text:
    Roger NOVO, Petitioner, v. The Honorable Thomas E. SCOTT, Judge, Circuit Court, Eleventh Judicial Circuit, Respondent.
    No. 83-1948.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1983.
    Black & Furci and Frank Furci, Miami, for petitioner.
    Jim Smith, Atty. Gen. and Carolyn Snur-kowski, Asst. Atty. Gen., Janet Reno, State Atty., and Ira N. Loewy, Asst. State Atty., for respondent.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

The petitioner was subpoenaed to testify in a criminal investigation and invoked his fifth amendment privilege against self-incrimination. In response, the assistant state attorney advised Mr. Novo that he would extend immunity pursuant to section 914.04, Florida Statutes (Supp.1982). Despite this offer, the petitioner refused to answer on the ground that the Florida Immunity Statute is unconstitutional for its failure to provide derivative-use immunity. From the trial court order holding the statute constitutional and ordering Mr. Novo to answer, he filed the instant petition for writ of certiorari. We have jurisdiction, Fla.R.App.P. 9.100(a), and deny the writ.

The relevant inquiry is whether the grant of immunity is sufficiently broad to supplant the defendant’s privilege against self-incrimination. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Compton v. Societe Eurosuisse, S.A., 494 F.Supp. 836 (S.D.Fla.1980). The trial judge carefully considered this issue and, in his well-reasoned order, found as follows:

First; the very language of the statute contains an extension of both use and derivative use immunity to a witness. The key phrase is, “... upon any investigation or proceeding.” Clearly, this wording embraces the use of testimony in a proceeding (use immunity) and its fruits in any investigation (derivative use).
Novo places great reliance upon Compton v. Societe Eurosuisse, S.A. supra. In that case, a federal judge declared unconstitutional Florida Statute 56.29(8), because it merely used the language “in any criminal proceeding”. The judge reasoned that such language fails to place restrictions on the use of the fruits of such testimony. Without contesting the basic soundness of this determination, it is readily apparent that the present case is distinguishable. Here, unlike Compton, 914.04 contains the additional language “any investigation”. By adding investigation, the legislature intended to include derivative use immunity. This legislative intent is confirmed by the analysis below.
Second; 914.04 must be considered in light of basic rules of statutory construction. A statute should be construed in such a manner as to effectuate legislative intent, and all doubts should be resolved in favor of its constitutionality. Myers v. Hawkins, 362 So.2d 926 (Fla.1978); State v. McDonald, 357 So.2d 405 (Fla.1978); and Dept. of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976). In the present case, the legislative intent was to eliminate the statutorily created transactional immunity; cf., State v. Harris, 425 So.2d 118 (Fla. 3rd DCA 1983), but to keep intact use immunity as well as derivative use immunity as required by Kastigar.
The purpose of the Florida legislature was to eliminate the broad and unnecessary (in the legislature’s viewpoint) protection afforded by transactional immunity, but, at the same time, afford minimum constitutional guarantees bestowed under the Constitution. “Transactional immunity ... affords the witness considerably broader protection than does the Fifth Amendment privilege.” Kastigar v. United States, 406 U.S. 441, 453 [92 S.Ct. 1653, 1661, 32 L.Ed.2d 212] (1972). This type of immunity “not only immunize(s) the witness for any use of his testimony or the fruits thereof in a subsequent trial but it ... also provide(s) absolute immunity against future prosecution for the offense to which the question relates.” Note, Immunity From Prosecution: Transactional Versus Testimonial Or Use, 17 S.D.L.Rev. 166, 173 (1972). See, also, Counselman v. Hitchcock, 142 U.S. 547, 585-586 [12 S.Ct. 195, 206-07, 35 L.Ed. 1110] (1892); State ex rel. Hough v. Popper, 287 So.2d 282, 284 (Fla.1973); and State v. Harris, supra, at 119-120.
Both the Bill Analysis emanating from the Senate and House clearly indicate such intent. As an illustration, the Senate Staff Analysis states: “Florida’s immunity statute is broader than required under the Fifth Amendment of the Federal Constitution, which requires only use and derivative use immunity. The elimination of the provisions for transactional immunity would leave unaffected the Fifth Amendment safeguards required by the United States Supreme Court and the Federal Constitution.” It is beyond peradventure for Novo to seriously contend that the legislature was unaware of Kast-igar and its requirements.
While this Court is not unsympathetic to the plight of a witness in light of the elimination of the broad protection previously afforded by transactional immunity, I am equally cognizant of the “hard judgment on close questions” that the prosecutor must make in deciding to extend immunity. Tsvaris [Tsavaris] v. Scruggs, 360 So.2d 745, at 749 (Fla.1978). Immunity, at the very best, is a compromise or exchange between the prosecutor’s need to “... loosen lips the Constitution would otherwise permit to remain sealed”; Tsvaris [Tsavaris] v. Scruggs, supra, at 749; and the witness’s right to have the government refrain from the use of matters disclosed therein. Cf., Headley v. Baron, 228 So.2d 281, at 283 (Fla.1969). (Immunity is a “legislative recognition of the extreme difficulty of proving certain types of crimes.”) In the present case, the legislature concluded that the balance would be better struck by the elimination of transactional immunity. If given the opportunity to vote, I might have cast differently than the legislature, but such policy decisions are not my role. The function of this Court is to ascertain the legislative intent, and apply it where constitutionally feasible. State ex rel. Taylor v. Tallahassee [130 Fla.418], 177 So. 719 (Fla.1937).
Third; Florida decisions have interpreted the very language in question to contain both use and derivative use immunity. While not using the actual words, derivative use immunity is implied from the tenor of these decisions and the adoption of the “independent source of proof” test or “link in the chain of evidence” standard by the Florida Supreme Court. State ex rel. Hough v. Popper, 287 So.2d 282 (Fla.1973); State v. Newell, 102 So.2d 613 (Fla.1958); and, State v. Kelly, 71 So.2d 887 (Fla.1954).
It is the function of the use immunity in such a situation to provide the immunity necessary to safeguard the constitutional privilege against self-incrimination as to separate facts of an independent criminal transaction. The testimony given as to such incidental facts may not be used against the witness, but he may be prosecuted for this independent criminal transaction if it can be proved without the use of the compelled testimony. This is where the State’s contended “independent source” of proof comes in. Such proof, however, must be of the separate, independent transaction. State ex rel. Hough v. Popper, supra, at 284.

Even a cursory reading of Kastigar reveals that the very heart of the derivative use immunity requirement is the independent source test. “Use immunity” and “derivative use immunity” do not prevent subsequent prosecution based on evidence obtained from legitimate independent sources. Kastigar v. United States, 406 U.S. 453, 460-461 [92 S.Ct. at 1664-65]. However, the burden is on the government “to prove that the evidence it proposes to use is derived from” such an independent source. Ibid at 460 [92 S.Ct. at 1665],

Therefore, by applying the independent source test to the Use immunity statute, Florida has met the requirements of Kastigar; and concomitantly use and derivative use immunity are available to a witness. Cf., also State v. Harris, 425 So.2d 118 (Fla. 3rd DCA 1983) (“As a federal constitutional matter, it is only necessary that a witness be given use immunity in order to compel his testimony”); State v. Toogood, 349 So.2d 1203; 1204 (Fla. 2nd DCA 1977) (“use immunity ... insulating him under the instant charge from the incriminating effect of what he may have been compelled to say regarding such charge.”); and Orosz v. State, 334 So.2d 26 (Fla. 1st DCA 1976).

We adopt the reasoning and analysis of the trial judge and hold that section 914.04 is constitutional and affords a witness derivative-use immunity.

The petition for writ of certiorari is denied.

       Parenthetically, it must be reiterated that the language extending use immunity is not new but was contained in the previous statutes. cf., F.S., 914.04 (1978); and, F.S. 932.29 (1967). The only change in the 1982 Amendment was to delete transactional immunity.

       (footnote omitted)


source: Caselaw Access Project

author: PER CURIAM. FERGUSON, Judge

license: Public Domain

text:
    Oscar L. ANDREWS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1180.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Weiner, Robbins, Tunkey & Ross and William R. Tunkey and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

The principal question in this appeal presents the same issue as that framed in Neil v. State, 433 So.2d 51 (Fla. 3d DCA 1983). We affirm on the authority of Neil and consistent with that decision certify to the supreme court the following question of great public importance:

Absent the criteria established in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), may a party be required to state the basis for the exercise of a peremptory challenge?

We have considered the other issues raised by this appeal and find them to be without merit.

Affirmed. Question certified.

FERGUSON, Judge

(specially concurring)

This court in Neil v. State, 433 So.2d 51 (Fla. 3d DCA 1983), oblivious to the immediate social impact, has raised the peremptory challenge, a procedural tool without constitutional foundation, see Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), to a position of such jurisprudential eminence that it now transcends the right of any minority group not to be systematically excluded from participation in the administration of criminal justice — a right which is constitutionally guaranteed. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (systematic exclusion of women from juries is unconstitutional because it violates the sixth amendment’s requirement that a jury be chosen from a representative cross section of the community).

Neil is wrong. Swain v. Alabama, contrary to the holding in Neil, is not binding on us because when it was decided in 1965 under the equal protection clause of the fourteenth amendment to the United States Constitution, the sixth amendment right to a fair trial by an impartial jury, the relevant constitutional principle relied upon by appellant, had not yet become binding on the states through the fourteenth amendment’s due process clause. The sixth amendment right was not incorporated in the fourteenth amendment until three years after Swain, in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Neither does Hoffman v. Jones, 280 So.2d 431 (Fla.1973) (intermediate appellate courts cannot depart from controlling precedent) require us to abide by Swain v. Alabama because the question has never been addressed by the Florida Supreme Court.

As noted by the Neil court, the Florida Supreme Court has, in two cases, reaffirmed Swain’s principles, but those cases do not support the Neil holding. In the first case cited by Neil, Francis v. State, 413 So.2d 1175 (Fla.1982), the issue was whether the defendant’s involuntary absence from the courtroom during the exercise of peremptory challenges was fundamentally unfair. The Florida Supreme Court cited Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894) and Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), cases relied upon in Swain v. Alabama, merely as authority for the principle that the peremptory challenge is one of the most important rights secured to a defendant. In Dobbert v. State, 409 So.2d 1053 (Fla.1982), the issue before the court was whether the systematic exercise by a prosecutor of peremptory challenges to exclude persons who had scruples against imposition of the death penalty was viola-tive of the defendant’s right to due process or his sixth amendment right to an impartial jury. The court, in rejecting appellant’s “attempted synthesis of Swain v. Alabama,” noted that there is nothing to indicate that the United States Supreme Court would extend the Swain principle — which places limitations on the prosecutor’s exercise of the peremptory challenge to systematically exclude on racial grounds — to systematic exclusions based on ideology, such as jurors’ scruples against imposition of the death penalty. The court expressly stated that it would not resolve the issue whether Swain applied to that type of case. Dobbert, 409 So.2d at 1057. It is elementary in the law that a case is only authority for what it actually decides, and what may seem to flow logically from it is not binding precedent. Stickney v. Belcher Yacht, Inc., 424 So.2d 962, 966 n. 4 (Fla. 3d DCA 1983).

The Neil court recognizes that the issue it certifies to the supreme court is “particularly troublesome” but then thinks itself paralyzed by precedent. Indeed, that is not the case for the reasons already stated. To call the issue “troublesome” is a myopic understatement. It has been increasingly a “burning” issue in the community. A judge visiting from another circuit expressed mild outrage about, and banned as blatant, the Dade County practice of systematically excluding blacks by use of the peremptory challenge. Other fair-minded judges in this district have adopted in principle the Wheeler-Soares procedure. For example, in Cotes v. State, 437 So.2d 178 (Fla. 3d DCA 1983), the trial judge conducted a separate hearing during which the prosecutor was required to explain why the exercise of peremptory challenges had resulted in the removal of all blacks seated as prospective jurors. Armed with Neil v. State, the attorney general challenged the court’s action by cross-appeal, abandoning the state attorney’s “we don’t discriminate on the basis of race” argument in favor of “we may do so with impunity.”

Because discriminatory use of the peremptory challenge is court protected, other institutions have been turned to for solutions. Now, with the untimely decision in Neil v. State, a threat exists that the efforts of some trial judges and community institutions to halt the invidious practice may unravel. Most distressing of all is that the court in Neil v. State rejected the invitation extended to state courts by the United States Supreme Court in McCray v. New York, to independently examine and decide the issue presented to the Court. That invitation may be interpreted as a concession by the majority of the Court, creator of the monster Swain, that Swain is an anachronism.

Neil v. State is, in my opinion, a “bailout” on a thorny constitutional question, but I am, by rules of this court, obligated to adhere to it. That this court is powerless to address the question is simply inaccurate. That it has to, even if incidentally, assume an obstructionist role with respect to the problem-solving efforts of community institutions is disconcerting. This simply is not, nor has it ever been the nature of the judicial process. Judicial lawmaking is aptly described by an eminent jurist:

[Ljogic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of law. Which of these forces shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that the law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness.... The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.

The mischievous misuse which caused the peremptory challenge to first fall into disuse in England in the year 1305 is just as rampant in this district today. The “social interest”, as well as the welfare of a tarnished judicial system, compels this court to seize the opportunity to stake a new course. Adoption of the Wheeler-Soares principle is that new course; it is also a reasonable way to restore some credibility to the system while at the same time salvaging the peremptory challenge. A majority of this court opts instead for the status quo. For this reason my concurrence is with total disappointment.

      . The state’s peremptory challenge developed in England before that of the defendant’s, and prior to 1305 the state had unlimited use of such challenges. Since the unlimited right proved to be “mischievous to the subject, tending to infinite delays and danger,” it was discontinued in 1305. In the seventeenth century, a substitute for the prosecution’s peremptory challenge was instituted as the so-called right to “stand aside.” The defendant’s right to peremptory challenge became firmly established by the fifteenth century at the latest. Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157, 1170-1172 (1966). The peremptory challenge has fallen into disuse in England. Swain v. Alabama, 380 U.S. at 218, 85 S.Ct. at 834. Nonetheless, even those who are critical of its misuse, including this writer, do not suggest that it should be abolished. The position embraced by the majority in Neil — that judicial scrutiny of peremptory challenges signals its demise — is needlessly alarmist. A prima facie showing of abuse of the process is a prerequisite to any judicial inquiry as to its use.

      . Both California, in People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978) and Massachusetts, in Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), have rejected the standard set forth in Swain v. Alabama in favor of a more realistic test for scrutinizing alleged misuse of the peremptory challenge. Swain requires, according to Neil v. State, that a defendant, in order to show discrimination in jury selection, prove (1) the particular prosecutor, (2) in every type of case, (3) in every set of circumstances, and (4) for an extended provable period of time has, (5) peremptorily excused black venire persons with the result that no black person has ever served on a petit jury in a case tried by that prosecutor.

        People v. Wheeler, which expressly found Swain not binding on California courts, stated several reasons for this holding. A major rationale, and one shared by the Soares court, is that Swain provides no protection to the first defendant who suffers such discrimination in any given court, and to all defendants following him, until an extended pattern of prosecutorial abuse becomes apparent over a period of time. This lack of protection exists despite the state constitutional provision entitling every defendant to trial by jury drawn from a representative cross-section of the community. Swain is also rejected because of the nearly insurmountable barriers to meeting its burden of proof, as reflected by the numerous cases in which defendants, attempting to satisfy the Swain test, have virtually always failed. First, a defendant cannot easily obtain information regarding racial discrimination in the exercise of peremptory challenges occurring in the other trials held in the same court. Furthermore, the first prong of the Swain test (as interpreted by Neil) is difficult to meet, and in this case it is a practical absurdity because in the Dade County state attorney’s office there are over 100 attorneys and the average tenure of trial prosecutors is, admittedly, less than three years.
      Although the courts of Pennsylvania and Alaska, in Commonwealth v. Futch, 492 Pa. 359, 424 A.2d 1231 (1981) and Mallott v. State, 608 P.2d 737 (Alaska 1980) were presented with the question of whether the Wheeler-Soares rule should be adopted by those jurisdictions, they deferred a decision on that issue because of the insufficient records in both cases. However, both the concurring opinion in Futch, 424 A.2d at 1235, and the dissenting opinion in Mallott, 608 P.2d at 752, urge adoption of the Wheeler-Soares test.

      . In McCray v. New York,-U.S.-,-, 103 S.Ct. 2438, 2439, 77 L.Ed.2d 1322, 1323 (1983), Justice Marshall, in a dissent joined by Justice Brennan, noted that Swain pre-dates Duncan, and emphasized the need to reconsider the Swain standard in light of sixth amendment principles established in Taylor v. Louisiana and other post-Swain Supreme Court cases. In McCray and two companion cases the Court denied certiorari review on the question “whether the Constitution prohibits the use of peremptory challenges to exclude members of a particular group from the jury, based on the prosecutor’s assumption that they will be biased in favor of members of the same group.” -U.S. at-, 103 S.Ct. at 2438, 77 L.Ed.2d at 1322.
      In People v. Wheeler and Commonwealth v. Soares, the California and Massachusetts supreme courts,. respectively, noted that Swain could be distinguished because it pre-dates both Duncan and Taylor. Wheeler, 148 Cal. Rptr. at 908, 583 P.2d at 767, Soares, 387 N.E.2d at 511 n. 15. However, both courts declined to base their decisions on that ground since they relied on state constitutional provisions in reaching their results.

      . “The practice of excluding blacks from juries in racially sensitive cases was listed in the Governor’s Report on The 1980 Miami Riot as a reason why blacks in Dade County distrust the Criminal Justice System. The practice was specifically identified as a cause of the 1980 so-called ‘McDuffie Riots’ which followed acquittal of white officers who beat to death a local black insurance executive.” Miami Times, June 23, 1983, at 1, col. 1.

      . In State v. Barnes, Case No. 80-3039, Eleventh Judicial Circuit, Dade County, and Case No. 80-4541CF, Fifteenth Judicial Circuit, Palm Beach County, Judge Marvin Mounts, Jr. interrupted the jury selection process and conducted a hearing to determine whether the state was using the peremptory challenge to exclude blacks.

      . In a June 29, 1983 response to a report published by the United States Commission on Civil Rights entitled “Confronting Racial Isolation in Miami,” two community organizations, Greater Miami United, and the Dade Community Revitalization Board, both headed by prominent citizens, prepared a definitive accounting of what the community was doing to implement the Commissioner’s recommendations. One of the recommendations and the response thereto are pertinent:
      Recommendation 7.4: The State Attorney’s Office should adopt a written policy that is committed to ethnically and racially diverse juries and that forbids Assistant State Attorneys to make peremptory challenges on the basis of a potential juror’s race.

        Respondent

      Janet Reno, State Attorney.

        Summary

      The new Policies and Procedures Manual of the State Attorney’s Office declares that: ‘Absolutely no decision or action of this office should be influenced in any manner whatsoever by an inappropriate bias or prejudice based on such things as a person’s race, sex, religion, ethnic background and national origin.’

        The issue of the proper exercise of peremptory challenges is being considered by this Court and Courts around the nation. Specifically, the Third District Court of Appeals is considering a number of cases which raise this issue, including the City of Miami vs. Cornett, a civil case.
      When a trial judge indicates reason to believe that a prosecutor is systematically excluding prospective jurors on the basis of race or some other inadmissible criterion, the State Attorney has a two-fold policy. She has the prosecutor announce the reasons for exclusion(s), and offers continuation of jury selection until the trial Court is satisfied. See also Metro-Miami Action Program, June
      22, 1983, Sensitivity In The Criminal Justice System. Recommended Action: (A) Expand pool of eligible jurors, (B) Revise Florida Statute 913.08 by reducing the number of peremptory challenges presently allowed.

      .See supra note 3. In McCray, Justice Stevens, joined by Justices Blackmun and Powell, agreed with the minority opinion’s appraisal of the importance of the issue raised in the petition for certiorari but thought it an exercise of sound discretion to allow the various states to serve as laboratories to further study the problem before it is addressed by the United States Supreme Court.

      . The question has been presented to this court in several cases which were filed and argued prior to both Neil v. State and this case. In the earliest case the question was well-briefed and argued by the parties and amicus curiae on both sides. Amicus for the position of the indigent plaintiff was appointed by this court. While the panel in the earlier case was preparing its opinion, Neil was decided. By a 5-4 vote an en banc hearing of Neil v. State was denied on a finding that it conflicted with no other case of this court.

      . B. Cardozo, Nature of the Judicial Process (1921).

      . The quest for a fair trial, in highly publicized criminal cases with racial overtones, is regularly stymied by procedural blitzkrieg. Where the accused is white and the victim black, it is a predictable defense tactic to paint the prosecution as political — brought to satisfy a revenge-seeking black community, and to portray the accused as a sacrificial lamb. Although of questionable relevance to the issue of guilt, this “defense”, where permitted, is historically successful even in the face of overwhelming evidence. All that is needed is a philosophically receptive jury, the first requirement of which is that it be all white. If the case involves multiple defendants or multiple counts (which increases the number of peremptory challenges), the state may be powerless to prevent the defense from exercising its challenges in such fashion as to obtain the desired homogeneous (and presumptively unconstitutional) panel. More often than not there will be more peremptory challenges than blacks to be challenged. See, e.g., State v. Diggs (Case No. 79-21601, Eleventh Judicial Circuit, Dade County) (the so-called “McDuffie case”). On the other hand, where the defendant is black, the state may similarly exercise its peremptory challenges to exclude blacks, the effect of which, just the same, is to permit a setting where group biases may dominate the jury’s deliberations. Commonwealth v. Soares, 387 N.E.2d at 516.
      The state suggests here and in its new Policies and Procedures Manual (see n. 6, supra) that it may be appropriate to exclude a potential juror on the basis of race where the prosecutor feels that any juror of the same race as the defendant would be biased in his favor. This raises an interesting collateral question. What happens where the defendant is white and the facts are such that any white is likely to be biased in favor of the accused? Aside from the fact that it is a numerical impossibility to exclude all whites from a jury, the state undoubtedly would not think it appropriate. The unstated premise in the state’s suggestion, obviously, and one which is supported by no empirical or scientific data, is that only racial minorities in general, and blacks in particular, harbor group biases.
      The point made here is that the peremptory challenge, especially in racially-charged cases, is susceptible to use by the state or the defense in a way which undermines the integrity of a trial. A solution is judicial insistence on what Wheeler-Soares promotes and what the Constitution requires — a jury which fairly represents a cross-section of the community. This requirement prevails even where a desired nonre-presentative jury is peremptorily possible. See Commonwealth v. Soares, supra. The fair jury that the Constitution contemplates is one of “diffused impartiality”, which serves as a hedge against an overzealous or mistaken prosecutor, Duncan v. Louisiana, 391 U.S. at 155-56, 88 S.Ct. at 1450-51, or otherwise assures that the jury’s verdict will not be the product of any extremely partial view. See Taylor v. Louisiana, supra.


author: PER CURIAM. BASKIN, Judge

text:
    Jorge DORRBECKER, Appellant, v. The SMITH, KORACH, HAYET, HAYNIE PARTNERSHIP, a corporation, et al., Appellees.
    No. 81-1577.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Cuadrado & Sosby, Miami, for appellant.
    Britton, Cohen, Kaufman, Benson & Schantz and J. Robert Olian, Miami, for appellees.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976).

BASKIN, Judge

(dissenting).

Article IX of the Partnership Agreement requires the partnership books to be kept on an accrual basis for most transactions. Day to day operations and income tax purposes are excluded from the requirement. The agreement seeks to establish an accurate picture of earned income, accounts receivable and work in progress. Article XI provides that a withdrawing partner shall be awarded 20% of his share of undistributed accrued profits. In order to determine whether any accrued profits existed, it is necessary that the books be redone under an accrual basis. Accordingly, I would remand for a redetermination of appellant’s share of undistributed profits based upon an accrual, rather than a cash basis.


author: HENDRY, Judge.

text:
    Joseph D. MacINTOSH, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1639.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John Roben-alt, Asst. Atty. Gen., for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ, and MELVIN, WOODROW M., (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant challenges his conviction of attempted burglary and possession of a burglary tool. On appeal, appellant contends that the trial court erred in denying his motion for judgment of acquittal where the evidence was insufficient to prove that once inside the building, he intended to commit the specific offense of theft, as was alleged in the information. Additionally, appellant asserts that the trial court erred in failing to instruct the jury on the essential element of the intent to commit theft. Finally, appellant argues that the information was fatally defective in that it failed to allege non-consent to the attempted entry. For reasons more fully developed below, we affirm appellant’s convictions.

At 3:00 a.m. on August 26, 1980, appellant was observed removing a screen from a window in the side of the Neighborhood Grocery Store in Key West, Florida. After watching appellant feel around the window itself, the eyewitness went downstairs and asked her landlady to call the police. She then went back upstairs to her apartment and watched as appellant walked around to the front of the building and opened the screen door. He then walked around to the side of the building as the police arrived.

Two police officers in separate cars responded to the call. Officer Grantham testified that as he approached the grocery he saw appellant at the front door of the store. He then observed appellant walk around to the side of the building, step into the middle of the street, and throw an object over the other side. Officer Grantham later retrieved the object, which was a crowbar. Both Officer Grantham and Officer Arbie testified that the width of the crowbar matched the width of the pry marks found on the front doors as well as a side door of the grocery. They also found that the door knob on the side door had been removed. Additionally, both officers testified that there were green paint chips on the crowbar which matched the paint on the doors and that there were pieces of paint missing on the area around the pry marks.

The only other evidence presented by the state was that of the owner of the grocery, who testified about the damage done during the attempted break-in. She also testified that appellant did not have her consent to enter the grocery at 3:00 a.m. At the close of the state’s case, appellant moved for a judgment of acquittal. When that motion was denied, the defense rested.

At the outset, we note that the facts of this case are almost identical to those of State v. Waters, 436 So.2d 66 (Fla.1983), which also involved an attempted burglary. The informations filed in both cases alleged that the defendants attempted to enter a structure with an intent to commit therein the specific offense of theft. Because the burglaries were never completed, however, there was no direct proof of what the defendants intended to do once actually inside. The state was placed in the position of trying to prove, by circumstantial evidence, a specific intent to commit theft. The Fourth District Court of Appeal found the circumstantial evidence to be legally insufficient, stating that “mere proof of a breaking and entering does not warrant an inference that the accused intended to commit a specific offense inside the premises.” Id. at 1132. Given that decision, it became impossible to convict a defendant for the crime of attempted burglary because the state could never directly prove what the defendant intended to do once inside the structure. Cf. Ellis v. State, 425 So.2d 201 (Fla. 5th DCA 1983).

This dilemma has now been resolved by the Florida Supreme Court. In its review of the district court’s decision, State v. Waters, supra, the Court analyzed the facts of the case and found that the circumstances shown were inconsistent with any hypothesis of intent to commit any offense except theft. The Court stated:

In the present case, in which intent to commit a specified offense was alleged, there was circumstantial evidence from which the trier of fact could properly conclude that the defendant here attempted to enter with the intent to commit theft.

Id. at 288.

The same reasoning applies in the case sub judice. Since the attempted burglary took place at 3:00 a.m., it may be inferred that appellant knew there was no one in the grocery, thus negating any intent to commit a crime against a person such as rape, murder, robbery, assault, or battery. The evidence showed that appellant had a crowbar but no explosives or flammable materials, thus negating any intent to commit the offense of arson. Since the question of appellant’s intent to steal is a question of fact to be determined by the trier of fact based upon all of the circumstances shown by the evidence, State v. Waters, 436 So.2d 70, and cases cited therein, we find that the jury could reasonably conclude that appellant was attempting to break into the Neighborhood Grocery for the purpose of committing theft.

Appellant’s second issue on appeal is that the trial court erred in failing to instruct the jury on the element of intent to commit theft, the secondary offense under the primary attempted burglary offense. We find this issue to be without merit. We note at the outset that there was no objection to the omitted instruction on the intent to commit theft. Indeed, the trial judge, before sending the jury out for its deliberations, specifically asked both trial counsel whether there were any objections to the instructions as given to the jury. No objections were raised. The Florida Supreme Court has held that “[WJhere the alleged error is giving or failing to give a particular jury instruction, we have invariably required the assertion of a timely objection.” Castor v. State, 365 So.2d 701, 703 (Fla.1978).

Additionally, we note that what appellant intended to do once he gained entry into the grocery was never an issue in this case. Appellant’s defense was based on the question of identity. Appellant’s cross-examination of witnesses and his closing arguments focused on the issue of identity. His one requested jury instruction concerned the accuracy of the identification. On the basis of these facts, we find that the subject of the defective instruction was not an issue at trial and we decline to reverse in the absence of a timely objection. Stewart v. State, 420 So.2d 862 (Fla.1982); Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982), rev. denied, 426 So.2d 26 (Fla.1983); Williams v. State, 400 So.2d 542 (Fla. 3d DCA), rev. denied, 408 So.2d 1096 (Fla.1981), cert. denied, - U.S. -, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983). Cf. Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981) (finding that where the defense made specific intent a material issue, the failure to so instruct mandated reversal of the defendant’s conviction).

Appellant’s remaining issue on appeal, the failure of the information to allege the owner’s non-consent to entry, is without merit in view of State v. Hicks, 421 So.2d 510 (Fla.1982); Frederick v. State, 424 So.2d 150 (Fla. 5th DCA 1982).

Affirmed.

      . Waters v. State, 401 So.2d 1131 (Fla. 4th DCA 1981).


author: PER CURIAM.

text:
    Samuel ROMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-290.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Marti A. Rothenberg and Richard Doran, Asst. At-tys. Gen., for appellee.
    Before HUBBART and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The defendant Samuel Roman appeals his conviction and sentence for attempted armed robbery. The central contention urged on appeal is that the trial court erred in denying the defendant’s timely motion for a mistrial after the arresting officer gave testimony at trial indicating that the defendant was involved in a robbery for which he was not charged. It would serve no purpose to detail the precise testimony nor elaborate further on the facts of the case. Suffice it to say that we are persuaded that a Williams violation occurred below, that the defendant was substantially prejudiced thereby, and that a reversal is necessarily mandated herein. See e.g., Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), and cases collected therein; Mann v. State, 22 Fla. 600 (1886); Selph v. State, 22 Fla. 537 (1886); Green v. State, 190 So.2d 42 (Fla. 2d DCA 1966). Moreover, we specifically reject the state’s central contention in’ reply that the error was harmless. Harris v. State, 427 So.2d 234 (Fla. 3d DCA 1983); Vazquez v. State, 405 So.2d 177 (Fla. 3d DCA 1981), approved in part, quashed in part, 419 So.2d 1088 (Fla.1982).

The judgment of conviction and sentence is reversed and the cause is remanded to the trial court for a new trial.


text:
    Alberto GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-619.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. State Atty., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

The judgments of conviction and sentences under review are affirmed upon a holding that: (1) the trial court committed no reversible error in denying defense motions for severance of defendants and counts because: (a) the defendants and counts were properly joined under Fla.R. Crim.P. 3.150; (b) the failure of the co-defendant Orestes Delgado to contest the charges against him at trial did not require a severance of defendants as, in our view, this failure did not implicate the defendant Gomez in the crimes charged and therefore a severance of defendants was not required under Fla.R.Crim.P. 3.152(b)(1)(H); and (c) the error, if any, in denying the subject motions to sever was harmless in view of the overwhelming evidence of guilt against the defendant Gomez. Dean v. State, 430 So.2d 491 (Fla. 3d DCA 1983); (2) no other reversible error has been demonstrated in this record.

Affirmed.


text:
    Samuel GILES, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2474.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny Her-shoff Brill, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Armstrong v. State, 429 So.2d 287 (Fla.1983).


text:
    Roosevelt JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2576.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Bennett H. Brummer, Public Defender, and Michael A. Nuzzo, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Marti Rothen-berg, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Clark v. State, 363 So.2d 331 (Fla.1978); Spencer v. State, 133 So.2d 729 (Fla.1961).


text:
    Penney L. CARABETTA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2654.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny Her-shoff Brill, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Spencer v. State, 133 So.2d 729, 731 (Fla.1961), cert. denied, 372 U.S. 904, 83 S.Ct. 742, 9 L.Ed.2d 730 (1963); § 90.701, Fla.Stat. (1981); Harris v. State, 229 So.2d 670 (Fla. 3d DCA 1969), cert. denied, 237 So.2d 752 (Fla.1970); Eldridge v. State, 27 Fla. 162, 9 So. 448 (1891); cf. United States v. Holman, 680 F.2d 1340, 1352-53 (11th Cir.1982).


text:
    Rupert H. JOHNSON, Appellant, v. Edna D. JOHNSON, Appellee.
    No. 83-240.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Joe N. Unger, Miami, for appellant.
    Daniels & Hicks, and Sam Daniels, Bar-ranco & Kellough, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    FARNSWORTH FARMS, INC., Appellant, v. Jack WALL, Appellee.
    No. 83-1167.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Irwin J. Weiner, Miami, for appellant.
    Fox & Fisher and Stephen Fisher, Miami, for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Taylor v. Dasilva, 401 So.2d 1161 (Fla. 3d DCA 1981); Houchins v. Florida East Coast Railway Co., 388 So.2d 1287 (Fla. 3d DCA 1980).


author: DOWNEY, Judge. GLICKSTEIN, Judge, ANSTEAD, Chief Judge,

text:
    The MANORS OF INVERRARY XII CONDOMINIUM ASSOCIATION, INC., Appellant, v. ATRECO-FLORIDA INC., City of Lauderhill, Florida, et al., Appellees.
    No. 81-138.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 1983.

      Robert J. Manne of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appellant.
    Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for appellee City of Lauderhill.
   DOWNEY, Judge.

The issue involved in this appeal is whether the doctrine of governmental immunity protects a municipality from liability for the negligence of its building inspector in approving plans, specifications and construction which do not meet the requirements of the applicable building code. The trial court dismissed the complaint against the City, appellee states, on the ground of sovereign immunity.

Appellant, a condominium association, filed this class action on behalf of its unit owners pursuant to Rule 1.221, Fla.R.Civ.P., against the developer, general contractor, architect and the City of Lauderhill. While the complaint alleges numerous defects in the construction Count III of the amended complaint against the City alleged that the City was negligent in failing to properly examine the plans and specifications and properly inspect the premises before issuing a building permit and certificate of occupancy. As a result, it is alleged, the improvements fail to meet the requirements of the South Florida Building Code in numerous respects. The City’s motion to dismiss on the ground that it was entitled to sovereign immunity because the enforcement of the building code is a discretionary function was granted. From a final judgment dismissing the City, appellant has perfected this appeal. We reiterate that the sole question argued on appeal is whether the activities of a city building inspector in approving plans, specifications and construction is discretionary planning activity or operational activity.

The building code in effect in the City of Lauderhill is the South Florida Building Code adopted by special act of the legislature for Broward County in Chapter 71-575, Laws of Florida. The code provides that application for a building permit must be accompanied by two sets of plans for the proposed improvement. The Building Official is then required to examine the plans to determine their compliance with the building code. If they comply, he issues a building permit; if not, the plans are rejected. After issuance of a permit, the code requires periodic inspections. If the construction meets code requirements and is approved a certificate of occupancy is ultimately issued. Appellant contends the City Building Official approved plans and specifications which did not meet code requirements and that he approved on-site construction which also violated the code.

Appellant’s position is that the City is liable for its negligence in not requiring compliance with the building code because the enforcement of the code is an operational activity. The City, on the other hand, argues that the Building Official’s function is discretionary and part of his planning activity and thus remains cloaked with sovereign immunity. The planning-operational dichotomy was introduced into the jurisprudence of this state in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979) and now controls the determination of which governmental functions are still protected by sovereign immunity and which are not pursuant to the waiver provisions of Section 768.28, Florida Statutes (1981).

We agree with appellant that when the City decided to employ the South Florida Building Code as its standard for construction, it was engaged in discretionary or planning activity. The examination of plans and specifications for the issuance of a building permit and on-site inspections to determine compliance with code requirements prior to issuance of the certificate of occupancy are operational activities. We reach that determination by applying the Commercial Carrier four-prong test adopted from Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). Without exploring all 'facets of ap-pellee’s argument, suffice it to say that we are in accord with the recent decision of the Third District Court of Appeal in Trianon Park Condominium Association v. City of Hialeah, 423 So.2d 911 (Fla. 3d DCA 1982). Virtually all of appellee’s arguments were adequately answered in that case (which decision was filed after the rendition of the judgment in this case).

Perceiving the question involved in this case to be one of great public importance, we certify the following question to the Supreme Court of Florida:

Should the negligent conduct of a building inspector in approving plans, specifications, and construction that do not meet the requirements of the applicable building code be considered “operational” conduct for which the municipality may be held liable in damages or “discretionary” conduct to which sovereign immunity would apply?

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

GLICKSTEIN, J., concurs specially with opinion.

ANSTEAD, C.J., dissents with opinion.

GLICKSTEIN, Judge,

concurring specially-

In concurring specially, I analogize to federal cases including the recently decided Block v. Neal, - U.S. -, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). There a borrower sued the Farm Home Administration (FmHA) under the Federal Tort Claims Act (FTCA) to recover for construction defects in the home she purchased with an FmHA loan. Under her contract with the builder, the work was to conform to plans approved by FmHA, and FmHA had the right to inspect and test all materials and workmanship and reject any that were defective. An FmHA official inspected both during and at completion of construction, and reported compliance with the FmHA approved drawings and specifications. When the borrower discovered, and FmHA verified, certain defects, the builder refused to correct them under his warranty, and FmHA declined to pay for the defects. The borrower’s suit was bottomed on a theory that the defects were partly attributable to FmHA’s employee’s inadequate inspection and supervision of construction. The Supreme Court affirmed a Court of Appeals holding that the complaint was not barred by the FTCA statutory exception which precludes recovery for. a claim arising out of misrepresentation. Of particular significance to the instant case is the United States Supreme Court’s implied imprimatur on the following reasoning of the Court of Appeals:

The Court of Appeals .. . agreed with the District Court that FmHA had no contractual obligation to provide Neal with technical assistance or to inspect and supervise construction of her house.... [but] found that respondent’s complaint stated a claim for negligence under the principle “that one who undertakes to act, even though gratuitously, is required to act carefully and with the exercise of due care and will be liable for injuries proximately caused by failure to use such care.” ... Restatement (Second) of Torts § 323 (1965). It noted that, subject to express exceptions, the Tort Claims Act, 28 U.S.C. § 2674, authorizes suit against the Government for the negligence of a federal agency in performing a voluntary undertaking.

- U.S. at -, 103 S.Ct. at 1092, 75 L.Ed.2d at 72. (citations to Court of Appeals opinion deleted) (footnote omitted). The Supreme Court’s decision in Neal affirmatively held only that the government’s argument for the misrepresentation exception under the FTCA could not stand. The court did not state that Neal’s negligence claim lies. However, the opinion implies that if, in the jurisdiction in which the events of Neal occurred, the Good Samaritan doctrine of § 328 of the Restatement (Second) of Torts is recognized and is applicable against a private defendant, a like cause of action could be raised against a federal agency. See id. 103 S.Ct. at 1092 and n. 3. This proviso accords with the core provision of the FTCA.

The history of the doctrine of sovereign immunity and of its gradual erosion impels me to believe that Neal and the members of The Manors of Inverrary XII Condominium Association, who are in the same boat, are entitled to seek the same relief. Although sovereign immunity may have originated in Roman law, more likely it stems from the theory of the divine right of kings promoted by Henry VIII to justify his split from the Roman Church and from his many wives. Why a doctrine derived from the idea that a king can do no wrong came to be the law in our democratic republic is an enigma. The rationale, of course, is that the government, whether monarchical or representative, is the sovereign. When the Supreme Court attempted to interfere with the sovereign immunity of the States, Chisholm v. Georgia, 2 U.S. 419,1 L.Ed. 440 (1793), Congress and the States responded by adopting the Eleventh Amendment, which permits no private citizen suit against a state in federal court without the state’s consent. And in Cohens v. Virginia, 19 U.S. 264, 5 L.Ed. 257 (1821), Chief Justice Marshall discovered that no suit could be undertaken against the United States without its consent.

It is even harder to see why American municipalities were found at common law to have governmental immunity. No one claims that cities or counties are sovereign. Moreover, governmental immunity of municipalities never saw the light of day in Great Britain until a decade after the United States Constitution had been ratified. See Russell v. Men of Devon, 2 Term Rep. 667, 100 Eng.Rep. 359 (1798). Be that as it may, our common law came to hold that, because municipalities have dual roles as governments and corporations, when they exercised public powers they shared the State’s immunity as delegatees of the State, but when they exercised proprietary powers comparable to those of other corporations or private persons they could be liable.

The federal government led the way in cutting back sovereign immunity, by whittling down its own. Legislation permitting contract claims against the United States came first. Then, in 1946, the United States waived its immunity from tort liability by adopting the FTCA, 28 U.S.C. §§ 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671-2680 (1976). With several stated exceptions, the FTCA makes the federal government liable for the negligent or wrongful acts or omissions of federal employees, when within the scope of their employment, “in the same manner and to the same extent as a private individual under like circumstances,” § 1346(b), according to the law of the local jurisdiction where the tort occurs, § 2674. Chief among the exceptions to this general rule are combat activities of the armed forces during belligerency, ,§ 2680(j); “any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights,” § 2680(h); and:

Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a).

In federal case law, where issuance of permits, licenses and the like is involved, whether the discretionary function exception will apply has come to turn on whether the alleged negligence occurred at the planning or the operational level of the particular governmental activity. In Hendry v. United States, 418 F.2d 774 (2d Cir.1969), the court of appeals postulated a three-pronged test. The first question to be asked is “whether the complaint attacks on the one hand the nature of rules which a governmental' agency has formulated, or on the other hand the way in which these rules are applied.” Id. at 782. Following Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the court of appeals stated governmental immunity applies to executive and administrative decisions “which either establish a rule for future governmental behavior or constitute an ad hoc determination which neither applied an existing rule nor establishes one for future cases.” 418 F.2d at 783. On the other hand, a decision which applies an existing rule to the facts of a case is subject to suit provided the administrative official did not have to make policy decisions in order to reach his conclusion. Id.

To help draw the line between decisions that are immune to suit and those that are not, two further questions may be asked. Thus, the second question in the three-pronged test is, Can state law standards adequately evaluate the course of action contemplated by the governmental statute or regulation under which the administrative official acted; that is, did the decision-maker look only to established professional standards or to standards of general reasonableness, or did he necessarily look also to considerations of public policy? Id. The final question is, Did the decision raise questions which are political and nonjusticiable in nature? Id.

A number of federal cases besides Hen-dry have held that where a statute or regulation set a clear standard for issuing a particular permit, license or similar document, the decision made was operational rather at the planning level, and therefore not protected by the discretionary function exception. E.g., Hoffman v. United States, 398 F.Supp. 530 (D.Mich.1975) (Federal Aviation Administration official had granted operating certificate to air carrier that lacked regulation-required Civil Aeronautics Board “economic authority,” i.e., adequate liability insurance; court denied the government summary judgment); Duncan v. United States, 355 F.Supp. 1167 (D.D.C.1973) (airline pilot whose airman’s medical certificate had been revoked could sue; discretionary function exception inapplicable).

Governmental immunity is a creature of the courts. The FTCA was Congress’ contribution to cutting back federal governmental immunity. The Florida Supreme Court was probably the first of the highest courts of the states to tighten the limits on the governmental immunity of municipalities. See Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957). It would be incongruous, given this historic leadership, for Florida courts to read into Florida’s broadly written statute abrogating sovereign immunity, Section 168.28, Florida Statutes (1981), a broader residual immunity for municipalities than the federal courts have found in the discretionary function exception expressly written into the FTCA.

In the instant case, I would adopt the standard of Hendry and the pertinent reasoning of the court of appeals in Neal, and come to the same result as Judge Downey. While the test enounced in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965) and quoted by our highest court in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979) touches to an extent on similar points, I find the Hendry test more straightforward and easier to apply.

Applying the law to the facts of the case sub judice, I find that while the City of Lauderhill engaged in a discretionary, planning activity when it adopted the South Florida Building Code as its standard of construction, the officer who examined plans and specifications preparatory to issuing a building permit and who inspected the premises and issued a certificate of occupancy thereupon had clear professional and/or reasonable standards to apply and did not need to look to considerations of public policy in order to make his decisions. Neither was any political and nonjusticiable question involved in that officer’s decision. Accordingly the decisions were operational and open to attack by a suit. If the building inspector was negligent in taking these actions, the City should be liable on the basis that it knew or reasonably should have known that real property buyers would rely on the outcomes of its inspector’s decisions.

From the State of Washington, which gave us the Evangelical United Brethren test, have come recent decisions that recognize there may arise a duty of care to an injured plaintiff in building inspection cases even though the primary duty is to the public at large. Otherwise a duty to all may in effect become a duty to none. Thus in J & B Development Co. v. King County, 29 Wash.App. 942, 951-52, 631 P.2d 1002, 1008 (Wash.App.1981) the court wrote:

A duty owed to the public generally is also a duty owed to individual members of the public. In authorizing sovereign tort liability, the legislature intended to subject municipalities to the same orthodox negligence principles that individuals and corporations are subject to. Edgar v. State, 92 Wash.2d 217, 595 P.2d 534 (1979); Evangelical United Brethren Church v. State, supra. The county issues building permits, inspects for compliance and is aware that permit holders will proceed in reliance on the permits issued. The county has a common law duty to exercise reasonable care to avoid foreseeable risks of harm under such circumstances,

and:

We hold that a building inspector may not issue a building permit without exercising due care to see that the permittee’s plans and specifications comply with the applicable codes and ordinances and, when the permittee has acted in reliance on the permit issued, disclaim all liability and responsibility for the permittee’s plight.

Id. at 955, 631 P.2d at 1010.

And, in an earlier case a Washington appellate court had written:

While we adhere to the general rule that negligent performance of a governmental police power duty enacted for the benefit of the general public imposes no municipal liability running to individual members of the public, we also recognize a general exception to the rule that where a relationship exists or has developed between an injured plaintiff and agents of the municipality created a duty to perform a mandated act for the benefit of particular persons or class of persons, then tort liability may arise.

Georges v. Tudor, 16 Wash.App. 407, 410, 556 P.2d 564, 567 (Wash.App.1976).

A line of New York cases has similar results. See, e.g., Weese v. Village of Medina, New York, 83 A.D.2d 989, 443 N.Y.S.2d 529 (N.Y.App.Div.1981) (“Although a municipality may not be required to provide a function merely because it was requested, once it voluntarily undertakes such function with the intent of completing it, the municipality must act with reasonable care.”); Gordon v. Holt, 65 A.D.2d 344, 412 N.Y.S.2d 534 (N.Y.App.Div.1979) (Buyer who relied on certificate of compliance issued to vendor in spite of violations had cause of action against municipality for loss due to fire, but municipality had no duty to insurer of tenants, nor to tenants who suffered loss); Sexstone v. City of Rochester, 32 A.D.2d 737, 301 N.Y.S.2d 887 (N.Y.App.Div.1969) (City issuing certificate of occupancy for building with violations liable to buyer for cost of violation corrections; city should have known purchaser would rely).

Because duty is always an element of negligent torts, see Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928); Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170, 174 N.E. 441 (1931), and because Section 768.28(5), Florida Statutes, sets monetary limits on damages for which the state or its subdivision may be held liable, there need be no fear that my approach will open municipalities to a flood of claims.

ANSTEAD, Chief Judge,

dissenting:

By our holding today we have made governmental units virtual insurers of the quality of construction of private development projects. I do not believe that this was the intent of the legislature in abrogating the defense of sovereign immunity. Furthermore, even if it is conceded that our supreme court in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), has specifically overruled its prior decision in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967), barring governmental liability for negligent building inspectors, I do not believe such liability extends to the circumstances presented here.

Initially I must note my belief that the Supreme Court’s opinion in Commercial Carrier was erroneous in characterizing the decision in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967) as one predicated on sovereign immunity:

First, we believe it to be ’ circuitous reasoning to conclude that no cause of action exists for a negligent act or omission by an agent of the state or its political subdivisions where the duty breached is said to be owed to the public at large but not to any particular person. This is the “general duty” — “special duty” dichotomy emanating from Modlin, supra. By less kind commentators, it has been characterized as a theory which results in a duty to none where there is a duty to all. Regardless, it is clear that the Mod-lin doctrine is a function of municipal sovereign immunity and not a traditional negligence concept which has meaning apart from the governmental setting. Accordingly, its efficacy is dependent on the continuing vitality of the doctrine of sovereign immunity. If this be so, does the Modlin doctrine survive notwithstanding the enactment of section 768.28? We think not.

Commercial Carrier, at 1015. The Modlin opinion itself denied this characterization of its holding:

Returning now to the merits of the case at hand, it follows that if the respondent city is to escape liability, it will have to be other than by the path of municipal tort immunity.

Modlin, at 74. The Modlin decision was predicated on the lack of a specific duty owed to the plaintiff by the public official involved, a building inspector, the violation of which would give rise to tort liability:

[Modlin] merely holds that a municipal corporation is not liable in tort for the negligence of one of its employees in the absence of a duty of due care owed by the municipality to the plaintiff which is something more than the duty a public officer owes the public generally. That is no more than re-stating traditional negligence law in a governmental tort liability context.

Cheney v. Dade County, 353 So.2d 623, 629 (Fla. 3d DCA 1977) (Hubbart, J., dissenting).

Section 768.28, Florida Statutes (1975), simply waived the defense of sovereign immunity for the state, its agencies and subdivisions. There must still be a duty owed, a duty violated, and damages resulting therefrom, in order for there to be tort liability on the part of the government. Modlin simply holds that in the case of government building inspections there is no duty owed, the breach of which would give rise to tort liability. Other jurisdictions have so construed similar statutes. For example the Minnesota Supreme Court has held:

However, these statutory provisions merely removed the defense of immunity. They did not create any new liability for a municipality. In order to recover against the city, appellants must show a breach of some duty owed them in their individual capacities and not merely a breach of some obligation owed the general public.
The purpose of a building code is to protect the public. This is well stated in 7 McQuillin, Municipal Corporations (3 ed.) § 24.507, p. 523:
“ * * * The enactment and enforcement of building codes and ordinances constitute a governmental function. The primary purpose of such codes and ordinances is to secure to the municipality as a whole the benefits of a well-ordered municipal government, or, as sometimes expressed, to protect the health and secure the safety of occupants of buildings, and not to protect the personal or property interests of individuals.”
Building codes, the issuance of building permits, and building inspections are devices used by municipalities to make sure that construction within the corporate limits of the municipality meets the standards established. As such, they are designed to protect the public and are not meant to be an insurance policy by which the municipality guarantees that each building is built in compliance with the building codes and zoning codes. The charge for building permits is to offset expenses incurred by the city in promoting this public interest and is in no way an insurance premium which makes the city liable for each item of defective construction in the premises.

Hoffert v. Owatonna Inn Towne Motel, Inc., 199 N.W.2d 158 (Minn.1972). Other jurisdictions, including the State of Washington, have reached the same conclusion. See Georges v. Tudor, 556 P.2d 564 (Wash.App.1976). Cf. Halvorson v. Dahl, 89 Wash.2d 673, 574 P.2d 1190 (1978).

The state of the law in Florida at the time the legislature abolished the defense of sovereign immunity was, pursuant to the Modlin decision, that there was no responsibility, in the case of public officials such as building inspectors, that would give rise to liability. This absence of responsibility did not rest on the defense of sovereign immunity. If that is correct then it should be apparent that the legislature, by abolishing the defense, did not intend to create a legal duty that did not then exist. The legislature simply left the case law on this issue intact.

Of course, rightly or wrongly, the Supreme Court in Commercial Carrier did reject Modlin so that it is reasonable to conclude that governmental units are now liable for the negligence of their building inspectors. Jurisdictions that have extended liability to such situations have done so on the theory that one who voluntarily undertakes to inspect is thereafter charged with a duty to do so with reasonable care. For instance, federal authorities have held that the government is liable, under California tort law, for the negligent inspection and certification of airplanes.

The United States, through the F.A.A., has voluntarily undertaken the inspection and certification of all civilian aircraft. The Federal Aviation Act of 1958, 49 U.S.C. § 1301, et seq., requires the F.A.A. “to promote safety of flight of civil aircraft in air commerce” and to perform its duties “in such manner as will best tend to reduce or eliminate the possibility, or recurrence of accidents in air transportation ....” 49 U.S.C. § 1421. The Act provides for a mandatory certification procedure, 49 U.S.C. § 1423, and the F.A.A. has established design criteria that every aircraft must meet before being certified for flight.
Members of the flying public may not know the specific contents of F.A.A. regulations. There is general knowledge, however, that regulations designed to insure optimum safety exist and that the United States inspects each aircraft for compliance. The public knows that the government “grounds” aircraft until questions about safety are resolved. The United States should expect that members of the public will rely on the proper performance by the F.A.A. of its duty to inspect and certify. Under California law, a private person inspecting and certifying aircraft for airworthiness would be liable for negligent inspection under that state’s good Samaritan rule. It follows that the United States also falls within the rule. Even without reference to the good Samaritan rule, we have indicated that an action against the government will lie in a negligent inspection and certification case. Arney v. United States, 479 F.2d 653, 661 (9th Cir.1973).
The United States contends that if it comes under this rule it will be liable for every accident resulting from an activity subject to government safety regulations. This argument is not persuasive. The United States will be liable only when injury has resulted from the negligent performance of its duty. The voluntary assumption of the inspection and certification function carries with it the duty to inspect and certify with reasonable care.

S.A. Empresa de Viacao Aerea Rio Grandense v. United States, 692 F.2d 1205 (9th Cir.1982). The extension of liability for negligent inspection is clearly predicated on a need to insure public safety. Although the need may be more acute and the governmental role more prominent in the case of air transportation, most building codes also are predicated in large part upon concerns for public safety. However, even if a member of the public may sue for injuries suffered as a consequence of defective construction that would have been detected by a reasonable inspection, does this also mean that building owners and purchasers may require the government to pay for repairs or improvements needed to bring a building up to code requirements?

It has been held that a lender who undertakes the responsibility to inspect a construction project for its own benefit, and charges the borrower-developer a fee for such inspection, is not liable to the borrower-developer for any failure by the inspector to observe deficiencies in the construction. Rice v. First Federal Savings & Loan Ass’n of Lake County, 207 So.2d 22 (Fla. 2d DCA 1968). Similarly, I do not believe a governmental body that conducts inspections for its own benefit and the benefit of its citizens, owes any duty to the building owner to see that such inspections are properly conducted. Indeed, it is the building owner who has the obligation to see to it that his building is constructed in accordance with the governmental building code. To effect such compliance the owner usually hires a contractor, architect or engineer, to whom, in turn, the owner can look if the building is not properly constructed. This responsibility of the owner to build in compliance with the building code is completely negated if the owner is subsequently allowed to look to the government to guarantee compliance by the owner’s agents, i.e. the contractor, architect or engineer, with the code. This example is only one step removed from the factual situation presented herein, where we have purchasers of newly constructed premises seeking financial relief from the government for defects in the construction created by the prior owner and his agents. In my view the purchasers’ relief should be limited to an action against the prior owner and his agents. Cf. Conklin v. Hurley, 428 So.2d 654 (Fla.1983).

Such a holding is not precluded by the supreme court’s holding in Commercial Carrier rejecting Modlin. Since building codes are primarily enacted for reasons of public safety, any liability predicated on the negligent failure to enforce the building code should be limited to injuries suffered by members of the public. The building codes should not be used as a means for developers or building purchasers to extract a financial guaranty from the government to the quality of the building they erect or purchase. In other words, even the public safety rationale that may support the extension of liability of governments for negligent inspections simply does not apply to situations where the relief sought is the repair of the defective premises.

It appears that the decision in Commercial Carrier, rather than clarifying the law, has produced the same sort of confusion that the Commercial Carrier opinion concludes existed prior to the legislative abrogation of sovereign tort immunity. The “discretionary” or “planning level” exception adopted by Commercial Carrier has already proven unworkable, as is evidenced by the Supreme Court’s recent trilogy of opinions in this area written by a justice who dissented in Commercial Carrier, and to which opinions the author of the majority opinion in Commercial Carrier has dissented, declaring that the confusion in this area of the law had now been compounded by the more recent opinions.

After Commercial Carrier, and its rejection of Modlin, courts have appeared to lose sight of the requirement of the existence of a duty in considering liability, and have, instead, directed most of their attention to the difficult task of determining whether the action involved was “discretionary” or “operational” in accord with the nebulous standard set out in the case of Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), and adopted in Commercial Carrier.

Absent some reconsideration by the supreme court, the legislature, while there are still some members around who are aware of their intent in enacting section 768.28, should act to clarify its intent in passing this legislation. I would be surprised to learn that the legislature intended to make governmental bodies responsible for repairs to buildings to bring them up to building code compliance or to incorporate the case law of the State of Washington as enunciated in 1965 as the controlling law for the State of Florida. In any event, state and local governmental bodies are entitled to a clearer statement of their potential liabilities than is presently being provided in the case by case application of the Washington decision.

      . In Halvorson the Washington Supreme Court recognized an exception to this general rule of non-liability where a statutory provision “evi-(fences a clear intent to identify and protect a particular and circumscribed class of persons.” Id. 574 P.2d at 1192.

      . Arguably, the airplane inspection and certification cases could be placed in the category of the same exception to the general rule discussed in footnote 1 of this opinion. For examples of cases rejecting the Modlin view and holding the government liable for negligent building inspections see Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976) and Adams v. Alaska, 555 P.2d 235 (Alaska 1976).

      . State Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982); City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); and Ingham v. State Department of Transportation, 419 So.2d 1081 (Fla.1982). Also see our recent decision in Elliot v. City of Hollywood, 399 So.2d 507 (Fla. 4th DCA 1981), in which we held that a municipality could not be held liable for its failure to enforce an ordinance limiting the height of hedges and bushes; and Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983), wherein it was held that governmental bodies are not liable for the failure of police officers to arrest motorists who are observed by the police to be intoxicated and who later are involved in accidents causing substantial personal injuries to third parties.


text:
    Charlie Louis WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2279.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 1983.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, Asst. Public Defender, and Thomas F. Ball, III, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See, State v. Waters, 436 So.2d 66 (Fla.1983).

ANSTEAD, C.J., and BERANEK and DELL, JJ., concur.


author: BERANEK, Judge.

text:
    In re In the Interest of E.J., a minor child.
    No. 83-297.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 1983.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is a juvenile delinquency case in which the appellant claims that the trial court should have suppressed his confession. This point is without merit. See Doerr v. State, 383 So.2d 905 (Fla.1980), and Batch v. State, 405 So.2d 302 (Fla. 4th DCA 1981). The appellant’s reliance on Dowst v. State, 336 So.2d 375 (Fla. 1st DCA 1976), is misplaced in view of the Supreme Court’s later opinion in Doerr and the change in the statute in question.

Appellant also claims error in that the trial court is asserted to have (1) ordered commitment to the Department of Health and Rehabilitative Services, and (2) retained jurisdiction to simultaneously effectuate restitution to the victim. Appellant contends this order is erroneous in view of our decision in In the Interest of M.S., 429 So.2d 844 (Fla. 4th DCA 1983), and the First District’s decision in M.V.D. v. State, 414 So.2d 599 (Fla. 1st DCA 1982). We find both those cases distinguishable, because the former deals with a fine while the latter concerns restitution as a condition of commitment. The present case thus appears to fall within the reasoning of R.D.B. v. State, 404 So.2d 136 (Fla. 5th DCA 1981), which authorized restitution as a condition of aftercare.

In any case, and of primary importance, the commitment order does not mention restitution, and appellant’s arguments are based only upon the court's oral statements at the time of commitment. Clearly, the written order under which appellant is committed does not require restitution. The order merely retains jurisdiction. No error has been made to appear in this regard and the matter is affirmed.

AFFIRMED.

ANSTEAD, C.J., and DELL, J., concur.

      . The fíne — which was vacated — was payable to the State.


author: OTT, Chief Judge.

text:
    Kurn Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 83-456.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1983.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Kurn Lee Williams appeals his judgment and sentence for robbery with a deadly weapon, under section 812.13(2)(a), Florida Statutes (1981). While we find no reversible error in appellant’s first and third contentions, we agree that the lower court erred in assessing court costs against Williams, who earlier had been adjudged indigent. Accordingly, we strike the costs of $10, $2, and $2 imposed against appellant under sections 960.20, 943.25(4), and 943.-25(8), Florida Statutes (1981). Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983).

We affirm appellant’s conviction in all other respects.

GRIMES and CAMPBELL, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Petitioner, v. Jack T. FOSTER, Respondent.
    No. 83-1166.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1983.
    James A. Gardner, State Atty., and Barbara B. Briggs, Asst. State Atty., Braden-ton, for petitioner.
    R. John Cole, II of Steves, Busch & Cole, Sarasota, for respondent.
   HOBSON, Acting Chief Judge.

The State of Florida filed a petition for writ of certiorari pursuant to rule 9.100, Florida Rules of Appellate Procedure, seeking relief from a judgment of acquittal entered by the trial court. We deny certio-rari, but not without explanation.

Respondent Jack T. Foster, defendant below, was charged by information with the offense of grand theft in the first degree, to which defendant entered a plea of not guilty. Thereafter, the defendant’s trial commenced. The jury was impanelled and sworn and opening statements were presented by the state and defendant. The state began to present its case by putting on the first two witnesses. After the second witness had finished testifying, and before other witnesses had an opportunity to testify, the trial judge called a conference in chambers with counsel. The conversation which took place in chambers was not recorded. Thereafter, the trial judge recalled the court reporter and entered a sua sponte judgment of acquittal. In its ruling, the trial court found that the state was unable, based on the evidence, to prove its case.

The first issue presented on appeal is whether the interruption of the state’s presentation of evidence by a sua sponte judgment of acquittal entered prior to the closing of the state’s case exceeds the authority of the trial court. The second point raised on appeal is whether jeopardy attaches when the trial court exceeds its authority by entering an improper judgment of acquittal.

The state argues that the trial court exceeded its jurisdiction and authority by entering a judgment of acquittal prior to the close of the state’s case. Further, the state argues that double jeopardy sanctions come to fruition only after the court properly acts in a manner within its jurisdiction and authority.

In support of its argument the state relies on State ex rel. Bludworth v. Kapner, 394 So.2d 541 (Fla. 4th DCA 1981). In Bludworth, the defendant was indicted for first degree murder. He entered a plea of not guilty, demanded a jury trial and, thereafter, filed a notice of intent to rely upon the defense of insanity. The defendant, on the same day, filed a motion to dismiss the indictment or for a finding of not guilty by reason of insanity. The motion was based on the opinions of two court-appointed psychiatrists and one psychologist that the defendant was insane at the time of the alleged offense and thus the undisputed facts did not establish a prima facie case of guilt. The trial court, after considering the depositions and reports of the court-appointed experts, entered an order finding the defendant not guilty by reason of insanity. On appeal, the Fourth District Court of Appeal held that the trial court did not have authority to issue such an order. Bludworth, however, is clearly distinguishable from the instant case because the pretrial order appealed from was issued prior to the jury being sworn and impanelled.

It has been repeatedly held that jeopardy in a jury trial attaches after the jury has been sworn and impanelled to hear evidence in the defendant’s case. See, e.g., State v. Iglesias, 374 So.2d 1060, 1062 (Fla. 3d DCA 1979). This is true notwithstanding the entry of a judgment of acquittal by the trial court before the state rests its case.

In Watson v. State, 410 So.2d 207, 208 (Fla. 1st DCA 1982), the court stated:

A judgment of acquittal rendered by a trial judge represents a resolution in the defendant’s favor, correct or incorrect, of some or all of the factual elements of the offense charged. United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978). Once a defendant obtains an acquittal after jeopardy attaches, even if based on an erroneous interpretation of governing legal principles as occurred in this case, the double jeopardy clause bars retrial. We believe that in this sense, retrial must be construed to mean further proceedings which would be devoted to the resolution of factual issues concerning the elements of the offense charged. Scott and cases cited therein.

Applying these principles to the instant case, we find that the trial judge in granting the acquittal, although in error, did not not exceed his jurisdiction and authority. Therefore, jeopardy attached when the jury was sworn and impanelled and the defendant cannot be tried a second time.

Accordingly, certiorari is denied.

BOARDMAN and RYDER, JJ., concur.

      . Fla.R.Crim.P. 3.380(a) provides:
      If, at the close of the evidence for the state or at the close of all the evidence in the cause, the court is of the opinion that the evidence is insufficient to warrant a conviction, it may, and on the motion of the prosecuting attorney or the defendant, shall, enter a judgment of acquittal.


author: ORFINGER, Chief Judge.

text:
    Ronald J. JULIAN and Allstate Insurance Company, Appellants, v. Robert JOHNSON, Jr., and Richard Parris, Appellees.
    No. 82-244.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1983.
    Lester A. Lewis of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellants.
    William H. Seitz of LaRue & Bernardini, P.A., Daytona Beach, for appellees.
   ORFINGER, Chief Judge.

This is an appeal from a final judgment awarding appellees, plaintiffs below, personal injury protection (PIP) benefits under a policy of insurance issued to appellant Ronald J. Julian by Allstate Insurance Company (Allstate) in the State of Massachusetts. We reverse.

Appellees Johnson and Parris filed suit against Julian and Allstate, alleging in substance, that on the day in question Julian was operating a motor vehicle owned by one Larry Corbin, bearing Massachusetts license plates, with Corbin’s knowledge and consent, and while so operating the motor vehicle in Holly Hill, Florida, carelessly and negligently caused it to collide with plaintiffs, then pedestrians, as a result of which plaintiffs suffered permanent injury. Count I of the complaint requested recovery of tort damages. Count II alleged that the driver Julian had a policy of insurance with Allstate, issued in the state of Massachusetts, which provided PIP benefits “in accordance with the terms of the policy”; that plaintiffs had demanded such benefits but that payment thereof had been refused. PIP benefits under the policy were demanded in this count.

The liability claims (Count I) were ultimately settled and the issues of PIP coverage were presented to the trial court without a jury on the following stipulated facts:

A. At the time of the accident which is the subject of this claim for personal protection benefits under an Allstate automobile insurance policy issued to Ronald J. Julian, Ronald J. Julian was not driving his own car but was driving a car owned by Larry Corbin.
B. The plaintiffs, Robert Johnson, Jr., and Richard Parris, were Florida residents at the time of this accident.
C. The plaintiffs were pedestrians at the time of this accident.
D. Allstate Insurance Company issued a policy to Ronald J. Julian in the Commonwealth of Massachusetts, according to Massachusetts law, and at a time when Ronald J. Julian was a resident of the Commonwealth of Massachusetts.
E. The policy provides personal injury protection benefits to Ronald J. Julian and others, but the provision of such benefits is subject to any and all provisions, limitations, exclusions governing the payment of such benefits.

The issues remaining to be determined by the court were set forth by the parties as follows:

A. Whether personal injury protection coverage, and the benefits thereunder, are available to the plaintiffs or whether such coverage is excluded by the terms, language and provisions of said policy.
B. If coverage is provided to plaintiffs, • what is the amount of coverage available to plaintiffs?

On the. basis of the stipulated facts and the insurance policy and medical bills stipulated into evidence, the trial court entered judgment for Johnson in the amount of $10,000, and for Parris in the amount of $1360.64. Allstate contends that the insurance policy issued to Julian does not provide coverage for the PIP damages awarded, and we agree.

The insurance policy in question is a Massachusetts policy, issued to a Massachusetts resident (Julian) and covering an automobile registered in Massachusetts, owned by Julian. The insured automobile is not the automobile driven by Julian at the time of the accident in question. The policy is an “easy to read” contract written exclusively for the Massachusetts automobile owner. It is divided into two parts: compulsory insurance required under Massachusetts law of all automobiles registered in Massachusetts and optional insurance coverage which provides additional coverage not found under the compulsory section, but which is not required by the State of Massachusetts.

The compulsory insurance section is divided into four parts: bodily injury to others; personal injury protection; bodily injury caused by an uninsured auto; and damage to someone else’s property. The most significant provision of these four to the facts of the instant case is part two on PIP coverage which provides in pertinent part:

We will pay the benefits described below to you and other people injured or killed in auto accidents. For any one accident, we will pay as many people as are injured, but the most we will pay for injuries to any one person is $2,000. This is the most we will pay no matter how many autos or premiums are shown on the Coverage Selections page.
* * * * ⅜: *
We will pay PIP benefits to or for:
3. Any pedestrian, including you, if injured by your auto in Massachusetts, or any Massachusetts resident who, while a pedestrian, is struck by your auto outside of Massachusetts.

It is clear that no PIP coverage is provided to appellees under the quoted portion of the policy and the stipulated facts here. But, say appellees, there is optional coverage under the policy providing both additional bodily injury coverage to others and additional medical payment coverage, which portion of the policy has this provision:

Some other states and Canadian provinces require visiting autos to have higher amounts of bodily injury or property damage coverage than you may have purchased. But, if you have purchased any coverage at all under this Part, we will automatically provide the required higher coverage.

Thus, appellees contend that if the defendant or insured vehicle was taken out of Massachusetts to another state, or to Canada, then the policy issued in Massachusetts would conform to the minimum PIP requirements of that state.

We cannot put new language into this contract and make it apply to PIP coverage when by its very terms, the extension applies only to bodily injury coverage and property damage coverage. These coverages are clearly distinct from PIP coverage under the policy terms.

Appellant contends that we have a “choice of law” problem here and that we should apply Massachusetts law, citing Aetna Casualty and Surety Company v. Enright, 258 So.2d 472 (Fla. 3d DCA 1972), and Allstate Insurance Co. v. Langston, 358 So.2d 1387 (Fla. 3d DCA 1978) in support, because the policy fully complies with the law of that state. Appellee says that choice of law is not involved here because this case is “simply an interpretation of an insurance policy to decide whether or not the policy conforms to the minimum statutory insurance requirements of the State of Florida on the date of the accident.”

Florida public policy, as expressed by its statutory law, does not support the judgment,- because the Florida statutory requirements for PIP coverage, by their very terms, do not require Florida PIP coverage under the facts of this case. Section 627.-731, Florida Statutes (1981), applies the No-Fault Act to motor vehicles “registered in this state.” The vehicle here was registered in Massachusetts. The No-Fault Act requires that the owner of the vehicle have insurance coverage, not the driver. See Protective National Insurance Company of Omaha v. Padron, 310 So.2d 432 (Fla. 3d DCA 1975). Section 627.733(2), Florida Statutes (1981), requires that non-resident owners of motor vehicles which have been physically present in the state for more than 90 days during the preceding 365 days shall thereafter maintain security as required by law. The stipulated facts do not show this out-of-state vehicle to have been in this state during such period. Finally, section 627.736(1), Florida Statutes (1981), says:

Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection providing for payment of all reasonable expenses incurred for necessary medical, surgical, x-ray, dental, and rehabilitative services, including prosthetic devices; necessary ambulance, hospital, and nursing services; and funeral and disability benefits to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, all as specifically provided in subsection (2) and paragraph (4)(d), to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle ... [Emphasis supplied].

Since neither the subject vehicle nor the appellant driver were required to have the PIP coverage under section 627.733(2), then section 627.736(1), likewise does not apply. Therefore, even if we apply Florida law, that law does not provide for PIP coverage under the stipulated facts.

Plaintiffs have their remedy under usual tort principles, which they have already exercised. They were not entitled to PIP benefits as well, so the judgment is erroneous and is reversed, with directions to enter judgment for appellants.

REVERSED and REMANDED.

DAUKSCH and COWART, JJ., concur.