text:
    THE FLORIDA BAR, Complainant, v. William BURTON, Respondent.
    No. 58839.
    Supreme Court of Florida.
    July 10, 1980.
    Scott K. Tozian and Anita Dahlquist, Asst. Staff Counsels, The Florida Bar, Tallahassee, for complainant.
    No appearance, for respondent.
   PER CURIAM.

This disciplinary proceeding against William Burton is before us on complaint of The Florida Bar and report of the referee. No request for review has been filed.

The referee makes the following findings of fact:

1. In March of 1973, Mr. Charles Johnson was killed accidentally during the course of his employment in Dade County, Florida.
2. At that time, Mr. Johnson’s life was insured by a $20,000 insurance policy which had been issued by the CNA Insurance Company of Chicago (CNA).
3. The decedent’s mother, Mrs. Dorothy Milton, was the designated beneficiary of the life insurance proceeds.
4. In mid-1973 Mrs. Milton retained Respondent, Mr. William Burton, to assist her in her claim against CNA for payment of the insurance proceeds.
5. At all times material hereto, Respondent was a member of The Florida Bar and subject to the jurisdiction and disciplinary Rules of the Supreme Court of Florida.
6. During July, 1974, Respondent negotiated a settlement for Seventy-Five Hundred Dollars ($7,500.00) of Mrs. Milton’s claim for the $20,000 in life insurance proceeds.
7. Respondent’s settlement with CNA was conducted without the knowledge of or consent of Mrs. Milton, who had consented only to a settlement for the full face value of the policy.
8. Subsequently, Respondent, without Mrs. Milton’s knowledge or consent, forged Mrs. Milton’s signature on a general release purportedly executed in favor of CNA. In return, CNA issued a draft for Seventy-Five Hundred Dollars ($7,500.00) payable to Mrs. Milton and Respondent.
9. Respondent then endorsed Mrs. Milton’s signature on the insurance draft and negotiated the same, retaining the full amount of $7,500.00 for his own use and benefit.
10. The acts described in paragraphs 8 and 9 above of Respondent were conducted without Mrs. Milton’s knowledge or consent.
11. For approximately three years thereafter, Respondent continuously misrepresented the status of Mrs. Milton’s claim against CNA each time she contacted him, and did not inform her that he had settled her claim with CNA for Seventy-Five Hundred Dollars ($7,500.00).
12. In mid-1977, Mrs. Milton conducted her own inquiry and discovered that a lawsuit concerning her claim had never been filed, despite representations by Respondent that her case was pending in federal court.
13. Mrs. Milton testified that after she complained to The Florida Bar, Mr. Burton contacted her and attempted to persuade her to withdraw her complaint with The Bar. During those conversations, Mr. Burton admitted to Mrs. Milton that he had settled her claim against CNA and had appropriated the money for his own use and benefit. He promised to reimburse Mrs. Milton for the full face value of the insurance policy; however, Mrs. Milton stated she never heard from Respondent again.
14. Respondent has failed to remit any portion of the insurance proceeds to Mrs. Milton.
15. Respondent has failed to appear during any of the instant proceedings against him.
16. Respondent has been properly served with the complaint and subsequent papers filed in this cause pursuant to Rule 11.13(2), Article XI of the Integration Rule of The Florida Bar.
17. In addition, the record shows that representatives of The Florida Bar contacted relatives of Respondent in an attempt to apprise him of the instant proceedings and provide him an opportunity to be heard. Those attempts by said representatives are beyond the requirements of due process as set forth in Rule 11.-13(2), Article XI of the Integration Rule of The Florida Bar.
18. Respondent has not made even partial restitution to his client, Mrs. Milton.

The referee recommends that Burton be found guilty of violating Florida Bar Integration Rule, article XI, rule 11.02(3)(a) and Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(3) and (4), and 9-102(B)(l), (2), and (3).

We have reviewed the record and agree with the referee’s findings and recommendations of guilt. We also agree with the referee’s recommendation that Burton be disbarred from the practice of law in Florida. Not only does Burton’s present reprehensible misconduct warrant disbarment but also his past disciplinary record outlined in the referee’s report, cumulated with his present conduct, leave no doubt that disbarment is the only penalty that will serve the interest of the public and the Bar.

Accordingly, William Burton is hereby disbarred from the practice of law in this State, effective immediately. Costs are hereby assessed against Burton in the amount of $491.45.

It is so ordered.

ADKINS, Acting Chief Justice, and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.

      . Rule 11.02(3)(a), article XI, Florida Bar Integration Rule, provides:
      (3) Moral conduct.
      (a) Standards. The standards of the Bar are not limited to the observance of rules and avoidance of prohibitive acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act contrary to honesty, justice or good morals, whether the act is committed in the course of his relations as an attorney or otherwise, whether committed within or outside the State of Florida, and whether or not the act is a felony or misdemeanor, constitutes a cause for discipline.

      . Disciplinary Rule 1-102(A)(3) and (4), Florida Bar Code of Professional Responsibility, provides:
      (A) A lawyer shall not:

      (3) Engage in illegal conduct involving moral turpitude.
      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

      .Disciplinary Rule 9-102(B)(l), (2), and (3), Florida Bar Code of Professional Responsibility, provides:
      (B) A lawyer shall:
      (1) Promptly notify a client of the receipt of his funds, securities, or other properties.
      (2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      (3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.


source: Caselaw Access Project

author: McDonald, justice.

license: Public Domain

text:
    Betty Lou HABER, Appellant, v. STATE of Florida, Appellee.
    No. 58073.
    Supreme Court of Florida.
    Feb. 26, 1981.
    Rehearing Denied May 4, 1981.
    Barry A. Cohen, Tampa, for appellant.
    Jim Smith, Atty. Gen. and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for appel-lee.
   McDonald, justice.

Haber appeals a circuit court order denying her application for relief under rule 3.850, Florida Rules of Criminal Procedure. Her motion to vacate was based on her assertions that her judgment and sentence were void because section 782.04, Florida Statutes (1973), could not be constitutionally applied to her. Because the trial court initially and directly passed on the validity of that statute, we have jurisdiction.

A jury convicted Haber, along with James Brandt and Arnold McEver, of the first-degree murder of Haber’s husband, which occurred in January 1975. Haber arranged for Brandt and McEver to enter the Haber home through a sliding glass door she opened before leaving for the evening. Brandt and McEver entered the house and beat Mr. Haber to death. All three defendants received life sentences. The Second District Court of Appeal affirmed Haber’s conviction, stating there was ample evidence to find Haber to be a principal to premeditated first-degree murder.

Pursuant to the provisions of section 776.-011, Florida Statutes (1973), an accessory before the fact not present at the killing may be convicted of first-degree murder by premeditation. An accessory not present at the commission of the murder in a felony murder situation, however, is guilty only of second-degree murder. Adams v. State, 341 So.2d 765 (Fla.1976). Haber argues that this distinction violates the equal protection clause because it arbitrarily and capriciously distinguishes between different individuals who happen to be accessories before the fact.

To withstand an equal protection attack, a statute must treat all persons within a class the same, and the division into classes must bear some rational relationship to a legitimate state objective. Soverino v. State, 356 So.2d 269 (Fla.1978); Davis v. Florida Power Co., 64 Fla. 246, 60 So. 759 (1913). The criminal intent of an accessory to premeditated murder is to kill a human being; the intent of an accessory to one of the felony murder felonies is to commit that felony. The legislature has decided that these two distinct criminal intents should be punished differently. These classifications are rational. All persons within these classifications are treated alike. Section 782.04, therefore, does not violate equal protection.

Affirmed.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND and ALDERMAN, JJ., concur.

ADKINS, J., dissents.

      . Art. V, § 3(b)(1), Fla.Const. (1972).

      . McEver v. State, 352 So.2d 1213 (Fla.2d DCA 1977).

      .Currently § 777.011, Fla.Stat..


author: OVERTON, Justice. ENGLAND, Justice,

text:
    Malcolm E. BEARD, as Sheriff of Hills-borough County, Florida, John R. Gamon, and R. L. Rodriguez, Petitioners, v. Patsy T. HAMBRICK, as personal representative of Ronald Hambrick, deceased, for the benefit of Patsy T. Hambrick, Lori Ann Hambrick, a minor, Rhonda Jean Hambrick, a minor, Ronald Hambrick, Jr., a minor, Mark Elliott Hambrick, a minor, Wendy Lynn Hambrick, a minor, and the Estate of Ronald Hambrick, deceased, Respondent.
    No. 56071.
    Supreme Court of Florida.
    March 5, 1981.
    Rehearing Denied May 4, 1981.

      Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for petitioners.
    J. Thomas Wright of Herce & Martinez, Tampa, for respondent.
    Julius F. Parker, Jr. of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for Florida Sheriffs Ass’n, amicus curiae.
   OVERTON, Justice.

This is a petition for writ of certiorari to review a decision of the Second District Court of Appeal, reported at 366 So.2d 58 (1978), holding that a sheriff and his deputies are not included within the provisions of section 768.28, Florida Statutes (Supp. 1974), which waives sovereign immunity within certain limits for negligent acts of government officials and employees. The decision affects a class of constitutional officers, and we have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We disapprove the decision of the district court in its holding that section 768.28 does not include sheriffs and their deputies. However, we approve the district court’s reversal of the trial court since we find'that a cause of action may properly be brought against a sheriff for the action of his deputies under the provisions of section 768.28 or, in the alternative, under the provisions of section 30.07, Florida Statutes (1973). We further find that the four-year statute of limitations set forth in section 768.28 applies to wrongful death actions brought under that section. Finally, we note that section 768.28, Florida Statutes (1979), has been substantially amended by chapter 80-271, Laws of Florida, with the legislative intent that the new statute apply to existing actions such as this one. Because the 1980 law took effect after briefs and arguments herein,-we have limited this opinion to the statutes as they existed at the time of the incident, and all references to section 768.28 shall refer to Florida Statutes (S.upp.1974) unless otherwise indicated. We have left open upon remand the issues of the validity and applicability of the new statute upon this case.

The undisputed facts before the trial court reflect the following. The respondent, as personal representative of the estate of Ronald Hambrick, filed a complaint on May 20,1977, seeking damages from the sheriff, Malcolm Beard, and two of his deputies for alleged negligent omissions which caused Ronald Hambrick’s death on May 21, 1975. The action was brought under Florida’s wrongful death act and filed within the two-year statute of limitations period prescribed in section 95.11(4)(c), Florida Statutes (Supp.1974). However, there was no compliance with the advance notice requirement of section 768.28(6) prior to the filing of the action. One month after filing the lawsuit, the respondent attempted to comply with these notice provisions and gave notice to Sheriff Malcolm Beard and to the Commissioner of Insurance. Petitioners, as defendants, filed a motion to dismiss, alleging that because the respondent failed to comply with the notice provisions before filing the complaint, the statute of limitations of two years had run. The trial court, after stating the facts agreed to by the parties, entered an order of dismissal with prejudice. The district court reversed the trial court and found that: (1) the cause of action was not barred by the statute of limitations, and (2) section 768.28 applies only to certain governmental units and a sheriff’s office is not included within this statutory provision.

The petitioner-sheriff contends that section 768.28 is applicable to a sheriff and that.his liability for actions of his deputies set forth in section 30.07, Florida Statutes (1973), was eliminated by section 768.28, Florida Statutes (Supp.1974). He further argues that any recovery must be exclusively in accordance with the terms of section 768.28. Petitioner-sheriff also asserts that the two-year statute of limitations for wrongful death actions applies and that the action should be dismissed with prejudice because there was no compliance with the notice requirements of section 768.28(6) and that therefore no suit could properly be filed within the statutory limitations period.

The respondent-plaintiff argues that if section 768.28 is inapplicable to sheriffs, then this cause must proceed in accordance with the preexisting law concerning liability of sheriffs. The respondent asserts that if section 768.28 is applicable to sheriffs, then the four-year statute of limitations contained in section 768.28(12) is applicable and this cause may consequently proceed.

We do not fully agree with either party or the district court. It is our view that the clear intent and purpose of section 768.28 was to provide a broad waiver of sovereign immunity and resulting coverage of governmental officers and employees to the extent of the dollar limits set forth in the statute. District School Board v. Talmadge, 381 So.2d 698 (Fla.1980); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

In Talmadge we addressed the broad extent to which the state waived its sovereign immunity and .the conditions and limits upon its derivative liability for the torts of its officers, employees, or agents. We further set forth the alternative ways to bring an action under the statute.

Concerning the applicability of section 768.28 to sheriffs, we find that a sheriff is a “county official,” and, as such, is an integral part of the “county” as a “political subdivision” and that section 768.28 is applicable to sheriffs as a separate entity or agency of a political subdivision. In our opinion, a sheriff and his deputies were intended by the legislature to be covered under the provisions of section 768.28. The First District Court of Appeal assumed a sheriff to be such in Department of Health and Rehabilitative Services v. McDougall, 359 So.2d 528 (Fla. 1st DCA), cert, denied, 365 So.2d 711 (Fla.1978). The provisions of the Florida Constitution appear to clearly mandate this answer.

Article VIII, Florida Constitution, entitled Local Government, provides for counties in section 1. That section provides in part as follows:

SECTION 1. Counties.—
(a) POLITICAL SUBDIVISIONS. The state shall be divided by law into political subdivisions called counties. Counties may be created, abolished or changed by law, with provision for payment or apportionment of the public debt.
(d) COUNTY OFFICERS. There shall be elected by the electors of each county, for terms of four years, a sheriff, a tax collector, a property appraiser, a supervisor of elections, and a clerk of the circuit court; except, when provided by county charter or special law approved by vote of the electors of the county, any county officer may be chosen in another manner therein specified, or any county office may be abolished when all the duties of the office prescribed by general law are transferred to another office. When not otherwise provided by county charter or special law approved by vote of the electors, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds.
(e) COMMISSIONERS. Except when otherwise provided by county charter, the governing body of each county shall be a board of county commissioners composed of five members serving staggered terms of four years. After each decennial census the board of county commissioners shall divide the county into districts of contiguous territory as nearly equal in population as practicable. One commissioner residing in each district shall be elected by the electors of the county. [Emphasis supplied.]

In our opinion, there is no reasonable way to construe article VIII, section 1, other than to include sheriffs as well as other named county officers as part of a county and, as such, within the definition of a political subdivision as used in subsection (a) of the section. To hold otherwise creates an artificial governmental entity for sheriffs and other named county officials that was not intended by either the legislature or the framers of our constitution. The court below relied on Johnson v. Wilson, 336 So.2d 651, 652 (Fla. 1st DCA 1976), which found that a sheriff “is not a political subdivision of the state.” To the extent that this conflicts with our holding that a sheriff is an official of a political subdivision of the state, that portion of Johnson is disapproved.

As an official of a political subdivision, a sheriff is subject to the provisions of section 768.28 for the negligence or wrongful act of one of his deputies or employees under circumstances in which “a private person would be liable.” As this section was initially enacted, as construed by us in Tal-madge, it is not the exclusive remedy for damages for tortious conduct by a government employee or official but is a means to protect and indemnify the employee and provide government responsibility to a limited degree. Having determined section 768.28 applicable to sheriffs, we proceed to the question of what is the appropriate statute of limitations when an action for wrongful death is brought under this section.

The petitioning sheriff contends that, because this statutory provision is applicable only if a private person would be liable, the two-year statute of limitations for wrongful death actions applies rather than the four-year statute of limitations contained in section 768.28(12). We reject this contention. We believe that the legislature intended that there be one limitation period for all actions brought under section 768.28. We base this belief on the prerequisite notice provisions of this section and the need to have a uniform period for actions against governmental entities. See DuBose v. Auto-Owners Insurance Co., 387 So.2d 461 (Fla. 1st DCA 1980).

Another issue in this cause concerns the continued applicability of a sheriff’s liability under the provisions of section 30.-07, Florida Statutes (1973). We have found that section 768.28 applies to sheriffs, although with limited liability, but it is an alternative remedy and does not repeal section 30.07 by implication as asserted by the petitioning sheriff. Section 30.07 and the long-established case law setting forth the conduct for which a sheriff is derivatively responsible under the provisions of section 30.07 are not affected by section 768.28, Florida Statutes (1974). We note that this case law limits the type of deputy conduct for which a sheriff is responsible.

We reiterate that after the parties briefed and argued the issues in this cause, chapter 80-271, Laws of Florida, was enacted and became law effective June 30, 1980. It significantly amended section 768.28(9), Florida Statutes (1979), and section 4 of the act says that the act shall apply to all actions pending in the trial or appellate courts on the effective date of the act. The amendment to this statute appears to make several changes in the operative law, including making section 768.28 the exclusive remedy and excluding as named parties employees or officials absent certain allegations of bad faith, malice, or willful and wanton misconduct.

This opinion is expressly limited to the application of sections 30.07 and 768.28 as they existed at the time the instant cause of action arose. Our remanding of this cause for further proceedings in the trial court leaves open the issues of the validity and applicability of chapter 80-271 to this cause.

For the reasons expressed, we disapprove the opinion of the district court of appeal but agree with its reversal of the trial court’s order dismissing the complaint with prejudice. We remand this cause to the district court with directions for this cause to proceed in the trial court in accordance with the views expressed in this opinion.

It is so ordered.

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

ENGLAND, J., dissents with an opinion, with which SUNDBERG, C. J., concurs.

ENGLAND, Justice,

dissenting.

Respectfully, I cannot subscribe to the majority’s holding that section 768.28, as originally enacted, is applicable to sheriffs and subjects them to liability for the negligence or wrongful acts of their deputies. The conclusion that sheriffs, being county officials, are an integral part of the county and therefore constitute “political subdivisions” of the state under the statute is neat dialectic but horrendous law. It is clear that section 768.28 distinguished between governmental bodies, specifically denominated as “state agencies or subdivisions” and defined in subsection (2), and human beings, specifically named to include each “officer, employee, or agent of the state or its subdivisions” and treated in subsection (9). It is hard to understand why the legislature would have defined state agencies or subdivisions in subsection (2) and employ a different terminology in subsection (9), if agencies, political subdivisions, and people were to be intermixed and all treated as if imbued with sovereignty for purposes of the waiver statute. In short, the majority’s leap of linguistic logic, by which the distinctive use of discrete terminology is blurred, escapes me. '

The reasoning employed by the majority to equate sheriffs with counties is equally unpersuasive. That reasoning would lead one to conclude that a supreme court justice, being a “state officer,” is an integral part of the “state” so as to be, in effect, the state itself. One would need a crystal ball to foresee the full panoply of mischief which could result from such logic.

The obvious fallacy in the majority’s reasoning stems from a failure to focus on the indisputable fact that the sovereign immunity statute waived an immunity which would otherwise bar suit against governmental bodies. Subsection (1) of the act made this point abundantly clear. Since sheriffs had no immunity before the statute was enacted, the legislature obviously did not need, and therefore could not have intended, to waive that which did not exist.

With all due respect to the majority, I suggest that a faithful tracking of section 768.28 — as originally enacted and later interpreted in District School Board v. Tal-madge, 381 So.2d 698 (Fla.1980) — would have provided the plaintiff in this case with three possible courses of action:

(1) She could have invoked the provisions of section 768.28 to sue the county and the deputies jointly. The county, not the sheriff, is the “political subdivision” that would have been responsible for negligence or wrongful acts of the deputies under the statute.

(2) She could have invoked the provisions of section 768.28 to sue the county alone.

(3) She could have sued the sheriff and his deputies, without invoking section 768.-28, under traditional legal principles governing such actions. See, e.g., § 30.07, Fla.Stat. (1979).

As we noted in Talmadge, this range of litigation options was consistent with both the underlying purpose and discrete language of section 768.28.

Since I cannot ignore the language of the legislature in section 768.28, I respectfully dissent.

SUNDBERG, C. J., concurs.

      . Section 768.28, Florida Statutes (Supp.1974), provides in part:
      Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions.—
      (1) In accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.
      (2) As used in this act, “state agencies or subdivisions” include the executive departments, the legislature, the judicial branch, and the independent establishments of the state; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities.

      (6) An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted by counterclaim pursuant to s. 768.14.

      (12) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within 4 years after such claim accrues.

      . Section 30.07, Florida Statutes (1973), provides:
      Deputy sheriffs. — Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible. '

      . Malone v. Howell, 140 Fla. 693, 192 So. 224 (1939); Swenson v. Cahoon, 111 Fla. 788, 152 So. 203 (1934).

      . For a more extensive treatment of the operation of section 768.28 before its amendment in 1980, see District School Bd. v. Talmadge, 381 So.2d 698 (Fla.1980).


author: PER CURIAM.

text:
    Sonia JACOBS, a/k/a Sonia Linder, Appellant, v. STATE of Florida, Appellee.
    No. 50175.
    Supreme Court of Florida.
    March 26, 1981.

      Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen,, and Benedict P. Kuehne and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Jacobs was convicted of the first-degree murders of Phillip Black and Donald Irwin and the kidnapping of Leonard Levinson. The jury recommended life sentences, but the trial judge sentenced her to death for the murders and imposed a life sentence for the kidnapping. This Court has jurisdiction. Art. V, § 3(b)(1), Fla.Const. We affirm the convictions and the kidnapping sentence, but we reverse the death sentences.

Phillip Black, a Florida Highway Patrolman, was on routine patrol in the early morning hours of February 20, 1976. Riding with him was his friend, Donald Irwin, a Canadian constable on vacation. As Black drove his patrol car into a rest area along Interstate 95 he noticed a Camaro automobile in which Rhodes, Tafero, Jacobs, and her two children were sleeping. Rhodes occupied the driver’s seat, Tafero the right front seat, and Jacobs and the children the rear seat.

Trooper Black stopped his car alongside the Camaro and walked to the driver’s side to ask for identification. Upon approaching the car, he saw a gun at Rhodes’ feet. Taking the gun he returned to his patrol car to run a radio check on Rhodes and the weapon. Rhodes exited the car while Tafe-ro handed a second gun to Jacobs in the back seat. From the radio check Black learned that Rhodes was a convicted felon, and he returned to the Camaro to ask the identity of the car’s other occupants. Noticing a gun holster on the floor of the back seat, he ordered everyone out of the car.

Tafero was slow getting out of the car, so Black pulled him out. The two struggled, until Black, with Irwin’s help, subdued Tafero. While Irwin held Tafero against the patrol car, Black backed away and drew his gun. Rhodes walked to the front of the car and stood facing away from the vehicle with his hands in the air. Shortly thereafter Rhodes heard two or three shots; he turned and saw Jacobs, still in the car, with a gun in her hands. Tafero escaped from Irwin’s grasp, ran to the car, grabbed the gun, and shot Black and Irwin.

Tafero took the trooper’s gun and some shell casings; he and the rest of the group then fled in the patrol car. With Rhodes driving, they exited Interstate'95 and entered an apartment complex parking lot where they saw Leonard Levinson emerging from his Cadillac. Rhodes, gun in hand, demanded that Levinson surrender his keys. Tafero told Levinson that they had a sick child to take to a hospital. Jacobs echoed that statement by nodding agreement. Tafero grabbed Levinson, and all the parties entered the Cadillac. With Rhodes again driving the group sped off. They were finally captured when Rhodes lost control of the car while trying to evade a police roadblock.

Most of the foregoing facts were revealed by Rhodes’ testimony. Other evidence included inculpatory statements Jacobs made both upon and after her arrest. Although Tafero testified that Rhodes did all the shooting, there is sufficient evidence to support the conclusion that Jacobs fired the first shot or shots. From this evidence a jury could have found that Jacobs either shot Black or was an accessory to the shooting of Irwin and Black. There is sufficient evidence to support her convictions for first-degree murder.

There is likewise sufficient evidence to sustain her kidnapping conviction. One who participates with another in a common criminal scheme is guilty of all crimes committed in furtherance of that scheme regardless of whether he or she physically participates in that crime. Pope v. State, 84 Fla. 428, 94 So. 865 (1922); Davis v. State, 275 So.2d 575 (Fla. 1st DCA), cert, denied, 280 So.2d 684 (Fla.1973). The victim, Levinson, testified that he never heard Jacobs say or do anything which led him to think that she was responsible for his predicament. Jacobs, however, actively participated in the murders. She willingly fled with the others in the trooper’s car. She nodded agreement when Tafero told Levinson they needed the Cadillac to take a sick baby to the hospital. The evidence presented was sufficient evidence for a jury to conclude that Jacobs participated in a common scheme, the furtherance of which included the kidnapping.

Jacobs urges that discovery violations entitle her to a new trial. The basis for this contention was not discovered until her initial appeal was pending in this Court. See Jacobs v. State, 357 So.2d 169 (Fla. 1978). This Court directed the trial court to conduct an inquiry, which revealed these facts. Before the trial of either Jacobs or Tafero, Rhodes and the state began plea negotiations. As a prerequisite to any plea arrangement the state required that Rhode? submit to a polygraph examination to determine the truth of his story that he did none of the shooting. Rhodes agreed, and, following the examination, the prosecutor agreed to reduce the charges against him in return for his trial testimony. The state never told Jacobs’ attorney that Rhodes had taken a polygraph examination. Jacobs contends that Rhodes’ answers to the polygraph operator’s questions should have been disclosed by the prosecutor because those answers were inconsistent with Rhodes’ trial testimony. She claims this failure is a critical discovery violation and a violation of Brady v. Maryland.

Polygraph results themselves are not discoverable. Anderson v. State, 241 So.2d 390 (Fla.1970), vacated, 408 U.S. 938, 92 S.Ct. 2868, 34 L.Ed.2d 758 (1972). As for Rhodes’ answers, the trial judge ruled that they were not discoverable as “statements” as contemplated by Florida Rule of Criminal Procedure 3.220(a)(l)(ii). The polygraph examiner’s report containing Rhodes’ answers was written the day following the examination from notes taken during the interview. There was no effort to effect a “substantially verbatim” recording of Rhodes’ answers. The trial judge reviewed the statements reportedly made to the examiner and compared them with Rhodes’ trial testimony. He found that they were not inconsistent with the trial testimony when that testimony was viewed in its entirety. A review of the record confirms this. No favorable or inconsistent statements or facts were withheld, and due process does not require a new trial. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Jacobs next complains about the admission into evidence of several statements she made. Shortly after the crash at the roadblock, a trooper, thinking she was a hostage, led Jacobs away from the scene where the handcuffed Tafero and Rhodes lay on the ground. As she passed Tafero, Jacobs bent down and appeared to kiss him. After acknowledging that she was “with them,” Jacobs responded to a trooper’s question, “Do you like shooting troopers?” by saying, “We had to.” Jacobs’ response was spontaneous and voluntary and was not part of a custodial interrogation. Allowing this statement into evidence was not inconsistent with Miranda principles because volunteered statements are not barred by the fifth amendment. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At her arrest Jacobs was given Miranda warnings. Afterward she talked to several persons about the matter; portions of those comments were used at trial. The record supports the trial judge’s finding that Jacobs made those comments freely and voluntarily after full Miranda warnings and without any coercion. They were therefore admissible. Jackson v. State, 366 So.2d 752 (Fla.1978), cert, denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).

Jacobs requested forty peremptory challenges in the jury selection process based on the fact that she was charged with four felonies punishable by death or life imprisonment. The trial judge, following Florida Rule of Criminal Procedure 3.350, denied the request, ruling that the defendant had only ten challenges as a matter of right. Consistent with Johnson v. State, 222 So.2d 191 (Fla.1969), the judge exercised his discretion by allowing two additional challenges. No error or abuse of discretion is reflected here. Additionally, we find no error in the joinder of the four charges in one indictment, particularly because all four counts arose from one continuous sequence of events. See Fla.R.Crim.P. 3.150.

Jacobs urges that the trial court erred by denying her request to recall a state witness after the prosecution rested in order to lay a foundation for impeachment. The trial judge ruled that counsel could call the witness as a defense witness but could not recall her as a state witness. The reexamination of any witness is within the discretion of the trial judge. McCoggle v. State, 41 Fla. 525, 26 So. 734 (1899). See Royal v. State, 127 Fla. 320, 170 So. 450 (1936); Bryant v. State, 117 Fla. 672, 158 So. 167 (1934). The record fails to reveal an abuse of discretion on this point.

Jacobs further claims the trial judge erred by giving an isolated instruction to the jury. This took place after the jury had started deliberating and had returned to the courtroom to ask a question. The court noted that he had overlooked the instruction on principals and gave it to the jury at that time. Under the circumstances we find no error in the court’s instruction.

Jacobs also claims that she was not allowed to participate sufficiently in her defense. We find no substantive basis for that contention.

Although this Court is not favored with any help from either counsel on the issue of the imposition of the death penalty, we must review the propriety of the death sentence. No additional evidence was submitted at the sentencing phase. The jury recommended a life sentence for Jacobs, but the trial judge sentenced her to death. We must review that action in light of Tedder v. State, 322 So.2d 908 (Fla.1975), where this Court held that the facts allowing imposition of a death sentence over a jury’s recommendation of life imprisonment “should be so clear and convincing that virtually no reasonable person could differ.” Id. at 910.

The trial judge found three aggravating factors: the defendant knowingly created a great risk of death to many persons; the capital felonies were committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; and the capital felonies were committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of laws. Although the shooting occurred in a rest area close to a major highway, it was done with pistols at close range where few, not many, suffered a risk of injury. These facts fall short of the aggravating factor of risk to many persons. See Kampff v. State, 371 So.2d 1007 (Fla. 1979).

The trial judge held the mistaken belief that he could not consider nonstatutory mitigating circumstances. In Songer v. State, 365 So.2d 696 (Fla.1978), cert, denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), we ruled to the contrary. The jurors in this case may have considered the fact that Ms. Jacobs was the mother of two children for whom she cared. They could have found that her role was mostly passive and that she was under the influence of her lover, Tafero. They may have felt that her actions were what she perceived to be a necessary measure to protect her family. Additionally, Jacobs had no past history of violence. All in all, the evidence is not sufficient to override the jury’s recommendation of a life sentence.

The convictions are affirmed, but the sentences of death are reversed, and the cause is remanded to the trial court for resentenc-ing on those two convictions. The life sentence for kidnapping is affirmed.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

ADKINS and BOYD, JJ., concur with convictions and dissent as to sentences.

      . Jacobs’ co-indictees were Jessie Tafero and Walter Rhodes. Rhodes agreed to plead guilty to lesser charges and to testify against Tafero and Jacobs. Tafero, tried separately and before Jacobs, was found guilty of all counts and sentenced to death.

      . Tafero fathered the younger of Jacobs’ children.

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which holds that, upon the request of an accused, the prosecutor must disclose any evidence favorable to the accused.


text:
    THE FLORIDA BAR, Complainant, v. William B. NETZER, Respondent.
    No. 60232.
    Supreme Court of Florida.
    March 26, 1981.
    Cynthia Prettyman, Bar Counsel, Fort Lauderdale, and Stanley A. Spring, Staff Counsel, Tallahassee, for complainant.
    William B. Netzer, in pro. per., for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea To Consent Judgment and Entry of Final Order of Discipline to violations of The Florida Bar Code of Professional Responsibility Disciplinary Rules 1-102(AX5) and (6), and 7-101(A)(3). We approve the Petition, and we hereby reprimand Respondent, William B. Netzer, for these violations. The publication of this order in Southern Reporter shall serve ás Respondent’s public reprimand.

Costs in the amount of $423.80 are hereby taxed against the Respondent.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


text:
    IN the Matter of INTEREST ON TRUST ACCOUNTS. Petition of THE FLORIDA BAR FOUNDATION, INC.
    Nos. 51182, 60350 and 60351.
    Supreme Court of Florida.
    March 30, 1981.
    Russell Carlisle, President, Florida Bar Foundation, Fort Lauderdale, on behalf of the Florida Bar Foundation, Inc. and twenty-five active members of the Florida Bar.
    John F. Harkness, Jr., Executive Director, Tallahassee, Leonard H. Gilbert, President, Tampa, and John A. Boggs, Asst. Staff Counsel, Tallahassee, of The Florida Bar; and Bill Wagner, Chairman, Florida Bar Integration Rule and Bylaws Committee, Tampa, on behalf of the Board of Governors of The Florida Bar.
   PER CURIAM.

Pursuant to article XIII of the Integration Rule, the Florida Bar Foundation, Inc. and twenty-five active members of The Florida Bar have petitioned the Court for modifications of the Integration Rule with respect to interest on lawyers’ trust accounts. Simultaneously, the Board of Governors of The Florida Bar has petitioned the Court to suspend the operation of existing Integration Rule 11.02(4)(d) pending revisions thereto, and to add to Rule 11.02(4) an express authorization for the investment of individual clients’ funds on their behalf.

In 1978 we amended the Integration Rule to permit lawyers to earn interest on their trust accounts. In re Interest on Trust Accounts, 356 So.2d 799 (Fla.1978). The bar foundation now requests amendments designed to reflect changes in the banking laws, which permit interest bearing checking accounts in Florida, and to overcome income tax problems expressed by the Internal Revenue Service regarding the applicability to income producing trust accounts of the “assignment of income” doctrine. The bar does not take a position with respect to these amendments, but requests that we delete the existing rule because of the confusion it has created among Florida attorneys during the time it has remained inoperative. The bar’s position is well taken.

In order to obtain comments and views from affected and interested parties, petitioners request that we publish the proposed amendments, and that we set a time period to receive written views and comments.

The bar foundation’s amendments to our trust account opinion and to Integration Rule 11.02(4)(d), which have been represented to satisfy conditions of the Internal Revenue Service prerequisite to IRS’ approval of trust account plans in Florida, are appended to this order. The bar’s proposed amendment to Rule 11.02(4), creating a new subsection (f), is also appended.

We hereby publish these proposals for comment, and we direct interested persons to submit their views in writing not later than May 15, 1981. Petitioners shall have until May 25 to respond to any written submissions, following which we will hear oral arguments on the proposals at 9:30 a. m. on June 2, 1981.

In the meantime, the operation of Integration Rule 11.02(4)(d) in its present form is suspended until further order of the Court. That Rule shall not be used by attorneys in Florida either to create or to maintain trust savings accounts.

It is so ordered.

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

(a) A modification in the procedures outlined in the 1978 Opinion is requested.

In place of paragraph 6, on page 15 of the Opinion (356 So.2d at 807) the following language is requested:
6. Interest earned on trust accounts, as defined in paragraph 5 above, containing client balances that are nominal in amount or held for short periods of time shall be paid to the Florida Bar Foundation, Inc., for its charitable purposes. Maintenance of such trust account balances in non-interest-bearing trust accounts will not be permitted. Attorneys will remain free to exercise their discretion to arrange special investments not limited to savings accounts for advances not described in the preceding sentences for the funds of their clients when appropriate;

(b) A modification of section 11.02(4)(d) of the Integration Rule is proposed as follows:

(d) Trust Savings Accounts. A member of the Florida Bar who elects to create-or maintain a trust savings account shall comply--with- the following provisions, who in the course of the professional practice of law receives or disburses trust funds, shall create and maintain an interest-bearing demand trust account and shall deposit therein all client funds to the extent permitted bv applicable banking laws, that are nominal in amount or are on deposit for a short period of time. The attorney shall comply with the following provisions:

(i) A trust savings the interest bearing demand trust account may be established with any bank or savings and loan association authorized by federal or state law to do business in Florida and insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation.

(ii) Except as otherwise-required by law, funds in each trust savings account shall-be subjeet-to withdrawal,-or-to transfer to a trust-checking account--upon request and without delay. — Any depository institution permitted by law -to require advance notification-^!) or 60- days)- before- allowing-withdrawal of savings deposits is.nonetheless eligible — to act as a depository — for-trust savings accou-nts-under this rule if-it-meets the requirements of paragraph — (i)--above,provided the institution — has not acted-to delay-the withdrawal of — deposited funds (other-than for the clearance of deposited fund^ or-for-good-cause attributable -to-the circumstances of the particular depositar rather than-the-institution’s financial needs or general policy) at any time during the past five years, An otherwise qualified-institution which has not-been in existence for five full-years may serve as-a — trust savings-account-depository if it has met the requirements of this subsection throughout its existence.

(iii)An institution shall cease to be eligible for-the receipt of trust savings-funds-at such time as-it-fails to qualify under paragraphs ■(i)-or-(-ii-), — Any lawyer -or- -law-firm maintaining trust savings-aocount against which-immediate withdrawal rights-are-refused shall immediately notify- the-F-lorida Bar Foundation, Inc. of - the name-and-address of the depository institution-and-the date of-such-refusal,

(i-y) If, pursuant to governing-.law — or banking-regulations, a depository institution-requires-notice in — writing for an intended-withdrawal not less than 30-days before-such withdrawal is made, the lawyer or law- firm may-certify to The Florida Bar Foundation»--Inc- that-the-client’s funds detained as a result of the depository institution’s notification requirement-are-needed immediately-for-the client’s affairs.-

(A) Upon receiving such certification, the Foundation shall be authorized-to-advanee to-the-certifying lawyer or law firm» from the — interest—earned—on—trust—savings accounts» an amount of -money-mecessa-ry-to meet the client’s emergency-needs-subject; however, to limitations ex-pressed-in-subpar-agraph (C).

(B)-Simultaneously with certification»-the lawyer or law firm shall direct the-depository institution in writing-»--w-ith-a-copy to the Foundation»--that-upon the expiration of- the notification period detained-funds-equal-to the amount advanced-by — the Foundation shall-be-remitted directly-to the Founda-tionr

(C) The Board of Directors- of-the-Foundation may adopt-r-ules of procedure reasonably necessar-y — feo-implement the authority provided-in subparagraph (A) and to assure full reimbursement of sums advanced; — Periodically the Board may-set dollar-limitations on the amount of money which may be advanced to meet the emergency -needs of any client in the-event--a — notification requirement is -imposed-by- a depository in-stitu-tion-,-

(iil (v) The rate of interest payable on any interest-bearing demand trust savings account shall not be less than the rate paid by the depository institution to regular, nonattorney savings depositors. Higher rates offered by the institution to customers whose deposits exceed certain time or quantity minima, such as those offered in the form of certificates of deposit, may be obtained by a lawyer or law firm so long as there is no impairment of the right to withdraw or transfer principal immediately (except as accounts generally may be subject to statutory notification requirements), even though interest may be sacrificed thereby.

(Mi) (vi) Lawyers or law — firms-electing to deposit client funds in a trust savings account-shall-direct the- depository institutions. The depository institution shall be directed:

(A) to remit interest or dividends, as the case may be, on the average monthly balance in the account, at least quarterly, to the Florida Bar Foundation, Inc.;

(B) to transmit with each remittance to the Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent and the rate or interest applied; and

(C) to transmit to the depositing lawyer or law firm at the same time a report showing the amount paid to the Foundation, the rate of interest applied, the average account balance for each month of the period for which the report is made, and any remittances to the Foundation made during that period pursuant to subpara-graph (iv)(B).

(vi) lawyers and-law firms electing to deposit client funds in a trust savings account shall transmit to each-client- for whom trust funds are-now-held, and to each new client-for-whom funds are to be held a copy-of-the notice reproduced below. — The Florida Bar shall print and maintain a supply--of — this notice, and distribute-copies without charge to -these-who-ma-y-request them, — The.Bar’s-costs for printing and distribution shall be treated as a cost of administering the program, and shall be reimbursed-te-the-Bar-by- the -Foundation from interest earned on trust accounts.

“Important Notice -to-Clients

For-your -protection the Florida Supreme Court - requires that all funds of a client which are held by an attorney must be deposited in a trust account separate from the-attorney’-s-and-must be-kept-available for immediate withdrawal- — Because- most clients’ funds which come into-the-hands of attorneys are relatively-small-in-amoant-or are to be held -for relatively short periods of timet it is impracticai-for-attorneys to establish-^ separate account for each olient-or to invest each client’s funds to earn interest. For-this-reason-client-funds are held in a common-trast-checking account on which the-depository-bank pays no interest,

Under a new program approved by — the Florida-Supreme-Court-,-attor-neys-are-now permitted to deposit clients’ common-trust funds-in-sa-vings accounts, — Due to the expense-and- complexity which would attend any attempt to compute or-distribute-the interest attributable to each client’s funds, it-is-not -feasible to-pay -to-individual clients the -ear-nings-on-their proportionate share of common-trust-savings accounts, — Of course,no -attorney is permitted to receive the earnings on-a client’s funds, either. Rather, under-the Supreme Court’s new directive,the interest income from clients’ deposits will be used to fund programs designed to benefit the general public.

The-goals of-the court’s program are to improve the administration of justice in this state-and-to expand -the-deli very-of- legal services to the poor.

We have sent you-this-explanation, at the direction of the Florida Supreme Court, to advise-you that we are participating in. the court-’s-new program and that the funds-yoa have entrusted to us for-your affairs (other than attorney’s fees) will be deposited in an interest bearing-trast-savings account unless you-speoifically fflve-us-written-instruc-tions to the oontrary. — A directive-aot-to allow-suoh use of your funds will not produce income-for-you. Your funds will simply be placed in a noninterest bearing trust checking account until needed.”

(vii) In those instances where the amount of the client balance or the duration of deposit render it financially practicable, the attorney mav exercise discretion to arrange special investments, not limited to savings accounts, for deposit of client funds with anv interest obtained payable to the client.

(viii) In the event that anv client asserts a claim against an attorney based upon such attorney’s determination to place client advances in the interest bearing demand trust account because such balance is nominal in amount or held for a short period of time, the Foundation shall, upon written request bv such attorney, review such claim and either:

(A) Approve such claim and remit directly to the claimant anv sum of interest remitted to the Foundation on account of such funds: or

(B~) Reject such claim and advise the claimant in writing of the grounds therefor. In the event of anv subsequent litigation involving such a claim, the Foundation shall interplead anv such sum of interest and shall assume the defense of the action.

(c) The Board of Governors of The Florida Bar at its January 1981, meeting, voted to recommend to this court adoption of an amendment to Florida Bar Integration Rule, article XI, Rule 11.02(4). The proposed amendment to the Rule will require the addition of a new subsection, (f) as follows:

(f) With the consent of the client, the client’s funds mav be deposited in interest-bearing trust accounts provided the interest on funds so deposited shall be paid to the client. If the client is unavailable or unable for other reason to knowingly give such consent, then the attorney mav deposit such funds in an interest-bearing trust account if such deposit would be in the best interest of the client.

      . The rules were later modified to accommodate initial limitations imposed by the Internal Revenue Service, and to simplify the proposal in other respects. Matter of Interest on Trust Accounts, 372 So.2d 67 (Fla. 1979).


author: BERANEK, Judge. ANSTEAD, Judge,

text:
    Gail J. DANIELS, Appellant, v. Marian L. VANN, on behalf of Liberated Lady, Inc., and Marian L. Vann, individually, Appellee.
    No. 79-2555.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    David L. Gorman of Law Offices of David L. Gorman, North Palm Beach, for appellant.
    Melinda E. Penney of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellee.
   ON REHEARING

BERANEK, Judge.

This is an appeal from a final judgment in a stockholder’s derivative suit which also involved a counterclaim. The parties agree that the main suit below was a derivative action wherein one stockholder was suing “on behalf of” the corporation to enforce a corporate right. The defendant/appellant in the action was another stockholder in the corporation who defended and counterclaimed. No attempt was made to name the corporation as a party in the action by plaintiff. Plaintiff instead simply took the position in resisting motions to dismiss for failure to join an indispensable party that any money awarded in the lawsuit was recovered “on behalf of the corporation” and would be given to the corporation. The trial court denied the defendant’s repeated motions to dismiss for failure to join an indispensable party and after jury trial rendered final judgment in favor of the individual plaintiff and against defendant on the counterclaim. Although the corporation was never made a party to the action, the final judgment contains the words “on behalf of’ the corporation. The record indicates the. corporation was available and amenable to service of process. Indeed, plaintiff was the president of the corporation and could have accepted service of process on behalf of the corporation. Section 48.081(l)(a), Florida Statutes (1979).

The law on this subject is clear. In a stockholder’s derivative action, the corporation on whose behalf the action is brought is an indispensable party. The absence of the corporate defendant as at least a nominal party serves to divest the court of jurisdiction as to this aspect of the case. See Alario v. Miller, 354 So.2d 925 (Fla. 2d DCA 1978), and the authorities cited therein. This issue was repeatedly raised before the trial court. The final judgment on the corporate claim is reversed as is the later order assessing attorneys’ fees. The matter is remanded to the trial court for further proceedings. The counterclaim was between the individual parties over whom the court did have jurisdiction and the final judgment on this claim is affirmed.

REVERSED AND REMANDED.

RIVKIND, LEONARD, Associate Judge, concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I believe that any error that occurred by reason of the failure to formally join the corporation as a party was harmless. There were only two stockholders, the appellant and the appellee, and the action was brought on behalf of the corporation as well as individually. As pointed out in the majority opinion judgment was recovered on behalf of the corporation. In essence the corporation was a party to the lawsuit and recovered a judgment against the appellant. In answer to a specific interrogatory posed in the verdict the jury found that the appellant “breached her fiduciary duty to the Corporation, LIBERATED LADY, INC.,” and awarded damages to the appellee “on behalf of the Corporation.”

To require these parties to relitigate this cause now will result in a total waste and duplication of time and effort and possibly in contradictory results since the counterclaim of the appellant, which was decided adversely to appellant, really involved the same issues that were involved in the main suit.


author: PER CURIAM. JOANOS, Judge.

text:
    James R. HAWTHORNE, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. TT-75.
    District Court of Appeal of Florida, First District,
    Feb. 16, 1981.
    On Rehearing April 13, 1981.
    James R. Hawthorne, in pro per.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

BOOTH and JOANOS, JJ., and PEARSON, TILLMAN (Retired), Associate Judge, concur.

ON PETITION FOR REHEARING

JOANOS, Judge.

After having his petition for writ of ha-beas corpus denied in Circuit Court, appellant appealed to this court arguing that it was unconstitutional to apply the amended “gain time” statute (Section 944.27, Florida Statutes (1978)) to reduce the gain time he was credited with under the statute in effect on the date he was sentenced. We affirmed the Circuit Court’s reliance on Harris v. Wainwright, 376 So.2d 855 (Fla. 1979) in denying the petition. Since our affirmance, however, the United States Supreme Court in Weaver v. Graham, - U.S. -, 101 S.Ct. 960, 67 L.Ed.2d 16 (1981) determined that á retroactive application of § 944.27 (1978) is unconstitutional as an ex post facto law.

We note that in his petition for rehearing, appellant alleges that he is entitled to release under the proper calculation of his gain time. If this allegation is true (a fact which we cannot determine on appeal), ha-beas corpus is the appropriate remedy.

REVERSED and REMANDED for reconsideration in light of Weaver v. Graham, supra, and a determination whether appellant is entitled to release.

BOOTH, J., and PEARSON, TILLMAN (Retired), Associate Judge, concur.


author: ORFINGER, Judge.

text:
    Marjorie POWELL, etc., Appellant, v. INDEPENDENT CONSTRUCTION COMPANY, etc., Cooper, Cary and Associates, Inc., and Bennett & Pless, Inc., Appellees.
    No. 80-115.
    District Court of Appeal of Florida, Fifth District.
    March 11, 1981.
    Rehearing Denied April 15, 1981.
    Roy B. Dalton, Jr., of Dean, Ringers, Morgan & Lawton, Orlando, and Marcia K. Lippincott, Sanford, for appellant.
    Walton B. Hallowes, Jr., and Anne C. Conway of Wells, Gattis & Hallowes, P. A., Orlando, for appellee Bennett & Pless, Inc.
    Joseph E. Foster of Akerman, Senterfitt & Eidson, Orlando, for appellee Cooper, Cary and Associates, Inc.
    J. Lester Kaney of Cobb & Cole, Daytona Beach, for appellee Independent Const. Co.
   ORFINGER, Judge.

Appellant contends that the trial court erred in granting summary final judgment in favor of appellees Independent Construction Company, Cooper, Cary and Associates, Inc., and Bennett & Pless, Inc. We affirm.

The injury to appellant’s decedent which resulted in his death arose out of the collapse of the scaffold and wall described in the case of Van Ness v. Independent Construction Company, 392 So.2d 1017 (Fla. 5th DCA 1981). Like Van Ness, Powell was also an employee of the James Wilson Company.

As discussed in Van Ness, Sears, Roebuck & Company (Sears) contracted with Independent Construction Co. (Independent) to build a Sears store in Daytona Beach. The building was a duplicate of one previously designed for Sears and built elsewhere, and the basic drawings and specifications were also used for this one. The contract between Sears and Independent was for a fixed contract price and required Independent, as general contractor, to provide all materials and perform all the design and construction work shown on the plans, and further required Independent to retain an architect to make any necessary design or construction changes so as to meet local building codes. Independent retained ap-pellee Cooper, Cary and Associates, Inc. to do the necessary architectural work, and Cooper, Cary sub-let the engineering and structural work to appellee Bennett & Pless, Inc. Independent also sub-contracted with decedent’s employer, James Wilson Co. for a portion of the work.

The trial court granted summary judgment to each of the appellees on the theory that section 440.11, Florida Statutes (1973), provided the exclusive remedy here, and that each of the appellees was entitled to immunity from tort liability by virtue of the statute.

To determine the correctness of the trial court’s conclusions, we must first examine the relationship of the parties to the construction project. The factual background here is the same as described in Van Ness. For the reasons set forth there, we again hold that Sears, as owner, contracted with Independent, as contractor, to construct the building. Since Independent had the primary contractual obligation with Sears to construct the building, and since it sub-let portions of the work to the other appellees here, Independent was a contractor within the meaning of section 440.10, Florida Statutes (1973), and thus the statutory employer of the employees of its sub-contractors as well as its own. Favre v. Capeletti Brothers, Inc., 381 So.2d 1356 (Fla.1980); Jones v. Florida Power Corp., 72 So.2d 285 (Fla. 1954); Miami Roofing and Sheet Metal Co., Inc., v. Kindt, 48 So.2d 840 (Fla.1950). Thus, employees of the James Wilson Company (including appellant’s decedent), as well as the employees of the appellees here are deemed to be employed in one and the same business, and the contractor, Independent, was liable to secure compensation to all such employees, except to employees of a sub-contractor who had secured such payment.

Section 440.11(1), Florida Statutes (1973), provides that the liability of section 440.10 is the exclusive liability of the employer unless he fails to secure the required compensation, and it clearly appears from the record here that the sub-contractor for whom decedent worked had secured compensation, the benefits of which were being paid to appellant.

The judgments appealed from are affirmed.

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., and CLARK, HAROLD R., Associate Judge, concur.

      . § 440.10(1), Fla.Stat. (1973):
      Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payment to his employees of the compensation payable under §§ 440.13, 440.15 and 440.16. In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.


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

text:
    DWL, INC., a Florida Corporation, David W. Leadbetter and Nancy Leadbetter, his wife, Appellants, v. Walter E. FOSTER, Jr., Appellee.
    No. 80-290.
    District Court of Appeal of Florida, Fifth District.
    March 11, 1981.
    Rehearing Denied April 15, 1981.

      R. Michael Kennedy of Kennedy & Hoge-boom, South Daytona, for appellants.
    B. Paul Katz of Black, Crotty, Sims & Hubka, Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants appeal from a summary final judgment holding appellee, an attorney, free of liability for professional malpractice.

Appellee was retained by the Leadbetters to represent them in the purchase of a motel. Foster examined the title and represented appellants at the closing on March 4, 1977. A corporation, D.W.L., Inc., was formed to take title to the motel property and the Leadbetters were sole stockholders.

The motel was encumbered by several mortgages and the closing statement prepared by Foster referred to and included the assumption of six mortgages. Although Foster charged for a title examination, he did not render a written title opinion or otherwise evidence the results of that examination.

Among the mortgages on the closing statement was the “Vutskos” mortgage from Nick and Tula Vutskos to James and Sarah White. Its final paragraph provided:

This mortgage is also made on the express condition that if a certain mortgage recorded in Official Records Book 1444, Page 487, of the Public Records of Volu-sia County, Florida, which has been assigned to the mortgagees herein goes into default then whatever accrued interest and outstanding principal may, at the option of the holder, be added to this Mortgage and Note. The payment of that amount shall be made equally over the time remaining under the same terms and conditions of this Mortgage and Note at the same interest rate.

The Whites contended that the mortgage (the “White” mortgage referred to in the Vutskos’ mortgage quoted above) was in default and demanded payment. The Vuts-kos contended that it was not a valid debt and asserted they would not pay it. A meeting was held in an attempt to resolve the problem. The depositions used in support of the summary judgment do not reflect a clear understanding of what was proposed. Foster claims that the Yutskos agreed if the Leadbetters would pay the $9,000 due to the Whites, the Vutskos would waive a $15,000 payment due in June. The Leadbetters claim they would be relieved of paying the $15,000 in June in exchange for the $9,000 but would ultimately have to pay it, thereby increasing the purchase price $9,000. Therefore, they elected not to make any further monthly payments and did not make the balloon payment due in June.

In August, 1977, the Yutskos foreclosed their mortgage. Appellants sued Foster for malpractice in failing to disclose the “White” mortgage liability. Appellee moved for summary judgment contending that, as a matter of law, the loss of appellant’s motel because of their failure to pay the Vutskos’ mortgage constituted an intervening cause, precluding any proximate causation between Foster’s omission and appellant’s damages.

The sole point on appeal is whether appellant’s election not to pay the Vutskos’ mortgage constituted an intervening cause to support entry of summary judgment.

A person who has been negligent is not liable for damages suffered by another where some separate force or action is the active and efficient intervening cause, the sole proximate cause or an independent cause. Gibson v. Avis Rent-A-Car Systems, Inc., 386 So.2d 520 (Fla.1980). However, one who is negligent is not absolved of liability where his conduct sets into motion a chain of events resulting in injury to the plaintiff. Gibson at 522. When an intervening cause is foreseeable by the wrongdoer, his negligence may be considered the proximate cause of the injury notwithstanding the intervening cause. Id.

The appellants paid nothing on the White mortgage. Other than the demand for payment by the Whites, which the Vuts-kos claimed was not legitimate, appellants suffered no inconvenience because of the mortgage. No suit was filed and their possession of the property was not disturbed.

The loss of the property was directly attributable to their refusal to make further payments. Other avenues to resolve their problem were available to them. Their election to do nothing was the intervening cause of their loss rather than the omission of appellee.

The judgment appealed is therefore affirmed.

ORFINGER, J., and CLARK, HAROLD R., Associate Judge, concur.

      . This mortgage was additional security on another debt between the Vutskos and the Whites.

      . Appellants made no tender of payment conditioned upon removal of the lien, and made no attempt to defend the Vutskos’ foreclosure claiming a set-off against the amount due the Whites.


author: DAUKSCH, Chief Judge.

text:
    DENMAN RUBBER MANUFACTURING COMPANY, and Admiral Insurance Company, Appellants, v. WORLD TIRE CORPORATION, Appellee.
    No. 80-686.
    District Court of Appeal of Florida, Fifth District.
    March 11, 1981.
    Rehearing Denied April 7, 1981.

      Frank Marriott, Jr., of Cameron, Marriott, Walsh & Hodges, P. A., Daytona Beach, for appellants.
    Sutton G. Hilyard, Jr., of Pitts, Eubank & Ross, P. A., Orlando, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal of a final judgment which adjudged World Tire Corporation to be entitled to indemnity. This adjudication was based upon the trial court’s finding that an exclusion clause of insurance policy was ambiguous. We hold that there was no ambiguity in this exclusion clause and reverse.

The parties stipulated that: Denman Rubber Manufacturing Company sold tires to World Tire Company which World Tire in turn sold to retailers. While an employee of one of these retailers was mounting one of these tires, it exploded causing injuries to this employee. This employee then instituted suit against World Tire and Den-man, and Denman admitted it had an insurance policy in effect at the time of this accident.

Denman’s insurance policy contained an endorsement stating that the “Persons Insured” by the policy included all vendors of Denman’s products. Since World Tire was the vendor of Denman’s tire which had exploded, World Tire cross-claimed for indemnity under this insurance policy. Denman and its insurer denied that this policy provided indemnity because of an exclusion clause, which read:

The insurance with respect to the vendor does not apply to ... bodily injury or property damage arising out of ... demonstration, installation, servicing or repair operations, except such operations performed at the vendor’s premises in connection with the sale of the products

The trial court found that the exclusion failed to explicitly specify or differentiate between the vendor and other persons doing operations away from the vendor’s premises, thus causing the exclusion to be ambiguous. The trial court construed the exclusion to mean that only when the vendor itself performed the “demonstration, installation, servicing or repair operations” away from its premises would the exclusion apply to deny indemnity coverage. This interpretation meant that when the vendor performed the installation operations away from its premises it would not be covered, yet a third party performing these installation operations away from the vendor’s premises would be covered.

This is not a reasonable interpretation of this exclusion. An insurance policy should receive a reasonable, practical and sensible interpretation. U. S. Fidelity & Guarantee Co. v. Hazen, 346 So.2d 632 (Fla. 2d DCA 1977). See also Excelsior Ins. Co v. Pomona Park Bar & Package Store, 369 So.2d 938 (Fla.1979). Although ambiguities should be construed against an insurer, this only applies when there exists “a genuine inconsistency, uncertainty, or ambiguity in meaning after resort to the ordinary rules of construction . .. . ” Id. at 942. See also Parliament Ins. Co. v. Bryant, 380 So.2d 1088 (Fla. 3d DCA 1980). If terms of an insurance policy can be susceptible to two interpretations, then an interpretation providing indemnity must prevail. Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392 (Fla. 1st DCA 1979). However, the court should consider the entire contract rather than just an isolated sentence when resolving a question of coverage. James v. Gulf Life Ins. Co., 66 So.2d 62 (Fla.1953); Ellenwood.

The endorsement in Denman’s policy provided insurance coverage to a vendor by bringing it within the class of “Persons Insured.” Excluded from coverage were injuries arising from the demonstration, installation, servicing or repair operations performed somewhere other than the vendor’s own premises. This exception is clear; for situations where the vendor’s premises are not used for the installation or servicing operations, the exclusion denies coverage. Since the employee in the instant case was not injured on the vendor’s premises, there is no liability under Denman’s insurance policy.

The final judgment is reversed and the issue is remanded to the trial court.

REVERSED AND REMANDED.

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


author: COWART, Judge.

text:
    In the Interest of D. S. K., a Child, and R. R. K., a Child, Appellants, v. STATE of Florida, Appellee.
    Nos. 80-1159, 80-1160.
    District Court of Appeal of Florida, Fifth District.
    March 11, 1981.
    Rehearing Denied April 9, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ON MOTION TO DISMISS

COWART, Judge.

The juvenile appellants were adjudicated delinquent and committed to the custody of the Department of Health and Rehabilitative Services by orders rendered July 28, 1980. Included in each of these orders was a requirement that the appellants pay restitution as a condition of aftercare. The amount of restitution was set by a series of orders rendered on September 2,1980. The appellants filed their notice of appeal on September 26, 1980.

Section 39.14(1), Florida Statutes (1979), provides that appeals in delinquency cases are to be taken “within the time and in the manner prescribed by the Florida Appellate Rules.” However, neither the statute nor the rules specify whether these appeals are to be considered as civil or criminal appeals, the procedures for which differ in several respects. The Fourth District solved this problem under the 1962 rules by holding that a juvenile appeal would be considered a criminal appeal in determining the requirements for the preparation of the record on appeal. In re D. J., 330 So.2d 34 (Fla. 4th DCA 1975). We believe that the nature of juvenile delinquency proceedings requires a similar treatment under the present version of the appellate rules.

The orders adjudicating delinquency and committing appellants into custody are analogous to judgments of conviction and sentences, and therefore an appeal from these orders should have been taken within thirty days from their rendition. Since the appellants’ appeals were not taken within this period, they may not challenge these orders, including the provision that they were required to make restitution in an undetermined amount.

The notice of appeal was sufficient to bring only the order setting the amount of restitution to this court for review. The appellants’ arguments in their brief, however, are exclusively directed to the court’s power to impose restitution in any amount. Since the issues argued cannot be raised on this appeal, the State’s motion to dismiss is granted and this appeal is

DISMISSED.

ORFINGER and COBB, JJ., concur.


author: BOARDMAN, Judge.

text:
    Sharon SAVAGE, Appellant, v. JACOBSEN MANUFACTURING COMPANY, Appellee.
    No. 80-199.
    District Court of Appeal of Florida, Second District.
    March 13, 1981.
    Rehearing Denied April 9, 1981.

      Richard A. Bokor, Tampa, .for appellant.
    Larry I. Gramovot of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellee.
   BOARDMAN, Judge.

Sharon Savage, plaintiff in the trial court, appeals a final summary judgment rendered in favor of defendant Jacobsen Manufacturing Company in her suit for damages sustained when she slipped and fell while dismounting from a mowing tractor manufactured by appellee. The theory of appellant’s case is strict liability in tort. We affirm.

The facts are not disputed and, briefly stated, are: On April 26, 1975, appellant, while working for U.S. Homes of Florida, Inc. (U.S. Homes) as an operator of mowing equipment at the Gulf Gate Golf Club in Sarasota, slipped and fell as she was dismounting from a lawn-mowing tractor. The tractor had been manufactured on December 23, 1971. Appellant alleged that she fell from the platform beneath the driver’s seat because there was no nonskid surface on the platform.

At the time of the tractor’s manufacture the platform had a grey, nonskid, painted surface, and that surface was intact when it was delivered to U.S. Homes. Gene Lan-fair, appellant’s immediate supervisor at the time of the accident, testified on deposition that there was a “gritty” painted surface on the platform when the tractor was delivered, and the platform was not at all slippery. Lanfair recognized that the painted surface would probably wear off.

Appellant’s husband, James Savage, had been employed as a mechanic at Gulf Gate for five to six months prior to the accident and was in charge of mechanical maintenance of the tractor in question. Mr. Savage had driven the tractor on at least two occasions, the last time approximately one week prior to his wife’s accident. When driving the tractor, he had noted that the platform was slippery from morning dew and hydraulic fluid which had leaked from a reservoir behind the seat; this was “quite common” on such lawn mowers. Several weeks prior to his wife’s accident Savage had asked Lanfair to purchase some nonskid paint to recoat several pieces of equipment, including the tractor involved here, but Lanfair had not done so.

In West v. Caterpillar Tractor Co., Inc., 336 So.2d 80, 86-87 (Fla.1976), the Florida Supreme Court stated:

[Sjtrict liability should be imposed only when a product the manufacturer places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. The user should be protected from unreasonably dangerous products or from a product fraught with unexpected dangers. In order to hold a manufacturer liable on the theory of strict liability in tort, the user must establish the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of the proximate causal connection between such condition and the user’s injuries or damages.

The Restatement (Second) of Torts, § 402A, Comment “i,” suggests the following definition of “unreasonably dangerous”: “The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”

The issue before us here is whether, under West, there is a genuine issue of material fact, Holl v. Talcott, 191 So.2d 40 (Fla. 1966), as to whether the absence of a nonskid surface on the tractor at the time of appellant’s injury constituted a defect. We hold that the trial court properly concluded that there was no showing of a defect. The record before us discloses no evidence that the nonskid painted surface in any way constituted a deviation from the norm, failed to meet the standard of the industry, or constituted a latent, functional defect. In fact, the evidence showed that the purchaser of the tractor was aware at the time of the purchase of the fact that the painted surface would eventually wear off and was aware prior to appellant’s accident that the nonskid surface had, in fact, worn off. Thus the platform did not constitute an “unexpected danger” as to such purchaser. In short, there was no showing of a “defect” which would give rise to the application of § 402A. The nonskid surface merely wore off.

Although we have not found any Florida cases dealing specifically with a manufacturer’s duty to produce products with component parts or surfaces that do not wear out with normal use, that issue has been decided several times by the courts of Louisiana. In the area of strict products liability Louisiana has adopted the substantial equivalent of § 402A. West, supra, 336 So.2d at 87 n. 1.

In Foster v. Marshall, 341 So.2d 1354 (La.App.), cert. refused, 343 So.2d 1067, cert. denied, 343 So.2d 1077 (La.1977), a bolting assembly on the left front axle of a trailer separated, causing the trailer to veer into an oncoming lane of travel and collide with the plaintiff’s automobile. The evidence showed that the bolting assembly on the trailer failed primarily because a cotter pin had worn out over time. In affirming the portion of the trial court’s decision in favor of the manufacturer, the court of appeal held that the wearing out of a cotter pin did not constitute a “defect,” stating:

A manufacturer cannot be expected to design products with component parts which will never wear out, regardless of the nature of use or maintenance. A manufacturer is entitled to anticipate that a consumer purchasing its product will use reasonable care in maintaining it. The product in this case was a relatively simple piece of agricultural equipment for use by farmers or harvesters who generally have some degree of experience in the maintenance of agricultural equipment. All persons who dealt with this particular wagon testified they knew that cotter keys will wear out and need to be replaced periodically....
A product is defective when the risks are greater than a reasonable buyer would expect. Welch v. Outboard Marine Corp., 481 F.2d 252 (5th Cir. 1973). A reasonable buyer of a piece of agricultural equipment such as a cotton wagon should expect the product to contain consumable parts which require inspection and maintenance.

Id. at 1361. Accord, Tri-State Insurance Co. v. Fidelity & Casualty Insurance Co., 364 So.2d 657 (La.App.), cert. denied, 365 So.2d 248 (La.1978); Insurance Company of North America v. Atlas Construction Co., Inc., 368 So.2d 1247 (La.App.1979).

We are in accord with the reasoning set out in Foster. For us to hold otherwise would be tantamount to saying that a manufacturer is an insurer of his product. Under the undisputed facts of this case we have no difficulty in reaching the conclusion that appellant is not entitled to the relief she seeks.

Accordingly, the trial court’s order of final summary judgment is affirmed.

SCHEB, C. J., and DANAHY, J., concur.