author: DAUKSCH, Chief Judge.

text:
    STATE of Florida, Appellant, v. Grady Leon PENTECOST, Appellee.
    No. 80-239.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.
    Rehearing Denied May 1, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    John A. Baldwin of Baldwin & Dikeou, Fern Park, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order dismissing criminal charges against the appellee and an appeal from an order granting the suppression of evidence. The two orders are rather interrelated. The search and seizure was a result of an investigation regarding the sale of drugs. The charges were for the participation in a drug transaction. The trial judge dismissed the charges because he determined the state did not present a prima facie case of guilt against the appellee. Fla.R.Crim.P. 3.190(c)(4). The trial judge granted the motion to suppress because he determined the police lacked probable cause to arrest or search and seize.

Upon a review of the record, we must find there was probable cause to arrest and a right to seize the gun. We also have to say there was at least a prima facie case of guilt shown by the state in contravention of the “(c)(4)” motion. A trier of fact could find the appellee was a participant in the drug transaction as a look-out or protector, both of which operatives are common to large scale drug transactions, such as this one. The fact that the police saw appellee leave with the two persons who were carrying the drugs and that he was-later seen circling the area where the sale was being consummated is sufficient to lead to a prima facie finding of involvement. Whether he was involved and to what extent is up to the trier of fact to decide.

The order dismissing the charges cuts off the right of the state to attempt to prove its allegations in much the same manner as a summary judgment proceeding on the civil side. So long as the state barely shows a case against the accused it should be allowed to proceed with its case. Then if the accused is entitled to a directed verdict at trial or an acquittal, each party has been given its due. It is only when the state cannot establish even the barest bit of a prima facie case that it should be prevented from prosecuting. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980); State v. J. T. S., 373 So.2d 418 (Fla. 2d DCA 1979).

REVERSED AND REMANDED.

ORFINGER and COWART, JJ., concur.


source: Caselaw Access Project

author: ORFINGER, Judge.

license: Public Domain

text:
    Robert A. PRESTON, Appellant, v. STATE of Florida, Appellee.
    No. 80-453.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    Rehearing Denied May 5, 1981.

      James B. Gibson, Public Defender, James R. Wulchak, Asst. Public Defender, Chief, Appellate Div., and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant’s request for a jury instruction on self defense was denied, and appellant claims error. He also contends that he could not be convicted of attempted criminal mischief and throwing a deadly missile into an occupied vehicle arising out of the same facts, because the lesser is included in the greater. We affirm.

We fail to find in the record any objection to the trial court’s refusal to give the requested instruction, as required by Florida Rules of Criminal Procedure, 3.390(d). When no objection is made, the issue is not preserved for appeal. Bassett v. State, 392 So.2d 1025 (Fla. 5th DCA 1981); Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980).

Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The test emphasizes the elements of the two crimes: if each requires proof of a fact that the other does not, the Bloekbur-ger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. Iannelli v. United States, 420 U.S. 770, 785, 95 S.Ct. 1284, 1294, 43 L.Ed.2d 616 (1975). Thus, in Ziegler v. State, 385 So.2d 1168 (Fla. 1st DCA 1980), where the appellant argued that he could not be simultaneously convicted and sentenced of possession of a short-barreled shotgun and possession of a firearm by a previously convicted felon, it was held that neither offense could be considered as lesser included in the other for the purposes of section 775.021(4), since on each count the State was required to allege and prove an element not necessary for the conviction of the other count: in respect to the first count, that the shotgun was short-barreled, and in respect to the second count, that appellant was a convicted felon.

Appellant agrees with the State’s position that the crime of criminal mischief requires proof of damage to property and the crime of throwing a deadly missile requires proof that the missile thrown is capable of producing death or great bodily harm, each an element not required in the other, so the crimes are not the same for double jeopardy purposes. Appellant says, however, that he was convicted only of attempted criminal mischief, so no element of damage to property is present. An attempt to commit a crime has been defined as an overt act done with the intent to commit the crime and which, except for the interference of some cause preventing the carrying out of that intent, would have resulted in the commission of the crime. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923); 14-Fla.Jur.2d, Criminal Law, § 44. Therefore, attempted criminal mischief involves a finding of intent, not carried out, to cause damage to property. The crimes are not the same and there is no error on this point.

Appellant having failed to demonstrate error, the judgment and sentence are AFFIRMED. .

COBB and SHARP, JJ., concur.

      . § 806.13, Fla.Stat. (1979).

      . § 790.19, Fla.Stat. (1979).

      . § 775.021(4), Fla.Stat. (1979), says:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts consti-tilting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal episode, excluding lesser included offenses. . . . (emphasis added).


text:
    STATE of Florida, Appellant, v. Lawrence David OGLESBY, Appellee.
    No. XX-74.
    District Court of Appeal of Florida, First District.
    April 2, 1981.
    Rehearing Denied May 19, 1981.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellant.
    Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellee.
   OWEN, WILLIAM C, Jr. (Retired), Associate Judge.

The State appeals an order granting defendant’s motion to suppress certain physical evidence seized from his automobile during the course of a warrantless search.

Defendant Oglesby was employed at Union Correctional Institution as a corrections officer. At approximately 1:30 in the morning, while he was on duty, defendant Oglesby had a medical problem which necessitated his being taken to the hospital in an ambulance. Another corrections officer was directed to place some items of personal property belonging to Oglesby in Ogles-by’s car. While putting those items in Oglesby’s car, the officer observed the handle of a gun protruding from under the front seat. He reported this to his supervisor, whereupon several corrections officers were sent to search the car. The officers, who seized from under the front seat of the car a gun, some bullets, a can of mace, a hunting knife, and a radio, explained that they removed these items because the car was parked in an area where inmates have daytime access. The items were placed in a sack for safekeeping.

At the time these items were removed from the car, the officers had no reason to believe that the radio was stolen property. However, a short time later, the corrections officers learned that the radio found in the Oglesby ear matched the description of a radio stolen from the Starke Police Department, which information resulted in Ogles-by being charged with theft of the radio.

At hearing on the motion to suppress the physical evidence, the trial court found that the initial entry into the vehicle and seizure of the weapon was justified under safekeeping procedures, but concluded that the officers had gone beyond the bounds of reasonableness when they removed the radio from the car. The court thereupon granted defendant’s motion to suppress the radio as evidence in the cause.

Appellee cites Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Go-Bart v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), as examples of cases in which a search, reasonable at its inception may violate Fourth Amendment protections due to the subsequent intensity and scope of the search. On the other hand, the State cites Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), and Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), as authority for the proposition that given the lawfulness of the initial intrusion into the vehicle and the initial search, the seizure of the radio was not constitutionally unreasonable.

Rarely, if ever, are any two cases just alike, and we are cognizant of the task facing the trial courts in the “ribbon matching” process involved in deciding constitutional issues in search and seizure cases. Nonetheless, we feel that here, when the officers looked under the front seat to seize the gun (which was not unreasonable), their further good faith action of taking into custody for storage and safekeeping other (then innocuous) items of personalty was not constitutionally unreasonable under the reasoning of Cady v. Dombrowski, supra, and Harris v. United States, supra.

The order suppressing the physical evidence is REVERSED.

MILLS, C. J., and JOANOS, J., concur.


text:
    Rolando Otero HERNANDEZ, Appellant, v. STATE of Florida, Appellee. Robert ROSENBLATT, Appellant, v. STATE of Florida, Appellee. William CLAY, Appellant, v. STATE of Florida, Appellee.
    Nos. GG-25, EE-490 and EE-401.
    District Court of Appeal of Florida, First District.
    April 7, 1981.
    Rehearing Denied May 19, 1981.

      Paul Morris and Bennett H. Brummer, Asst. Public Defenders, Miami, for appellant Hernandez.
    Louis M. Jepeway, Jr., of Jepeway & Jepeway, Miami, for appellants Rosenblatt and Clay.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   LILES, WOODIE A. (Retired), Associate Judge.

“Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century it seems to have been firmly established in England, where it came to be considered as a ‘universal maxim of the common law.’ It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, and that it has been recognized here as fundamental again and again. Today it is found, in varying forms, not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as well as most foreign nations. It has, in fact, been described as a part of all advanced systems of law and as one of those universal principles “of reason, justice, and conscience, of which Cicero said: ‘Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same.’ ” Bartkus v. Illinois, 359 U.S. 121, 151-154, 79 S.Ct. 676, 695-697, 3 L.Ed.2d 684 (1959).

Laudatory and true as these words appear, they were uttered in the dissent by Justice Black. Justice Frankfurter, along with a majority of the Court, having ruled otherwise, said, quoting from Moore v. Illinois, 55 U.S. (14 How.) 13 (1852), at 20, 14 L.Ed. 306:

“Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both.”

The majority went on to hold that under the doctrine of dual sovereignty, one may in fact be placed twice in jeopardy without being deprived of his constitutional protection. This is true, said the Court, for the reasons that the Fifth Amendment is not applicable to the states and that both federal and state judicial systems needed to be free “to develop a rational and just body of criminal law,” which would be accomplished by adhering to the dual sovereignty doctrine rather than extending the application of the Fifth Amendment to the states. 359 U.S., at 138, 79 S.Ct., at 686.

This Court is called upon by the appellant here to set aside and vitiate the doctrine of dual sovereignty by recognizing that the holding in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), has been overruled in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) wherein the Fifth Amendment was applied to the states through the- Fourteenth Amendment. Indeed, the decisions in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), and Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), also seem to imply a broad rejection of the dual sover-eignties theory. In those cases the court “rejected the dual sovereignty argument and allowed a defendant in one sovereignty to assert rights based on the actions of another sovereignty’s officials.” People v. Cooper, 398 Mich. 450, 247 N.W.2d 866, 869 (1975). In view of Supreme Court decisions subsequent to Benton, however, we must restrain ourselves from the temptation to declare that Bartkus no longer governs. See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), wherein the Court reaffirmed the Bartkus holding.

We are convinced that the Fifth Amendment bar against double jeopardy, as well as the prohibition against double jeopardy found in Article I, Section 9, of the Constitution of the State of Florida, often has been an illusory protection. This is so in spite of the rhetorically stated adherence to the protection as well as the pronouncement in Benton, supra. We can, however, take comfort in the Supreme Court’s decision in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), wherein Justice Burger denied that the doctrine of dual sovereignty applied as between a state and its municipalities, which were fictional sov-ereignties at best. In our view, this opinion overruled the Supreme Court of Florida’s opinions in Theisen v. McDavid, 34 Fla. 440, 16 So. 321 (1894), and Hilliard v. City of Gainesville, 213 So.2d 689 (Fla.1968), and the opinion in which this author joined in Waller v. State, 213 So.2d 623 (Fla. 2nd DCA 1968), all of which alluded to the permissibility of successive municipal state prosecutions arising from the same criminal incident.

The instant case presents this Court with the age old problem of determining, under the circumstances, whether Rolando Otero Hernandez has been denied the constitutional protection, guaranteed by the Fifth Amendment of the United States Constitution and Article I, Section 9, of the Constitution of the State of Florida, against twice being placed in jeopardy for the same offense. On August 30, 1976, a thirty-nine count information was filed against Hernandez in the Eleventh Judicial Circuit. He had previously been indicted and tried in the Federal District Court for the Southern District of Florida. Among the federal charges of significance to this opinion were conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 844(i) (1976), attempt to destroy property with an explosive in violation of 18 U.S.C. § 844(i) (1976), and possession of a destructive device in violation of 26 U.S.C. § 5861(d) (1976). With regard to the placement of bombs in the Miami International Airport, these charges cumulatively carried a potential twenty-five year prison sentence. These charges were repeated in each of numerous counts accusing appellant of placing bombs in various and sundry public buildings in and around the City of Miami, in addition to the airport. On August 24, 1976, appellant was acquitted of all federal charges. The State then filed and proceeded to trial on its thirty-nine count information and appellant was acquitted of all but five counts stemming from the airport incident:

Count 1: unlawful possession of explosive in violation of Section 552.22, Fla. Stat, punishable up to fifteen years’ imprisonment.
Count 10: unlawful possession of explosive in violation of Sections 552.101, 552.22, Fla.Stat., punishable up to five years’ imprisonment.
Count 21: attempted first degree murder in violation of Sections 782.04 and 777.04, Fla.Stat., punishable up to thirty years’ imprisonment.
Count 26: first degree arson in violation of Section 806.01(1), and 775.087(2), Fla.Stat., punishable up to thirty years’ imprisonment.
Count 32: unlawfully discharging destructive device in violation of Section 790.161(2), Fla.Stat., punishable up to thirty years’ imprisonment.

The maximum potential sentence faced by appellant upon conviction of these five counts totalled 110 years.

Prior to the trial, Hernandez sought to have the charges dismissed for the reason that his prosecution was barred by the federal and state prohibitions against double jeopardy. The trial judge heard argument, requested briefs, and ruled that the second trial was not prohibited. We 'believe the trial judge’s ruling was correct, but we do not adopt his reasoning.

If this were a case which required affirmance based solely on a strict application of the doctrine of dual sovereignty, this Court would be inclined to follow the approach enunciated first in Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971), and later adopted in People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1975). In Cooper the Michigan Supreme Court, although recognizing that the concept of dual sovereignty may sometimes aid in maintaining a strong state as well as federal system of justice, expressed the view that Justice Frankfurter’s reasoning in Bartkus had been seriously eroded by Benton, and voiced a preference for Justice Black’s dissent in Bartkus, as the Pennsylvania Supreme Court had done in Mills. The court in Cooper went on to observe “that persons convicted in federal court only very rarely are prosecuted in state courts for offenses arising out of the same criminal act,” offering in explanation that the interests of the federal and state governments in prosecuting a criminal act frequently coincide. . Cooper, 247 N.W.2d at 870. The Mills court had concluded its analysis by stating that in the future, prosecution by the State of Pennsylvania would not be: permitted unless it appeared from the record that the interests of that state were substantially different from those of the initial prosecuting jurisdiction, and the Cooper court followed suit.

We have qualified our approval of these decisions, though, because in the instant case we lack the above-mentioned coincidence of interests. The state information on its face indicates the divergence of the federal and state interests in this case. The federal charges, as can be seen, were for conspiracy to commit an offense against the United States and attempt to destroy property with explosives, as well as possession of a destructive device; and while those violations overlap the state charges to some extent, the state charges are far more encompassing. The state’s interest in the protection of human life, for example, not apparently fostered in any of the charges in the federal indictment, is discernible in Count 21 of the information, attempted first-degree murder, of which Hernandez was convicted. A second state interest not apparently served by the federal prosecution is embodied in Count 26 of the information charging appellant with first-degree arson. In addition, while it could be argued that unlawful possession of explosives was inherent in the federal conspiracy charge, the state charge commands a more severe maximum penalty. A considerable diversity in potential maximum sentences for the respective federal and state offenses such as exists in this case is one of the factors of the test announced in Cooper for determining whether substantially different interests are present. Cooper, at 871.

The record reveals that at 5:00 or 6:00 p. m., on October 17, 1975, Hernandez prevailed upon a friend, one Gonzalez, to drive him to the Miami International Airport to pick up another friend’s automobile. While Gonzalez remained in the. car, Hernandez proceeded to the terminal. He returned in about five minutes explaining that he could not find the car. At about 6:00 a. m. the following morning, the reservations clerk for Eastern Airlines received a telephone call from a person whose voice said:

“Listen carefully. This is not a joke. There are several bombs in the complex. The first will go off in a couple of minutes.”

Two minutes later, a locker bank exploded, scattering debris around the detonated bomb in locker 5030. The remnants of the bomb found in locker 5030 indicated that the bomb was activated by a time delay mechanism allowing a delay of almost twelve hours. Reconstructing this evidence placed Hernandez at the airport precisely twelve hours before the bomb exploded, and a fingerprint expert identified a fingerprint lifted from the handle of locker 5030 as that of Hernandez. Through the use of voice exemplars, Catherine Simpson, the Eastern reservations clerk who had received the telephone warning, identified Hernandez’s voice as being the voice she had heard. This evidence clearly shows that the state not only had a direct and viable interest in protecting its property from which intrastate flights came and went, but it also had a vital interest in protecting the lives of the citizens who sought services from the Miami International Airport, as well as the property at the airport. The disparities between the federal indictment and the state information are of great significance in this case; the charge of attempted first-degree murder alone manifests a state interest which outweighs any challenges based purely on the fictional nature of the dual sover-eignties doctrine. We are therefore compelled to affirm the conviction, while at the same time voicing a strong belief in the integrity of this state’s adherence to the prohibition against placing an individual twice in jeopardy for the same offense. The ills inherent in allowing successive federal-state prosecutions to go unscrutinized were enumerated in Commonwealth v. Mills, supra:

(1) It is in derogation of the principle that “no one should be twice vexed for the one and the same cause”; and (2) It destroys finality from the individual’s standpoint and permits the governments with all their resources and power to make repeated attempts to convict, thus subjecting the accused to live in a continuous state of anxiety, insecurity and possible harassment.

The interest, however, that permits an affirmance of Hernandez’s conviction is paramount to the interest sought to be protected by the federal government and is demonstrated rather substantially in the record. See People v. Gay, Mich., 289 N.W.2d 651 (1979).

During the course of the trial, the trial judge cited Appellant’s lawyers, Ro-senblatt and Clay, for contempt and entered judgments against them. They, too, have appealed. Rule 3.830, Fla.R.Cr.P., requires that prior to an adjudication of guilt of direct criminal contempt, “the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances.” Rule 3.830, Fla.R.Cr.P. Compliance with this rule is mandatory. Keezel v. State, 358 So.2d 247 (Fla. 4th DCA 1978); Ray v. State, 352 So.2d 110 (Fla. 1st DCA 1977).

Before adjudicating Rosenblatt guilty of contempt, the trial court did not inform him of the accusation against him nor inquire as to whether he could show cause why he should not be adjudged guilty of contempt, although he was given an opportunity to present mitigating circumstances afterwards. In addition, it is doubtful that Rosenblatt’s conduct amounted to contempt. The trial court had orally cautioned counsel not to refer to a “federal jury” or a “federal trial”, although they were permitted to speak of “prior court proceedings.” Rosenblatt had said: “Well, didn’t you testify to the jury that it appeared to be a minute hand?” Rosenblatt explained his use of the phrase “the jury” by saying he had been trained to advise a witness of the circumstances surrounding a prior inconsistent statement when attempting to impeach that witness. In any event, since that rule was not strictly complied with, the judgment of contempt against Rosenblatt must be reversed.

It is even more obvious, with regard to Appellant Clay, that the rule was not followed in adjudging him guilty of contempt. While arguing a motion, Mr. Clay was told by the court at one point not to say another word. Mr..Clay objected for the record, and the court immediately stated that Clay would be held in contempt. When Clay asked if he could offer an explanation of his conduct, he was told flatly that he could not and that if he did not keep still, he would be held in further contempt. This was clearly a violation of Rule 3.830.

Appellant raises other issues. We have carefully reviewed them and find no basis for reversing.

For the foregoing reasons, we affirm Hernandez’s conviction and reverse the judgments of contempt against Clay and Rosenblatt.

AFFIRMED IN PART, REVERSED IN PART.

McCORD, J., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.

      . Elkins held that evidence obtained by state officers through a search which would have violated the Fourth Amendment if conducted by federal authorities was not admissible in a federal prosecution. In Murphy, it was held that, under the Fifth Amendment, a state witness need not testify unless his immunity extended to federal as well as state prosecution.

      . If questions remain as to the interpretation of the Supreme Court’s Waller decision, see Waller v. State, 270 So.2d 26 (Fla. 2nd DCA 1972), they were put to rest by the adoption in 1972 of an amendment to Article V, Section 1, of the Florida Constitution, wherein municipal courts were abolished.

      . Venue was changed to the First Judicial Circuit.

      . The State urges us to affirm this case based on the doctrine pronounced in Strobhar v. State, 55 Fla. 167, 47 So. 4 (1908). However, we can find no guidance in that case. There it was hypothesized that, had a continuing offense been committed in both Georgia and Florida, the laws of both states would have been violated and prosecutions in both jurisdictions would have been permissible. There is nothing in the double jeopardy prohibition to prevent a sovereign state from enforcing its own laws within its geographic boundaries; while we do not reject the holding of Strobhar, it is not applicable in this case.


author: WENTWORTH, Judge.

text:
    BOWE SEPTIC TANK SERVICE et al., Appellants, v. Henry GROOMS, Appellee.
    No. WW-482.
    District Court of Appeal of Florida, First District.
    April 7, 1981.
    Rehearing Denied May 19, 1981.
    John R. Gierach, of Gierach & Ewald, Orlando, for appellants.
    Irvin A. Meyers and Gary J. Boynton, of Meyers, Mooney & Adler, Orlando, for ap-pellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order which we affirm except as to the amount of the attorney’s fee awarded. In making the award the deputy commissioner indicated that he had considered the various criteria listed in § 440.34(1), Florida Statutes, and Lee Engineering v. Fellows, 209 So.2d 454 (Fla.1968), specifically noting that the case involved 45 hours of the attorney’s time and resulted in benefits to the claimant of over $67,000 (present value). However, the record shows that employer/carrier was contesting only a portion of these benefits, and that the case presented no novel or unusual issues of special difficulty. In these circumstances we conclude that the $9,500 fee awarded is excessive and apparently based in part on benefits not controverted.

The order appealed is therefore affirmed in part and reversed in part and remanded for redetermination of an appropriate attorney’s fee.

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


author: PER CURIAM.

text:
    GENERAL TIRE AND RUBBER COMPANY and Liberty Mutual Insurance Company, Appellants/Cross Appellees, v. LLOYDS OF LONDON, Appellee/Cross Appellant.
    No. 80-666.
    District Court of Appeal of Florida, Fifth District.
    April 8, 1981.
    Rehearing Denied May 5, 1981.
    Steven H. Gray of Green, Simmons, Green, Hightower & Gray, P.A., Ocala, for appellants/cross-appellees.

      John H. Piccin of Pattillo, MacKay & McKeever, P.A., Ocala, for appellee/cross-appellant.
   PER CURIAM.

This is an appeal and cross appeal of judgment entered after jury verdict and order granting a new trial on damages. We affirm the order of the trial court granting a new trial on the issue of damages.

We also affirm the order of the trial court permitting Lloyds of London to be added as a party plaintiff and the court should permit the parties to correct any technical errors in the designation of Lloyds of London.

AFFIRMED.

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


text:
    D. W. J., a child, Appellant, v. STATE of Florida, Appellee.
    No. UU-2.
    District Court of Appeal of Florida, First District.
    April 13, 1981.
    Rehearing Denied May 21, 1981.
    Michael J. Minerva, Public Defender, Thomas Presnell, Jr., Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The issue for our determination is whether the juvenile court has the authority to modify or set aside a previously entered commitment order after 60 days have elapsed from its imposition. The trial court, in a well-reasoned opinion, concluded that such authority does not exist. We affirm.

Resolution of the issue presented involves a question of the statutory interpretation of Section 39.11, Florida Statutes (1979), which provides, in pertinent part, the following:

(1) When any child shall be adjudicated by the court to have committed a delinquent act, the court having jurisdiction of the child shall have the power, by order in which is stated the facts upon which a determination of a sanction and rehabilitative program was made at the disposition hearing, to:
******
(e) Commit the child to the department. Said commitment shall be for the purpose of exercising active control, including, but not limited to, custody, care, training, treatment, and furlough into the community. Notwithstanding the provisions of s. 743.07, the term of said commitment shall be until said child is discharged by the department or until he reaches the age of 19.
* * * * * *
(2) Any order made pursuant to subsection (1) may thereafter be modified or set aside by the court.
* * * * * *
(7) The court upon motion of the child, or upon its own motion, may within 60 days after imposition of a disposition of commitment suspend the further execution of the disposition and place the child on probation in a community control program upon such terms as the court may require.

We agree with the trial court’s conclusion that by utilizing principles of statutory construction, particularly the doctrine of ejus-dem generis, subsection (2) of the statute must be considered as restricted by subsection (7), and that accordingly, the trial court’s authority to modify a commitment order is limited to a 60-day period following imposition of such order. Therefore, the order appealed is AFFIRMED.

ROBERT P. SMITH and THOMPSON, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: JOANOS, Judge.

text:
    Linda Ruege FERRELL, Appellant, v. Doris M. RUEGE, Appellee.
    No. PP-116.
    District Court of Appeal of Florida, First District.
    April 14, 1981.
    Rehearing Denied May 19, 1981.

      Fred T. Stapp of Williams & Stapp, Jacksonville, for appellant.
    John R. Forbes of Forbes & Meide, Jacksonville, for appellee.
   JOANOS, Judge.

The appellant is the mother of Alison Lynne Ruege. The appellee is the appellant’s mother. They have engaged in continuing litigation over, first custody of the child Alison, and then right of visitation with the child by the appellee grandmother. This appeal is from an order which modifies the visitation rights awarded to the grandmother by another circuit judge. The mother, as appellant, urges that the circuit judge committed reversible error when he failed upon the mother’s motion to dissolve the grandmother’s rights to partial custody or visitation. We disagree and affirm the trial court’s order.

In 1973 the mother brought a petition for habeas corpus. She alleged that the grandmother had taken illegal possession of the child a few days before the filing of the petition. The circuit judge, upon a finding that the welfare of the child required a period of adjustment, entered an interlocutory order continuing the cause and awarding the child to the grandmother’s custody. After the continued hearing, the judge entered a final judgment remanding the child to the custody of the mother (appellant here).

In 1976, without record objection by either party, the trial judge reopened the case upon receiving a letter from the grandmother which he treated as a “motion for custody.” After a hearing, an order was entered denying the motion but, providing that the grandmother should have a right of visitation on alternate weekends. This order was not appealed. This is the order which the present circuit judge has modified by continuing the grandmother’s visitation rights on a lesser basis.

In July of 1979, the mother, without raising any question of the validity of the prior orders, after the final judgment, filed in the same cause a “Petition to Dissolve Visitation Rights.” After hearing, the judge found the following facts:

1. On May 16, 1976, the Honorable John E. San tora issued an order granting DORIS M. RUEGE visitation rights regarding her granddaughter, ALISON LYNNE RUEGE.
2. At the time the order was granted, LINDA RUEGE FERRELL and DEAN WESLEY FERRELL had been married approximately three years and were experiencing marital difficulties.
3. Since the entry of the order in 1976, the FERRELLS have resolved their difficulties.
4. At the present time, the FER-RELLS are happily married and are well-able to support their children.
5. On December 5,1978, DEAN WESLEY FERRELL, adopted ALISON LYNNE FERRELL, and was found to be a fit and proper person to do so.
6. The FERRELLS have two children, ALISON RUEGE FERRELL, bom May 7, 1970, and DEANNA GAIL FERRELL, born October 25, 1975. DEANNA GAIL FERRELL is the natural child of LINDA and DEAN FERRELL.
7. There is presently no communication or visiting between LINDA RUEGE FERRELL and her mother, DORIS M. RUEGE.
8. DORIS M. RUEGE admits that custody should be with the parents, and offered no evidence to indicate that the FERRELLS were not fit and proper persons to have custody. Nor was any evidence offered indicating any type of marital problem between the FERRELLS the last two years.
9. DORIS M. RUEGE continues to desire visitation rights.
10. DORIS M. RUEGE assisted in taking care of ALISON LYNNE FERRELL during her first three years.

Thereupon the trial judge ordered:

3. The respondent and grandmother of the child, DORIS M. RUEGE, shall have rights of visitation with ALISON LYNNE FERRELL every sixth weekend, from 3:00 P.M. on Friday, until 5:00 p.M. the succeeding Sunday, commencing Friday, September 7, 1979, and continuing every sixth weekend thereafter until further order of this court.

Appellant has argued that partial custody or visitation rights in a grandparent can be established only pursuant to Section 61.13(2)(b), Florida Statutes (1979). We are mindful that generally, unless either or both natural parents are found to be unfit, a judge cannot award to a grandmother the right of visitation with a child except as provided in Section 61.13(2)(b), Florida Statutes. See Shuler v. Shuler, 371 So.2d 588 (Fla. 1st DCA 1979); Osteryoung v. Leibowitz, 371 So.2d 1068 (Fla. 3rd DCA 1979); Behn v. Timmons, 345 So.2d 388 (Fla. 1st DCA 1977). We take no issue with that principle of law. However, the order appealed from did not establish the right of visitation in the grandmother but rather modified that right. The grandmother’s right to visitation was granted in the 1976 order from which there was no appeal. While there may or may not have been legal error committed by the trial judge in the entry of the 1976 order, he apparently had jurisdiction of the parties, the child, and the- subject matter in that proceeding. When he granted visitation rights to the grandmother and no appeal was taken, those visitation rights became fixed subject only to a material change of circumstances and for the best interests of the child. The order appealed from merely amended the grandmother’s right of visitation because of changed circumstances and in the best interests of the child and was, therefore, lawful. We can easily understand why the trial judge may not have wanted to completely terminate the visitation of the grandmother with the child. If since the 1976 order, the child and grandmother had developed a close relationship, the trial judge may very well have determined that it would be detrimental to suddenly and totally sever that relationship.

Therefore, the final judgment under review be and the same is hereby affirmed.

AFFIRMED.

BOOTH, J., concurs.

TILLMAN PEARSON (Ret.), Associate Judge, dissents without opinion.

      . 61.13(2)(b) The Court shall award custody and visitation rights of minor children of the parties as a part of proceeding for dissolution of marriage in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction Act. Upon considering all relevant factors, the father of the child shall be given the same consideration as the mother in determining custody. The court may award the grandparents visitation rights of a minor child if it is deemed by the court to be in the child’s best interest. Nothing in this section shall be construed to require that grandparents be made parties or given notice of dissolution pleadings or proceedings, nor shall such grandparents have legal standing as “contestants” as defined in s. 61.1306. No court shall order that a child be kept within the state or jurisdiction of the court solely for the purpose of permitting visitation by the grandparents.


text:
    Vernon HALL, Appellants, v. T.C. SAFFOLD PAVING SERVICE and American Casualty Company, Appellees.
    No. UU-264.
    District Court of Appeal of Florida, First District.
    April 14, 1981.
    Rehearing Denied May 21, 1981.

      Richard A. Kupfer, West Palm Beach, for appellants.
    H.B. Yandle, of Law Offices of Joel R. Teague, Coral Gables, for appellees.
   PER CURIAM.

Hall appeals the order of the deputy commissioner urging the deputy erred in finding American Casualty Company had can-celled its worker’s compensation insurance policy with T.C. Saffold Paving Services, the employer, prior to Hall’s accident on 9/5/79. We reverse.

The employer had obtained worker’s compensation coverage from American Casualty through INAC, a premium finance company, which had paid the entire premium and to which Saffold made installment payments. Saffold was in default and in May 1979 the finance company notified American Casualty to cancel the policy effective July 1979.

Mark Wichman, an employee of the carrier, testified that copies of the cancellation notice were sent to the Bureau of Worker’s Compensation, to the Florida Worker’s Compensation Rating Bureau, to the employer and to the insurance agent. The company had a copy of the notice in its file and the parties stipulated the agent had received a copy. The Rating Bureau could not locate the file, the Worker’s Compensation Bureau had no record of the notice and the employer did not appear at the hearing.

Wichman also testified that American Casualty’s contract with INAC, allowed INAC to cancel the policy and that INAC had a power of attorney from Saffold to do this. However, neither the original policy, nor the financial agreement showing a power of attorney was introduced into evidence and Wichman could not identify any section of the policy wherein this authority could be found.

Part XIV of Chapter 627, Florida Statutes (1979), the Florida Insurance Code sets out the law with reference to insurance premium finance companies. Section 627.-848 provides for the cancellation of insurance contracts by the premium finance company under certain conditions. First, the premium finance agreement between the company and the insured must contain a power of attorney or other authority allowing the premium finance company to cancel the contract. The premium finance company then must serve the insured with written notice, ten days in advance of any action, of its intent to cancel. If the insured does not act, the finance company must mail the insurer a request for cancellation with the copy to the insured at his last known mailing address. The insurer then has the responsibility of complying with all other statutory, regulatory and contractual restrictions, e. g. Sections 440.42(2) and 440.185(7) Florida Statutes (1979) requiring notice to the Worker’s Compensation Bureau.

American Casualty asserted the defense of no coverage due to cancellation and had the burden of proving this defense. See Fortenberry v. Mandell, 271 So.2d 170 (Fla. 4th DCA 1972), Smith v. Town of Bithlo, 344 So.2d 1288 (Fla. 4th DCA 1977). This it failed to do. The bare testimony of Wich-man is not competent substantial evidence to prove the existence of a power of attorney between the insured and the premium finance company. His testimony indicates that American Casualty complied with Section 440.42(2) and 440.185(7) but there is no evidence that the requirements of Section 627.848 were met by INAC.

Accordingly, the order is reversed and remanded for a finding that coverage existed.

MILLS, .C. J., WENTWORTH, J., and BEVERLY, VIRGINIA Q., Associate Judge, concur.


author: COBB, Judge.

text:
    ALLIED GENERAL CONTRACTORS et al., Appellants, v. SUPERIOR ASPHALT CO., etc., Appellee.
    No. 80-413.
    District Court of Appeal of Florida, Fifth District.
    April 15, 1981.
    James T. Reich, Ocala, for appellants.
    Del G. Potter, Mount Dora, for appellee.
   COBB, Judge.

A general contractor and its surety appeal from a final judgment in favor of a subcontractor’s action on a payment bond.

Florida State Elks Association, as owner, entered into a written contract with Allied General Contractors, Inc., as general contractor, for the construction of a children’s hospital. Allied entered into a contract with Superior Asphalt Co. for Superior as subcontractor to do the paving and striping, plus work on a pond. Pursuant to section 713.23, Florida Statutes (1977), Allied posted a payment bond with United States Fidelity & Guaranty (U.S.F. & G.) as surety.

Dissatisfied with Superior’s completion of the subcontract, Allied brought an action for breach of contract. Superior counterclaimed with three counts: suit on the payment bond; breach of contract for failure to pay; and quantum meruit. After a non-jury trial, the court found that Superior substantially completed the contract; and that Allied and U.S.F. & G. as surety owed Superior a sum of money, which after deducting an amount paid by Allied, resulted in a judgment of $8,902.65, plus interest, costs, and attorney fees of $3,300 in favor of Superior.

As for the first point Allied raises in this appeal, the record shows that Superior substantially complied with any requirements of section 713.23 concerning notice as prerequisite to a direct action on a payment bond. As for the second point on appeal, we find there was error in the computation of attorney fees.

The trial court awarded an attorney fee in this case without regard to the limitation prescribed by section 627.756(2), Florida Statutes (1977), which provides as follows:

Section 627.428 (attorney fee) shall also apply as to suits brought by owners, subcontractors, laborers and material men against a surety insurer under payment or performance bonds written by the insurer under the Laws of Florida to indemnify such owners, subcontractors, laborers and material men against pecuniary loss by breach of a building or construction contract; except, that the amount to be so recovered for fees or compensation of such a plaintiff’s attorney shall not be more than 12.5 percent of the amount which the judgment or decree awards such plaintiff under the bond (exclusive of the costs of suit and attorney fees or compensation), nor shall it be less than $100 where the judgment or decree is for more than $500 nor less than $50 where the judgment or decree is $500 or less. Such owners, subcontractors, laborers and material men shall be deemed to be “insureds” or “beneficiaries” for the purposes of this section.

The trial judge apparently based the award of an attorney fee in this case upon section 713.29, Florida Statutes (1977), which concerns attorney fees in cases of lien enforcement. We believe that section 713.-29 is inapplicable. Once a payment bond is properly acquired by the owner, as it was in the instant case, there can be no valid claim of lien filed by a subcontractor or material-man against the owner’s property, which is exempted from such a lien. Resnick Developers South, Inc. v. Clerici, Inc., 340 So.2d 1194 (Fla. 4th DCA 1976). Claims of lien by putative lienors (other than the contractor) filed subsequent to execution and delivery of the payment bond are transferred to that bond with the same effect as liens transferred under section 713.24, Florida Statutes (1977). See § 713.23(2), Fla.Stat. (1977). It is difficult to ascertain the legislative intent underlying the latter language because one statute (§ 713.24) deals with valid liens, and the other (§ 713.23) does not. Nevertheless, no constitutional arguments concerning equal protection have been raised in this appeal; therefore, none is considered. Cf. Sarasota County v. Barg, 302 So.2d 737 (Fla.1974).

We must reject the argument that an action on a payment bond, substituted as security in place of the real property improved, is equivalent to other actions to enforce a lien so that section 713.29 would govern. In the recent case of Bankers & Shippers Ins. Co. of N.Y. v. A1A Insulation Industries, Inc., 390 So.2d 734 (Fla. 4th DCA 1980), the Fourth District receded from its previous opinion in Travelers Indemnity Co. v. Howell & King, Inc., 336 So.2d 1 (Fla. 4th DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1976). The Fourth District now holds that section 627.756 prevails over section 713.29 in regard to the computation of attorney fees in cases involving payment bonds.

As the First District Court of Appeal pointed out in Snead Const. Corp. v. Langerman, 369 So.2d 591, 594 (Fla. 1st DCA 1978):

Section 624.13 of the Insurance Code states that the code’s provisions regarding types of insurance, insurers or as to “a particular matter” prevail over all other such provisions.

In regard to the instant point on appeal, section 627.756(2), Florida Statutes (1977), deals with a “particular matter” as opposed to section 713.29, Florida Statutes (1977), which concerns attorney fees in cases involving enforcement of a lien.

In the present case, the award of attorney fees exceeded twelve-and-one-half percent of the judgment. Accordingly, the judgment in favor of Superior is affirmed except for the assessment of attorney fees, which is vacated, and the cause is remanded with directions to reconsider the allowance of attorney fees to Superior in conformity with section 627.756(2), Florida Statutes (1977).

AFFIRMED IN PART; REVERSED IN PART; and REMANDED with directions.

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

      . Section 713.29, Florida Statutes (1977), provided:
      In any action brought to enforce a hen under part I of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as part of his costs, (emphasis added).

      . $3,300 exceeds 12'/2% of the judgment of $8,902.65 ($8,902.65 X .125 = $1,112.83).


author: LARRY G. SMITH, Judge.

text:
    Florine G. GASKINS and George W. Gaskins, Appellants, v. GENERAL INSURANCE COMPANY OF FLORIDA, a corporation, Appellee.
    No. VV-41.
    District Court of Appeal of Florida, First District.
    April 22, 1981.
    Rehearing Denied May 11, 1981.

      Neal D. Evans, Jr., of Evans & Lachi-cotte, Jacksonville, for appellants.
    Carle A. Felton, Jr., and William R. Swain, Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

Appellants seek reversal of a summary judgment in favor of appellee-insurance company, upholding the insurance company’s denial of coverage based upon alleged misrepresentation of material facts in the application for the insurance. We agree with appellants’ contentions that there are genuine issues of fact which would preclude summary judgment, and we therefore reverse.

The facts are that on the date appellants purchased an automobile, the automobile dealer referred them to Johnson & McCowen, Inc., an insurance agency, for the purchase of automobile insurance. At the agency appellants were assisted by an employee in completing the application, which was filled out by the agent based upon information furnished by appellants. Un-, der the portion calling for “driver information,” appeared the following directions:

Complete for applicant, spouse, all drivers of applicant’s household and all other drivers of the automobile(s) . . .

In response to questions regarding this portion of the application, appellants told the employee that they did have a son living with them at home who was a driver, but that he had his own automobile which he used and had his own insurance covering his automobile. According to Mrs. Gaskins’ deposition, she stated that the employee apparently interpreted the application in the same manner as did the appellants, and advised them that since the son had his own automobile and his own insurance, his name was not required to be included in the application. The application was thereupon completed and signed by both appellants. Mrs. Gaskins also signed a second form stating, “I have listed on the application all drivers who live in my home.”

A couple of months after issuance of the insurance policy appellants moved to a new residence, at which time their son did not move with them, but later, just a few weeks prior to the accident, he once again became a resident of their household, and was a resident at the time of the accident for which recovery on the policy is sought by appellants. The accident occurred while appellants’ son was driving the car in order for Mr. Gaskins, who was blind, to complete an errand. Mrs. Gaskins, who ordinarily drove the automobile, was out of town visiting a daughter at that particular time.

Appellee’s argument in support of the summary judgment relies upon Life Insurance Company of Virginia v. Shifflet, 201 So.2d 715 (Fla.1967), and subsequent cases interpreting Section 627.409, Florida Statutes (1977), which hold that clearly incorrect and untrue statements to questions on an insurance application, material to the acceptance of the risk, do not under the statute have to be msftie with knowledge of their incorrectness and untruth to vitiate the policy. Shifflet, supra, 201 So.2d at 719. Appellee further argues that its affidavits filed in support of the summary judgment clearly show that the insurance agency was a “broker,” and was not acting as agent for appellee in obtaining the information from appellants and completing the application. Relying upon Auto Owners Insurance Company v. Yates, 368 So.2d 634 (Fla. 2nd DCA 1979), appellee asserts that any knowledge obtained or errors committed by the “broker’s” employee in filling out the application cannot be attributed to appellee. Further, according to appellee’s view, the application itself is not ambiguous; therefore, whether or not the insurance agency was acting as agent for appellee is immaterial, E. J. Evans Company v. Ohio State Life Insurance Company, 144 So.2d 833 (Fla. 2nd DCA 1962).

Appellant argues, and we agree, that under the factual circumstances presented here it cannot be said as a matter of law that the Shifflet rule precludes recovery on the policy. The holding of Shifflet has been somewhat ameliorated by National Standard Life Ins. Co. v. Permenter, 204 So.2d 206 (Fla.1967), and by the adoption of Mr. Justice Ervin’s concurring opinion to some extent by the appellate courts, for example in Garwood v. Equitable Life Assur. Soc. of U. S., 299 So.2d 163 (Fla. 3rd DCA 1974), cert. den. 321 So.2d 553 (Fla.1975); Travelers Insurance Company v. Zimmerman, 309 So.2d 569 (Fla. 3rd DCA 1975); and Independent Fire Ins. Co. v. Horn, 343 So.2d 862 (Fla. 1st DCA 1976).

The Permenter view, accepted at least in part by the cited cases, holds that incorrect answers on an insurance application do not invalidate the policy where “(1) the applicant in good faith makes ‘an erroneous expression of opinion or judgment’ or (2) the applicant misunderstands an inquiry which is ‘couched in language or refer[s] to subjects and special fields beyond his or their understanding.’ ” 204 So.2d at 207. Mr. Justice Ervin cautioned, as this court noted in Independent Fire Ins. Co. v. Horn, 343 So.2d 862, at 864:

.. . this more lenient view of representations in insurance applications ought not to prevail if the applicant carelessly made positive statements of which he had no knowledge and should reasonably have revealed he was without sufficient information to answer properly, nor if the applicant incorrectly answered a question he ‘understood or reasonably should have understood’ or concerning which the applicant could reasonably have been expected to reveal his lack of knowledge, (citations omitted)

We cannot say that the alleged misinformation imparted by appellants on their written application constituted “an erroneous expression of opinion or judgment.” Neither can we say, however, as a matter of law that appellants “understood or reasonably should have understood” the inquiry concerning “drivers,” nor that the inquiry itself was not couched in language or referred to subjects and special fields “beyond ... their understanding.” Although the question as to drivers is couched in language readily understandable in the insurance world, it does not necessarily follow that it is to people generally, nor to the Gaskins in particular. We find that there is a subjective element involved in the Per-menter test, and that appellant has made a showing, including the affidavit of a professor of English, and testimony of Mrs. Gas-kins, that at the very least the inquiry regarding “all drivers in applicant’s household,” is subject to two interpretations. According to one interpretation, the application called for and as completed properly disclosed all those whom it was reasonably contemplated would be drivers of the insured automobile, which is the interpretation placed on the question, according to Mrs. Gaskins, by the agency’s employee. Any ambiguity in the application is to be resolved against the insurer. Home Insurance Co. v. Drescher, 210 So.2d 451 (Fla. 3rd DCA 1968).

We further agree with appellants that an issue is presented concerning whether the insurance agency was acting as agent for appellee in this transaction. Section 626.746(1), Florida Statutes (1977), provides in part that no insurer shall furnish any agent any blank forms, applications, stationery or other supplies for use in soliciting, negotiating or effecting contracts of insurance on its behalf unless the agent is duly licensed by the State of Florida and further, under subsection (3):

Any insurer, general agent, or agent that furnishes to any agent or prospective agent not named or appointed by the insurer represented or supplied with any of the supplies mentioned in subsection (1) and accepts from, or writes any insurance business for, such agent or agency shall be subject to civil liability to any insured , of such insurer to the same extent and in the same manner as if such agent or prospective agent had been appointed, licensed or authorized by the insurer or such agent to act in its behalf by the Department of Insurance....

A literal interpretation of the above quoted portion of the statute has been made in Brown v. Inter-Ocean Insurance Company, 438 F.Supp. 951 (N.D.Ga.1977), the only case we have found construing the statute. While we note that the Brown court reached a decision adverse to the insured, it did so based upon a determination that a provision in the application that “no agent shall have the right to make, alter, modify, or discharge any contract or policy issued on the basis of this Application ...” (438 F.Supp. at 954), placed the applicant on notice of limitations upon the actual authority of the agent. Appellee has pointed to no such language in the application in question here. Appellee refers to a provision in the application stating: “This binder must be called in on General Insurance Company of Florida’s binder phone prior to the effective date of the binder indicated above . .. . ” This provision, however, has no bearing upon the extent of the agency’s authority to explain the application form, obtain information and complete the application form in behalf of the company. This provision would also have no bearing upon imputation to appellee of the employee’s knowledge concerning the status of drivers in applicant’s household, which was correctly related to the employee, according to Mrs. Gaskins. Facts within knowledge of an authorized representative of the insurer while acting within the proper scope of his authority is knowledge of the insurance company. Johnson v. Life Insurance Company of Georgia, 52 So.2d 813 (Fla.1951); Poole v. Travelers Insurance Co., 130 Fla. 806, 179 So. 138 (1938); and Russell v. Eckert, 195 So.2d 617, 620 (Fla. 2nd DCA 1967).

REVERSED AND REMANDED for further proceedings.

ERVIN and SHIVERS, JJ., concur.


text:
    CITY OF LEESBURG and U. S. Fidelity & Guaranty Company, Appellants, v. Oscar L. PADGETT, Appellee.
    No. XX-352.
    District Court of Appeal of Florida, First District.
    April 28, 1981.

      John R. Gierach, of Gierach & Ewald, P. A., Orlando, for appellants.
    Irvin A. Meyers, of Meyers, Mooney & Adler, P. A., Orlando, for appellee.
   PER CURIAM.

Employer/carrier appeal a worker’s compensation order which awarded attorney’s fees to claimant’s attorney. We reverse and remand.

Claimant’s attorney was successful in securing attendant care for claimant. The deputy’s order awarded an attorney’s fee of $5,000 based upon benefits received to date and reserved jurisdiction for the purpose of awarding additional attorney’s fees on not more than a yearly basis for as long as the claimant continued to need attendant care.

Employer/carrier argue that the reservation of jurisdiction for the purpose of the award of an annual attorney’s fee is improper. We agree. In Matera v. Gautier, 133 So.2d 732 (Fla.1961), the Supreme Court reversed an attorney’s fee which was based upon a percentage of annual disability benefits paid to the claimant. The court stated:

The fee represents compensation for services rendered up to the date of the hearing. There is no reason, either in logic or in law, for not determining the fee to which the attorney is entitled as of that date and awarding it in a lump sum.... To award an indeterminable fee on the basis of future compensation is to place too great an emphasis on the size of the award and insufficient emphasis on the other elements which go into the determination of the attorney’s fee to be awarded.

See also, Department of Transportation v. Cato, IRC Order 2-3138 (May 3, 1977), cert. denied, 351 So.2d 405 (Fla.1977), where the Commission cautioned against annualization of fees. It has been held that the contingent percentage basis for determining fees is inappropriate due to the nature of worker’s compensation law. Lee Engineering and Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968). Although Section 440.34, Florida Statutes (1977) sets forth a percentage fee schedule based on the amount of benefits secured, an award based solely on a contingent percentage basis remains improper since the statute, applicable here because effective before the time of the deputy’s award,. Okaloosa County Gas District v. Mandel, 394 So.2d 453 (Fla. 1st DCA 1981), mandates consideration by the deputy of the Lee Engineering factors in determining a reasonable fee.

Accordingly, we reverse the award of attorney’s fees and remand the cause for reconsideration and for the determination of an appropriate lump sum fee. We caution, however, that an attorney’s fee based upon the statutory sliding scale guidelines without a substantial reduction based upon the circumstances of this case, particularly the time expended in the case and the issue involved, would be considered excessive as an abuse of discretion.

REVERSED and REMANDED.

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


author: NESBITT, Judge.

text:
    TRAVELERS EXPRESS, INC., Appellant, v. Myriam ACOSTA, Carlos J. Acosta and 22nd Avenue Drugs, Inc., Appellees.
    No. 79-1183.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.

      Mershon, Sawyer, Johnston, Dunwody & Cole and Robert T. Wright, Jr., Miami, for appellant.
    Markus & Winter and Laurie S. Silvers, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   ON MOTION FOR REHEARING GRANTED

NESBITT, Judge.

Travelers Express, Inc. (Travelers), defendant/counterclaimant in the lower tribunal, seeks reversal of an order dismissing its counterclaim. We find error and reverse.

The threshold question presented ' is whether this court has jurisdiction to entertain the appeal. The controversy had its genesis when an agent of Travelers initiated criminal proceedings against Myriam Acosta and her husband, Carlos, for allegedly misappropriating blank money orders. The criminal charges against Myriam were dismissed. Carlos was eventually found guilty of grand larceny upon his plea of nolo contendere. Thereafter, Myriam commenced this action charging Travelers with malicious prosecution. Travelers, in turn, filed an answer containing a general denial, affirmative defenses, and a counterclaim against Myriam. The counterclaim was also asserted against Carlos and 22nd Avenue Drugs, Inc., the corporate entity owned and controlled by the Acostas. Service of process was effected upon Carlos and the corporation, as required by Florida Rule of Civil Procedure 1.170(h). The various theories asserted in the counterclaim included conversion, breach of trust, and conspiracy to defraud. The counterdefendants moved to dismiss the counterclaim because of a misjoinder of parties.

A counterclaim is compulsory even where it requires the joinder of other parties who are deemed “indispensable” if service of process may be appropriately effected so as to subject them to the court’s jurisdiction. When jurisdiction cannot be obtained over the other parties, a compulsory counterclaim need not be stated. Fla.R.Civ.P. 1.170(a); 8 Fla.Jur. Counterclaim § 35. Here, Travelers did effect service of process over the added counterdefendants, Carlos and the Acostas’ corporation. Consequently, the counterclaim does not become non-compulsory under the exception created within the rule when there is an inability to join additional parties.

Ultimately, the court entered an order dismissing Travelers’ counterclaims “with prejudice against their reassertion in this action.’’ With the original action still pending, Travelers had the option to appeal, as it has chosen to do, or to follow the trial judge’s ruling and refile its dismissed counterclaim as an independent action. Cheezem Development Corporation v. Maddox Roof Service, Inc., 362 So.2d 99 (Fla. 2d DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979). However, as pointed out in Cheezem Development Corporation, supra, such an action would have committed the parties to a “race to judgment” — a highly untenable position for these or any other litigants.

Ordinarily, an order dismissing a compulsory counterclaim is not appealable until final disposition of both the claim and the counterclaim. Taussig v. Insurance Company of North America, 301 So.2d 21 (Fla. 2d DCA 1974); Bumby & Stimpson, Inc. v. Peninsula Utilities Corporation, 179 So.2d 414 (Fla. 3d DCA 1965). This rule is one of policy to prevent piecemeal litigation. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974). In this case, Myriam’s original complaint against Travelers is pending in the trial court and therefore we would not ordinarily entertain this appeal. However, the counterclaim was also dismissed with respect to Carlos and the Acostas’ corporation. It is clear that the dismissal of the counterclaim as to Carlos and the corporation became appeala-ble at that point. When a matter is properly asserted as a mandatory counterclaim, rather than a permissive counterclaim, it is error to dismiss it as such. However, it may be proper to dismiss it on the merits, in which case that determination will remain interlocutory in character until the final disposition of the original claim. Our examination of Berkan v. Brown, 231 So.2d 871 (Fla. 3d DCA 1970) and cases cited therein discloses that the same order was likewise appealable as to Myriam. The policy reasons for this conclusion were stated as follows:

We conclude that since the judgment on the counterclaim and additional party complaint is final as to one party, it should be appealable to all. This holding will avoid two appeals from the same decision because all parties will be before this court when we decide the merits of appellant’s contentions.

231 So.2d at 872. Consequently, we have jurisdiction to entertain the appeal pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A).

On the merits, appellees attempt to support the order appealed from on the grounds that there was both misjoinder of parties as well as a misjoinder of causes of action. We disagree. The Authors’ Comment on Florida Rule of Civil Procedure 1.170 states:

The purpose and effect of the rule is to permit any claim that defendant has against the plaintiff to be asserted as a counterclaim, thereby avoiding circuity of action. It is immaterial whether the counterclaim is in contract or tort, or even whether it has any connection with the plaintiff’s claim.

30 Fla.Stat.Ann. 237-38 (1967).

Florida Rule of Civil Procedure 1.170(h) permits additional parties to be brought in “[w]hen the presence of parties other than those to the original action is required to grant complete relief in the determination of a counterclaim .... ” Neither misjoinder of parties nor misjoinder of causes of actions are grounds for dismissal of a claim or counterclaim. Fla.R.Civ.P. 1.250(a); Carbonell v. American International Pictures, Inc., 313 So.2d 417 (Fla. 3d DCA 1975); Roberts v. Keystone Trucking Company, 259 So.2d 171 (Fla. 4th DCA 1972).

What the trial court undoubtedly contemplated by the entry of the challenged order was a severance as permitted by Florida Rule of Civil Procedure 1.250(a). On remand, the trial court will again likely be faced with the question of severance. To aid in the resolution of that question, we point out that Florida Rule of Civil Procedure 1.270(b) provides that: “[t]he court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim .. .,” which are the only grounds recognized for a severance. See, Roberts v. Keystone Trucking Company, supra. Federal Rule of Civil Procedure 13(a), after which Florida Rule of Civil Procedure 1.170(a) is patterned, is to be accorded a liberal interpretation in order that there may be complete relief and determination of all issues — preferably in one trial. 3 Moore’s Federal Practice, ¶ 13.13 (2d Ed. 1980). Therefore, a severance under Florida Rule of Civil Procedure 1.270(b), while residing in the sound discretion of the trial court upon an appropriate showing, should remain the exception. Once a sufficient showing is made to warrant separate trials, the trial of either the main claim or the counterclaim does not require the entry of a separate judgment. The disposition of the earlier claim will remain interlocutory in character until the final disposition of the other. Taussig v. Insurance Company of North America, supra. The final disposition of both the claim and the counterclaim properly should be reflected by the entry of a single judgment. Karden v. Hatfield, 143 So.2d 208 (Fla. 3d DCA 1962); Tobin v. Garry, 127 So.2d 698 (Fla. 2d DCA 1961).

The potential problems resulting from separate trials are well illustrated by the instant case. Severing Myriam’s claim for malicious prosecution from those claims asserted by Travelers may result in the following outcomes:

(1) Verdicts for Myriam on both her claim and on Travelers’ counterclaims. Such a verdict would present no problem.

(2) Verdicts for Travelers on both its counterclaims and on Myriam’s claim, which would likewise present no problem.

(3) A verdict for Myriam on her claim for malicious prosecution, whether tried separately or together, coupled with a verdict in favor of Travelers on its counterclaims, would produce repugnant, inconsistent verdicts. For example, a verdict for Myriam on her claim of malicious prosecution requires establishment of all elements of the tort, one of which is the absence of probable cause, Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (Fla.1926); Molne v. Alfonson, 364 So.2d 94 (Fla. 3d DCA 1978); while a verdict for Travelers on its counterclaims would necessarily establish the probable cause which was found to be absent in a verdict for Myriam on her malicious prosecution claim. The fact that one was rendered before the other is irrelevant because, as stated, the disposition of a claim or counterclaim tried separately remains interlocutory in nature until the final disposition of the other, Taussig v. Insurance Company of North America, supra.

There is no shorthand solution to avoid repugnant and inconsistent verdicts in the ever-increasing multiplicity of claims, cross-claims, and counterclaims. Our inquiry is limited only to pointing out the potential problems so that, where a problem becomes apparent, litigants and trial courts may fashion a solution to avoid needless trials and the attendant costs, delays, and expenditure of judicial effort.

For the foregoing reasons, the order dismissing the counterclaims is reversed and remanded for further proceedings not inconsistent herewith.

HENDRY, J., dissents.

      . (a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. But the pleader need not state a claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim and the pleader is not stating a counterclaim under this rule, [emphasis supplied]

      . See n. 1.

      . This is so because the doctrines of res judica-ta and collateral estoppel would have foreclosed a less fortuitous party from litigating either the original claim or the separate claim upon final disposition of the other. Moore’s Federal Practice appropriately points out that the compulsory counterclaim requirement in Rule 13(a) of the Federal Rules of Civil Procedure [after which Florida Rule of Civil Procedure 1.170(a) is modeled] is a simple reminder to the practitioner of that which ought to be done because the rule, though one of procedure, significantly affects the substantive rights of the parties.

      .The termination of a permissive counterclaim, which constitutes a separate and distinct cause of action is appealable. S. L. T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974); Mendez v. Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

      . See n. 3.

      . This is so because a severance for trial of a claim or counterclaim may increase the possibility of inconsistent verdicts and decrease the ability of the court to resolve such inconsistencies without granting a re-trial in one or both causes.
      When multiple claims or counterclaims are tried together and inconsistent verdicts are rendered, the trial court may, before accepting the verdicts and discharging the jury, give a clarifying or corrective instruction to enable the jury to return consistent verdicts. See, 32 Fla. Jur., Trial § 270 and cases cited therein. Additionally, the trial court may utilize special interrogatory verdicts which will not only aid the jury in returning consistent verdicts but will allow the trial court to cure otherwise inconsistent verdicts and enter appropriate judgments by excising certain inconsistencies.
      Therefore, prior to severing claims, the trial judge should consider the possibility of juries arriving at inconsistent verdicts. As the probability of reaching inconsistent verdicts increases, it will offset increasing amounts of potential prejudice which may affect one of the claimants. In determining the probability of such inconsistent verdicts arising, a trial judge should consider:
      (1) whether a finding of liability in one case will necessarily be mutually exclusive to a potential finding in the other case;
      (2) the degree of similarity between the facts to be resolved which support each of the claims;
      (3) the relationship of various plaintiffs or defendants to the claim, i. e.,
      (a) whether the defendants may be jointly or severally responsible; and
      (b) whether recovery for one plaintiff should reasonably require recovery for another plaintiff as well; and
      (4) whether reasonable persons could return each of the possible verdicts.
      Where the probability of inconsistent verdicts increases, the countervailing considerations of “convenience” or “prejudice” are reduced to a point where the trial court should exercise its discretion in favor of trying the actions together.

      .This is so irrespective of how the first order is labeled. Chipola Nurseries, Inc. v. Div. of Admin., Dept. of Transp., 335 So.2d 617 (Fla. 1st DCA 1976).

      . The principles of res judicata and collateral estoppel would not apply. Armellini Express Lines, Inc. v. Sexton, 384 So.2d 310 (Fla. 5th DCA 1980); Donnell v. Industrial Fire and Casualty Co., 378 So.2d 1344 (Fla. 3d DCA 1980); Edwards v. Kings Point Housing Corporation, 351 So.2d 1073 (Fla. 4th DCA 1977).


author: MOORE, Judge.

text:
    Leonard WALE, Appellant, v. STATE of Florida, Appellee.
    No. 79-1615.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.

      Peter D. Lent, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellant was charged by information with possession of more than five grams of marijuana and with possession of hashish. He filed a sworn motion to dismiss reciting, in part, that he lived with his wife and children at their residence in Fort Lauder-dale; that he was not in exclusive possession of the residence; that the residence was searched on December 9,1978; that the search revealed a quantity of marijuana in the master bedroom and a quantity of hashish in the Florida room; and that he was not in actual possession of any controlled substance at the time of his arrest in the residence. After filing a traverse to the motion, the State was granted leave to amend, which it did. The amended traverse alleged, inter alia:

The State is prepared to prove that the Defendant was in constructive possession of the controlled substance in that the Defendant’s name and address were on the box which contained the marijuana and that the marijuana was located in the closet of the Defendant’s bedroom.

The trial court denied the sworn motion to dismiss, whereupon the defendant pled nolo contendere to the charge of possession of marijuana, specifically reserving his right to appeal the denial of his motion. The charge of possession of hashish was nolle prossed. The appellant appeals a judgment of conviction for possession of marijuana in excess of five grams. We affirm.

At issue in this case is whether, assuming the veracity of all of the facts contained in the appellant’s sworn motion to dismiss and the State’s traverse, the State has alleged a prima facie case of the appellant’s guilt. Rule 3.190(c)(4), Fla.R.Crim.P. In answering this question, we must accept the facts and every reasonable inference derived from them in a light most favorable to the State. The main feature involved in the resolution of this controversy is the confused area of the law relating to “constructive” possession.

The general rule in regard to “constructive” possession can be stated in relatively simple terms. Proof of guilt based on a constructive possession theory consists of three basic elements:

(1) The accused must have dominion and control over the contraband;
(2) The accused must have knowledge that the contraband is within his presence, and;
(3) The accused must have knowledge of the illicit nature of the contraband.

Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976); Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975).

Of course, each of these elements may be proved by circumstantial evidence. If the premises, area, structure, vehicle, etc. in which a contraband substance is found is within the exclusive possession of the accused, the accused’s guilty knowledge of the presence of the contraband, together with his ability to maintain control over it, may be inferred. If the place in which the contraband is found is not in the exclusive possession of the accused, but only in his joint possession, his knowledge of the presence of the contraband on the premises and his ability to maintain control over it will not be inferred, but must be established by extra proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband in the place where it is found, or circumstantial evidence from which a jury might properly infer that the accused had knowledge of the presence of the contraband. Hively, supra; Willis, supra; Smith v. State, 279 So.2d 27 (Fla.1973); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967). These principles are recognized in virtually every jurisdiction that has broached the topic. See, e. g. Petty v. People, 167 Colo. 240, 447 P.2d 217 (1968) (where marijuana was in the defendant’s non-exclusive residence in a box which was located near the defendant’s stereo equipment and in which defendant’s Navy discharge papers were located, the Court found sufficient evidence to sustain the defendant’s conviction); People v. Mateo, 171 Cal.App.2d 850, 341 P.2d 768 (1959) (where the defendant admitted ownership of a box and a suitcase in which marijuana was found, the Court found sufficient evidence to sustain the conviction); State v. Zimpher, 552 S.W.2d 345 (Mo.App.1977) (where marijuana was found in a chest of drawers and a nightstand to which the defendant had access in a residence to which the defendant did not have exclusive access, such facts constituted “further evidence” to buttress an inference of the defendant’s guilty knowledge of the presence of the marijuana); King v. State, 169 Tex.Cr.R. 34, 335 S.W.2d 378 (1960) (where marijuana was found in a suitcase which also contained women’s clothes and cosmetics as well as letters addressed to the female defendant, and where the defendant fled as soon as she learned of the identity of the police officers, such facts constituted a sufficient showing that she possessed the marijuana so as to sustain her conviction; the Court found it immaterial whether she possessed the marijuana alone or jointly with her husband). The Florida courts have also recognized these principles. Thames v. State, 366 So.2d 1261 (Fla. 1st DCA 1979), cert. denied 378 So.2d 350 (Fla.1979); Winchell v. State, 362 So.2d 992 (Fla. 3rd DCA 1978); Norman v. State, 362 So.2d 444 (Fla. 1st DCA 1978); Norris v. State, 351 So.2d 729 (Fla. 3rd DCA 1977); Dixon v. State, 343 So.2d 1345 (Fla. 2nd DCA 1977); Zicca v. State, 232 So.2d 414 (Fla. 3rd DCA 1970).

In the present case, we find sufficient “other” circumstances conjoined with the appellant’s non-exclusive possession of the premises, which, if proved at trial, would create a jury question as to the appellant’s possession of marijuana. It is certainly a reasonable inference that appellant had dominion and control over the box bearing his name. Therefore, the only remaining question is whether the appellant had scienter, or “guilty knowledge” of the presence of the contraband.

Guilty knowledge can be presumed from the facts and evidence, and once it is shown that the contraband is found in the defendant’s home, in his own closet, in a box bearing his name and address, a jury question is created as to whether he had knowledge of the contraband’s presence. Where the undisputed facts are such as these, the underlying controversy should not be resolved by a “battle of affidavits.” The evidence here, while not sufficient to demonstrate that appellant had exclusive possession of either the residence or the closet in which the contraband was found, was certainly sufficient to show the appellant’s dominion and control over the box bearing his name and its contents. The evidence also amply demonstrated appellant’s knowledge that the box contained an illicit controlled substance. See, Thames v. State, supra.

We have considered this Court’s decision in Thompson v. State, 375 So.2d 633 (Fla. 4th DCA 1979) and the opinion of the Third District in Clark v. State, 359 So.2d 458 (Fla. 3rd DCA 1978). Each is distinguishable. In each case, the State relied solely on occupancy as proof of constructive possession. That is not the case before us.

We are of the view that the fact and circumstances of the present controversy, if supported by competent evidence at an eventual trial, would have sufficed to create a jury question as to appellant’s constructive possession of contraband. The trial court’s order denying appellant’s motion to dismiss and the judgment of conviction are accordingly affirmed.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    James BARBER, Appellant, v. STATE of Florida, Appellee.
    No. 79-377.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    James K. Freeland, P. A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Barber appeals a judgment and sentence for unlawfully procuring for prostitution or causing to be prostituted a person under the age of sixteen years.

Appellant was charged in a two count information. The first count referred to the period between September 9, 1978 and September 30, 1978 and charged a violation of section 796.03, Florida Statutes (1977), that of procuring for prostitution an unmarried female under the age of sixteen. The second count covered the period from October 1, 1978 through May 3, 1979 and charged a violation of section 796.03, Florida Statutes (Supp. 1978), that of procuring for prostitution any person under the age of sixteen years.

The girl involved was fifteen years of age at the time of trial (August 1979). She had come to Orlando as a runaway in mid-1978. She had supported herself as a prostitute and was arrested for assignation to commit prostitution in September, 1978. While in jail, she was told by a female inmate that if she was willing to work for appellant, he would arrange her release. Appellant came to the jail and posted bond for her. She worked for appellant for three days in September by committing acts of prostitution and gave the money to appellant. She then left Orlando but returned in January of 1979 and commenced work at a truck stop as a prostitute. About two months later, she again started working for appellant.

The essential question appellant raises is whether Gonzales v. State, 107 Fla. 121, 144 So. 311 (1932), provides the applicable test in determining whether appellant violated section 796.03, Florida Statutes.

Section 796.03 is a second degree felony. Section 796.07(2)(d) is also a second degree felony and prohibits the direction, taking, or transportation of a person for the purpose of prostitution. It is applicable to persons of any age and the meaning of “prostitution” is clearly defined. § 796.-07(l)(d), Fla.Stat. (1979). Therefore, the advisability of charging an offender with violation of 796.03 is questionable when section 796.07 is available with the same penalty without the additional elements required to be proved under 796.03.

In Gonzales v. State, the Florida Supreme Court stated, “[t]he term ‘prostitution’ as used in this statute, meaning the leading of an unmarried female into unchastity, involves a financial element.” Gonzales, 144 So. at 311. Appellant concludes that because the supreme court has thus defined “prostitution” as used in the statute the conviction cannot stand because the girl involved had previously worked as a prostitute and therefore was not “led into un-chastity” by the appellant.

The state counters that while that may have been the definition in 1932, at the time of Gonzales, the Legislature, upon enacting section 796.07, defined “prostitution”:

1. As used in this section unless the context clearly requires otherwise:
(a) The term ‘prostitution’ shall be construed to include the giving or receiving of the body for sexual intercourse for hire, and shall also be construed to include the giving or receiving of the body for licentious sexual intercourse without hire. (Emphasis added.)

While appellant’s argument that the Legislature, by using the words “[a]s used in this section,” intended the definition to apply only to section 796.07 and not to other sections of Chapter 796 has merit, we decline to apply the Gonzales definition as urged by appellant in view of the Legislature’s latest indication of its meaning of the term by the enactment of 796.07 and the common meaning of the term in light of current usage. Clearly, the underlying purpose of section 796.03, which appears to be to protect children from sexual exploitation for commercial purposes, would best be served by applying the legislative definition in 796.07. We therefore affirm but because our interpretation may be construed as conflicting with Gonzales we certify the following question to the Florida Supreme Court in accordance with rule 9.030(a)(2)(B)(i), Florida Rules of Appellate Procedure:

WHETHER THE TERM “PROSTITUTION” AS USED IN SECTION 796.03, FLORIDA STATUTES (1977) AND SECTION 796.03, FLORIDA STATUTES (1978) MEANS THE LEADING OF AN UNMARRIED FEMALE INTO UN-CHASTITY, INVOLVING A FINANCIAL ELEMENT [GONZALES v. STATE, 107 FLA. 121, 144 SO. 311 (1932)], OR IS IT DEFINED ACCORDING TO THE DEFINITION ENUNCIATED IN SECTION 796.07(l)(a)?

ORFINGER and COBB, JJ., concur.

      . Section 7578, Comp.Gen.Laws, section 5435, Rev.Gen.St.:
      Whoever procures for prostitution, or causes to be prostituted, any unmarried female who is under the age of sixteen years shall be punished by imprisonment in the state prison not exceeding ten years.


author: COWART, Judge.

text:
    Ernestine HAYCOOK, as the Executrix of the Estate of Gertrude Hasemann, Deceased, Appellant, v. Grace OSTMAN, Personal Representative of the Estate of Joseph W. Hasemann, Deceased; Linda Hasemann; Joseph W. Hasemann, Jr.; Jimmy Hasemann; Marie Hasemann; Anna Hasemann and Kathleen Shindle, Appellees.
    No. 80-313.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    George L. Clapham, Orlando, for appellant.
    Fred Langford, Sam E. Murrell & Sons, Orlando, for appellee Grace Ostman.
   COWART, Judge.

Joseph Hasemann bought property in Florida from his mother’s estate in New Jersey and gave a purchase money note and mortgage to her estate. Thereafter Hase-mann died and the mother’s estate sued Hasemann’s estate to foreclose the mortgage. Hasemann’s estate denied the debt and alleged that the note had been obtained by fraud. At the non-jury trial the original note and mortgage were introduced into evidence and Hasemann’s widow, although acknowledging that the signature on the note and mortgage looked like Hasemann’s signature, testified that Hasemann had told her that he (Hasemann) got the property free and clear as his share of his mother’s estate and did not owe anything on it. The widow further testified that Hasemann would not have bought anything on credit and always bought everything for cash. The trial court found for Hasemann’s estate.

Counsel for Hasemann’s estate conceded at trial and in the appellate court that the affirmative defense of fraud was not proved. Therefore, the only legal basis for the decision in this case was that the mortgagee-payee failed to establish a prima fa-, cie case in chief.

The trial court received into evidence the original note and mortgage. A promissory note, mature and regular on its face, is admissible into evidence without extrinsic proof of its execution or authenticity and, as evidence, is sufficient to establish a prima facie case. All attacks upon it, or the debt it represents, must be made by way of affirmative defenses as to which the burden of proof is on the defense. See Jacobs v. Becks, 355 So.2d 1241 (Fla. 1st DCA 1978); Broward Nat. Bank of Ft. Lauderdale v. Bear, 125 So.2d 760 (Fla.2d DCA 1961); Knauer v. Levy, 115 So.2d 776, 777 (Fla.3d DCA 1959).

No affirmative defense having been established in this case the judgment in favor of the maker’s estate is reversed for entry of a proper judgment in favor of the payee-holder of the note.

REVERSED AND REMANDED.

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

      . The original promissory note duly signed was physically attached to the original mortgage following language referring to "the certain promissory note hereinafter substantially copied or identified.” Even if this language had clearly referred to the note as having been a copy it would not be sufficient to make an original executed note a copy because merely calling an object something that it is not does not make it what it is called and the object remains what it is in fact.