author: COBB, Judge. SHARP, Judge,

text:
    STATE of Florida, Appellant, v. Lazaro Martinez DuPONT, Appellee.
    No. 80-976.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellant.
    Geoffrey B. Dobson, of Meredith, Dobson & Cushman, St. Augustine, for appellee.
   COBB, Judge.

Lazaro Martinez DuPont, a non-resident of St. Johns County, was charged with committing a “traffic infraction” (excessive speed) within that county. This was a non-criminal charge governed by the Florida Rules for Traffic Court.

The defendant pled not guilty, and his attorney inappropriately filed a waiver of appearance pursuant to Florida Rule of Criminal Procedure 3.180(c), said rule being inapplicable to this non-criminal proceeding. A defendant who pleads not guilty in such a case is not obligated to file a waiver of appearance or an affidavit of defense, nor is he required to personally appear at hearing. The provisions in Florida Rule of Practice and Procedure for Traffic Courts 6.340(c) permit the filing and consideration of a written statement under certain enumerated circumstances to accommodate non-resident, absent or ill defendants, but do not mandate personal appearance, as opposed to appearance by counsel, of a defendant who previously has pled not guilty. It is still the burden of the state to prove the elements of the charge at the hearing, including identity, irrespective of the defendant’s personal presence.

At the inception of the hearing below, the county court judge announced the case and defense counsel announced he was ready to proceed; counsel further informed the court that DuPont would not testify. No representation was made of record that DuPont was present. The trial court had the right to inquire as to whether or not the defendant DuPont was present, but did not. No prosecuting attorney was present.

A prosecuting witness, Officer Tillman, testified that, in response to a radio report pf speeding from a traffic surveillance airplane, he stopped a grey automobile and issued a citation to a Mr. DuPont, the driver of. the vehicle. In response to a question from the trial judge, Tillman identified a man sitting in the courtroom as being DuPont, the driver of the vehicle at the time of the arrest. Defense counsel asked no questions on cross-examination. In the case for the defense, only one witness was called: the man Tillman had identified as DuPont. It was established that he was one Daniel G. Rockawich. The defense rested, and moved for a judgment of acquittal on the ground that the state had failed to identify the defendant. The trial court expressed displeasure at “this kind of trick,” and convicted DuPont of the charge.

On appeal, the Circuit Court of St. Johns County reversed the conviction, rejecting the state’s contention that defendant DuPont was obligated to either be present or admit that he was the driver. The circuit court correctly observed that the state had the burden of proving the identity of the driver, and that the record failed to indicate misconduct by defense counsel.

The state now has petitioned for cer-tiorari review of the action by the circuit court pursuant to Florida Rule of Appellate Procedure 9.100 and Article V, Section 4(b)(3) Florida Constitution. It is the state’s position that the filing of the affidavit by the defendant on the day before the hearing constituted a waiver of the issue of identification and, therefore, the misidenti-fication by Officer Tillman at hearing was irrelevant. The state cites no authority for this waiver argument, and we are aware of none. It may well have been sufficient at this non-criminal hearing for the officer to have testified that the defendant had identified himself at the time of arrest as being Lazaro Martinez DuPont, but that was not done. The only evidence adduced in regard to identification of the defendant at the hearing was the misidentification of Rocka-wich by Officer Tillman.

We perceive no error by the circuit court acting in its appellate capacity. Indeed, even if there had been error committed by the circuit court in its review and analysis of the evidence, that error could not be characterized as “so flagrant and of such magnitude that a party has been effectively denied his day in court” so as to justify the invocation of this court’s certio-rari jurisdiction. See City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1980).

Accordingly, the petition for writ of certio-rari is denied.

DENIED.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent in this case because I would find we have jurisdiction to review the circuit court’s appellate judgment reversing a county court’s conviction of DuPont for violation of a “traffic infraction” — driving seventy-five (75) miles per hour in a fifty-five (55) mile per hour zone. DuPont failed to appear personally before the trial court, and he failed to file an affidavit of defense, as is required by Florida Rule of Traffic Court 6.340(c).

Rule 6.340 provides that a non-resident motorist charged with a traffic infraction may “file a written statement setting forth facts justifying the filing of an affidavit of defense or file an affidavit of defense directly if practicable upon posting a reasonable bond set by the official.” The affidavit of defense may be accepted at the hearing as a denial or an admission of the infraction, or as an appearance denying its commission, if no mandatory hearing is required. In contrast, the Rule provides that a motorist may admit the offense by appearing personally or through his attorney, or by filing the affidavit. There is no provision for appearing through an attorney only, without filing an affidavit, (which may constitute an “appearance”) if the motorist chooses to deny the charge.

When DuPont failed to appear personally, and also failed to file an affidavit of defense, and DuPont’s attorney sought to deny the charge, the trial court should not have proceeded further in this matter. DuPont filed a “waiver of appearance” pursuant to Florida Rule of Criminal Procedure 3.180(c) and then, through the appearance of his attorney only,'sought to contest the charge. It is clear that Rule 3.180(c) only applies to Part III of the Traffic Rules entitled “Criminal Offenses” and a violation of section 316.183, Florida Statutes (1979) (with which DuPont was charged) is not a “criminal traffic offense.” The traffic infraction involved in this case was “decriminalized” by section 318.14(1), Florida Statutes (1979).

The circuit court in reversing DuPont’s conviction must have erroneously applied Rule 3.180(c) to these proceedings. The application of a Criminal Rule of Procedure to a “civil” one is in my opinion a departure from “the essential requirements of the law.”

      . § 316.183(2), Fla.Stat. (1979).

      . It is not clear from the record before this court whether the man identified by Officer Tillman in court as the man who had been ticketed was sitting at counsel table with defense counsel or, instead, some other place in the courtroom. If defense counsel violated the rules or the decorum of county court by having someone other than the defendant at counsel table, without advance permission from the court, then this behavior on counsel’s part could be dealt with by an appropriate disciplinary measure directed against counsel.

      . Fla.R.App.P. 9.030(b)(2)(B).

      . Fla.R.App.P. 9.030(c)(1)(A).

      . § 316.183(2), Fla.Stat. (1979).

      . Fla.R.Traf.Ct. 6.220.

      . § 318.12, Fla.Stat. (1979) and Fla.R.Traf.Ct. 6.040.

      . Lee v. State, 374 So.2d 1094 (Fla. 4th DCA 1979); Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977); State v. Smith, 118 So,2d 792 (Fla. 1st DCA 1960).


source: Caselaw Access Project

author: DAUKSCH, Chief Judge.

license: Public Domain

text:
    Donald Edward HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 80-982.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an illegal sentence. The sentence is illegal because it violates the Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) [1981 F.L.W. 313], proscription against split sentences. It is also illegal because it is an enhanced penalty sentence without the requisite finding that the greater penalty was necessary for the protection of the public. Bell v. State, 382 So.2d 107 (Fla. 5th DCA 1980). But this error was not preserved for appeal because no objection was made to the trial court. Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980). Since the sentence must be reversed under Villery, we suggest the enhanced penalty statute be complied with if it is applied upon resentencing.

REVERSED AND REMANDED.

ORFINGER and SHARP, JJ„ concur.


text:
    McINERNEY FORD, INC., Appellant, v. Sharon K. LeMIRE and Gerald M. LeMire, Appellees. STATEWIDE DETECTIVE AGENCY, INC., Appellant/Cross-Appellee, v. Sharon K. LeMIRE, et al., Appellees/Cross-Appellant.
    Nos. 80-1272, 80-1283.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Lawrence D. Johnson of Peacock & Johnson, Orlando, for appellant, Mclnerney Ford, Inc.
    Elsie T. Apthorp of Jack B. Nichols, P. A., Orlando, for appellant, Statewide Detective Agency, Inc.
    Howard L. Crown of Coleman & Crown, P. A., Orlando, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from an order granting a new trial. The standard for review this court must adhere to was most recently set out in Nesbitt v. Auto-Owners, 390 So.2d 1209 (Fla. 5th DCA 1980). As was said there and in Castlewood International Corp. v. LaFleur, 322 So.2d 520, 524 (Fla.1976) and Cloud v. Fallis, 110 So.2d 669 (Fla.1969), cited in that case the burden is upon the appellant to show clearly an abuse of discretion and that burden is greater than the one placed upon an appellant challenging an order denying a new trial.

In this case we may disagree with the trial judge in his view of the evidence and its probative value in a few instances but he was in a much better position to evaluate the evidence than we are so we cannot say error has been so clearly shown so as to cause us to reverse his decision.

AFFIRMED.

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


author: COBB, Judge.

text:
    AMERICAN STATES INSURANCE COMPANY, Appellant, v. DICK’S CRANE SERVICE, INC., and Loyce Neel, et ux., Appellees.
    No. 80-1212.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.

      J. Craig Corbett of Parker, Johnson, Owen & McGuire, Orlando, for appellant.
    Bruce W. Jacobus of Wolfe, Kirschenb-aum, Caruso, Mosley & Kabboord, P. A., Indialantic, for appellees.
   COBB, Judge.

Loyce Neel was a carpenter, employed by Gold Coast Forms, Inc., working on a condominium building. At the same building project, Connie May was operating a crane owed by Dick’s Crane Service, Inc. (Dick’s Crane). The crane was lifting a precast form up to the fourth floor of the condominium building, where Neel was to guide it into place. While gripping the form, Neel fell to the ground. He subsequently sued Dick’s Crane for his injuries.

Dick’s Crane Service, Inc. was insured by American States Insurance Company (American States) and requested it to defend the case. American States refused on the ground that their policy did not provide coverage for this incident. Both parties moved for summary judgment on the third party complaint. The trial court found that the policy of insurance issued by American States did not expressly exclude the truck crane from coverage, and entered summary judgment on the third party complaint in favor of Dick’s Crane. It is this order that American States is appealing.

The liability portion of the policy defined an “automobile” as:

A land motor vehicle, trailer or semi-trailer, designed for travel on public roads (including any machinery or apparatus attached thereto), but does not include mobile equipment.

The policy further defined “mobile equipment” in part as:

A land vehicle (including any machinery or apparatus attached thereto), whether or not self-propelled, ... which is designed or maintained for the sole purpose of affording mobility to equipment of the following types forming an integral part • of or permanently attached to such vehicle: power cranes....

The above definitions clearly exclude cranes from liability coverage under the policy. Therefore, the trial court was incorrect in finding that cranes were not expressly excluded from the liability portion of the policy. Without more, we would reverse the trial court’s final order on the coverage question in favor of Dick’s Crane and order the trial court to grant American States’ motion for summary judgment on that question. However, the schedules page of the policy showed that Dick’s Crane was paying a premium of $178.00 for bodily injury liability coverage for the PH truck crane that was the vehicle involved in this accident. Inexplicably, neither party pointed this fact out or discussed it on appeal. Nevertheless, there is apparently a conflict between the schedules page of the policy and the definitions of covered vehicles in the liability portion of the policy. Ordinarily, such conflicts are resolved in favor of the insured. Rucks v. Old Republic Life Insurance Company, 345 So.2d 795 (Fla. 4th DCA 1977); Oliver v. United States Fidelity and Guaranty Company, 309 So.2d 237 (Fla. 2d DCA 1975), cert. denied, 322 So.2d 913 (Fla.1975). Thus, we have considered the possibility of an affirmance of the summary judgment under the rationale of Landers v. Milton, 370 So.2d 368 (Fla.1979). However, due to the unresolved inferences available in the record before us, we feel that such an affirmance would not be proper. Accordingly, we reverse the trial court’s summary judgment in favor of Dick’s Crane on the coverage issue and remand this case to the trial court for further proceedings consistent with this opinion, which well may dictate the entry of a summary judgment for one party or the other upon clarification of the indicated conflict.

REVERSED and REMANDED.

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


text:
    Ronald L. BANTA, Loretta Banta and Camden Fire Insurance Association, Appellants, v. Madeline B. ROSIER and William H. Rosier, her husband, Insurance Company of North America, County of Volusia and City of Daytona Beach, Appellees.
    No. 80-47.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.

      James A. Scott, Jr., Janet L. Brown and Raymond A. Haas of Haas, Boehm, Brown & Rigdon, P. A., Daytona Beach, for appellants.
    Elsie T. Apthorp and David C. Chafin, Orlando, for appellee County of Volusia.
    Alfred A. Green, Jr., Daytona Beach, for appellees City of Daytona Beach and Insurance Co. of North America.
    No appearance for appellees Rosier.
   DAUKSCH, Chief Judge.

This is an appeal from an order granting a judgment on the pleadings. The appellant is attempting to allege a governmental body is liable for injuries suffered as a result of the government’s negligence. The complaint is deficient in part in that it pleads matters which are obviously within the “planning level of decision-making” of the government. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). For instance, it alleges an intersection was improperly designed. The complaint is also deficient because, although it alleges a breach of “operational duties,” it only alleges those breaches in eonclusionary terms and not specifically. Suspecting, but without knowing at all, that appellant may be able to properly allege a cause of action, we reverse the judgment on the pleadings in order to give the appellant one last chance to plead sufficient operative facts to state a cause of action; that is, to allege negligence on the part of the government in an operational level decision or conduct. Commercial Carrier. See also City of Tamarac v. Garchar, 398 So.2d 889 (Fla. 4th DCA 1981); Payne v. Palm Beach County, 395 So.2d 1267 (Fla. 4th DCA 1981); A. L. Lewis Elementary School v. Metropolitan Dade City, 376 So.2d 32 (Fla. 3d DCA 1979); Ferla v. Metropolitan Dade County, 374 So.2d 64 (Fla. 3d DCA 1979).

REVERSED AND REMANDED.

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


author: COWART, Judge.

text:
    Rosa Lee REEDER, Appellant, v. STATE of Florida, Appellee.
    No. 80-332.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.

      James B. Gibson, Public Defender and Burke D. Chester, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

Appellant was charged with aggravated assault, a violation of section 784.021(l)(a), Florida Statutes (1979), with the information alleging an assault with a deadly weapon “to-wit: a pistol.” Apparently in an attempt to implement section 775.087(1), Florida Statutes (1979), the trial court instructed the jury that punishment for the crime was greater if during the commission of the crime the defendant carries, displays, uses, threatens to use or attempts to use a firearm and submitted verdict forms that included a form for the finding of guilt of aggravated assault as charged with the further proviso in the verdict form for the jury to find that in the commission of said offense the defendant either did or did not use a firearm. The jury found appellant guilty of aggravated assault as charged but also found that during the commission of the offense she did not use a firearm. This appeal is based on a claim that the jury verdict is defective because it is inherently inconsistent.

First we observe that punishment for this type of aggravated assault is not subject to enhancement under section 775.-087(1), Florida Statutes (1979). Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978). See also Bell v. State, 394 So.2d 570 (Fla. 5th DCA 1981) [1981 F.L.W. 541].

The jury could have found that an assault occurred and that the pistol or object used constituted a deadly weapon but that the State failed to prove beyond a reasonable doubt that the pistol met the statutory definition of a “firearm.” See § 790.001(6), Fla.Stat. (1979); Goswick v. State, 143 So.2d 817 (Fla.1962); Warren v. State, 332 So.2d 361 (Fla. 3d DCA 1976). The jury could also have considered that the aggravated assault occurred as a result of the accused merely threatening to do violence to the person of another with a deadly weapon but have reckoned that to “use a firearm” meant to fire or discharge it. More likely this case illustrates that when criminal procedure directs the jury to concern itself with both the truth of the charges and the consequences of its verdict, its findings as to guilt and its findings relating to matters that legally require a consequence deemed by the jury undesirable, may naturally be inconsistent. Such inconsistency is the price of a “jury pardon” philosophy.

Although expressly extended an opportunity, appellant made no objection as to the form of the verdict before submission to the jury or after the jury returned but before the jury was discharged. We find substantial competent evidence supporting the verdict and do not find the superfluous additional findings of fact sufficient to impeach or invalidate the truth of the verdict.

AFFIRMED.

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


text:
    M. Alex DICKSON et ux., Appellants, v. John G. DUNN et ux., Appellee.
    No. 80-61.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Douglas Edward Daze of Haas, Boehm, Brown & Rigdon, P. A., Orlando, for appellants.
    David T. Young of Young, Murray, Townsend & Denman, Rockledge, for appel-lees.
   COWART, Judge.

Appellants, as sellers, sold, under contract, certain improved real estate to appel-lees, as buyers. Subsequently appellees sued appellants in fraud for money damages for claimed misrepresentation made by appellants to appellees as to the condition of the improvements on the property. Appellants counterclaimed for attorney’s fees under a provision of the sales contract allowing attorney’s fees to the prevailing party “in connection with any litigation arising out of this contract .. .. ” The trial court entered summary judgment for appellants on the fraud claim but against them on their counterclaim for attorney’s fees. The question on appeal is whether the litigation in question arose out of the sales contract so as to entitle appellants to attorney’s fees in defending the litigation.

Appellees’ asserted cause of action was for an alleged misrepresentation by appellants which induced appellants to enter into the contract. Therefore, the litigation arose out of the alleged misrepresentation inducing appellees to enter into the sales contract and not out of the contract itself.

An action in trespass for deceit to recover damages for material misrepresentations inducing the making of a contract is founded on fraud or moral wrong, and is not based on the contract.

Associated Hardware Supply Co. v. Big Wheel Distributing Co., 355 F.2d 114, 120 (3d Cir. 1966).

An action of deceit to recover damages for fraud inducing the making of the contract is not based upon the contract but upon the tort.

Chanin v. Chevrolet Motor Co., 89 F.2d 889, 891 (7th Cir. 1937).

The final summary judgment denying appellants attorney’s fees under the contract is

AFFIRMED.

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


text:
    Barbara Ann BARTOLUCCI, Petitioner, v. Lisa Louise BARTOLUCCI, by and through her natural father and guardian, Ed Bartolucci, Respondent.
    No. 81-365.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Flem K. Whited, III of Leonhardt & Up-church, P. A., Daytona Beach, for petitioner.
    Raymond A. Haas of Haas, Boehm, Brown & Rigdon, P. A., Daytona Beach, for respondent.
   ON PETITION FOR WRIT OF CERTIORARI

DAUKSCH, Chief Judge.

In her petition for Writ of Certio-rari, the petitioner seeks to have us quash the order of the trial court permitting discovery in suit for an accounting. Petitioner correctly states that before the plaintiff in a lawsuit for an accounting can examine the books and records through the usual discovery procedures it must affirmatively appear that the plaintiff is entitled, at least preliminarily, to the accounting. Charles Sales Corp. v. Rovenger, 88 So.2d 551 (Fla.1956); Giammaresi v. Parker, 326 So.2d 243 (Fla. 4th DCA 1976). Although it would have been better for the trial court to have specifically found that the plaintiff was entitled to discovery because she was entitled to an accounting, we can determine from the answer and counter-claim of the petitioner that respondent does have a right to an accounting. For instance, it is admitted that the parties are joint owners of the property, the petitioner has received money from the operation of the property and in the past has made accountings to the respondent. It has not been shown the order requiring discovery departs from the essential requirements of law so the petition must be denied.

PETITION DENIED.

SHARP and COWART, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Norris Bernard HAWKINS, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.
    No. 79-114.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for respondent.
   GLICKSTEIN, Judge.

This is a belated appeal from a conviction of trespass and murder in the second degree. The only point which merits discussion is whether the trial court erred in finding appellant’s confession to have been voluntarily given. We determine the confession was voluntary and affirm.

On April 15, 1977, Jean Scoville, a seventy year old woman, was found dead in her Palm Beach apartment. She had multiple stab wounds and there was evidence of a struggle. In addition to two witnesses, one who identified appellant’s name as that of an individual who had knocked on her neighboring door, and the other who observed a subject fitting appellant’s description, a latent fingerprint of appellant was found in the victim’s apartment.

Appellant was arrested in Emporia, Virginia, some days later; and on April 29, 1977, Sergeant Brian Roche of the Palm Beach Police Department went to Emporia. The sergeant testified that when he first saw appellant in a jail cell in Emporia, he read appellant his Miranda rights.

The same day, Sergeant Roche, and others, transported appellant to the Henrico County Jail in Richmond about an hour from Emporia. Enroute there was no discussion of the case. On arrival in Richmond, appellant was fed at about 4:00 P.M. then brought to the second floor hallway where Sergeant Roche intended to interrogate him. A Miranda card was read to appellant who signed it. Roche then informed appellant of the serious nature of the charges and asked if appellant would give a statement on tape. Appellant said that he understood his Miranda rights. The taping began at 4:35 P.M. and continued until 6:50 P.M. Roche described appellant as “just sad and kind of broke up” but normal. The tape reflects no threats or promises made by Roche to appellant nor any evidence of coercion. When appellant would ask if the tape had to be played, Roche answered that he had to play it or that he would rather play it. However, the few times appellant asked Roche to turn the tape off Roche complied.

Appellant contends that what occurred immediately prior to the taping, coupled with what occurred while the tape was off, compels a finding of involuntariness. Before the tape was initially turned on Roche told appellant:

[T]hat it was a serious crime and that the people in the community were enraged over the crime and they were of the opinion that he had committed a sexual assault in the apartment because the woman was found with practically no clothing at all on and that I didn’t believe that it happened that way, and that if he told me the truth, you know, I would see to it that the truth got out.

On cross-examination at the motion to suppress, Roche testified:

I do recall saying something to the effect that it was not my opinion he went in there to assault her, and that if I was going to be able to help him convince the community that that was not his intention, that he would have to be truthful with me.

He further testified that he basically told appellant that he would help him convince others that appellant did not enter the victim’s apartment with the intent of murdering or sexually assaulting anyone, that while the tape was off sometimes appellant “broke down and cried a little bit” and that toward the end of the recorded statement appellant said “They’re going to kill me; they’re going to kill me.”

In determining whether appellant's confession was voluntary, we must look to the totality of the circumstances. Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22 L.Ed.2d 684 (1969); Bova v. State, 392 So.2d 950 (Fla. 4th DCA 1980). The United States Supreme Court held in Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961), that the following determines the voluntariness of a confession:

Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Recently, the Florida Supreme Court reiterated in Brewer v. State, 386 So.2d 232, 235 (Fla.1980) that:

In a state prosecution, the standard by which the voluntariness of a confession is to be determined is the same as that which applies to federal prosecutions under the fifth amendment privilege against self-incrimination. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

In the present case, although we acknowledge the issue to be close, we simply are not convinced by the totality of the circumstances that the foregoing evidence rendered appellant’s confession to be involuntary. After reviewing the record we do not have the impression of an individual terrorized by fear of the community and assuaged in that fear by the assurance of Sergeant Roche into giving a fifty-two page statement. Instead, we view it, in the words of Justice Frankfurter, as a “will to confess.”

We are not insensitive to the picture appellant seeks to describe but are also mindful of the following language in Ebert v. State, 140 So.2d 63, 65 (Fla. 2d DCA 1962):

Both the deputy and the minister stated that the accused was crying and disturbed because of his predicament. A confession or admission may not, however, be excluded merely because it was made under excitement or mental disturbance not induced by extraneous pressure but which arose from apprehension due to the situation in which the accused found himself.

Further, if it can be said that Sergeant Roche’s pre-tape comments were designed to lead appellant into the belief that it would be easier for him if he told the truth, both the supreme court in Paramore v. State, 229 So.2d 855, 858 (Fla.1969) and this court in Bradley v. State, 356 So.2d 849, 850 (Fla. 4th DCA), cert. denied, 360 So.2d 1247 (Fla.1978), have recognized that this, does not render a confession inadmissible.

AFFIRMED.

MOORE and BERANEK, JJ., concur.


author: PER CURIAM.

text:
    Rose LUCKS, Appellant, v. PUBLIX SUPER MARKETS, INC., a Florida Corporation, Appellee.
    No. 79-1902.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Kenneth W. Gieseking of Laswell, Taylor, Zeicky & Coleman, Fort Lauderdale, for appellant.
    Law Offices of Alan L. Landsberg and Betsy E. Hartley and Carol Scott of Tal-burt, Kubicki & Bradley, Miami, for appel-lee.
   PER CURIAM.

Plaintiff appeals a final summary judgment in favor of a defendant/supermarket in a suit for damages growing out of an assault and purse snatching in the parking lot of the defendant’s store. In support of its motion for summary judgment, the defendant filed affidavits that its manager and employees were unaware of any similar event occurring in its parking lot. The plaintiff filed an affidavit to the effect that several similar incidents had occurred in the same parking lot prior to the event in question.

This Court has recently discussed the issues of liability to invitees for the criminal acts of third persons. . See Highlands Insurance Company v. Gilday, 398 So.2d 834 (Fla. 4th DCA 1981) and Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980). We conclude that in the instant case an unresolved issue of fact remained as to whether the defendant store should have known of the prior similar events in its parking lot and whether this prior knowledge gave rise to a duty to warn the plaintiff. In reaching this conclusion we caution that we are not called upon to rule on the validity or extent of the basic cause of action stated in the complaint. We hold only that a fact issue existed under the pleadings as they appeared at the time of the motion for summary judgment. It may be that plaintiff will be unable to prove the case at trial and that a directed verdict will be entered. Summary judgment was, however, not appropriate and the judgment for defendant below is reversed and the matter remanded for further proceedings.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    James BROWN, alias James Dennis Mack, Appellant, v. STATE of Florida, Appellee.
    No. 79-2153.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The defendant herein was found guilty of first degree murder and robbery with a firearm. He was convicted of both crimes but sentenced on only the murder conviction. In accordance with Hillery v. State, 391 So.2d 776 (Fla. 4th DCA 1980), we hold that the conviction of robbery with a firearm was improper. Defendant’s conviction and sentence on first degree murder are thus affirmed and the conviction on robbery with a firearm is hereby vacated. See State v. Pinder, 375 So.2d 836 (Fla.1979). We find all other points raised by defendant to be without merit.

AFFIRMED IN PART AND REVERSED IN PART.

LETTS, C. J., and MOORE and BERA-NEK, JJ., concur.


text:
    FIREMAN’S FUND INSURANCE COMPANY, a foreign corporation, Appellant and Cross-Appellee, v. Marion and Jule ROBINSON, Appellees and Cross-Appellants.
    No. 80-526.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    John P. Wiederhold of Pomeroy, Betts & Wiederhold, West Palm Beach, for appellant-cross appellee.

      Jay H. Hernberg, Fort Lauderdale, for appellees-cross appellants.
   PER CURIAM.

Appellant, Fireman’s Fund Insurance Company, seeks reversal of a final judgment allowing appellees, Marion and Jule Robinson, a $2465 attorney’s fee as an equitable distribution out of their recovery from a third party tortfeasor. The Robinsons cross appeal a denial of their motion for attorney’s fees pursuant to Section 627.428, Florida Statutes (1979).

The Robinsons were involved in an automobile accident with a third party. The Robinsons had an automobile liability insurance policy with Fireman’s Fund containing $30,000 uninsured motorist coverage. The third party possessed a policy with $15,000 liability limits which was paid to the Robin-sons.

Fireman’s Fund and the Robinsons arbitrated Robinsons’ damages, which proceeding resulted in an award of $50,000. The Robinsons then demanded the full $30,000 uninsured motorist coverage from Fireman’s Fund, over and above the $15,000 recovery from the tortfeasor. Fireman’s Fund contended that it was entitled to a set-off of the payment made by the tort-feasor and thus offered the Robinsons $15,-000.

In the final judgment under review the learned trial judge found, in material part, that (a) Fireman’s Fund was entitled to a set-off of the amount recovered from the tortfeasor; (b) the Robinsons were not entitled to attorney’s fees pursuant to Section 627.428, Florida Statutes (1979); and (c) the Robinsons were entitled to the sum of $2465 from Fireman’s Fund as an equitable distribution for making the set-off possible by recovering it against the tortfeasor.

Fireman’s Fund has demonstrated reversible error, but the Robinsons have not. Accordingly, we affirm the final judgment in all respects except the allowance of attorney’s fees to the Robinsons as an equitable distribution. We reverse the equitable distribution award on authority of State Farm Mut. Auto. Ins. Co. v. Napoli, 380 So.2d 1325 (Fla. 4th DCA 1980).

AFFIRMED IN PART and REVERSED IN PART.

LETTS, C. J., and DOWNEY and MOORE, JJ., concur.


text:
    James D. McCLUNG, as Personal Representative of the Estate of Pamela McClung, Deceased, Appellant, v. CITY OF BOYNTON BEACH, Florida, a Municipal Corporation, American States Insurance Company, Board of County Commissioners of Palm Beach County, Florida, a political subdivision of the State of Florida, and Nationwide Insurance Company, Appellees.
    No. 80-1016.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Rehearing Denied July 2, 1981.

      John R. Hargrove and Robert S. Hackle-man of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, and Scott, Dickenson & Linus, Boca Raton, for appellant.
    Keith H. Park of Albury Park & Glenn, West Palm Beach, for appellees — City of Boynton Beach and American States Insurance Company.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellees — Board of County Commissioners and Nationwide Insurance Co.
   PER CURIAM.

This is an appeal from a final order dismissing plaintiff’s complaint against the City of Boynton Beach, Palm Beach County and their insurance carriers. The determinative issue in the trial court and at this level is whether the governmental acts complained of should be characterized as “planning” or “operational” level activity as those terms are defined in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). If they are planning level activities, the governmental entities are immune; if they are operational level activities, sovereign immunity would not apply and the governmental entities would be subject to suit.

The Supreme Court in Commercial Carrier recommended a four pronged test to aid in the resolution of this question. It is our belief that the reasoned application of this four part test requires the development of facts which are simply not present in the record before us. Here the record consists only of the pleadings filed. The parties’ allegations do not disclose sufficient facts to permit the application of the Commercial Carrier test in this case. Consequently, we reverse the order dismissing plaintiff’s complaint with prejudice and remand the cause for the purpose of developing a record which will permit an application of the considerations set forth in Commercial Carrier and the cases cited in that decision. See Ferla v. Metropolitan Dade County, 374 So.2d 64 (Fla.3d DCA 1979), cert. denied, 385 So.2d 759 (Fla.1980); Barnum v. State, 72 Wash.2d 928, 435 P.2d 678 (1967).

ANSTEAD, HERSEY and HURLEY, JJ., concur.


text:
    Patricia Alice BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1528.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. The assessment of $2.00 court costs against the appellant is stricken.

LETTS, C. J., and MOORE and BERA-NEK, JJ., concur.


text:
    CORAL PINES, INC., Appellant, v. T. J. DEL ROSSO, Appellee.
    No. 80-1973.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Jack S. Cox of Levy, Shapiro, Kneen, Kingcade & McCarthy, P.A., Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Duggan v. Tomlinson, 174 So.2d 393 (Fla.1965).

AFFIRMED.

LETTS, C. J., and MOORE and BERA-NEK, JJ., concur.


text:
    DE ANZA CORPORATION, Petitioner, v. TENANTS CIVIL ASSOCIATION OF PARK LAKE ESTATES, INC., Respondent.
    No. 81-512.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Edward S. Jaffry of Horne, Rhodes, Jaf-fry, Horne & Carrouth, Tallahassee, for petitioner.
    Jerome L. Hall, Fort Lauderdale, for petitioner.
   PER CURIAM.

The petitioner, the owner of a mobile home park, seeks relief from a court order entered upon motion by the respondent, permitting the park’s tenants to deposit certain portions of their rental payments into the registry of the court instead of making payment directly to the petitioner. The only grounds offered in support of the motion were that respondent was in doubt as to what amount to pay to the petitioner. The motion was unsworn and no evidence on the issue was presented at the hearing on the motion. In addition the petitioner voluntarily offered to post a bond to secure any damages claimed by the tenants. Although the trial court does have authority under Rule 1.600 of the Florida Rules of Civil Procedure to direct the deposit of funds into the registry of the court, we do not believe the respondent has demonstrated any legal or factual basis upon which the trial court could act. For instance, the respondent offered no proof on the merits of its claim or the likelihood of success on said claim, or on the need for such deposit in the face of petitioner’s agreement to post a bond. Cf. Dunes Development Corp. of Palm Beach v. Dunes Towers Association, Inc., 380 So.2d 572 (Fla. 4th DCA 1980); Wincast Associates, Inc. v. Hickey, 320 So.2d 17 (Fla. 2d DCA 1975); Pomponio v. Claridge of Pompano Condominium, 378 So.2d 774 (Fla.1979); Brooks v. Galicia Steamship Co. Ltd., 237 So.2d 582 (Fla. 3d DCA 1976).

Accordingly, the petition is granted and the trial court’s order of February 18, 1981, is hereby quashed. This order is entered without prejudice to the trial court to direct that the petitioner post a bond in accordance with its representations made before the trial court and this court.

LETTS, C. J., and ANSTEAD and BER-ANEK, JJ., concur.


author: OTT, Judge.

text:
    The PENTHOUSE, INC., a Florida Corporation, Appellant, v. John M. SABA, Irving G. Snyder, Larry Rhodes, William A. Muirhead, and Andrew Sandegren, Appellees.
    No. 80-146.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.

      J. B. Donnelly of Grimes, Goebel, Parry, Blue, Boylston & McGuire, Bradenton, for appellant.
    Lewis F. Collins, Jr., of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.
   OTT, Judge.

Appellees, the five commissioners of Sarasota County, were sued as individuals in an action brought by appellant under 42 U.S.C. § 1983. The complaint alleged that appel-lees had acted arbitrarily, capriciously, and in violation of the Sarasota County Zoning Ordinances, in withholding approval of appellant’s preliminary site plan for a proposed condominium project. The trial court dismissed the action on the ground that “the defendants may not be held individually liable for their official acts based upon the facts alleged in the complaint.” We affirm because the dismissal was proper, but the reason why it was correct bears brief exposition.

Government officials no longer enjoy absolute immunity from personal liability for all of their official acts. As the states have gradually withdrawn the sovereign immunity of governmental units, so, too, have Congress and the federal courts narrowed the immunity of individual officials. The degree of immunity varies, depending upon the nature of the act. If an exercise of legislative or judicial power is involved, the immunity is absolute. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1979); Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 989, 47 L.Ed.2d 128 (1976). But the common-law doctrine of “official immunity” no longer acts as an absolute bar to the individual liability of a public officer exercising executive power. When an official, acting under color of local law, has deprived any person of a right or privilege protected by the Federal Constitution or other federal law, he can be held personally liable in damages to the injured party under section 1983 unless he pleads and establishes, as an affirmative defense, that he acted reasonably and in good faith — i. e., with a bona fide and reasonable belief in the constitutional validity of the local law he was enforcing. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1979); Seheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1973).

As applied to the facts at bench, the rule is that appellees would have had absolute immunity from suit under section 1983 if, for instance, they had enacted (legislative power) an unconstitutional zoning ordinance, but they (and all other county officials) would have had only qualified immunity for their acts in implementing and enforcing (executive power) such an ordinance. Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706, 711[5] (C.A.3d 1978); Huemmer v. Mayor and City Council, etc., 474 F.Supp. 704, 720[7] (U.S.D.C. Md.1979). The existence of qualified immunity is a question of fact and, when properly presented, cannot be resolved summarily. Sims v. Adams, 537 F.2d 829, 832[6] (C.A. 5th 1976).

The ruling of the court below was therefore erroneous, or at least premature, insofar as it may have intimated that appel-lees were immune from liability.

There is, however, a fatal deficiency in appellant’s case. Consequently, the dismissal was proper and must be affirmed, even though neither party mentions the point. A correct result must not be overturned merely because it may have been reached by mistake.

The stated ground of the dismissal is broad enough to encompass a conclusion that the complaint does not state, and cannot be amended to state, a cause of action entitling appellant to relief under section 1983 — not because appellees are immune, but because their alleged acts did not constitute the requisite violation of some right, privilege, or immunity secured to appellant under the Federal Constitution or laws. Martinez v. California, supra, 100 S.Ct. at 558.

The gravamen of appellant’s complaint was that its preliminary site plan fully complied with all the requirements of the applicable county zoning and building laws, and that appellees violated the zoning ordinance by refusing to approve the plan.

Zoning laws are creatures of the state, recognized as proper exercises of police power. Ellison v. City of Fort Lauderdale, 183 So.2d 193 (Fla.1966). Nothing in the Federal Constitution or body of law guarantees that zoning laws will be honored. Nothing in section 1983 provides redress if purely local laws are not properly observed.

Appellant’s theory of recovery was that appellees had violated its civil right to use its land as it sees fit, so long as the use is lawful. Appellant asserts that such right is guaranteed by the fourteenth amendment. Appellant is mistaken. To paraphrase the language of Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979), all that the fourteenth amendment guarantees is that no person shall be deprived of his property without due process of law. A duly enacted zoning measure may indeed impair property rights, but in the eyes of the law due process has been faithfully observed, and thus there has been no violation of civil rights.

Appellant’s right, if any, to the approval of its preliminary site plan is embodied in the Sarasota County Zoning Ordinance, and not in the Constitution or any other federal law. The trial court therefore properly ruled that the facts alleged in the complaint were not sufficient to state a cause of action against the individual county commissioners under section 1983. That ruling is AFFIRMED.

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

      . 42 U.S.C. § 1983:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunity secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . The doctrine of sovereign immunity was abolished in this state when section 768.28, Florida Statutes, became effective. There is a lingering tendency to refer to the “immunity” of a government from liability for its “discretionary acts,” as defined in Commercial Carrier Corp. v. Indian River County and Cheney v. Dade County, 371 So.2d 1010 (Fla.1979). But that is a misnomer. Discretionary acts do not give rise to liability because they are not tortious. By definition, one who has discretion to act has no duty to act.

      . We also note that although Congress has not barred state courts from entertaining section 1983 actions, the question whether a state court must do so has not been resolved. Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 558, n.7, 62 L.Ed.2d 481; Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 2503, n.1, 65 L.Ed.2d 555 (1980).

      . The lawful enactment of zoning laws is amply and fully protected by the state judicial system. Here, appellant successfully — and appropriately — challenged the disapproval of his application through the normal channels of judicial due process.


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Robert L. BRANDON, Appellee.
    No. 80-155.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Prank Louderback of Louderback & McCoun, St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

Appellee Brandon was charged by information with conspiracy to commit the crime of possession of in excess of 100 pounds of cannabis. Appellee filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The trial court granted appellee’s motion and discharged him. We reverse.

Appellee’s amended motion alleged the following facts:

(a) In late March 1979, Detective Cava-liere was introduced to Lawrence Smith by a confidential informant for the purpose of attempting to purchase a quantity of quaaludes.
(b) After it was determined that Smith would be unable to supply the quaaludes, Smith proposed to Cavaliere that Smith would arrange for the importation of a quantity of marijuana.
(c) Cavaliere, at that point, realizing that at most Smith had committed solicitation to commit a crime, informed Smith that he wanted to meet all of the persons who would be involved in the importation scheme.
(d) On April 5, 1979, Smith introduced the defendant, ROBERT L. BRANDON, III, to Detective Cavaliere at the Ramada Inn-Countryside, Clearwater, Pinellas County, Florida, in a room which had been obtained by Cavaliere and had been wired for the interception of communications.
(e) After meeting Cavaliere, BRANDON left the room and a conversation took place between Smith and Cavaliere as to the particulars of the proposed importation. It was agreed that Cavaliere would give Smith the sum of $10,000.00 as front money since neither Smith nor BRANDON had the funds to facilitate the proposed importation.
(f) The proposed importation would have been impossible without the participation of Detective Eugene Cavaliere by his supplying of the funds to carry off the importation scheme.
3. Where two or more persons conspire with another who is, unknown to them, a government agent acting in the line of duty, to commit an offense under an agreement and an intention that an essential ingredient of the offense is performed by and only by, the government agent, such persons may not legally be convicted of a conspiracy. See, King v. State, 104 So.2d 730 (Fla.1958).
4. There are no disputed facts and the undisputed facts do not present a prima facie case of guilt against the accused.

The State’s demurrer added the following additional faets:

Prior to Det. Cavaliere meeting the Defendant at the Ramada Inn, Smith had advised Cavaliere that Brandon’s participation in the transaction would be in the procurement of a plane and being present at the landing site where the marijuana was to be delivered. While Brandon was out of the motel room at the Ramada Inn, Smith and Cavaliere discussed in detail the transaction with the aid of a map of Columbia provided by Smith and Smith’s handwritten notes. When Brandon returned to the room, the map was still clearly visible and discussions continued about the transaction, Brandon indicating he would go long with whatever Smith wanted to do. Brandon and Smith both asked how much tonnage Cavaliere could handle a month and Brandon stated he could dispose of approximately four or five tons a month for Cavaliere. The initial trip was to be for 1,000 pounds of marijuana. Cavaliere was to supply the funds for the trip to Columbia. All other aspects of the importation were to be carried out by Smith and/or Brandon.

The bases for appellee’s motion to dismiss are: 1) that the undisputed facts do not present a prima facie case of guilt, and 2) that the rule of King v. State, 104 So.2d 730 (Fla.1958), precludes his conviction for conspiracy to possess cannabis. As to ap-pellee’s first point, we hold that the facts contained in the motion in conjunction with the State’s demurrer are more than sufficient to set out a prima facie case of guilt against appellee. The elements of conspiracy require an agreement and an intent to commit the offense charged. Ramirez v. State, 371 So.2d 1063 (Fla. 3d DCA 1979). Appellee was not only aware of the details of the proposed transaction, but indicated that he would “go along with whatever Smith wanted to do.” He inquired as to how much tonnage Detective Cavaliere could handle a month and stated that he could dispose of approximately four or five tons a month. If appellee’s first point were the only one before us, this appeal could be disposed of easily; however, appellee’s second point forces us to confront a difficult question in light of the Florida Supreme Court’s rule in King v. State.

It was obviously on the basis of the King decision that the trial court granted appel-lee’s motion to dismiss. The portion of King at issue is the holding that

where two or more persons conspire with another who is, unknown to them, a government agent acting in the line of duty, to commit an offense under an agreement and an intention that an essential ingredient of the offense is to be performed by, and only by, such government agent, such persons may not legally be convicted of a conspiracy, (emphasis ours)

King v. State at 733.

In King, the facts reveal that almost all of the criminal activity was performed by the police agent. The agent agreed to commit the offense of gambling and bookmaking; to keep and maintain the hotel room with public funds; and to provide protection money for the corrupt police with public funds. The court noted that although the information charged that the defendants conspired with each other as well as with the police agent to commit the offenses, the evidence did not support that charge. Rather, the agreement and the intention proved by the State was that the police agent would commit the offenses. Since the agent’s participation was an integral part of the plan, without his complicity the conspiracy was not proven. The court cited with approval the ease of Woo Wai v. United States, 223 F. 412 (9th Cir. 1915), in which a conviction of two persons who conspired with a government agent was reversed. That court stated:

If no violation of the law was to be accomplished by the act of the defendants, it follows that they could not be held for conspiracy to do that act.

Thus, the King court set out the rule that a conspiracy conviction against two or more persons cannot result where the proof shows that some essential ingredient of the substantive crime was performed by, and only by, a government agent acting in the line of duty.

The question before us is not whether a conspiracy occurred, since the facts in the motion to dismiss and the State’s demurrer set out a prima facie case, but whether appellee can be convicted of the conspiracy in view of the police officer’s participation.

We believe that the King court used the phrase “essential ingredient of the offense” to mean “essential element of the offense.” Appellee was charged with conspiracy to commit the substantive offense of possession of cannabis. The essential elements of the offense of possession are the knowledge of the presence of the contraband and the ability to maintain control over it or reduce it to possession. Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977). We do not believe that the police officer’s offer to supply the funds for the trip to Columbia is an essential element of the crime of possession. As the- State argued, the act of supplying the money may be a necessary ingredient to the success of the criminal enterprise but is not one of the two essential elements of the crime (knowledge and ability to control) which the State is required to prove.

In summary, we construe the rule in the King case to mean that a conspiracy conviction is prohibited under the factual circumstances of this ease, where the government agent, by himself, commits one or more of the legally recognized elements of the crime charged. The rule does not apply to situations where the government agent’s participation is tangential to the gravamen of the substantive offense. Therefore, we reverse the trial court’s granting of appellee’s motion to dismiss pursuant to Florida Rule of Criminal Procedure 1.190(c)(4) and remand the cause for further action not inconsistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.

      . We agree with the Fifth Circuit Court that “The King approach is inconsistent with the basic principle that a conspiracy is proved when it is established that two or more persons agreed to commit an offense and one of them engaged in an overt act in furtherance of the agreement.” United States v. Seelig, 498 F.2d 109 (5th Cir. 1974).
      The instant case, as well as Seelig, deals with situations where there are two or more co-conspirators involved, excluding the government agent. We do not address the rule which prohibits conviction for conspiracy where only two persons are involved and one of them is a government agent.

      . In McCain v. State, 390 So.2d 779, 780 (Fla. 3d DCA 1980), the appellate court held:
      Since we have concluded that there was sufficient evidence from which the trier of fact could have found that the defendant conspired with Tommy as well as with the agent, we are satisfied that the instant case is distinguishable from King v. State, supra. Accordingly, the conspiracy conviction is affirmed.


text:
    Daniel SILIANOFF and Michael Silianoff, Appellants, v. George SILIANOFF, individually and as Personal Representative of the Estate of Helen T. Silianoff, Appellee.
    No. 80-221.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.

      Waldense D. Malouf, Clearwater, for appellants.
    John R. Fricker of Boyer & Fricker, Clearwater, for appellee.
   OTT, Judge.

Helen Silianoff died in 1977, a resident of Florida. Her last will, executed in 1975, appointed her son George executor of her estate and bequeathed her home in Largo to him. She also left him 60% of the residue of her estate. Her sons Daniel and Michael were also named as residuary beneficiaries, Daniel to receive 30% and Michael 10%. A fourth son, James, was excluded from the will because his mother had provided for him during her lifetime, and he is not a party to this litigation.

After the will was admitted to probate George filed an inventory showing that the only assets of the estate consisted of the home and approximately $3,500 in personal property. Daniel and Michael responded with pleadings by which they sought (1) to enforce an oral agreement by Helen to leave her estate to George and Daniel in equal shares, and (2) an order by the probate court that George include in the estate some $106,000 which Helen had deposited in various bank accounts to which George’s name was added at least as a cosignatory.

It appears that the Silianoff family had lived in Illinois for a number of years. When Mr. Silianoff died intestate in 1942, the principal asset in his estate was the family home in Bensenville. Under the Illinois law of intestate succession, his estate devolved to his widow (40%) and four sons (60%). In 1955 Michael filed suit to obtain his share of his father’s estate, and Helen settled with him for $12,000. At about the same time (1955 or 1956) she allegedly entered into an oral agreement with George and Daniel that she would will her estate to them in equal shares if they would forgo all effort to obtain their shares of their father’s estate. They promised to do so and, in fact, later quitclaimed their interest in the family home to Helen. James retained his interest in the home, but never made any demands upon his mother. She made a will in Illinois leaving half her estate to George and half to Daniel. Shortly after moving to Florida in 1961 she made a new will with identical provisions.

In 1972 Helen sold the Illinois home place for $150,000, and James received his full share, $22,500. With part of the balance of the proceeds Helen purchased the home in Largo. In 1975 she made the new will described above. At that time she had about $106,000 in the bank accounts on which George’s name had been added, and she explained the 10% bequest to Michael as an “evening up” because he had gotten only $12,000 for his interest in the Illinois family home, whereas James had gotten $22,500.

Helen had little or no “business sense” and was unable to read English. She trusted George implicitly and relied upon his advice in all matters. She was unconscious for several weeks before her death, and during that time George closed each of the joint accounts by transferring the funds into accounts in his own name.

When Daniel and Michael intervened in the probate proceeding their attorney sent letters to each bank in which George had deposited the funds transferred from Helen’s joint accounts, and those banks had placed a hold on all such funds, or “frozen” the accounts, as it is termed in the trade.

The probate court ruled that the relief requested by Daniel and Michael could be obtained only in an independent suit against George, and gave them 30 days within which to file such an action. Two days after that order was entered, George obtained what purported to be an order from the court stating that at that time there were no issues remaining in the probate proceeding pertinent to George’s entitlement to the funds in his bank accounts. George used that “order” to obtain the release of his accounts.

Daniel and Michael then brought the instant action to enforce Helen’s promise and to force George to bring the joint funds into the estate. The trial court agreed with George’s contention that (1) an oral agreement to make a will is unenforceable in Florida and (2) George’s entitlement to the funds he took from the joint accounts had been finally established in the probate proceeding and thus is no longer open to attack. A summary judgment was entered in favor of George, whereupon Daniel and Michael took this appeal. We reverse both aspects of the summary judgment.

In this state an oral agreement to make a will is unenforceable. § 732.701, Fla.Stat.. (1975). It makes no difference where the agreement is made, or that it might be perfectly valid there; it is a nullity, insofar as Florida assets of the decedent are concerned. First Gulf Beach Bank and Trust Company v. Grubaugh, 330 So.2d 205 (Fla. 2d DCA 1976). However, the forerunner (§ 731.051) of our statute did not become effective until January 1, 1958, and oral agreements to make a will are enforceable in this state if they were entered into prior to that date and are otherwise valid. Keith v. Culp, 111 So.2d 278 (Fla. 2d DCA 1959), cert. denied, 114 So.2d 5 (Fla.1959).

On the motion for summary judgment the affidavits and depositions presented to the trial court were conflicting as to precisely when Helen and her sons made their agreement. The answer to that question will determine the enforceability of the agreement, and it is a matter that should have been and must be resolved by trial.

Appellants are also entitled to a trial of the question of appellee’s entitlement to the funds he removed from the joint bank accounts. Contrary to appellee’s assertion, the order of the probate court neither resolved nor purported to resolve that issue. The order merely confirmed that at that time there were no proceedings pending in the probate action which affected those funds. That was a true statement, but only because appellee had persuaded the court that an independent action would have to be filed.

Having closed the door to relief through the probate proceeding, by pointing to an assertedly “proper” entryway, appellee would now lock that door, too, completely ignoring the thirty-day safe passage granted appellants by the probate court.

The question to be resolved at the trial will be what Helen intended when George’s name was added to her accounts. Any presumption that arose when she did so can be rebutted. Spark v. Canny, 88 So.2d 307, 311-312 (Fla.1956). In opposing the motion for summary judgment below, appellants presented certain facts to the court which strongly suggest, at least, that when Helen made her last will she believed the funds in the joint accounts were hers and that they would pass by her will, so that Michael would get another $10,000 or so to even up the shares he and James received of their father’s estate. The facts also suggest a possible breach of a trust relationship or at least overreaching. In any event the issue involves a question of fact which the court erroneously attempted to dispose of by summary judgment.

The judgment is REVERSED and the case is REMANDED for trial in accordance with this opinion.

BOARDMAN and RYDER, JJ., concur.

      . While mere denial of certiorari does not necessarily indicate supreme court approval of a district court opinion, in this instance the supreme court later cited Keith as authority for the proposition that legislative amendments or enactments which affect private contracts are constitutional only if given prospective application. Springer v. Colburn, 162 So.2d 513, 516 n.19 (Fla.1964).


text:
    Charles L. SPERRY, Jr. and Utica Mutual Insurance Company, Appellants, v. John RODGERS d/b/a Big John’s Garage, Appellee.
    No. 80-820.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.
    Gary M. Witters of Allen, Dell, Frank & Trinkle, Tampa, for appellants.
    Charles D. Waller of Waller & Hersch, Dade City, for appellee.
   OTT, Judge.

This was an action against an insurance broker for negligently failing to cover ap-pellee’s truck with collision insurance. The parties stipulated that the truck had been damaged in an accident in the sum of $10,-025, but the jury inexplicably brought in a verdict for $20,000.

When parties to the lawsuit stipulate to the amount of damages, any contrary finding by the trier of fact must be conformed to the stipulation.

In the same vein, we reject Utica’s hindsight argument that the judgment against it was error because it became a party to this suit only by virtue of a third-party complaint by an original defendant who was dismissed from the case during the trial. Counsel for Utica later stipulated that his client was in the case for the purpose of paying, under an errors and omissions policy, any judgment rendered against its assured, the broker. That stipulation is binding, and it is too late for Utica to try to withdraw from it.

The judgment is reduced to $10,025 and, as amended, affirmed.

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


author: BOARDMAN, Judge.

text:
    Timothy Paul SNOW and David Andrew Wilson, Appellants, v. STATE of Florida, Appellee.
    No. 80-1223.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.

      Waldense D. Malouf, Clearwater, for appellant Timothy Paul Snow.
    James W. O’Neill, Jr., of Law Offices of William F. Casler, Sr., St. Petersburg Beach, for appellant David Andrew Wilson.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Timothy Paul Snow and David Andrew Wilson appeal judgments and sentences for conspiracy and several counts of kidnapping and involuntary sexual battery, alleging that their speedy trial rights were violated. We disagree and affirm.

On November 2, 1979, appellants were questioned by Deputy Sheriff Robert Co-dere concerning alleged sexual assaults upon an inmate in the Pinellas County Jail occurring on October 27, 28, and 29, 1979. Codere read appellants their Miranda rights before questioning them. At the time of the alleged sexual assaults, appellants were in jail pending trial on unrelated charges. After questioning appellants, Codere informed prison officials that they were possible perpetrators of the assaults being investigated, that the investigation was being continued, and that, consequently, appellants should be moved. Appellants were then moved to a separate administrative detention cell.

Other inmates in the same cell who were questioned denied knowledge of an assault having taken place, and Codere received conflicting times and dates from the inmates who claimed knowledge of such an assault.

The only verification of the victim’s allegations given initially was by inmate Todd. However, Todd indicated he had not actually been in that part of the cell where the assault occurred, but had heard noises; he had actually seen some of the activities on the following day.

Codere had received information that Van Dusen, the victim, was a homosexual and asked him to submit to two polygraph tests. The first test was given a week or two after the initial contact, and the second test was given on a different day. The victim passed the polygraph tests. Finally, some time after the initial interviews, inmates Simpson and Johnston verified the incidents.

No information arising out of the incidents in question was filed until December 14, 1979, when appellants and Raymond Bey were charged in separate informa-tions with a sexual battery alleged to have occurred on October 27, 1979. These infor-mations were nolle pressed on March 10, 1980, and a new information was filed on March 11, 1980, charging appellants, Bey, and four other defendants with twenty-one different counts.

On May 6, appellants filed a motion to dismiss and on May 12 or May 13, they filed a motion for discharge on the ground that more than 180 days had elapsed since they were taken into custody on the instant charges, both of which motions were denied after hearing. Appellants then pled nolo contendere to certain of the charges against them and guilty to the others, specifically reserving the right to appeal the denial of their motion for discharge, and were sentenced to lengthy prison terms. This appeal followed timely.

At the outset, we point out that a plea of guilty forecloses direct appeal on any matter which occurred prior to entry of the plea. Robinson v. State, 373 So.2d 898 (Fla.1979). A defendant who pleads guilty may appeal only issues which occurred contemporaneously with the plea, and those issues include only subject matter jurisdiction, illegality of the sentence, failure of government to abide by the plea agreement, and the voluntariness of the plea. Id. Thus appellants have waived their right to appeal the denial of their motion for discharge as to the counts to which they pled guilty. Bridges v. State, 376 So.2d 233 (Fla.1979).

The real issue before us is when the 180-day speedy trial time provided by Florida Rule of Criminal Procedure 3.191(a)(1) began to run in this case. Prior to the 1980 amendment to the rule, which became effective subsequent to the trial court proceedings in this case and is therefore not applicable here, rule 3.191(a)(1) provided that the speedy trial time began “when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.”

On this appeal, appellants rely on State v. N.B., 360 So.2d 162 (Fla. 1st DCA 1978), cert. dismissed, 365 So.2d 713 (Fla.1978), cert. denied, 383 So.2d 1199 (Fla.1980), although they did not cite it to the trial court. That case held that the defendant, who was already incarcerated, was taken into custody for speedy trial purposes when he was advised of his Miranda rights, questioned about alleged incidents involving commission of sexual battery on a fellow inmate, and advised that charges would probably be filed, although he was not formally arrested. Appellants urge that under the reasoning in State v. N.B., they were taken into custody for speedy trial purposes on November 2, 1979, when they were read their Miranda rights, questioned about the alleged assaults, and, that same day, moved by prison officials to a separate administrative holding cell on the interrogating officer’s recommendation. Appellants make much of their being moved to a separate cell and the allegedly greater restrictions placed upon them following this move.

The jail officials, however, testified that appellants were moved for the protection and well being of both appellants and the other jail inmates, since appellants’ implication in a sexual assault was considered likely to result in conflict between them and other inmates who believed and were upset by the allegations. We agree that this was a proper precaution and was not an indication of the belief of any official involved as to whether there was probable cause to believe that appellants were involved in the incident being investigated. This procedure is a common one under such circumstances, and victims, as well as alleged assailants, are generally removed from the general inmate population for their own protection. The jail officials also denied that any further restrictions other than those inherent in the circumstances were placed upon appellants. The trial court obviously chose to believe the jail officials on this issue.

We believe this case is factually distinguishable from State v. N.B. Not only were appellants not given any indication on the day they were questioned as to whether any charges would be filed, the investigating officer testified that it could not be and was not determined until weeks later what charges, if any, would be filed against whom. This testimony stands uncontradict-ed and unimpeached.

We think this case is analogous to Snead v. State, 346 So.2d 546 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977), in which the defendant

was taken to the jail and held for a short period for investigation with no charge for the murder being on file. He was then released without a charge being filed. His subsequent arrest on March 26 was on an unrelated charge upon which he was held until an indictment was returned against him on September 16 for murder. Under these circumstances, the time within which he could be tried under the speedy trial rule began to run to September 16, 1975.

Id. 346 So.2d at 547.

Furthermore, as noted in State ex rel. Dean v. Booth, 349 So.2d 806 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 129 (Fla. 1978), one can be “in custody” for the purpose of being entitled to Miranda warnings without being “in custody” within the meaning of rule 3.191(a)(1). The relator there was taken to the police station for questioning, was given the Miranda warnings, gave a statement, and was then released without having been arrested. This court held that Miranda warnings were required, but that the brief detention of the relator did not start the speedy trial time running. Here, as in Dean, we hold that the questioning of appellant and the attendant Miranda warnings given were appropriate, but that the speedy trial time did not begin to run then.

As appellants were neither formally arrested nor advised that they would be prosecuted on the subject charges prior to the filing of the original informations against them, we hold that the speedy trial period here commenced with the filing of the original informations on December 14, 1979, and had not expired on the date of the ruling on their motion for discharge. The motion was properly denied.

The remaining issue raised by appellant Snow was not properly preserved for appeal.

Accordingly, appellants’ judgments and sentences are AFFIRMED.

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

      . Bey voluntarily dismissed his appeal to this court and is no longer involved here.


author: DANAHY, Judge.

text:
    Eugene SWANSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1706.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.
    Jerry Hill, Public Defender, and Geoffrey A. Foster, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

On a four count information, appellant was convicted of trespass to an occupied conveyance (count I), kidnapping (count II), sexual battery (count III), and robbery with a deadly weapon (count IV). The trial court announced sentences against appellant of one year on count I, thirty years on count II, thirty years on count III and sixty years on count IV. As orally pronounced by the trial court, the sentence for count III was to be served consecutive to the sentence for count I; the sentence for count II was to be served concurrently with the sentence for count I; and the sentence for count IV was to be served consecutive to the sentence for counts II and III. The written sentence, however, provided that the sentence for count III was to be served consecutive to the sentence for count II and that the sentence for count IV was to be served consecutive to the sentence for count III.

Appellant is correct in his contention that the sentence as orally pronounced by the trial court and the sentence as written and signed by the court, differ. Under the sentence as orally pronounced by the court the appellant could, at most, be required to serve ninety-one years in prison. But under the written sentence, the maximum term of imprisonment was 120 years.

Accordingly, we affirm the convictions but vacate the sentencing order. The case is remanded so that a corrected written order may be entered which conforms to the sentence as orally pronounced. See Sandstrom v. State, 390 So.2d 448 (Fla. 4th DCA 1980); Sampson v. State, 375 So.2d 325 (Fla. 2d DCA 1979).

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


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Joe MORSE, Appellee.
    No. 80-2030.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Howard L. Garrett of Garrett & Garrett, Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

The state appeals the trial court’s order dismissing the amended information charging appellee Joe Morse with conspiracy to commit bookmaking. We affirm.

The facts set forth in appellee’s motion to dismiss the amended information are as follows. The state’s only evidence in support of the charge of bookmaking was a cassette recording of a telephone call to appellee from William C. Algood, an employee of the Tampa Dog Track. The call was placed from an official office of the Division of Pari-mutuel Wagering located on the premises of the dog track. The conversation consisted of Algood advising appellee of the results of four races which had been run and how much money appellee and Algood had made on those races. Appellee then directed Algood on what bets to make in the fifth race.

Near the end of the conversation, Joe Beromi, a state inspector, said something in the background to Algood, and Algood then said, “Oh, okay, wait a second, [sic] Hey, we can’t use this phone this way.” When ap-pellee after further conversation told Al-good to call him after the fifth race, Algood stated, “That’ll cost us a box of good cigars.” Appellee then replied, “Alright [sic], for Joe?,” and Algood replied, “Yeah.”

The state filed a traverse to appellee’s motion to dismiss, together with a copy of the telephone conversation. The state also filed a demurrer to the motion to dismiss. Subsequently, appellee filed an amendment to the motion to dismiss together with an affidavit by Algood in which Algood averred that any wagers made by him on behalf of appellee were performed gratuitously, without fee, reward, or other compensation.

Although “bookmaking” is a crime under chapter 849, Florida Statutes (1979), section 849.25(5) excepts pari-mutuel wagering in Florida, as authorized under chapters 550 and 551, from criminal penalty. Section 550.361(6), Florida Statutes (1979) excepts from criminal prosecution any person attending a track or fronton or employed by a track or fronton who places a bet to the legalized pari-mutuel pool for another person, providing that such services are rendered “gratuitously and without fee or reward.”

As noted above, the only evidence which the state had against appellee was the transcript of the intercepted phone call from Algood, and there is no indication within the transcript itself or elsewhere that Al-good was receiving compensation of any kind for placing bets for appellee. Additionally, Algood’s affidavit affirmatively states that he did not receive any gratuity or reward. Because of these facts, appel-lee’s activities fall under section 550.361(6) which excepts from criminal penalty for bookmaking persons who place bets through the legalized pari-mutuel pool for other persons gratuitously. The trial court did not err in dismissing the information against appellee.

Accordingly, the trial court’s order dismissing the information against appellee is AFFIRMED.

GRIMES and DANAHY, JJ., concur.

      . Appellee might, however, properly have been charged under section 550.35(1), Florida Statutes (1979), which prohibits the communication or reception of racing information during certain hours.


text:
    Robert H. BUNCH, Appellant, v. STATE of Florida, Appellee.
    No. 80-2277.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The state charged appellant, a juvenile, as an adult pursuant to section 39.-04(2)(e)(4), Florida Statutes (1979). After appellant pled nolo contendere, the trial court sentenced appellant as an adult. When a juvenile is sentenced as an adult, section 39.111(6), Florida Statutes (1979), requires that the trial court make specific factual findings based upon the criteria enumerated in that section. The record in the instant case does not reveal the required written findings of fact, and we must vacate the sentence. See Stallins v. State, 385 So.2d 1171 (Fla. 2d DCA 1980). However, there being no merit to the other point raised on appeal, the judgment is affirmed and the cause remanded only for resentencing in accordance with section 39.-111(6).

BOARDMAN, Acting C. J., and OTT and DANAHY, JJ., concur.


text:
    Jon Steven MILLER, a/k/a Robert Christopher, Appellant, v. STATE of Florida, Appellee.
    No. 80-2350.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.
    Jerry Hill, Public Defender and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of first degree murder on April 1, 1974, and sentenced to death. The Florida Supreme Court reversed the death sentence twice. See Miller v. State, 332 So.2d 65 (Fla.1976) and Miller v. State, 373 So.2d 882 (Fla.1979). At the second resentencing proceeding, Circuit Judge Thomas Reese sentenced Miller to life imprisonment and retained jurisdiction over the first one-third of the sentence pursuant to section 947.16(3), Florida Statutes (1979). This statute became effective in 1978.

We held in Rodriguez v. State, 380 So.2d 1123 (Fla.2d DCA 1980) that section 947.16 could not be applied to offenses committed prior to the effective date of the statute.

Accordingly, appellant’s conviction and sentence are affirmed; however, the cause is remanded with the directions to delete from the sentence the trial court’s reservation of jurisdiction.

HOBSON, Acting C. J., and OTT and RYDER, JJ., concur.


author: ANSTEAD, Judge.

text:
    Richard John LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 79-2460.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON MOTION FOR REHEARING AND/OR CERTIFICATION OF QUESTION

ANSTEAD, Judge.

Upon reconsideration, we are convinced that our initial decision to remand this case for a new trial in light of Tascano v. State, 393 So.2d 540 (Fla.1980) was in error.

Appellant Lewis was charged with aggravated assault, a third degree felony. After the close of the evidence, defense counsel requested that the trial court instruct the jury in accord with Florida Rule of Criminal Procedure 3.390(a) as to the minimum and maximum penalties possible under the offense charged:

The Court: Mr. Tobin, do you want to put anything on the record relative to the Court’s impending instructions? In particular, I think you mentioned what the Court has indicated I was not going to charge them on as to the sentence.
Mr. Tobin (defense counsel): I am requesting that you do instruct them as to the charge.
The Court: Right. And I have already indicated, so you can make as part of your objections, that I am not going to indicate to them what the maximum sentence would be.
Mr. Tobin: I respectfully request that the Court instruct the jury as to the maximum sentence for this crime, and I object to your denial of my request.
The Court: Okay. Anything further as to the intended instructions? I will give you an opportunity to review that at the end, but is there anything you want to put on the record now?
Mr. Tobin: No.

Following receipt of a question from the jury as to whether assault or attempted aggravated assault was the less serious offense, this exchange occurred:

The Court: I am going to tell them the Information charges aggravated assault, which includes, as a matter of law, the lesser included offense of attempted aggravated assault. And it also includes the lesser included offense of assault.
Any comment, Mr. Tobin?
Mr. Tobin: Judge, I mean I have no objection to what you are doing, but I would suggest that you instruct on the penalties on each one of them.
The Court: Anything else?
Mr. Tobin: No.

The trial court refused to give any jury instructions on penalties. The jury subsequently convicted appellant of simple assault, the lowest possible offense.

Initially, the state argues that the appellant has failed to preserve the issue of the court’s failure to instruct on appeal. We disagree. In our view the record adequately reflects the appellant’s request for an instruction on penalties under Rule 3.390(a) and his objection to the trial court’s failure to do so. This is sufficient to preserve the error for appeal. See Williams v. State, 395 So.2d 1236 (Fla. 4th DCA 1981).

The more substantial contention put forth by the state is that, in view of the appellant’s conviction only of assault, the lowest possible lesser included offense of the offense charged, the trial court’s refusal to instruct on penalties was harmless error. This contention was recently accepted by one of our sister courts in a case factually indistinguishable from the case sub judice. James v. State, 393 So.2d 1138 (Fla. 3d DCA 1981). The James court reasoned as follows:

Florida Rule of Criminal Procedure 3.390(a) provides:
“(a) The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.” (emphasis supplied)
Where a penalty instruction on the offense charged is requested, the rule makes such instruction mandatory. Tascano v. State, 393 So.2d 540 (Fla.1980). However, neither the rule nor Tascano requires that a jury be instructed on the penalties for lesser-included offenses. Mitchell v. State, 304 So.2d 466 (Fla. 3d DCA 1974); Settle v. State, 288 So.2d 511 (Fla. 2d DCA 1974). Thus, the defendant was not entitled to have the jury instructed on the penalties for improper exhibition of a firearm and assault.
The remaining issue before us is whether the trial court’s failure to instruct on the penalties for the offense charged, that is, aggravated assault, per se error under Tascano, is harmless in light of the jury’s verdict on the lesser-included offense of assault, we conclude that the failure to instruct on the penalties for the offense charged is harmless where, as here, the defendant is convicted of the lowest lesser-included offense, (footnotes omitted)

393 So.2d at 1139. We find this reasoning particularly persuasive here where appellant’s counsel’s initial request was limited to the “maximum sentence for this crime.”

The apparent purpose of the provisions of Rule 3.390(a) mandating an instruction on the penalties for the offense for which the accused is on trial is to inform the jury of the potential consequences upon the accused of the jury’s decision as to which offense the accused has been proven guilty. This information may then be utilized by the jury as another factor to be considered in the jury’s exercise of its broad authority to determine the accused’s guilt or innocence of the offense formally charged and the lesser offenses included therein. From the standpoint of the accused a consideration of this factor might well result in the jury finding him guilty of a lesser offense in a case where the proof of the higher offense is marginal and the disparity in penalties between the offenses involved is substantial. In the case at hand, since the appellant has been found guilty of the least of the offenses included within the formal charge, we do not believe the appellant could have been prejudiced by the trial court’s failure to instruct on the penalties for the highest offense for which he was on trial. Any issue as to whether the jury would have found the appellant guilty of a lesser offense because of the severity of the penalty for the offense charged has been rendered moot by the jury’s decision.

Upon initial consideration we were of the view that Tascano, supra, prevented us from considering the harmless error rule. However, upon reflection, we do not believe the Supreme Court in Tascano, supra, determined whether or not the failure to give an instruction on penalties may constitute harmless error. There is no discussion of the harmless error rule in the majority opinion. In addition, the only discussion of the harmless error rule in the dissenting opinion is limited to the assertion that the failure to instruct is rendered harmless by reason of the jury also being instructed to disregard the consequences of its verdict. At most, we read Tascano as rejecting this dissenting view which we do not rely on here in any case. However, in an abundance of caution, and because of our concern about the uncertainty on the issue and our view that -this issue as raised here and in numerous other cases pending before this court is of great public importance, we certify the following question to the Florida Supreme Court under the provisions of Florida Rule of Appellate Procedure 9.030(2)(B)(i):

May an appellate court find that the failure of the trial court to instruct the jury pursuant to the provisions of Rule 3.390(a) of the Florida Rules of Criminal Procedure constitutes harmless error?

In accordance with the above, our opinion of April 15, 1981, is hereby withdrawn and the judgment of the trial court is hereby affirmed.

MOORE and BERANEK, JJ., concur.

      . The jury was instructed on the lesser included offenses of attempted aggravated assault, improper exhibition of a firearm, and simple assault. Attempted aggravated assault and improper exhibition of a firearm are first degree misdemeanors. Simple assault is a second degree misdemeanor.

      . We agree with the observation of Justice Alderman in his dissent in Tascano that it is inconsistent and confusing to inform jurors on the one hand as to the potential penalties and on the other to tell them to ignore the consequences of their decision. However, we do not rely on this inconsistency in our decision in any way. Perhaps the jury instructions on disregarding the consequences of the verdict will be modified to remedy this perceived problem.


text:
    Donald L. SMITH, M. D., and Florida Physicians’ Insurance Reciprocal, Appellants, v. Opal CAUTHEN, Raymond S. Cauthen and Board of Regents of Florida, Appellees.
    No. XX-427.
    District Court of Appeal of Florida, First District.
    June 5, 1981.
    L. Edward McClellan, Jr., of Pattillo, MacKay & McKeever, Ocala, for appellants.
    Paul G. Wright of Anderson & Folds, Gainesville, for appellees.
   PER CURIAM.

Appellant argues the trial court erred in ruling on his motion to dismiss for failure to state a cause of action prior to considering his motion to dismiss or transfer alleging improper venue. We agree. The order granting appellant’s motion to dismiss for failure to state a cause of action is vacated and the cause remanded for consideration of the motion to dismiss or transfer on the grounds of improper venue. Dickinson v. Grootemaat, 291 So.2d 669 (Fla.2d DCA 1974); Reed Construction Corporation v. State Road Department, 165 So.2d 816 (Fla.3d DCA 1964).

MILLS, C. J., and SHAW, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.