author: BERANEK, Judge.

text:
    Robin HOMBURG, Appellant, v. Ruth L. KNIPMEYER and Joy Knipmeyer, Appellees.
    Nos. 79-2092, 79-2516.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.
    Ronald Payne, Fort Lauderdale, for appellant.
    David F. Cooney of Grimmett, Conrad, Scherer & James, Fort Lauderdale, for ap-pellees.
   BERANEK, Judge.

Plaintiff here appeals from a final judgment entered on defendants’ motion for directed verdict which was granted at the close of plaintiff’s case. Plaintiff had sued defendant for injuries sustained in a two car collision. We reverse.

Defendant was driving east on Broward Boulevard toward the intersection of Federal Highway in Fort Lauderdale. As she approached the intersection, the light was green in her direction. Before she had crossed Federal an ambulance approached heading south on Federal. Defendant stopped in the intersection until the ambulance passed. During this time, the light changed and was now green for the traffic on Federal. Defendant had to cross the three northbound lanes on the east side of Federal to clear the intersection. Traffic was backed up in the first two lanes; the lane furthest east was clear. In the nearest lane was a large van, in the next lane a passenger car. At trial a witness in the passenger car testified that the driver of the van motioned for defendant to proceed through the intersection.

At this same time, plaintiff was approaching the intersection going north on Federal in the clear easternmost lane. He saw the green light in his direction and entered the intersection hitting defendant as she crossed Federal.

Plaintiff sued defendant maintaining defendant negligently caused the accident.

At the end of plaintiffs case, defendant’s motion for directed verdict was granted and final judgment for defendant was entered. The court found no evidence of negligence and concluded the case was nearly identical to Dade County Metropolitan Transit Authority v. Even, 262 So.2d 685 (Fla.3d DCA 1972).

In Metropolitan Transit, a bus was stopped at a red light behind a dump truck. The dump truck proceeded slowly through the intersection making a left turn. The light changed while the bus was in the intersection and a motorcycle hit the bus as it went through the intersection on the intersecting road facing a green light. A jury returned a verdict for plaintiff motorcycle driver but the Third District reversed stating as follows:

. Under this set of facts the law is clear that when a vehicle enters an intersection with a favorable traffic signal it has the right of way. MacNeill v. Neal, Fla.App.1971, 253 So.2d 263.

The bus was lawfully in the intersection when the traffic light changed giving the vehicles on Kendall the favorable signal. In this situation, however, a favorable light does not give the driver of a vehicle the unqualified right to proceed into an intersection in the face of traffic presently in the intersection or so close thereto as to create a hazard. The plaintiff, therefore, had a duty to exercise reasonable care to determine that traffic was clear and that no impending danger existed when he proceeded into the intersection after the change in the traffic signal. Kniskern v. Railway Express Agency, Inc., Fla.App.1959, 113 So.2d 563. Tackett v. Hartack, Fla.App.1957, 98 So.2d 896.

This case differs from Metropolitan Transit because here plaintiff stopped in the middle of the intersection. An issue of fact was presented as to whether stopping in the middle of this busy intersection and then proceeding on the visual signals of other drivers constituted negligence. Further, Section 316.126(1), Florida Statutes (1979), requires drivers to yield to emergency vehi-

cles and stop clear of any intersection. An issue was thus presented as to whether plaintiff was lawfully in the intersection and whether she negligently exited from the intersection.

In MacNeill v. Neal, 253 So.2d 263 (Fla.2d DCA 1971), cert, denied 259 So.2d 719 (Fla. 1972), the trial court entered a directed verdict as to liability for appellee plaintiff who entered an intersection on a green light. The Second District affirmed citing similar principles of law to those in Metropolitan Transit as follows:

A motorist about to enter an intersection with the traffic signal in his favor has the right of way. Mason v. Remick (Fla.App.1958) 107 So.2d 38. He also has a right to assume others will obey the law and exercise due care to avoid an accident, Kerr v. Caraway (Fla.1955) 78 So.2d 571. However, even though he has a favorable light he must exercise reasonable care to determine that there is no impending traffic which would impede safe passage through the intersection. Tackett v. Hartack, supra. He has not exercised reasonable care once he knows or should have known that another motorist is going to run a red light and he has a clear opportunity to avoid the collision. Wagner v. Willis (Fla.App.1968) 208 So.2d 673. Therefore, the issue in this case is whether or not there is any evidence, directly or inferentially, to suggest that the appellee did not exercise reasonable care in entering the intersection.

The issue presented here is similar to that stated in MacNeill. However, given the inferences which should go with the non-moving party on a motion for directed verdict, the issue was whether there was evidence from which a jury could have concluded defendant did not use reasonable care in crossing the intersection. As stated in Allen v. Florida Power Corporation, 253 So.2d 401 (Fla.1971):

Only where the record is devoid of any evidence from which a jury of reasonable men could find liability may a judgment based on a directed verdict stand.

We conclude there was such evidence.

Metropolitan Transit and MacNeill were decided at a time when the doctrine of contributory negligence applied. Thus, any fault by plaintiff in proceeding through an intersection even on a green light, might defeat recovery. With the advent of comparative negligence, any lack of due care on plaintiff’s part would not necessarily bar recovery. Plaintiff and defendant here may both have been negligent, yet the action remained a proper one for jury determination.

The judgment is, therefore, reversed as is the cost judgment entered in defendant’s favor. The cause is remanded for a new trial.

REVERSED AND REMANDED.

MOORE, J., and KAPNER, LEWIS, Associate Judge, concur.


source: Caselaw Access Project

author: HERSEY, Judge.

license: Public Domain

text:
    Fleetwood GUIN, Appellant, v. CITY OF RIVIERA BEACH, Florida, Appellee.
    No. 79-2293.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.

      Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellant.
    Joseph H. Lowe, of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Miami, for appellee.
   HERSEY, Judge.

This action was commenced by appellant, Guin, against appellee, City, for trespass and invasion of privacy. At the close of appellant’s case, the trial court directed a verdict for the city. The final judgment rendered pursuant to that directed verdict is the subject of this appeal.

Officer Van Wagner of the Riviera Beach police department was assigned to investigate a burglary of the residence of Mrs. Anna Hauf. During the course of his investigation and at the suggestion of Mrs. Hauf he checked a storage building located across the street from the burglarized residence. Finding a wooden latch open, the door of the building ajar, and, in the belief that another burglary had occurred or was taking place, he telephoned his supervisor. He next entered the building to determine if anyone was hiding there. His supervisor arrived and both officers searched the premises. During this search they found various snakes, both poisonous and non-poisonous, kept in glass aquariums in violation of a city ordinance. Animal Control was called and the snakes were removed. A sign indicating that the storage building had been condemned was found on the floor. As the result of a telephone call to the Building Inspector a Condemned sign was posted on the building.

Inquiry of a neighbor elicited the information that the storage building was used by appellant, Guin, and that he resided in the house immediately to the west of that building. In order to advise appellant of the disposition of the snakes, officer Van Wagner knocked on the door of the residence. There was no response and seeing another door he walked toward it. As he approached he observed that a jalousie window had been pushed up and the screen pushed out in such a manner that the doorknob could be reached from the outside. The door stood slightly ajar. Believing that he had a possible burglary in progress, officer Van Wagner called for a backup officer.

Both officers then entered and conducted a room by room search of the premises, finding no one. As the officers were about to leave, the detectives arrived. They observed an outboard motor and some expensive stereo equipment. Appropriate inquiries were made and it was determined that these items were not stolen property.

Appellant contends that these facts present jury questions so that the directed verdict was erroneous.

Appellee maintains that the undisputed facts establish as a matter of law that the police had the right to enter and to make the kind of limited search involved here. Thus there was no actionable trespass or invasion of privacy.

Trespass to real property is an injury to or use of the land of another by one having no right or authority. Brown v. Solary, 37 Fla. 102, 19 So. 161 (1896). Therefore, merely entering a building constitutes a trespass. The tort of invasion of privacy is ordinarily considered to encompass four categories, one of which consists of “intrusion upon the plaintiff’s physical solitude or seclusion, as by invading his home. . . . ” W. Prosser, Torts § 117, P. 807 (4th ed. 1971). Florida has recognized the tort of invasion of privacy, at least to this limited extent. Thompson v. City of Jacksonville, 130 So.2d 105 (Fla.lst DCA 1961). Thus, unless the law provides some special exception applicable to the facts in this case, there was both a trespass and an invasion of privacy when the police entered and searched appellant’s residence.

We turn, then, to the ultimate legal issue in this case: whether law enforcement personnel have a right, under appropriate circumstances, to enter upon private property. The law answers that question in the affirmative. “When the lawful performance of his duty requires that an officer enter upon private property to make a general inquiry, such an entry is justifiable.” State v. Garcia, 374 So.2d 601, 603 (Fla.3d DCA 1979). In Webster v. State, 201 So.2d 789 (Fla.4th DCA 1967) this Court discussed and applied the general rule that in emergency situations the police may lawfully enter upon private property without first obtaining a warrant.

Officer Van Wagner’s observation of the open doors, in light of the recent burglary of the adjacent premises, furnished probable cause to support entry and search of the premises. The possibility that the burglary was in progress and the thief within the premises constituted sufficient exigent circumstances to excuse the requirement of a search warrant.

We therefore conclude that the police had authority to enter appellant’s buildings. That being so, there is no cause of action for that entry.

Being lawfully on the premises, the police had the further right to observe items in plain view and to take appropriate action. Webster v. State, supra. They did so and learned that the items were in fact the property of appellant. There is no impropriety involved here. (We note that disposition of the reptiles is not involved in this appeal).

The sole issue remaining is whether a jury question is presented. The facts of the entry and search are basically undisputed. The questions to be determined were the sufficiency of the facts to constitute exigent circumstances and the existence of probable cause. These are legal questions, appropriately determined by the trial court. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979).

The determination of the trial court comes to us clothed in a presumption of correctness. Gellman v. State, 371 So.2d 181 (Fla.lst DCA 1979). No error of law has been demonstrated.

We therefore affirm the final judgment.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Carroll HUMPHREYS, Appellant, v. STATE of Florida, Appellee.
    No. 80-4.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.
    Denis M. de Valming, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Carroll Humphreys appeals from convictions of burglary in the course of which he armed himself with a dangerous weapon and possession of burglary tools. He received a thirty-year sentence for the burglary and a consecutive five-year sentence for possession of burglary tools.

On appeal, Humphreys argues that he should not have received a separate sentence for possession of burglary tools, but only one sentence for burglary. Under the circumstances of this case, we agree. The only evidence of possession of burglary tools was a screwdriver on Humphreys’ person when he was apprehended at the burglary site, and Humphreys’ own admission that he had used the screwdriver to gain entry. The facts are thus the same as those in Foster v. State, 286 So.2d 549 (Fla.1973). In Foster, our supreme court held that because the defendant could not have been convicted for possession of a screwdriver had he not used it to perpetrate a burglary, possession of burglary tools was not a separate and distinct offense for which a separate sentence could be imposed. Because the possession charge in the instant case could only have been made under the circumstances of the screwdriver having been used in the perpetration of the burglary, we hold that Foster is controlling.

We find the other points raised by Hum-phreys to be without merit and we affirm his convictions.

Accordingly, the sentence imposed on Humphreys for possession of burglary tools is vacated. Humphreys’ sentence for burglary in the course of which he armed himself with a dangerous weapon is affirmed without the necessity of bringing Hum-phreys before the trial court for resentenc-ing.

RYDER and DANAHY, JJ., concur.

      . The State argues that the sentence is governed by Section 775.021(4), Florida Statutes (1979), which provides:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
      However, we have examined the above section and determined that under the particular facts present in this case and in Foster v. State, possession of burglary tools is a category (4) lesser included offense as defined in Brown v. State, 206 So.2d 377 (Fla. 1968). As such, it is excluded from the operation of Section 775.-021(4).


author: BASKIN, Judge.

text:
    Nancy MIXSON and Benjamin Mixson, her husband, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 79-1380.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Rehearing Denied Oct. 24, 1980.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, William J. Goldworn, Coral Gables, for appellants.
    Spencer & Taylor and Arthur H. Taylor, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

The Mixsons, defendants in an action for declaratory judgment, appeal a final judgment entered by the trial court determining they were not entitled to personal injury protection and uninsured motorist coverage. We hold that acceptance of a belated premium payment by Allstate Insurance Company estops the insurer from denying coverage, and therefore, reverse the trial court.

On December 11, 1974, Benjamin Eugene Mixson contracted for automobile liability insurance policy with Allstate Insurance Company for his wife and himself. Substantial increases in the annual premium caused Mr. Mixson to change his method of payment to ten installments each year. The first payment for the third year of coverage was timely made on December 11, 1976, but then problems began to occur.

In response to Mixson’s failure to make installment payments according to schedule, Allstate sent its insured a notice of cancellation for nonpayment. The notice informed Mixson that his account was overdue by one payment and that the policy would be cancelled on March 31st if payment were not received by that date. Despite the notice, Mixson’s next payment was made by a check dated April 15, 1977, and received by Allstate on April 25,1977. Allstate accepted this payment.

Mixson and his wife then filed a claim seeking benefits for injuries the wife suffered in an accident that occurred on April 21st. Allstate responded to the claim with a letter stating that the policy had lapsed during the period between March 31st and April 25th and denying coverage for the accident. Allstate did not, however, make any attempt to refund the April payment.

The Mixsons demanded arbitration, and Allstate commenced an action for declaratory judgment concerning the coverage question. After a non-jury trial, the lower court entered judgment finding that the Mixsons were not covered under the policy for the accident of April 21, 1977. We disagree.

An insurer cannot retain a past-due premium and at the same time claim that a forfeiture of the policy has occurred. In this case, the unconditional acceptance of the April payment constituted a waiver of the insurer’s right to contend the policy has lapsed. See Peninsular Life Insurance Co. v. Howard, 72 So.2d 389 (Fla.1954); Industrial Life & Health Insurance Co. v. Cofield, 110 Fla. 315, 148 So. 549 (Fla.1933); Interstate Fire Insurance Co. v. Hamilton, 356 So.2d 1348 (Fla. 1st DCA 1978); and Security Life & Trust Co. v. Jones, 202 So.2d 906 (Fla.2d DCA 1967). Accord, Home Insurance Co. v. Mendelson, 367 So.2d 1071 (Fla.3d DCA 1979) and Travelers Indemnity Co. of Rhode Island v. Mirlenbrink, 345 So.2d 417 (Fla.2d DCA 1977).

For the foregoing reasons, we reverse the judgment and remand for proceedings consistent with this opinion.

      . Mrs. Mixson had a second accident on April 29, 1977. Allstate did not deny coverage for this claim.


author: PER CURIAM.

text:
    FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. A. C. JOHNSON, Appellee.
    No. 79-2176.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Larry Klein, West Palm Beach, Andrew C. Pavlick, Miami, for appellant.
    Daniels & Hicks and Sam Daniels, Feld-man, Abramson, Smith & Magidson, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Missouri-Kansas—Texas R. Co. v. Evans, 151 Tex. 340, 250 S.W.2d 385 (1952); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980); see also, Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Minneapolis, St.P. & S.S.M. R. Co. v. Goneau, 269 U.S. 406, 46 S.Ct. 129, 70 L.Ed. 335 (1926); New York, N.H. & H. R.Co. v. Leary, 204 F.2d 461 (1st Cir. 1953), cert. denied, 346 U.S. 856, 74 S.Ct. 71, 98 L.Ed. 370 (1953); Adams v. Seaboard Coast Line R. Co., 296 So.2d 1 (Fla.1974), and cases cited.


author: SCHWARTZ, Judge.

text:
    Felix RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1578.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Ruiz appeals from his conviction on a charge of being an accessory after the fact to murder, in violation of Section 777.03, Florida Statutes, (1977). Since it is admitted that, absent the defendant’s confession, the evidence does not support the jury’s guilty verdict, the dispositive issue is whether the state presented adequate independent evidence of the crime to justify the admission of the statement. We conclude that it did not and that the confession should have therefore been excluded. Consequently, we reverse the judgment below.

The appellant was charged with having intentionally rendered aid or assistance to one Manual Valle, with the knowledge that Valle had murdered a Coral Gables police officer on April 12, 1978. Apart from the contents of a statement made to an investigator by Ruiz himself, the state adduced testimony which showed only that, on the date in question, the defendant was a passenger in a car being driven by Valle when it was stopped by officer Luis Pena. Gary Spell, another Coral Gables officer who responded to the scene as a back-up, testified that he saw Ruiz leave the area on foot while Valle was being questioned. A short while after Ruiz had walked away-at a point in time when Spell did not know whether he was “still anywhere in that vicinity”-Valle began shooting at both officers, killing Pena and severely wounding Spell. Two days later, two Latin males were seen together on the beachfront at Deerfield Beach, Florida. When captured after they had each tried to escape from approaching officers, they turned out to be Ruiz and Valle. On this appeal, Ruiz contends that this showing does not amount to the “ ‘substantial evidence’ tending to show the commission of the charged crime” which is required to support the admission of Ruiz’s confession into evidence. We agree with this contention, thus rendering it unnecessary to consider Ruiz’s claim that, even with the confession, the evidence is insufficient. See, McQueen v. State, 304 So.2d 501, 502 (Fla. 4th DCA 1974), cert. denied, 315 So.2d 193 (Fla.1975).

It is apodictic that, when a confession is relied upon to satisfy the state’s burden of proof to establish the defendant’s guilt, there must be either direct or circumstantial evidence-apart from the confession - of the so-called corpus delicti of the offense with which he is charged. Smith v. State, 93 Fla. 238, 112 So. 70 (1927); Drysdale v. State, 325 So.2d 80 (Fla. 4th DCA 1976). As to each crime-with the apparent exception of murder -this requirement is the same as showing the existence of every element of the particular offense. State v. Allen, supra. The crime of accessory after the fact is statutorily defined as follows:

Whoever, not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender, maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that he had committed a felony or been accessory thereto before the fact, with intent that he shall avoid or escape detection, arrest, trial or punishment, shall be deemed an accessory after the fact. § 777.03, Fla. Stat. (1979).

In accordance with the clear terms of the statute, the elements of this crime are (1) knowledge by the defendant that a felony has been committed; Whorley v. State, 45 Fla. 123, 33 So. 849 (1903); (2) the absence of the statutory familial relationship between the defendant and the felon; Brooks v. State, 168 So.2d 785 (Fla.3d DCA 1964), cert. denied, 177 So.2d 474 (Fla.1965), cert. denied, 382 U.S. 1015, 86 S.Ct. 627, 15 L.Ed.2d 529 (1966); and (3) aid to the felon with the intent that he escape arrest or punishment for the crime he has committed. Hearn v. State, 43 Fla. 151, 29 So. 433 (1901).

Contrary to the state’s contention, we think it obvious that the extra-confession showing which has been outlined contained no evidence whatever as to any, let alone all, of these elements of the crime and therefore of its corpus delicti:

(1) There was no independent evidence that Ruiz was aware that Valle had murdered officer Pena. In this regard, we cannot accept the state’s claim that the defendant “must have heard” the shots because they were fired only 20-30 seconds after he had departed the scene. Moreover, even if he had heard shooting, there is no indication that he would have known that it involved the murder of the officer.
(2) There was no evidence as to the non-relationship between Ruiz and Valle.
(3) Neither the fact that Ruiz was with Valle two days after the shooting nor that they both tried to avoid being captured provides any evidence that Valle had been assisted in his attempt to escape apprehension for the murder. Roberts v. State, 318 So.2d 166 (Fla.2d DCA 1975); Overton v. State, 161 Ind.App. 650, 317 N.E.2d 467 (1974).

In sum, as in the very similar cases of Dennis v. State, 230 Ind. 210, 102 N.E.2d 650 (1952) and State v. Hernandez, 83 Ariz. 279, 320 P.2d. 467 (1958), there was, the defendant’s statement aside, no evidence which authorized even a reasonable inference that anyone had committed the crime with which Ruiz was charged. See, Allen v. State, supra, at 335 So.2d 824, 825.

The state correctly points out that the purpose which underlies the corpus de-licti rule is to prevent a conviction on the sole basis of a defendant’s misguided confession to a crime which did not in fact occur. See, State v. Allen, supra, at 335 So.2d 825. It forcefully and skillfully maintains that this policy would be effectuated if independent proof of the underlying felony-in this case, the murder of officer Pena-were itself deemed a sufficient basis for the admission of a confession to accessory after the fact. This contention is a reasonable and, particularly as applied to the facts of this case, extremely appealing one. It is, however, unacceptably and totally contrary to the established law. There is no question both that accessory after the fact of a felony and the felony itself are entirely separate and distinct offenses and that the mere occurrence of the felony provides no basis whatever for concluding that someone has subsequently aided the felon to escape. The Florida decisions clearly establish that, in applying the corpus delicti rule, not only “must [it] be shown that the specific crime charged had been committed” [e. s.]; Sciortino v. State, 115 So.2d 93, 99 (Fla.2d DCA 1959), but that

[t]o establish a prima facie showing sufficient for the corpus delicti, it would be unreasonable to attempt to show that some form of crime was committed and then attempt to infer that since some form of crime took place, the specific crime charged was also committed.

Rowe v. State, 84 So.2d 709, 711 (Fla.1956). In an analogous situation, moreover, the court in McQueen v. State, supra, rejected a similar contention that the corpus delicti of the crime of buying, receiving, or concealing stolen property was satisfied by a showing that the goods in question had been the subject of the “predecessor crime” of larceny. Finally, the authorities which have considered the precise question have squarely and uniformly held that all the elements of the crime of accessory must themselves be independently demonstrated and that proof of the underlying felony is not alone sufficient. State v. Hernandez, supra; Dennis v. State, supra; 7 Wigmore, Evidence § 2072 (Chadbourn rev. 1978); cf., People v. Parker, 122 Cal.App.2d 867, 265 P.2d 933 (1954).

It gives us no pleasure to reach the result we think is clearly required by the law of our state. We are compelled by our oaths and by our office, however, to apply neutral and settled principles of law to the facts shown by the record. See, State v. Black, 385 So.2d 1372 (Fla.1980); Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We do so in this case by reversing the judgment below and remanding the cause with directions to discharge the defendant.

Reversed and remanded.

      . State v. Allen, 335 So.2d 823, 825 (Fla.1976).

      . For the purposes of admitting a confession, the corpus delicti of every crime of homicide is the same. See, Schneider v. State, 152 So.2d 731 (Fla. 1963). See, McQueen v. State, supra, at 304 So.2d 503, note 1 for the possible reason that, as to first degree murder, only a showing that an individual’s death has been caused by the “criminal agency” of another is required and not also the intent which is also an element of the crime.

      . In Allen, the supreme court’s most recent discussion of the subject, the term “corpus delicti” is defined as meaning, and is used interchangeably with the elements of the crime in question. 335 So.2d at 824, n.2, 825. The language which may suggest otherwise in Daughtry v. State, 65 Fla. 415, 62 So. 345 (1913) and Pickett v. State, 202 So.2d 203, 205 (Fla.1st DCA 1967); see also, McQueen v. State, supra, at 503, refers only to the fact that the identity of the offender need not ordinarily be established by independent proof. Allen v. State, supra, at 335 So.2d 825; State v. Snowden, 345 So.2d 856 (Fla. 1st DCA 1977), cert. denied, 353 So.2d 679 (Fla. 1977). As we point out infra, however, this rule does not apply to the crime of accessory after the fact.

      . Because the fact that there is no excluded relationship between the defendant and the felon is uniquely an element of this particular crime, it is apparent that, contrary to the usual rule, see note 3, supra, there must be some independent evidence of the identity of the person who committed it. See, Dennis v. State, 230 Ind. 210, 102 N.E.2d 650 (1952).

      . Ruiz was himself wanted for an alleged parole violation.

      . The decisions upon which the state most heavily relies, People v. Holmes, 67 Ill.2d 236, 367 N.E.2d 663 (1977), and People v. Terlisner, 96 Mich.App. 423, 292 N.W.2d 223 (1980) are completely distinguishable on just this ground. Each of them involved a defendant charged with the principal crime itself. The fact that the basis of the defendant’s criminal responsibility was that he either aided or abetted the commission of the felony or was an accessory before the fact (and was, for either reason, therefore deemed a principal to the crime) did not alter the applicability to those cases of the very rule we apply to this one, requiring evidence of the corpus delicti of the. particular crime charged. Each of the cited cases is entirely consistent with that principle and with the concomitant general rule, see notes 3 and 4, supra, that once the crime has been otherwise demonstrated, the defendant’s confession may be employed to provide evidence of his personal guilt.

      . Sciortino was approved by the supreme court in the Allen case, which similarly states at 335 So.2d 825 that there must be independent evidence of “the charged crime.” Accord, e. g., Jefferson v. Sweat, 76 So.2d 494, 499 (Fla. 1954); McQueen v. State, supra, at 304 So.2d 502.


author: DANIEL S. PEARSON, Judge.

text:
    Ernie W. NORMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1202.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Michael H. Bloom, Miami, for appellant.

      Jim Smith, Atty. Gen. and Steven L. Bo-lotin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

We hold that no right of Norman’s which the Fourth Amendment to the United States Constitution was designed to protect was infringed, where he disavowed any ownership, possessory or other interest in the house in which nearly two tons of marijuana were seized. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Unless Norman, charged with a crime of possession, is entitled to claim “automatic standing” to challenge the legality of the search of the house, our holding will make it unnecessary to address Norman’s claim that the search of the house and the subsequent search of two vehicles were unlawful.

Under a Fourth Amendment analysis, Norman cannot rely upon the possessory charge as a substitute for a factual finding that he had a legitimate expectation of privacy in the area searched. United States v. Salvucci,-U.S.-, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). But while Salvucci has done away with the automatic standing rule in respect to claims arising under the Fourth Amendment, Salvucci does not preclude a state from utilizing an automatic standing rule in state court proceedings.

We must therefore decide whether the automatic standing rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), overruled in Salvucci, survives in Florida.

Our course would be clear had the exclusionary rule laid down in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), been the victim of Salvucci. Such a ruling would have no effect upon our constitutional mandate that articles or information obtained as a result of an unreasonable search and seizure are not admissible in evidence. Art. I, § 12, Fla.Const.

“Mapp v. Ohio . . . added nothing whatever to the law of Florida. It created no new procedural right so far as the jurisprudence of this State is concerned. This Court long ago concluded that evidence obtained as the product of an unreasonable search is not admissible in a criminal proceeding. Florida has long recognized the so-called ‘exclusionary rule’ regarding the inadmissibility of such evidence.” Sing v. Wainwright, 148 So.2d 19, 20 (Fla.1962).

See also Taylor v. State, 355 So.2d 180, 184 (Fla. 3d DCA 1978). But our Constitution does not accord a defendant the right to challenge an unreasonable search and seizure by virtue of the fact that he is charged with possession of the items seized. It was the United States Supreme Court in Jones which established this procedural right and the United States Supreme Court in Salvuc-ci which took it away. Thus, unless the courts of this state have, apart from required adherence to Jones, decided that a defendant charged with a possessory crime is entitled to automatic standing, we are free to declare that the automatic standing rule is no more.

Thirty-four Florida cases have considered the Jones decision. With the exception of three cases, State v. Dycus, 238 So.2d 493 (Fla. 2d DCA 1970); Curry v. State, 355 So.2d 462 (Fla. 2d DCA 1978); and Prickett v. State, 305 So.2d 222 (Fla. 2d DCA 1974), the reliance on Jones concerned other aspects of that decision, e. g., the “legitimately-on-the-premises” concept of standing.

In State v. Dycus, supra, the court acknowledged that Jones established the rule that when the prosecution alleges possession as the gravamen of the offense charged, it is estopped from denying the defendant standing to attack the seizure of the evidence allegedly possessed. The court held, however, that the automatic standing rule of Jones was inapplicable, since the time of the alleged possession and the time of the seizure were not the same. In Curry v. State, supra, the court, following the Dycus analysis, held that the defendant, charged with a possessory offense occurring on a date different than the seizure complained of, could not rely on automatic standing, but could not be precluded from making an evidentiary showing that he in fact had a possessory interest in the premises searched. In Prickett v. State, supra, this court held that the defendants had standing to challenge a search both because they had a sufficient possessory interest in the premises searched and because:

“. . .in charging the defendants in the information with possession of illegal drugs, the .state adopts an inconsistent position by arguing that the defendants now do not have standing. See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).”

Thus, Dycus and Curry implicitly acknowledged the binding effect of the automatic standing rule of Jones, and Prickett explicitly followed the rule.

Whether courts of this state were bound to follow the now abrogated standing rule of Jones, see n. 7, supra, is of no present concern. Our concern is only whether this state has established an automatic standing rule independently of Jones.

We conclude that the automatic standing rule has not become a part of this state’s jurisprudence so as to survive the overruling of Jones. This conclusion does not, however, prevent us from resuscitating the rule. We decline to do so, however, since we fully agree with Salvucci that the protection against the “self-incrimination dilemma” that Jones was designed to afford is no longer needed in light of Simmons v. United States, supra, n. 1, and that the prosecution “may simultaneously maintain that a defendant criminally possessed the seized good, but was not subject to a Fourth Amendment deprivation, without legal contradiction.” -U.S. at-, 100 S.Ct. at 2552. As the United States Supreme Court observed in Salvucci:

“. . . The doctrine now serves only to afford a windfall to defendants whose Fourth Amendment rights have not been violated. We are unwilling to tolerate the exclusion of probative evidence under such circumstances since we adhere to the view of Alderman that the values of the Fourth Amendment are preserved by a rule which limits the availability of the exclusionary rule to defendants who have been subjected to a violation of their Fourth Amendment rights.” -U.S. at -, 100 S.Ct. at 2554.

Accordingly, the possessory charge against Norman gave him no standing to object to a search of the premises. Having otherwise determined that Norman had no legitimate expectation of privacy in the premises, we hold that no right of his was infringed by the search in question. We have examined Norman’s remaining point on appeal and find it to be without merit. The judgment of the trial court is

Affirmed.

      . The testimony of one of the officers who approached Norman and Crawford (his co-defendant below, but not an appellant here) was:
      “I asked them do they live here and they said no. I said ‘Is this your boat?’ They said, ‘No. It’s the owner’s.’ I said, ‘Well, where’s the owner?’ They said, ‘He’s in back.’ I said, ‘Where?’ They said ‘In the back yard.’ ”
      Norman, shielded by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), testified at the suppression hearing. At that time, he claimed no interest in the house and made no effort to deny or explain the earlier statements attributed to him by the officer. His only disagreement with the officer’s version of this conversation is found in his written motion to suppress where he stated that he told the officer he had come by his friend’s house and they were going skiing. The consequence is that the officer’s unrebutted testimony is compelling evidence that Norman had no privacy interest in the house. See United States v. Dall, 608 F.2d 910 (1st Cir. 1979).

      . Norman’s claim that the search of the house was unlawful is based on an alleged trespass by the police on private property. We do note that entry by police upon private property in the conduct of a lawful investigation is not unlawful. See, e. g., State v. Garcia, 374 So.2d 601 (Fla. 3d DCA 1979). Moreover, a trespass is not a search, and contraband seen in plain view (found by the court below to have been seen through the open back door of the house) can be lawfully seized. United States v. Knight, 451 F.2d 275 (5th Cir. 1971); Albo v. State, 379 So.2d 648 (Fla. 1980).

      . Norman was charged in a one-count information with possession of more than one hundred pounds of marijuana. The State’s intended proof included the marijuana found in the house and the vehicles. If, arguendo, the vehicle search were unlawful, the exclusion of the marijuana found therein would not be disposi-tive of this case and cannot be reviewed on a plea of nolo contendere. See Webb v. State, 373 So.2d 400 (Fla. 1st DCA 1979).

      . Salvucci controls in proceedings in Federal. Courts. In state court proceedings, a state is free to employ a more liberal view of standing. Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525, n. 9 (1978). See also Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

      . In Shafi v. State, 377 So.2d 787 (Fla. 1st DCA 1979), the court cites Jones as having expanded the scope of standing, but does not mention that Shafi’s standing derives from the automatic standing rule. The court held that since Shaft established a sufficient possessory interest in certain luggage, he had standing to object.

      . The United States Supreme Court three years later made clear that this reading of Jones was correct. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

      . The Florida Supreme Court, presented by certification, see Leveson v. State, 149 So.2d 80 (Fla. 3d DCA 1963), with the opportunity to address the question of whether the separate holding in Jones (that one legitimately on the premises had standing to complain of an illegal search of the premises) was binding upon the State of Florida, left the question unanswered. State v. Leveson, 151 So.2d 283 (Fla.1963). Earlier, our court had accorded standing to the defendant. Leveson v. State, 138 So.2d 361 (Fla. 3d DCA 1962). Only one member of the court based standing on Jones. Judge Tillman Pearson, dissenting, stated that Florida courts were not bound to follow Jones’ expansion of standing. Judge Carroll, specially concurring, agreed that the defendant, as lessee-occupant of the premises, had standing, but disagreed that that standing should be based on Jones:

      “By making the point that Florida generally accepts as authority the interpretation of the United States Supreme Court as to the Fourth Amendment to the Federal Constitution and applies it in construing the equivalent § 22 of the Declaration of Rights of Florida [now Art. I, § 12, Fla.Const.], the majority opinion appears to hold or imply that the facts of this case require us to extend the law of this state to permit challenge of search by one of less standing with reference to the property than heretofore. 1 see no occasion in this case for any such extension of the law.” 138 So.2d at 366.

      . Before Simmons, if a defendant testified to his possessory interest in the goods seized or premises searched in support of his suppression motion, such testimony could be used against him at trial to establish his guilt on the charge of possession. Simmons prevents such use of his testimony. While the dissenters in Salvucci express concern that the self-incrimination dilemma still exists so long as the defendant’s testimony at the suppression hearing can be used for impeachment purposes, the majority makes clear that that issue “more aptly relates to the proper breadth of the Simmons privilege, and not to the need for retaining automatic standing.” 48 U.S.L.W. at 4884.

      . Salvucci denied automatic standing to the respondent in that case, thus applying its overruling of Jones so as to affect Mr. Salvucci. We do the same to Norman. Unlike Salvucci, however, who relied on automatic standing and made no effort to establish a legitimate expectation of privacy in the premises, Norman disavowed any interest in the premises. A remand to the trial court to permit Norman an opportunity to establish this legitimate expectation of privacy is unnecessary. Compare United States v. Salvucci, supra; Priori v. State, 386 So.2d 618 (Fla. 1st DCA 1980).


text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Charles BUCOLO, a single man, Appellee.
    No. 79-1299.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Magill, Sevier & Reid and Kevin P. O’Connor, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Ronald A. Alter, Miami, for appellee.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final declaratory judgment under review is reversed and the cause is remanded with directions to enter a declaratory decree in favor of the appellant in accord with the law as stated in France v. Liberty Mutual Insurance Co., 380 So.2d 1155 (Fla. 3d DCA 1980).


author: HENDRY, Judge.

text:
    The CONTINENTAL INSURANCE COMPANY, a New York Corporation, Appellant, v. Robert F. ROTH, Clinton Roth, and Dorothy Roth, Appellees.
    No. 79-1909.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Rehearing Denied Oct. 24, 1980.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble and Todd A. Cowart, Miami, for appellant.
    William R. Alvin, Miami, Savitt, Kotzen & France, N. Miami Beach, for appellees.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   HENDRY, Judge.

We review a declaratory judgment in which it was held that a named insured in an automobile liability policy could not effectively refuse uninsured motorist (U/M) coverage for other named insureds. We reverse.

Clinton, Dorothy and son Robert were named insureds in an automobile liability policy issued to them by appellant, Continental, through the agency of Turner-Frix Insurance, Incorporated. The agent sent to appellees Roth both a notice regarding statutorily-mandated provision of U/M coverage, as well as an option form by which they might reject en toto, or lower, that coverage. Following telephonic communication between Mrs. Roth and an employee of the agency, Mr. Roth rejected the U/M coverage in a writing forwarded to the insurer. Thereafter, the son was injured while operating an insured vehicle. Blaming a “hit and run” driver for Robert’s misfortune, the Roths sought a U/M award under the policy.

The Roths argue alternatively that the rejection of U/M coverage had not been knowingly and intelligently made, and that in any event, Robert, as a named insured who had not rejected the U/M coverage, was not bound by his father’s rejection thereof.

The trial court accepted the reasoning of the latter contention, and expressly refused to resolve the question of fact regarding the former.

Florida’s uninsured motorist insurance statute, in pertinent part, reads thus:

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage. (Emphasis supplied.)

§ 627.727(1), Fla.Stat. (1979). (Changes in the law leading to its present evolution have no impact on the issue sub judice.)

In an instance where the statutory authority of a named insured to reject U/M coverage for an additional (rather than “named”) insured was questioned, we found that such authority did in fact exist:

[T]he law giveth and the law taketh away. The first clause of the Statute [, affording U/M coverage “for the protection of persons insured thereunder . . ”] giveth but the proviso above quoted [“the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage”] furnishes a method by which it may be taken away. In this case, sub judice, the “insured named in the policy” rejected the coverage. It therefore did not exist, and the plaintiff, when operating the subject vehicle, did not have uninsured vehicle coverage.

Kohly v. Royal Indemnity Co., 190 So.2d 819 (Fla. 3d DCA 1966), cert. denied 200 So.2d 813 (Fla.1967). Accord, Guardado v. Greyhound Rent-A-Car, Inc., 340 So.2d 510 (Fla. 3d DCA 1976); Morpurgo v. Greyhound Rent-A-Car, 339 So.2d 718 (Fla. 1st DCA 1976).

The only instance which we have uncovered in which the question of a named insured’s authority to reject U/M coverage for another named insured was in the case of Weatherford v. Northwestern Mutual Insurance Co., 239 Cal.App.2d 567, 49 Cal. Rptr. 22 (1966). However, the California statute’s language, similar in origin to ours, had been amended to avoid the construction urged by appellees.

Although we recognize, in this case of first impression, the distinction drawn by appellees between additional and named insureds, we do not attach significance to it. We hold that any named insured, as the statute says, may reject U/M coverage for all insureds — named or additional. This holding makes the most sense to us, both as legislative interpretation and as logical result: We envision no rational apportionment of the U/M premium among named insureds, should some want the coverage, and others not; nor can we believe that it was the intention of the legislature, Continental, or the Roths, that a bargain for U/M coverage be struck per capita, within each policy, rather than on a policy-by-policy basis.

Appellant Continental further seeks a ruling that, as a matter of law, Mr. Roth made a knowing and intelligent waiver of his right to U/M coverage. However, we are not disposed to peruse the record toward that end, until the trial court has made a determination of fact or law in that regard. Thus, we remand for that purpose.

Reversed and remanded.

      . In Riccio v. Allstate Insurance Co., 357 So.2d 420 (Fla. 3d DCA 1978), as in the case sub judice, it was urged that each named insured had to reject the offered U/M coverage in order to make effective rejection as to that person. We expressly withheld opinion on that argument, deciding on other grounds, while suggesting that greater briefing on that issue would be appropriate should it reach us again in that case, after remand. Cases cited in that comment involve rejection of U/M coverage by persons not named as insureds; thus, those decisions are not helpful herein.


text:
    Frederica B. NEAL, Appellant, v. DADE COUNTY, Florida, Appellee.
    No. 79-1970.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    George F. Hero, Coral Gables, for appellant.
    Robert A. Ginsburg, County Atty. and Stanley B. Price, Asst. County Atty., for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Affirmed. Pylant v. Orange County, 328 So.2d 199 (Fla.1976); State v. City of Tampa, 48 So.2d 78 (Fla.1950); Eastside Properties, Inc. v. Dade County, 358 So.2d 873 (Fla. 3rd DCA 1978); Burger King Corporation v. Metropolitan Dade County, 349 So.2d 210 (Fla. 3rd DCA 1977); Dade County v. Yumbo, S.A., 348 So.2d 392 (Fla. 3rd DCA 1977); B.S. Enterprises, Inc. v. Dade County, 342 So.2d 117 (Fla. 3rd DCA 1977); Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975); Allstate Mortgage Corporation of Florida v. City of Miami Beach, 308 So.2d 629 (Fla. 3rd DCA 1975); Metropolitan Dade County Board of Co. Comm. v. Rockmatt Corporation, 231 So.2d 41 (Fla. 3rd DCA 1970); Smith v. City of Miami Beach, 213 So.2d 281 (Fla. 3rd DCA 1968).


text:
    WINN DIXIE STORES, INC., Appellant, v. Bruce KENNER, Appellee.
    No. 80-132.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Vernis, Bowling, West, Montalto & Goodman and Stephen N. Montalto, Coconut Grove, for appellant.
    Mark J. Feldman, Miami, for appellee.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Helman v. Seaboard Coast Line Railroad, 349 So.2d 1187, 1189 (Fla. 1977); Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168, 169 (Fla. 3d DCA 1977); Menard v. O’Malley, 327 So.2d 905 (Fla. 3d DCA 1976); Butler v. Gateway Insurance Co., 295 So.2d 651 (Fla. 3d DCA 1974); Winn-Dixie Stores, Inc. v. Miller, 220 So.2d 680, 682 (Fla. 4th DCA 1969); Grand Union Co. v. Devlin, 213 So.2d 488 (Fla. 3d DCA 1968); cert. denied, 222 So.2d 750 (Fla.1969); Jenkins v. Brackin, 171 So.2d 589, 591 (Fla. 2d DCA 1965).


text:
    RESERVE INSURANCE COMPANY, Appellant, v. Hubert L. STEWART, as Personal Representative of the Estate of Michael Benjamin Stewart, Deceased; Hubert L. Stewart, Individually; Terry Goodin, Individually; and State Automobile Mutual Insurance Company, Appellees.
    Nos. 79-751/T4-481, 79-795/T4-481A.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.
    Sutton G. Hilyard, Jr., and Karen L. Goldsmith, Orlando, for appellant.
    Donald P. Ewald, Orlando, for appellee State Auto. Mut. Ins. Co.
    No appearance for other appellees.
   PER CURIAM.

AFFIRMED.

See Gargano v. Liberty Mutual Ins. Co., 384 So.2d 220 (Fla. 3d DCA 1980); Johnson v. Unigard Ins. Co., 387 So.2d 1058 (Fla. 5th DCA 1980).

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ„ concur.


author: SHARP, Judge.

text:
    McNAMARA PONTIAC, INC., Petitioner, v. Antonio N. SANCHEZ, Respondent.
    No. 80-365.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.
    George L. Winslow, Jr., Orlando, for petitioner.
    Larry Morgan, Orlando, for respondent.
   SHARP, Judge.

McNamara Pontiac, Inc., filed a petition for Writ of Certiorari pursuant to Rule 9.030(b)(2)(B), Florida Rules of Appellate Procedure, seeking review of the decision of the circuit court affirming in part the decision of the county court. We deny the petition because it fails to show that the lower court exceeded its jurisdiction or that it departed from the essential requirements of law. Chicken “N” Things v. Murray, 329 So.2d 302 (Fla.1976); Coffman v. State, 292 So.2d 608 (Fla. 4th DCA 1974); Pierson v. Sharp, 283 So.2d 886 (Fla. 4th DCA 1973).

The circuit court held that, under the circumstances involved in this case, an implied warranty could arise upon the sale of a used automobile by a car dealer, McNamara Pontiac, Inc., to a consumer, Sanchez. This conclusion is well-founded. Knipp v. Weinbaum, 351 So.2d 1081 (Fla. 3d DCA 1977); Enix v. Diamond T. Sales & Services, Inc., 188 So.2d 48 (Fla. 2d DCA 1966).

Sanchez signed a written disclaimer which provided he accepted the used car in an “as is” condition. Shortly after Sanchez bought the car, the dash area caught fire and the vehicle was destroyed. The trial court concluded that Sanchez was not bound by the disclaimer because it was not part of the “bargain” between the parties. The circuit court summarized the evidence:

The testimony of Mr. Lentz, the Defendant’s salesman, indicates on pages 41-43 and page 48 that, at the time the Plaintiff signed the Dealer Warranty Disclaimer, neither the purpose of the document nor the nature of its disclaimer was discussed. To the contrary, the salesman believed the car was not sold “as is” and was explaining to the Plaintiff, Sanchez, about there being a GM Warranty on the car for two years or 24,000 miles. With the Plaintiff’s English illiteracy coupled with the discussion of there being warranties, the evidence clearly supports the trial court’s finding that the Plaintiff did not understand the disclaimer he signed and that it was not a part of the bargained for agreement between the parties.

To be effective, a disclaimer must be part of the sales bargain between the parties. Knipp v. Weinbaum, 351 So.2d 1081 (Fla. 3d DCA 1977); Rehurek v. Chrysler Credit Corp., 262 So.2d 452 (Fla. 2d DCA 1972); Hauter v. Zogarts, 14 Cal.3d 104, 120 Cal. Rptr. 681, 534 P.2d 377 (1975).

The circuit court held that the evidence in this case supported the trial court’s finding. It is not our function to provide an additional “appeal” under the guise of “certiora-ri”. Because petitioner has failed to demonstrate that the lower court committed any fundamental error, we deny the petition. Holden v. City of Ft. Lauderdale, 286 So.2d 218 (Fla. 4th DCA 1973); Olin’s Rent-A-Car System, Inc. v. Avis Rental Car System, Inc., 135 So.2d 434 (Fla. 3d DCA 1961).

PETITION DENIED.

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

DAUKSCH, C. J., concurs with conclusion only.


author: ORFINGER, Judge.

text:
    Robert JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-412.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, App. Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ON MOTION TO DISMISS APPEAL

ORFINGER, Judge.

The State moves to dismiss this appeal because the notice of appeal is late. The appellant responds by pointing to State action as contributing to the late filing, and requests that we treat the notice of appeal which was filed by the appellant pro se in letter form as a petition for belated review.

We agree that we should treat the notice of appeal as a petition for writ of habeas corpus for belated appellate review under the authority of Baggett v. Wainwright, 229 So.2d 239 (Fla.1969), and Hollingshead v. Wainwright, 194 So.2d 577 (Fla. 1967), and so the motion to dismiss for late filing is denied.

Nevertheless, we must dismiss the appeal because nothing has been preserved for appellate review. Appellant entered a plea of nolo contendere to charges of possession and sale of cocaine, without reserving any issue for appeal. In this posture, only issues which occur contemporaneously with the entry of the plea may be the proper subject of an appeal. Robinson v. State, 373 So.2d 898 (Fla.1979). No such issue appears here.

Although appellant’s brief raises the point on appeal of alleged error in denying appellant the right to withdraw his plea, no such motion was made in the trial court nor can we consider appellant’s notice of appeal as including such request. This issue must first be raised in the trial court. Lawrence v. State, 385 So.2d 167 (Fla. 5th DCA 1980); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

The appeal is dismissed without prejudice to appellant seeking in the trial court whatever collateral relief may be appropriate.

Appeal DISMISSED.

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

      . These issues are: (1) subject matter jurisdiction, (2) illegality of the sentence, (3) failure of the government to abide by the plea agreement and (4) the voluntary and intelligent character of the plea. Robinson, at 902.


author: LETTS, Chief Judge.

text:
    G. W. MARTIN SEAWALL, INC., Appellant, v. FLAGSHIP FIRST NATIONAL BANK OF MIAMI, CGC Corporation et al., Appellees.
    No. 79-1741.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.
    Rehearing Denied Oct. 17, 1980.
    C. H. Albury of Albury, Park & Glenn, West Palm Beach, and Thomas F. Pepe of Law Offices of Pepe & Nemire, Coral Gables, for appellant.
    Gene Moore, Boynton Beach, for appel-lees.
   LETTS, Chief Judge.

The Final Judgment of Foreclosure of certain land and construction mortgages in the trial court is affirmed.

The final judgment is silent as to which section of the Florida Mechanics Lien chapter its decision awarding priority to the mortgages is based on, but we are unable to find reversible error if the trier of the fact found the Appellant/Lienor to be subject to Section 713.04, Florida Statute (1975) as there is competent substantial evidence to support such a finding. Said Section 713.04 creates a lien for subdivision improvements but provides that no lien be acquired “until a claim of lien is recorded.” The lien here was recorded long after the mortgages and thus its priority is inferior.

Accordingly, we cannot find reversible error in the record and the cause must be affirmed.

BERANEK, J., and WESSEL, JOHN D., Associate Judge, concur.


author: ANSTEAD, Judge. BERANEK, Judge,

text:
    Linda K. BROWN, Appellant, v. John T. BROWN, Appellee.
    Nos. 80-80, 80-1037.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.

      Abraham H. Carchman, Hallandale, for appellant.
    H. C. Feige of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for appellee.
   ANSTEAD, Judge.

In a final judgment of dissolution the wife was initially awarded custody of the parties’ minor children. Because the wife refused to comply with a subsequent court order directing her to bring herself and the children from New Jersey to Florida, the court ordered the custody of the children transferred to the husband. No hearing was conducted or findings made as to whether transfer of custody would be in the best interests of the children.

This court has previously recognized that a trial court has broad discretion to effect compliance with its orders. Gordon v. Gordon, 368 So.2d 1356 (Fla. 4th DCA 1979). However, before an order may be entered modifying the custody provisions of a final judgment or otherwise transferring custody, a determination must be made that a change in custody is in the best interests of the children. Baker v. Baker, 360 So.2d 19 (Fla. 4th DCA 1978). The transfer of custody of minor children should not be used as a means of punishing recalcitrant parties to dissolution proceedings. When a change in custody is sought nothing less than a showing that such change is required to serve the best interests of the child will justify granting such a change.

Accordingly, this cause is reversed and remanded with directions for further proceedings consistent herewith.

MOORE, J., concurs.

BERANEK, J., concurs with opinion.

BERANEK, Judge,

concurring.

The order transferring child custody herein is obviously the result of the wife’s non-compliance with the court order requiring her to submit to a psychological evaluation. This order was part of an extended and bitter controversy between these parties. I agree with the majority that permanent child custody cannot be transferred without a full hearing on the question of whether the transfer in custody is in the best interests of the children. The order in question here does not say that it is permanent or temporary. I surmise that the litigation between these parties will go on and that the order was only temporary. It is not clear in this regard and I, therefore, concur that the order transferring custody should be vacated.


author: MILLS, Chief Judge.

text:
    James Darrell SKIDMORE, Appellant, v. STATE of Florida, Appellee.
    No. PP-251.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.

      Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   MILLS, Chief Judge.

We find no error in the judgment and sentence for possession of more than five grams of cannabis. Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Appellant contends and the State concedes that the charge of carrying a concealed firearm which had been dismissed was inadvertently listed on the “Judgment, Sentence, and Order Placing Defendant on Probation During a Portion of Sentence.” The “Judgment and Sentence” and the “Uniform Commitment to Custody” correctly reflect the sole offense of possession of cannabis.

The offense of carrying a concealed weapon is hereby stricken from the Judgment, Sentence, and Order Placing Defendant on Probation and the judgment and sentence, as corrected, is AFFIRMED.

McCORD and THOMPSON, JJ., concur.


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

text:
    Sheilah Kristine HILL, Appellant, v. Thomas Jefferson HILL, and A. C. Soud, Jr., Appellees.
    No. PP-339.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.
    Rehearing Denied Oct. 20, 1980.
    John Paul Howard, Jacksonville, for appellant.
    William L. Coalson, of Greene & Greene, P. A., and Eugene Loftin, Jacksonville, for appellees.
   ROBERT P. SMITH, Jr., Judge.

We affirm the circuit court’s summary final judgment for both appellees in this action filed by the then estranged and now divorced wife against her former husband and his lawyer for malicious prosecution and false imprisonment. The lawyer had probable cause for such action as he took in instituting the wife’s competency proceeding, and there is no evidence justifying a charge of false imprisonment arising from the same conduct. We note that the trial court still has under consideration a separate claim of abuse of process, arising from a separate incident.

In sustaining the trial court’s judgment that appellee Hill is immune from suit for torts allegedly committed by him during his marriage to appellant, we follow the literal holding of Raisen v. Raisen, 379 So.2d 352 (Fla.1979), though we recognize the distinguishing factors in this case which would seem to deprive interspousal immunity of the justification expressed for it in Raisen. Here the tort allegedly committed by the husband against the wife, malicious prosecution or false imprisonment, is an intentional tort unlike negligence. It is by nature a poor candidate for collusive claims. Here husband and wife were separated and living apart when the tort allegedly was committed, and they never resumed marital life before the marriage was dissolved. Here the actions complained of were by nature far more disruptive of marital harmony than was the suit complaining of them. Here there is no insurer or other third party standing by to pay any judgment. Accordingly, in applying Raisen notwithstanding those factors, we certify to the Supreme Court that our decision passes on a question of great public importance, namely, the existence of interspousal tort immunity in these circumstances.

AFFIRMED.

BOOTH and SHAW, JJ., concur.


text:
    Shirley HERDER, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY and Nationwide Insurance Company, Appellee.
    No. QQ-438.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.
    J. J. Goodmark of Goodmark & Good-mark, West Palm Beach, for appellant.
    Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellee.
   MILLS, Chief Judge.

Shirley Herder appeals from an order of the Judge of Industrial Claims urging that the Judge misapprehended the issue before him. We agree and reverse.

The issue before the Judge was whether Herder should be allowed to continue under the care of an osteopathic physician or whether she should be required to seek further medical care, if any was necessary, from one of the orthopedic surgeons authorized by the employer/carrier. The order provided, in pertinent part:

“I find at this time that further treatment by chiropractor is not indicated and that the claimant is authorized to return to Dr. Shortz for treatment.”

Since there is nothing in the record to indicate that Herder ever requested or received the services of a chiropractor, it appears that the Judge either confused this case with another or misapprehended the issues. We, therefore, reverse and remand to the deputy commissioner for a determination of the issue before him and the entry of an order pursuant to that decision.

REVERSED and REMANDED.

McCORD and THOMPSON, JJ., concur.


author: McCORD, Judge.

text:
    SUEZ MOTEL and Old Republic Insurance Company, Appellants, v. Sheryl Lynn BROUWER, Appellee.
    No. RR-10.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.

      John F. McMath, Miami, for appellants.
    Thomas P. Bell of Clein & Bell, North Miami, for appellee.
   McCORD, Judge.

Appellants and appellee Brouwer appeal from a workers’ compensation order awarding certain benefits to Brouwer. We affirm in part and reverse in part.

In December 1977, appellee injured her back and leg in a work-related accident while employed as a waitress by appellant Suez Motel. Brouwer was a professional aquatic performer but was employed as a waitress during the “offtime” for employment in that field. At the time of the accident, she had worked for Suez Motel for only approximately 60 hours.

After the accident, the employer sent Brouwer to Dr. Grable for treatment. He released her in February 1978 to return to work with a zero percent disability. Throughout 1978 and in 1979, Brouwer secured several jobs, earning varying wages. During that time, she was sometimes employed as a waitress and sometimes worked as an announcer for aquatic shows, but did no aquatic performing. In March 1978, she suffered back pain when she sneezed and thereafter visited Dr. Struhl, her family doctor, who was not authorized. In July 1978, while working in New York, she stumbled when her leg did not clear a step and again injured her back. She consulted a Dr. Governale in New York at that time. Dr. Governale was not authorized. In her cross-appeal, Brouwer asserts that the JIC erred in refusing to award payment for the bills of the unauthorized doctors. However, § 440.13, Florida Statutes, sets forth the procedures for a claimant to follow to have a doctor authorized. Because Brouwer failed to follow those procedures in regard to Drs. Struhl and Governale, she is not entitled to payment for their bills. Therefore, we affirm on that point.

Appellants appeal the Judge of Industrial Claim’s finding that Brouwer’s average weekly wage at the time of the accident was $150, asserting that figure is too high. Brouwer cross-appeals on that point, asserting that the figure is too low. The evidence shows that Brouwer actually earned $136.90 for the 60 hours she worked at Suez Motel. According to her testimony, her work week consisted of approximately 48 hours. Therefore, the 60 hours for which she was paid encompassed more than one week’s work. Her actual average weekly wage, on the basis of the above figures, amounted to approximately $110 per week. Since Brouwer had not worked for Suez Motel for a substantial portion of the 13-week period prior to the accident, determination of her average weekly wage could not be made pursuant to § 440.14(1), Florida Statutes (1977). Therefore, the Judge of Industrial Claims heard testimony from allegedly “similar employees” pursuant to § 440.14(2), Florida Statutes (1977). One such similar employee was another waitress who testified that her average weekly wage was $96. Another waitress, Shelly Harris, a waitress and barmaid in the North Miami Beach area (where Brouwer worked) testified that she makes $150 in tips for a four-day week.

The Judge of Industrial Claims did not set forth the reasoning process by which he reached the figure $150 per week. Apparently, he relied on the testimony of Shelly Harris. However, Shelly Harris does not qualify as a similar employee. Her wages included earnings as a barmaid in addition to her earnings as a waitress. Also, she worked a four-day week, whereas Brouwer worked a six-day week. We find that there is no competent substantial evidence to support the Judge of Industrial Claims’ finding that Brouwer’s average weekly wage was $150. We, therefore, reverse on that point and remand for a redetermination of average weekly wage that is supported by the evidence.

Appellees further argue that the Judge of Industrial Claims erred in finding that Brouwer has a 5% anatomical impairment and a 20% permanent loss of wage-earning capacity, entitling her to a 25% permanent partial disability rating. We agree and reverse for several reasons. Upon reexamination of Brouwer in April 1979, Dr. Grable gave her a 3% disability rating based upon subjective complaints. Dr. Struhl, who also examined Brouwer in April 1979, gave her a 5% disability rating at that time. Although the Judge of Industrial Claims assigned a 5% impairment rating without explanation for his acceptance of the 5% rating over the 3% rating, the omission does not on this record require redetermination of that point. Buro v. Dino’s Southland Meats, 354 So.2d 874 (Fla. 1978).

Further, without findings of ultimate fact and without any explanation, the Judge of Industrial Claims found that Brouwer has suffered a 20% permanent wage-earning capacity loss. Absent findings which reveal his reasoning or the basis of the award, the order is facially inadequate and must be remanded on this issue. Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1976). Pierce v. Piper Aircraft Corp., 279 So.2d 281 (Fla.1973).

The Judge of Industrial Claims also erred in adding the 5% permanent partial impairment rating to the 20% wage-earning capacity loss to reach a 25% permanent partial disability rating. Section 440.-15(3)(u), Florida Statutes (1977), provides that compensation paid shall be a percentage of disability assessed “provided, however, that for the purpose of this paragraph ‘disability’ means either physical impairment or diminution of wage-earning capacity, whichever is greater.” (Emphasis supplied.)

The Judge of Industrial Claims awarded Brouwer temporary benefits from December 5, 1977, through February 12, 1978. He made no finding as to a maximum medical improvement date. He did not award any benefits for the period from February 12,1978 (the date on which claimant was released to return to work), until April 23, 1979 (the date on which two doctors assigned a permanent disability rating). The evidence supports a conclusion that April 23, 1979, was the maximum medical improvement date, and, therefore, the Judge of Industrial Claims’ award of permanent partial disability benefits from that date was proper. The evidence would also support a conclusion that Brouwer was not incapacitated from working after February 12, 1978. However, since the order is not explicit on the point, we remand for findings and determinations by the Judge of Industrial Claims as to whether Brouwer suffered any compensable loss of earnings during the period from February 12, 1978, until April 23, 1979, for which temporary benefits should be paid.

Affirmed in part and reversed in part and remanded for reconsideration in light of this opinion, on the existing record.

MILLS, C. J., and WENTWORTH, J., concur.


text:
    LIVE AND LET LIVE, INC., Petitioner, v. CARLSBERG MOBILE HOME PROPERTIES, LTD.-’73, and Carlsberg Resources Corporation, Respondents.
    No. SS-393.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.

      Herman S. Paul of Lewis, Paul, Isaac & Castillo, Jacksonville, for petitioner.
    C. Harris Dittmar and Charles P. Pillans, III, of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for respondents.
   PER CURIAM.

This is a petition for writ of common law certiorari to review an order of the trial court which, among other things, granted the motion of respondents, defendants below, to require withdrawal of Herman S. Paul and the firm of Lewis, Paul, Isaac and Castillo, P.A., as counsel for petitioner.

The suit below is an action for damages for breach of contract which was originally filed by petitioner against one of the present respondents, Carlsberg Mobile Homes Properties, Ltd.-’73, a California limited partnership. The cause was then removed to the U. S. District Court for the Middle District of Florida on motion of the respondent alleging diversity of citizenship between it and petitioner. There a second respondent, Carlsberg Resources Corporation, a California corporation, the general partner of respondent partnership, was added as an additional defendant. Before commencement of trial in the federal court, counsel for respondents moved to dismiss the action on the grounds of lack of jurisdiction contending that the limited partnership had limited partners who were residents of Florida which destroyed the diversity. The motion was denied. The case was then tried by jury, and a verdict was rendered in favor of petitioner in the sum of $834,020.04. Respondents subsequently renewed their motion to dismiss for lack of diversity jurisdiction, and the trial court granted same, setting aside the judgment and remanding the cause to the state court from which it had come. Thereafter, former counsel for respondents withdrew and were replaced by present counsel for respondents.

Petitioner contends that the trial court’s order requiring withdrawal of its attorney and substitution of new counsel is a departure from the essential requirements of law.

The Disciplinary Rules which are a part of the Code of Professional Responsibility promulgated by the Supreme Court of Florida, In Re Integration Rule of the Florida Bar, 235 So.2d 723 (Fla.1970), set the minimum standards of conduct for attorneys and, in this case, DR 5-101(B) and Dr 5-102(A) and (B) provide the standards for determining the correctness of the Circuit Court’s order. DR 5-101(B) provides:

A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, .

DR 5-102 provides:

(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, .
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

The ethical considerations underlying the canons and disciplinary rules deal specifically with the reason why an attorney cannot act both as attorney and witness. EC 5-9 provides as follows:

Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the case of another, while that of a witness is to state facts objectively.

Also pertinent is Ethical Consideration 5-10, which provides as follows:

In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he may serve as advocate even though he may be a witness. In making such decision, he should determine the personal or financial sacrifice of the client that may result from his refusal of employment or withdrawal therefrom, the materiality of his testimony, and the effectiveness of his representation in view of his personal involvement. In weighing these factors, it should be clear that refusal or withdrawal will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment. Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.

This lawsuit grew out of a failure of respondents to purchase a mobile home park from petitioner on a purchase-and-lease-back agreement. Petitioner contends respondents breached the contract, and respondents contend that petitioner did not comply with the conditions of the agreement and, thus, itself breached the contract. Mr. Paul, who represented petitioner in the transaction is a central figure in this lawsuit. In addition to being the attorney for petitioner, he was the escrow agent in the transaction. From the testimony in the previous trial and depositions which have been taken subsequent thereto of Mr. Paul and others in preparation for the new trial, it appears that conflicts will develop at the trial as to what Mr. Paul knew or was told in relation to the contingencies and the closing out of the transaction. Mr. Paul contends that he can adequately present his client’s side of the case by using witnesses other than himself. Attorneys for respondents, however, state that if Mr. Paul does not testify, they will call him as a witness, and his credibility will become an issue.

Mr. Paul calls attention to Ethical Consideration 5-10, quoted above, relating to the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue and that in such circumstance he may serve as an advocate even though he may also be a witness. While we regard Mr. Paul as a very competent and capable lawyer, it does not appear that this case is of such an exceptional nature that his client cannot find other competent counsel to represent him. Also we call particular attention to the final sentence of Ethical Consideration 5-10, which provides that “where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.” Compare Supreme Beef Processors v. Am. Consumer Industries, 441 F.Supp. 1064 (N.D.Tex.1977); and Miller Elec. Const., Inc. v. Devine Lighting Co., Inc., 421 F.Supp. 1020 (W.D.Pa.1976).

We find no departure from the essential requirements of law by the trial judge in his requiring that Mr. Paul withdraw as attorney for petitioner and new counsel be substituted.

Certiorari denied.

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