Haimo, Priest, and Fernandez and in favor of South Florida Emergency Physicians, Inc. and the Florida Patients Compensation Fund. A directed verdict was granted in favor of Parkway General Hospital. We reverse.

On appeal Webb contends that his difficulties at trial were the result not of defense counsel’s frequency in pointing to an “empty chair” created when Webb settled with defendants Jackson Memorial Hospital and its employees six days before trial, but were the result of the following six errors committed by the trial court: (1) entering a blanket pretrial order preventing Webb from discovering whether any of the defendants would claim that plaintiff’s injuries were caused by the act of the other defendants, (2) limiting plaintiff to calling two expert witnesses and ruling that propounding opinion questions to a defendant doctor or witness made him Webb’s witness and an expert for purposes of the limitation, (3) allowing defendants to bring to the jury’s attention the fact that Webb had previously sued Jackson and its employees when Webb had settled with Jackson and its employees, (4) not allowing plaintiff’s counsel to comment in closing argument on the mediation result, (5) giving a charge to the jury which conflicted with the standard jury instructions, and (6) directing a verdict in favor of Parkway General Hospital.

The facts are briefly as follows. On February 2, 1977, Webb was examined in the emergency room of Parkway General Hospital by Dr. Priest and Dr. Fernandez in order to determine the cause of stomach pains. A diagnosis of urinary tract infection was made and Webb was sent home. The following Monday, Webb saw Dr. Hai-mo, a general surgeon at Pembroke Pines Hospital, who advised Webb that he should be hospitalized and indicated that Webb had a lump in his abdomen of undetermined origin. Webb refused hospitalization. That same day, Webb suffered a rupture of appendiceal abscess. Emergency surgery was performed at Jackson Memorial Hospital. During surgery at Jackson Hospital, a physician placed a suture in Webb’s colon perforating the colon. Webb suffered complications and underwent additional surgery.

As to the first point on appeal, we find that the trial court erred in its order of October 22,1979 prohibiting discovery as to any of the certified questions in Webb’s motion to compel discovery and to any questions otherwise permissible which would have indicated that a defendant thought or would claim that another defendant caused Webb’s injuries. See, e.g., Frantz v. Golebiewski, 407 So.2d 283 (Fla.3d DCA 1981) (discovery of treating physician is not controlled by expert witness discovery rule); Weyant v. Rawlings, 389 So.2d 710 (Fla.2d DCA 1980) (discovery of expert opinion of treating physician about his knowledge of particular disease permissible). Cf. Rogotzki v. Schept, 91 N.J.Super. 135, 219 A.2d 426 (1966) (discovery proper as to whether during treatment there was to knowledge of defendant doctor, any diagnostic error by him or any other person). Were this the only error committed by the trial court, we would be less certain that the prejudice caused Webb by this erroneous order warrants reversal. When this error is considered along with those errors discussed below, however, we believe that the cumulative effect is that of prejudice to Webb.

The limitation of expert witnesses is a matter of discretion for the trial court, Ritter v. Jimenez, 843 So.2d 659 (Fla.3d DCA 1977); Stager v. Florida East Coast Railway Co., 163 So.2d 15 (Fla.3d DCA 1964), cert. denied, 382 U.S. 878, 86 S.Ct. 162, 15 L.Ed.2d 119 (1965); Fla.R.Civ.P. 1.200(a)(4). Under the facts of this case, we find that imposing the additional requirement forbidding the propounding of opinion questions to the defendant doctors as well as to a witness ostensibly permitted to testify as a third-expert witness, was an abuse of discretion.

We find the most damaging error to be that of permitting appellees to bring repeatedly to the jury’s attention the fact that Jackson Hospital and its employees, including Dr. Hammond, had been dropped as defendants. Section 768.041(3), Florida Statutes (1979) provides:

The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.

Though neither the fact of settlement, nor the terms of that agreement were put before the jury, the record shows numerous instances where appellees were permitted to bring to the jury’s attention the fact that Jackson Hospital and its employees had been prior defendants. Section 768.041(3), Florida Statutes (1979), prohibits bringing before the jury such a fact whether the parties were dismissed by the plaintiff as a result of release or settlement or whether the parties were dismissed by the court. See, e.g., Jordan v. City of Coral Gables, 191 So.2d 38 (Fla.1966); Taylor Imported Motors, Inc. v. Armstrong, 391 So.2d 786 (Fla. 4th DCA 1980). Though it may be permissible to point to an “empty chair,” it is not permissible to point out that the “empty chair” was once a defendant in the case.

We also reject appellees’ argument that Webb waived this objection. The ree-ord shows that Webb strongly objected to the introduction of the fact that certain parties had been dropped as defendants both prior to trial and in the early stages of the trial. He was overruled by the trial court in no uncertain terms. We will not require Webb to renew his objection each time in what would have been an obviously futile gesture. See, LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA 1978), cert. denied, 359 So.2d 1216 (Fla.1978). Nor do we agree that Webb’s unsuccessful attempt to minimize the injury caused by introduction of the evidence that Dr. Hammond was a prior defendant and adverse witness, resulted in waiver.

We find no abuse of discretion by the trial court in refusing to permit plaintiff’s counsel to go beyond the results in commenting on the prior mediation. The statutes establishing the pre-trial requirement of medical mediation, provide that only the results of such mediation may be brought to the court’s attention in opening statement or argument to the court or jury. § 768.47, Fla.Stat. (1979).

We find error by the trial judge in giving confusing and conflicting jury instructions. The court first instructed the jury that Webb had to prove the appellees’ negligence “by the greater weight of the evidence.” The trial court next instructed that:

Negligence is the failure to use reasonable care. Reasonable care on the part of a physician is the use of that knowledge, skill and care which is generally used in similar cases and circumstances by doctors and physicians in the community having similar medical standards and available facilities.

Later the court instructed:

Physicians are allowed a wide range in the exercise of their judgment and discretion. To hold one liable, it must be shown that the course which he pursued was clearly against the [course] recognized as correct by his profession.

When considered along with the other errors in this case we find that the instructions constitute reversible error because they are confusing in that they suggest conflicting standards of proof, see, e.g., Allstate Insurance Company v. Vanater, 297 So.2d 293 (Fla.1974), and are confusing as to the duty of care owed by the physician. See, e.g., Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977), Fla.Std. Jury Instr. (Civ.) 4.2(a), committee note.

We find also that the trial court erred in directing a verdict in favor of Parkway General Hospital because there was evidence suggesting that the alleged negligent doctors Priest and Fernandez were apparent agents of Parkway Hospital. See, e.g., Garcia v. Tarrio, 380 So.2d 1068 (Fla. 3d DCA 1980). The fact that defendant doctors were employed by the South Florida Emergency Physician, Inc. and not directly by the hospital does not preclude a finding of apparent agency.” See, e.g., Stuyvesant Corp. v. Stahl, 62 So.2d 18 (Fla. 1952) (holding hotel liable for acts of employee of independent contractor on theory of ostensible agency).

Reversed and remanded for new trial.

      . Why the court reversed in part its earlier ruling limiting the parties to two experts is unclear. The record shows the following:
      The Court: The court is permitting you to call this man as a third expert. That is the court’s ruling.
      Mr. Frieden: In all respects?
      The Court: Yes, you may proceed.
      Yet after closing argument, the court explained to the jury that it had “ruled that Dr. Hammond could not be a further expert and there were limitations put on his testimony by the court.”

      . The general rule in Florida is that an owner or employer will not be held liable for acts of an independent contractor. Exceptions to the general rule, as carved out in Florida decisions, are where (1) the activity is inherently dangerous, see, e.g., Ferguson v. Westinghouse Electric Corp., 408 So.2d 659 (Fla. 3d DCA 1981); Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980), (2) the owner/employer has contractually assumed responsibility, Levitz Furniture Company v. Continental Equities, Inc., 411 So.2d 221 (Fla. 3d DCA 1982), (3) there is legally imposed responsibility, see, e.g., Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1977), cert. denied, 348 So.2d 946 (1977), (4) the owner/employer knew or had reason to know that the independent contractor would not perform in a satisfactory manner, see, e.g., Williams v. Wometco Enterprise, Inc., 287 So.2d 353 (Fla. 3d DCA 1974), cert. denied, 294 So.2d 93 (Fla.1974); Brien v. 18925 Collins Avenue Corp., 233 So.2d 847 (Fla. 3d DCA 1979), or (5) where the independent contractor had apparent authority to act on behalf of the owner/employer, Stuyvesant Corp. v. Stahl, infra; Thomkin Corp. v. Miller, 156 Fla. 388, 24 So.2d 48 (1945). In Florida an employer is not held absolutely liable under the concept of non-delegable duty. Emelwon, Inc. v. United States, 391 F.2d 9, n.2, p. 11 (5th Cir. 1968), cert. denied, 393 U.S. 841, 89 S.Ct. 119, 21 L.Ed.2d 111 (1968); Mai Kai, Inc. v. Colucci, 205 So.2d 291 (Fla.1967). Whether a physician is an agent of the hospital is generally an issue of fact, see, e.g., City of Miami v. Brooks, 70 So.2d 306 (Fla.1954); Garcia v. Tarrio, supra.


author: SCHWARTZ, Judge. EZELL, BOYCE F., Jr. (Ret.), Associate Judge

text:
    John G. IMMER, individually and for and on behalf of the owners of property in The Moorings Subdivision, and The Moorings Property Owners Association, Appellants, v. Albert L. WEINTRAUB and Sara Lee Weintraub, his wife; Jonathan Kislak; Morton Varat and Anita Varat, his wife; and Hagen V. Taudt and Rosemarie Taudt, his wife, Appellees.
    No. 80-1231.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Rehearing Denied May 17, 1982.

      Adams & Ward and Robert C. Ward, Miami, for appellants.
    Philip T. Weinstein, Miami, Michael J. Freeman, Coral Gables, Fine, Jacobson, Block, Klein, Colan & Simon and Stuart L. Simon, Silverstein & Heilman, Miami, for appellees.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.

      . It should be noted that the riparian owners in the Moorings subdivision, whose lots on the west bank face the defendants’ across the canal, all filed specific disclaimers of interest in this litigation. See Alden v. Pinney, supra, indicating that these owners could maintain the action; cf. 65 C.J.S., supra, § 75.

   SCHWARTZ, Judge.

As the owner of a non-abutting lot in the Moorings subdivision who was granted by dedication the right to the “use and enjoyment” of an artificial but navigable canal within the boundaries of the subdivision to the east of his property, the plaintiff-appellant Immer possessed no rights in or to the canal beyond those possessed by the public generally. Game and Fresh Water Fish Commission v. Lake Islands, Ltd., 407 So.2d 189 (Fla.1981); Silver Blue Lake Apts., Inc. v. Silver Blue Lake Home Owners Ass’n, 245 So.2d 609, 615 (Fla.1971) (Ervin, C. J., dissenting); 65 C.J.S. Navigable Waters § 1 (1966). Accordingly, he did not have standing to maintain the instant action, which complains that the defendants, who own parcels which are not within the subdivision, but which abut the canal on the opposite or east side, are improperly exercising riparian rights of access by maintaining docks and boats in the waterway. See Alden v. Pinney, 12 Fla. 348, 390 (1869); Sullivan v. Moreno, 19 Fla. 200, 220 (1882).

The other plaintiff, the Moorings Property Owners Association, is an unincorporated association which itself owns no property whatever and thus all the more clearly may not assert such a claim. See United States Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla.1974); Hemisphere Equity Realty Co., Inc. v. Key Biscayne Property Taxpayers Ass’n, 369 So.2d 996, 1001 (Fla. 3d DCA 1979).

On the sole ground of lack of standing— and specifically without deciding the substantive issue of whether the defendants in fact possess riparian rights to the canal— the judgment entered below is therefore

Affirmed.

EZELL, BOYCE F., Jr. (Ret.), Associate Judge

(concurring in part and dissenting in part).

I concur with the majority opinion insofar as it affirms the trial court’s finding that the Moorings Property Owners Association, an unincorporated association, owning no property whatever in the Moorings subdivision did not have standing to maintain the instant action. H. Trawick, Fla. Prac. & Proc. § 4-2 (1979 ed.); 24 Fla.Jur. Parties, § 7, p. 188; U. S. Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla.1974); Hemisphere Equity Realty Co., Inc. v. Key Biscayne Property Taxpayers Association, 369 So.2d 996, 1001 (Fla. 3d DCA 1979). However the majority opinion fails to resolve or treat the issue decided by the trial court that the appellees, Albert L. Wein-traub, et al., possess riparian rights to the artificial navigable waterway in Coconut Grove, Florida known as “The Moorings Canal”.

In 1925, Henry C. Shimp, the owner of a tract of land in Coconut Grove that abutted on Biscayne Bay, conveyed his property to his own corporation known as The Moorings, Inc. In that same year, The Moorings, Inc., platted the property, indicating that a canal and yacht basin were to be dug on the property. The work on the canal and basin commenced in March, 1926, and was completed in April, 1927. By deed dated April 19,1929, The Moorings, Inc., sold to Harriet Parsons James all of the land located on the north side of the canal. The legal description in the deed made no reference to riparian rights vis-a-vis the canal. The deed, however, granted to James

“all tenements, hereditaments and appurtenances, with every privilege, right, title, interest and estate reversion, remainder and easement thereto belonging or in anywise appertaining.” [Emphasis supplied.]

Following its conveyance to James, The Moorings, Inc., filed a revised plat of The Moorings, eliminating from the Moorings Subdivision the property that had been conveyed to James and dedicating the streets, avenues, ways, yacht basin and canal “to the free and perpetual use and enjoyment of the present or future owner or owners of any and all of the lots in the said ‘The Moorings’.” James was not a party to the revised plat. In January, 1930, James recorded a plat called Four-Way Lodge, which encompassed the lands conveyed by The Moorings, Inc., to her together with other lands owned by James. Appellees are the present owners of portions of the land conveyed by The Moorings, Inc., to James.

Pursuant to appellant’s suit to enjoin ap-pellees from the riparian use of the navigable canal abutting their lots, the trial court ruled that the deed of conveyance from The Moorings, Inc., to James carried and conveyed riparian rights as such rights were not expressly excepted or reserved in the conveyance. Appellant’s prayer for injunc-tive relief was denied and he appealed.

A deed of conveyance to lands abutting a navigable waterway, containing no exclusion of riparian rights, effectively conveys riparian rights to the grantee. See, Florida East Coast Ry. Co. v. Worley, 49 Fla. 297, 38 So. 618 (1905); City of Eustis v. Firster, 113 So.2d 260 (Fla. 2d DCA 1959). The Moorings, Inc. undisputably conveyed property abutting a navigable waterway to James by a deed containing no reservation of riparian rights. In fact, the deed in question conveyed to James “... all ... appurtenances” attaching to the land. It is clear that riparian rights are part of the bundle of rights which are appurtenant to lands bordering navigable waterways. In Pike Rapids Power Co. v. Minneapolis, St. P. & S. S. M. R. Co., 99 F.2d 902, 908 (8th Cir. 1938), cert. denied, 305 U.S. 660, 59 S.Ct. 362, 83 L.Ed. 428, reh. denied, 306 U.S. 667, 59 S.Ct. 487, 83 L.Ed. 1062 cert. denied, 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040 (1939), it was noted that

“. .. at common law the owner of land bordering on a navigable stream has certain exclusive rights to the use of the bed of the stream adjacent to his land and to the use of the water flowing thereover. Such rights are called riparian rights, and are said to he appurtenant to the title to the abutting land. A deed conveying the fast land on the shore carries title to the appurtenant riparian rights.” [Emphasis supplied.]

This general proposition has been recognized in Florida. See, City of Eustis v. Firster, supra, at 261 (“. .. Riparian rights appurtenant to lands bounded by navigable waters are derived from the common law as modified by statute... ”).

Appellant claims, however, that riparian rights are not conveyed by virtue of a deed to land abutting an artificially created body of water, unless such rights are expressly granted. Appellant relies on cases dealing with the denial of public rights in artificially-created waterways. Appellees, however, are not claiming a public right of access to the canal at issue in this case, but rather are relying on their riparian rights as abutting landowners.

Appellant’s reliance on Silver Blue Lake Apartments, Inc. v. Silver Blue Lake Home Owners Association, Inc., 245 So.2d 609 (Fla.1971), is totally misplaced. The developer of the artificial, non-navigable lake and abutting property in Silver Blue deeded the lake bottom by means of a deed containing a clause restricting the use of the lake to members of the Home Owners’ Association in return for the Association’s agreement not to contest the developer’s rezoning application. The court in that case properly determined that tenants of an apartment building abutting the lake could not have unrestricted use of the lake. The distinction between Silver Blue and the instant case could not be more apparent. Initially, it should be noted that the court in Silver Blue was dealing with a non-navigable, landlocked lake. Secondly, it is undisputed that the initial owner of the abutting land, on which the tenants resided, had subjected the land to a deed restriction in favor of the Home Owners’ Association. No restrictions existed in the deed to James in the instant case, nor can such restrictions be implied.

Appellant has cited several decisions recognizing distinctions between artificial and natural bodies of water, insofar as the application of riparian rights is concerned. Yet, no such distinctions have been drawn, nor could be drawn, as to navigable bodies of water, whether artificial or natural.

It was within the power of The Moorings, Inc., to have excluded riparian rights to the canal in its deed to James, and its failure to do so vested James and her successors in title with said rights.

      . The evidence introduced in the lower court showed that a seawall was constructed along the banks of the canal on appellees’ property. We find no legal significance in the construction of this seawall as it affects appellees’ riparian rights.

      . Moreover, it has been long recognized that, “Where owners of different parcels of land conduct water across the same in an artificial channel, and do not define their respective interests in the water, their reciprocal rights thereto are to be measured and determined as if they were riparian owners upon a natural stream.” Bollinger v. Henry, 375 S.W.2d 161, 166 (Mo.1964).
      This principle is analogous to the case at bar. The Moorings, Inc.’s failure to specifically exclude riparian rights in its deed to James requires a determination of the parties’ rights in the canal as if the parties were riparian owners upon a natural water course.

      . Appellees cite to § 197.228(1), Fla.Stat. (1979), which expressly provides that, “Riparian rights are those incident to land bordering upon navigable waters ... They are appurtenant to and are inseparable from the riparian land . .. Conveyance of title to or lease of the riparian land entitles the grantee to the riparian rights running therewith whether or not mentioned in the deed or lease of the upland.” Although I do not base my decision on the foregoing statute, I feel that it is an accurate codification of the common law.

      .See, e.g., Montgomery v. Carlton, 99 Fla. 152, 162, 126 So. 135, 139 (1930), where it was noted that, “It is a general principle running through the law pertaining to the construction of deeds that they are to be construed most strongly against the grantor and most beneficially for the party to whom they are made...”