author: ORFINGER, Chief Judge. COBB, Judge,

text:
    William J. LEAHY, Jr., etc., and Ina M. Foster, etc., Appellants, v. The SCHOOL BOARD OF HERNANDO COUNTY, Florida, Appellee.
    No. 83-730.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.

      Dock Blanchard of Tucker, Brannen, Blanchard & Stillwell, P.A., Ocala, for appellants William J. Leahy, Jr., et al.
    Joseph E. Johnston, Jr., of Joseph E. Johnston, Jr., P.A., Brooksville, for appel-lee.
   ORFINGER, Chief Judge.

This appeal is from a directed verdict for defendant on the issue of tort liability in a case arising out of an injury resulting from a football drill. The plaintiffs, William J. Leahy and his guardian, appeal from the final judgment entered on the directed verdict, contending that the trial court erred in removing the case from the jury and that when the evidence and all reasonable inferences therefrom are viewed in a light most favorable to the plaintiff, there was substantial evidence upon which the jury could have found for the plaintiff. We agree and reverse for a new trial.

The testimony below showed that the appellant was a freshman attending spring practice for the Hernando High School football team. On May 1, 1979, the first day of practice, equipment was issued, but the appellant and several other freshmen did not receive helmets because the school did not have a sufficient number of the correct sizes available. When the available equipment was issued, no special instructions were given by any of the football coaches to those players who were not issued helmets and attached mouth guards regarding limitations on their participation in practice. (Helmets are also equipped with face guards that partially cover the face.) On the second day of practice, the players went out on the field for practice in whatever equipment they had been issued. There were approximately sixty students being supervised by Coach Palmer and three assistants who were in the vicinity of the stadium.

Several of the players were instructed to participate in an “agility” drill, and although the drill did not involve blocking or tackling, it did involve coming into contact with other players. No special precautionary instructions were given to the players who had no helmets or mouth guards relative to those players who had such equipment. Ten or twelve of the more experienced players (all with helmets) were instructed to get on their hands and knees and position themselves in a row. The rest of the players formed a line and approached the row one at a time. They were instructed to go up to each lineman, hit him on the shoulders with both hands, fall and roll on the ground, and then get up “as fast as possible” and go on to each subsequent lineman in the same manner. Although this was referred to by the coaches as a “no contact drill”, by the very nature of it, some physical contact between the players was required. After the drill started, the coaches let it continue on its own and they watched from the sidelines.

Although other participants preceded him, the appellant was the first player without a helmet who attempted the drill. There was testimony that at this point the players had become more aggressive (they were “hitting harder,” “getting rowdy,” “knocking the people that were down back” and “digging in and getting a better hold”). The appellant came up to the first lineman on the row and when he started down to hit the lineman’s shoulder pads as instructed, the lineman straightened his arms or raised his head and the appellant’s face collided with the lineman’s helmet. There was also testimony that the appellant’s hands slipped off the lineman’s shoulder pads before the impact. The appellant suffered facial injuries and his front teeth were shattered. Appellant presented expert testimony to the effect that no player should be permitted to participate in a drill like this without a helmet.

The appellee’s motion for directed verdict alleged that the appellant had failed to establish by positive evidence any negligence on the part of the school board that would be actionable. The appellant submits, however, that the evidence supports at least four different theories of negligent behavior on the part of the school board:

(1)The failure to issue a helmet and/or have one available for plaintiff;
(2) The failure to issue any precautionary instruction relative to those players participating in the drill without helmets and mouth guards;
(3) Affirmatively allowing players without helmets and mouth guards to participate in a contact drill with players who did have such helmets;
(4) Not limiting the intensity of the players’ activities during the drill at least as to those who had no helmets, once it became apparent that the drill was becoming aggressive.

Florida case law recognizes the general duty of schools, principals and teachers to adequately supervise students placed within their care. Rupp v. Bryant, 417 So.2d 658 (Fla.1982). “The genesis of this supervisory duty is based on the school employee standing partially in place of the student’s parents.” Id. at 666. See also, Benton v. School Board, 386 So.2d 831 (Fla. 4th DCA 1980); Barrera v. Dade County School Board, 366 So.2d 531 (Fla. 3d DCA 1979); King v. Dade County School Board of Public Instruction, 286 So.2d 256 (Fla. 3d DCA 1973), cert. denied, 294 So.2d 89 (Fla.1974).

The school board in the instant case owed a duty to properly supervise the activity, which was an approved school activity and one in which the school’s employees had the authority to control the behavior of the students. Regarding school athletic activities, it has generally been held that:

The duty owed an athlete takes the form of giving adequate instruction in the activity, supplying proper equipment, making a reasonable selection or matching of participants, providing nonnegli-gent supervision of the particular contest, and taking proper post-injury procedures to protect against aggravation of the injury.

Annot., 35 A.L.R.3d 725, 734 (1971) (footnotes omitted) (emphasis added).

A directed verdict is proper only when no evidence has been presented which would support a verdict for plaintiff. National Car Rental Systems, Inc. v. Bruce A. Ryals Enterprises, Inc., 380 So.2d 529 (Fla. 5th DCA 1980); Budgen v. Brady, 103 So.2d 672 (Fla. 1st DCA 1958). In determining whether the appellant established a case sufficient to withstand a directed verdict we must address the question of whether there was evidence of a breach of the duty owed by the appellee which breach a jury could conclude was the proximate cause of the appellant’s injury.

There was testimony at trial that although the football drill wherein the appellant was injured was characterized by the coach as a noncontact drill, he instructed the boys to line up one at a time and hit the other player on the shoulders, roll down on the ground, and then hit the next player. There was also testimony that the drill became progressively more aggressive or “rowdy” and the players were hitting each other harder. There was no testimony that any of the coaches attempted to lessen the intensity of the drill. Furthermore, the coach did not issue any warnings or statements regarding contact during drills, even though several of the players (those less experienced), including the appellant, had not been issued helmets and mouth guards due to the school’s lack of a sufficient number of sizes. Because football helmets with their attached faceguards and mouthpieces are used as safety or protective devices, calculated to protect the player against head or facial injuries, the evidence that appellant was permitted to participate without a helmet was a sufficient basis upon which a jury could conclude that the school (through its employees) failed to exercise reasonable care under the circumstances for the protection of the appellant.

There was also testimony indicating that the injury to the appellant was a foreseeable consequence of the failure to provide the appellant with a helmet and mouth guard, of the failure to give cautionary instructions regarding contact (especially regarding the fact that some players had helmets while others did not) and of the failure to limit the progressive intensity of the drill under such circumstances. Coach Palmer testified that under ideal circumstances, all players wear the same equipment (presumably when the school provides enough equipment of sufficient sizes). He also acknowledged that the players are encouraged to do the drills at a fast pace (which increases the risk of contact) and that he was aware that the players become aggressive during these drills. Additionally, a coach from a nearby high school testified that it is recognized in the field of football that a helmet can be a dangerous weapon to another player. It was his testimony that when conducting a drill similar to that which occurred in the instant case, where there is a possibility of bodily contact, a helmet would be a necessary safety feature.

Foreseeable consequences are those which a person by prudent human foresight can be expected to anticipate as likely to result from an act, because they happen so frequently from the commission of such act that in the field of human experience they may be expected to happen again. Although the actual harm that results may be seen as not foreseeable, it is not necessary that the tortfeasor be able to foresee the exact nature and extent of the injuries in the precise manner in which they occur; rather, all that is necessary is that the tortfeasor be able to foresee some injury as likely to result in some manner as a consequence of his negligence. Goode v. Walt Disney World Company, 425 So.2d 1151 (Fla. 5th DCA 1982). There is a reasonable inference available to find causation between the negligence of the appellee and the appellant’s injury in this case, therefore the question of foreseeability seems to be one properly for the jury.

Also relevant to the issue of foreseeability is the fact that “[i]f an intervening cause is foreseeable, it cannot insulate a defendant from all liability.” Goode. Put another way, the intervening negligence of a third party does not relieve the original tortfeasor of his negligence if the intervening negligence is foreseeable. Rupp. Thus, even if appellant here was moving faster than some of the other players, and even if the player with whose helmet the appellant made contact improperly and negligently straightened his arms and raised his head, the testimony at trial indicated that such actions were foreseeable to the coach. Both the coaches and the players testified that varying speeds are used during these drills and that many of the players do not always do them properly, and they are not expected to (especially those with less experience).

In Rupp, a student was injured during an unsupervised club hazing. The Florida Supreme Court recognized that “certain student misbehavior is itself foreseeable and therefore is not an intervening cause which will relieve principals or teachers from liability for failure to supervise.” The court continued:

“[W]e should not close our eyes to the fact that ... boys of seventeen and eighteen years of age, particularly in groups where the herd instinct and competitive spirit tend naturally to relax vigilance, are not accustomed to exercise the same amount of care for their own safety as persons of more mature years.” Recognizing that a principal task of supervisors is to anticipate and curb rash student behavior, our courts have often held that a failure to prevent injuries caused by the intentional or reckless conduct of the victim or a fellow student may constitute negligence.

Id. at 668-669. The issue of foreseeability in the instant case was one for the jury and the actions of the appellant and the other players were no less foreseeable than the roughhousing or hazing which occurred in Rupp.

The appellee argues that the appellant assumed the risk inherent in the ordinary play of football, however, there is no evidence that he assumed the risk of participating in a training drill which was improperly supervised and for which he had improper and insufficient equipment. See O’Connell v. Walt Disney World, 413 So.2d 444, 448 (Fla. 5th DCA 1982). The plaintiff must have voluntarily exposed himself to a known risk in order for the defense of express assumption of risk to apply. Kuehner v. Green, 436 So.2d 78 (Fla.1983). Moreover, it is up to the jury to decide whether the plaintiff subjectively appreciated the risk giving rise to any injury sustained while participating in a contact sport. Id. As stated by the Florida Supreme Court in Kuehner:

If the plaintiff is found not to have subjectively appreciated the risk, the trier of fact must determine, after reviewing all evidence, whether this plaintiff should have reasonably anticipated the risk involved. Brady v. Kane, 111 So.2d 472 (Fla. 3d DCA 1959). If it is found that a reasonable man would not have anticipated this risk, the “unsuspecting plaintiff” cannot be said to have consented to such danger and he therefore should be allowed to recover in full.
Conversely, if the jury determines .that the plaintiff should have anticipated the particular risk and did not, then plaintiff’s conduct should be subjected to comparative negligence apportionment principles.

Id. See also Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). In Whorley v. Brewer, 315 So.2d 511 (Fla. 4th DCA 1975), the court held that notwithstanding evidence of negligence on the part of the deceased student, the issue of lack of supervision as a legal cause should have been submitted to a jury and that a jury being charged with the principles of comparative negligence might have determined the supervision by the school board and its employees to be inadequate and a legal cause of the accident.

It has been recognized that, because of the doctrine of comparative negligence, situations in which directed verdicts in negligence cases are appropriate will occur with less frequency. Petroleum Carrier Corp. v. Gates, 330 So.2d 751 (Fla. 1st DCA 1976). Furthermore, it is well established in Florida that issues of foreseeability and proximate cause are generally for the jury. Florida Power and Light Company v. Lively, — So.2d - No. 81-1571 (Fla. 3d DCA Nov. 22, 1983) [8 FLW 2773, 2775]; Cassel v. Price, 396 So.2d 258, 260 (Fla. 1st DCA 1981); Daniels v. Weiss, 385 So.2d 661 (Fla. 3d DCA 1980). The facts in this case indicate that there was evidence upon which a jury could conclude that the school board (through its employees) negligently failed to provide proper supervision, instruction and equipment and that such negligence was a legal cause of the appellant’s injuries. A new trial is required.

REVERSED and REMANDED.

CYCMANICK, M.F., Associate Judge, concurs.

COBB, J., concurs specially with opinion.

COBB, Judge,

concurring specially.

While I concur with the majority result mandating a new trial, I cannot concur that there are facts in this case from which a jury could fault the school board for negligent failure to provide instruction or equipment. The negligence, if any, attributable to the coaches supervising the football practice herein concerned was that they improperly allowed an essentially noncon-tact agility drill to become elevated, through rowdyism, into a contact drill between players fully equipped and some, including plaintiff, who were not. This is the putative negligence proximately related to the injury.

But in my view, we are opening a Pandora’s box that will seriously impair the reasonable operation of high school football programs if we hold, even by implication, that a school board can be held liable because all players out for football practice are not fully equipped at all times or are not instructed to refrain from striking hard objects with their faces.

Football is a contact sport and that fact is obvious to any school boy mentally competent to find the practice field. Many aspects of football practice do not require wearing a helmet and face guard. The agility drill in this case, if conducted as instructed, did not necessitate such head gear. The opportunity for injury is always present on a football field where bodies and footballs are in motion, and serious injuries can result from being struck in the face by a football during passing or punting practice where no face guard is used — but that should not result in a law suit against the school board. I believe this opinion should be expressly confined to contact drills in which players without full equipment are directed, or knowingly permitted contrary to direction, to engage.

      . It should be noted, however, that a teacher has no duty to supervise all movements of all students all the time. See Benton v. School Bd., 386 So.2d 831 (Fla. 4th DCA 1980). In Benton, no duty could be imposed on a teacher to accompany one child from the class to the bathroom (where her finger was crushed in the bathroom door by another child), since such a requirement woulil conflict with the greater duty to supervise generally.


source: Caselaw Access Project

author: HOBSON, Acting Chief Judge.

license: Public Domain

text:
    Harry John GOODMAKERS, Petitioner, v. STATE of Florida, Respondent.
    No. 84-22.
    District Court of Appeal of Florida, Second District.
    May 11, 1984.

      Michael R.N. McDonnell of McDonnell, Buckel & Berry, Naples, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for respondent.
   HOBSON, Acting Chief Judge.

Harry John Goodmakers petitions this court for a writ of certiorari regarding an appellate order of the Collier County Circuit Court which affirmed a conviction and sentence rendered by the Collier County Court for the first-degree misdemeanor of indecent exposure. We grant the petition and reverse.

The state filed an information alleging that Goodmakers violated section 800.03, Florida Statutes (1981), the indecent exposure statute. Section 800.03 reads in full:

800.03 Exposure of Sexual Organs. —It shall be unlawful for any person to expose or exhibit his sexual organs in any public place or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or so to expose or exhibit his person in such place, or to go or be naked in such place. Provided, however, this section shall not be construed to prohibit the exposure of such organs or the person in any place provided or set apart for that purpose. Any person convicted of a violation hereof shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Goodmakers entered a plea of not guilty to the charge. Thereafter, his attorney filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). His attorney asserted therein that the undisputed material facts upon which the motion was based were that:

1. At the time in question, defendant was lying nude on a dock located near Pelican Bay Nurseries.
2. Defendant was asleep or unconscious and was making no movement whatsoever.
3. Defendant’s sexual organs were not in a state of arousal.

Goodmakers did not personally attest to the truth of these facts. Instead, his attorney swore that these facts were “true to the best of his [the attorney’s] knowledge.”

The state filed a sworn traverse pursuant to Rule 3.190(d). It declared therein:

1. That the facts contained in paragraph (1) of Defendant’s Affidavit are admitted and would further state that the location of the offense is on private property.
2. That the facts contained in paragraph two (2) of Defendant’s Affidavit are admitted and would further state the defendant was lying face up, without the benefit of clothing.
3. The facts contained in paragraph three (3) of Defendant's Affidavit are admitted.

The Collier County Court rendered an order denying Goodmakers’ motion to dismiss. Goodmakers subsequently withdrew the not guilty plea, entered a plea of no contest, and reserved the right to appeal whether the facts contained in the motion to dismiss constituted a violation of section 800.03. The court then filed a final judgment and sentence.

On appeal, the Collier County Circuit Court issued a final order affirming the county court’s decision without comment. It later denied Goodmakers’ motion for a rehearing and for clarification.

Goodmakers now petitions this court for a writ of certiorari, contending that the circuit court departed from established principles of Florida law.

Before confronting the substantive issue raised by Goodmakers, it is necessary to address a procedural issue presented by the state. This ‘procedural question concerns Goodmakers’ failure to personally swear to the truth of the facts contained in his motion to dismiss.

Rule 3.190(c)(4) provides that a defendant’s motion to dismiss should be sworn to. Case law says that this means that the motion should be verified by one with firsthand knowledge of the facts alleged. See State v. Kling, 335 So.2d 614, 615, n. 1 (Fla. 2d DCA 1976); State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981). Here, the individual with personal knowledge was Goodmakers, not his attorney. Thus, notwithstanding the declaration by Goodmakers’ attorney that the facts asserted in the motion were true to the best of the attorney’s knowledge, the motion was subject to a summary denial. See State v. Bethea, 409 So.2d 1139 (Fla. 2d DCA 1982); Kling; Upton; State v. Holder, 400 So.2d 162 (Fla. 3d DCA 1981). However, the state failed to submit a motion to strike on this basis. Compare Bethea; Holder. In sum, it waived the objection. See State v. Mayle, 406 So.2d 108, n. 3 (Fla. 5th DCA 1981); State v. Kemp, 305 So.2d 833 (Fla. 3d DCA 1974). As such, we refuse to deny Goodmakers’ petition on this procedural ground.

With respect to the substantive issue, Goodmakers argues that the circuit court rendered a decision in “direct conflict” with the respective holdings of the Supreme Court of Florida and the First District Court of Appeal in Hoffman v. Carson, 250 So.2d 891 (Fla.), appeal dismissed 404 U.S. 981, 92 S.Ct. 453, 30 L.Ed.2d 365 (1971), and Duvallon v. State, 404 So.2d 196 (Fla. 1st DCA 1981). He maintains that he has therefore been found guilty of conduct which is not proscribed by Florida law.

In Hoffman, the Florida Supreme Court made the following observation regarding section 800.03:

Because of the nature of the statute, the terms in question must be construed as necessarily relating to a lascivious exhibition of those private parts of a person which common propriety requires to be customarily kept covered in the presence of others. This construction necessarily applies also to the language, “or so to expose or exhibit his person in such place, or to go or be naked in such place.”

250 So.2d at 893. (Emphasis added.) The First District Court of Appeal, relying upon Hoffman, held in Duvallon that “in order for nudity to be prosecutable under section 800.03, Florida Statutes, there must be a lewd or lascivious exhibition or exposure of the sexual organs.” 404 So.2d at 197. (Emphasis added.)

Frankly, we disagree with our state supreme court’s interpretation of section 800.03 in Hoffman. In our view, the legislature clearly intended by the phrase “or to go or be naked in such place” to deem the mere act of “go[ing] or be[ing] naked in such place” a first-degree misdemeanor. Such a law would be within the ambit of the legislature’s police power. In any event, we are constrained to follow the supreme court’s construction of section 800.03. See State v. Dwyer, 332 So.2d 333, 335 (Fla.1976). Hence, in order for there to be a violation of section 800.03, there must be, coupled with mere nudity, “lascivious” exposition or exhibition of the defendant’s sexual organs.

The terms “lascivious” and “lewd” mean that the perpetrator’s exposition or exhibition involves “an unlawful indulgence in lust, eager for sexual indulgence.” Chesebrough v. State, 255 So.2d 675, 677 (Fla.1971). Or, as defined by the supreme court in Boles v. State, 158 Fla. 220, 27 So.2d 293, 294 (1946):

“Lewd”, “lascivious”, and “indecent” are synonymous and connote wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator.

In the instant case, it is undisputed that Goodmakers was nude in a place not set apart for that purpose. However, it is likewise undisputed that, at the time, he was asleep or unconscious, motionless on his back, and not in a state of sexual arousal. In other words, it is uncontradicted that he did not engage in a lewd or lascivious exhibition or exposition of his private parts while naked.

Accordingly, because a judgment of guilt and sentence have been entered against Goodmakers based upon facts which, as a matter of law, do not amount to a violation of section 800.03, we grant the petition and reverse the conviction and sentence.

REVERSED.

BOARDMAN and DANAHY, JJ., concur.

      . Apparently, the state could have prosecuted Goodmakers for the second-degree misdemean- or of disorderly conduct pursuant to section 877.03, Florida Statutes (1981). This section provides in pertinent part: “Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency ... shall be guilty of a misdemeanor of the second degree....” Cf. Moffett v. State, 340 So.2d 1155 (Fla.1977) (supreme court affirmed the convictions of two women under section 877.03 for topless sunbathing on a public beach).


author: PER CURIAM.

text:
    Nathaniel WARREN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-219.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Rehearing Denied June 15, 1984.

      Bennett H. Brummer, Public Defender and David B. Javits, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

From the evidence the jury was justified in returning verdicts of guilty, finding the defendant guilty of attempted robbery with a firearm when he attempted to relieve a truckdriver of his money at gunpoint, robbery of a police officer by the taking of his firearm at gunpoint, and aggravated assault with a firearm by shooting at a bystander. Brown v. State, 397 So.2d 1153 (Fla. 5th DCA 1981); Parker v. State, 389 So.2d 336 (Fla. 4th DCA 1980); McClain v. State, 383 So.2d 1146 (Fla. 4th DCA 1980); Solloa v. State, 227 So.2d 217 (Fla. 3d DCA 1969); Bailey v. State, 199 So.2d 726 (Fla. 1st DCA 1967).

The defendant was adjudicated guilty and sentenced to 15 years on the attempted robbery, life on the robbery and 5 years on the aggravated assault, the sentences to run consecutively. Each of the sentences, because a firearm was involved, pursuant to Section 775.087(2), Florida Statutes (1981) calls for a minimum mandatory 3 year sentence. The Supreme Court of Florida has held that in circumstances such as involved in the case at bar, the minimum mandatory sentences cannot be made to run consecutively, but must run concurrently. Palmer v. State, 438 So.2d 1 (Fla.1983). Therefore we affirm the verdicts, the adjudications thereon and the sentences, except that we do hereby modify the sentences as related to the minimum mandatory portions to run concurrently rather than consecutively.

Affirmed as modified.


author: GLICKSTEIN, Judge.

text:
    James K. JENKINS, Appellant, v. A.L. GILLEN and Thelma R. McFarland, Appellees.
    No. 83-812.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1984.
    Rehearing Denied June 21, 1984.

      Edna L. Caruso, West Palm Beach, and Edgar A. Brown, Fort Pierce, for appellant.
    Burton C. Conner, of Conely & Conely, P.A., Okeechobee, for appellee-Gillen.
    George E. Adams of Adams, Hill & Ful-ford, Orlando, for appellee-McFarland.
   GLICKSTEIN, Judge.

This is an appeal by the plaintiff from a final judgment of involuntary dismissal. We reverse and remand.

We shall address only the first of two issues raised herein, for by itself it is dis-positive. That issue is whether the trial court erroneously imposed upon the out-of-state attorney/plaintiff the burden of proving that he had been authorized by the Florida trial court in another county to represent certain parties in a series of criminal cases there.

In resolving this issue, we find it significant that in the present action brought by the attorney/plaintiff, he was not claiming breach of an employment contract, quantum meruit or contract implied in fact. The action started out as a simple foreclosure of a mortgage on real property and of a security lien on a beverage license. It was the two defendants here who alleged, by respective affirmative defenses and counterclaims, that the plaintiff/appellant, a Georgia lawyer, had not been authorized by the trial court to represent parties in Florida criminal proceedings. Having alleged it, the defendants had the burden of proving it.

When this matter came on for trial, plaintiff’s counsel, in proving up the foreclosure action, for reasons unknown to us in light of the nature of this action, went into considerable detail as to the underlying services his client rendered in a criminal case, generating the attorneys’ fee which was secured by the mortgage and the beverage license. Further, although the plaintiff’s impressive credentials — summa cum laude and Phi Beta Kappa at Dartmouth as an undergraduate and magna cum laude at Michigan as a law student — were ' discussed, none of the documents to establish a prima facie case were apparently introduced. The case went irretrievably off course, in our opinion, when, during this lengthy questioning by plaintiffs counsel about the services rendered by the plaintiff, McFarland’s attorney objected to any further testimony along those lines and moved to strike the testimony regarding the services in the absence of a predicate. For the next forty pages, the transcript of the trial is taken up with what the plaintiff and his local counsel did in the criminal cases in Lee County, including the filing of written motions to appear pro hac vice, and discussion of the effect of the absence of written orders on those motions from the various trial judges presiding over the assorted multi-defendant drug cases. The plaintiff testified unsuccessfully that the judges had issued verbal orders; and his local counsel’s corroborative testimony was proffered. The defendants’ objections as to best evidence and hearsay were sustained. There was discussion as to public policy and mention of a possible misdemeanor, leading one to consider whether the plaintiff could still make the last stage out of town and forget the recovery. Finally, the trial judge announced that the plaintiff had failed to make a prima facie case of licensure or authorization to practice law in Florida; and that without such showing, the underlying contract was viola-five of the state’s public policy. He then granted the defendants’ motion for involuntary dismissal.

We believe the shifting of the defendants’ burdens of proof of their respective affirmative defenses and counterclaims to the plaintiff to establish his licensure during his case in chief in a foreclosure action — in contrast to an action to recover an attorney’s fee based on a contract — compels reversal. See Cunningham v. Weatherford, 159 Fla. 864, 32 So.2d 913 (1947).

Further, we disagree that the Lee County judges’ verbal pronouncements were hearsay when the inquiry was not as to the truth of the statements, but merely whether the statements were made. In such instance, given the murkiness of the area under discussion, a hearsay objection is unavailing. See Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962); C.W. Ehrhardt, Florida Evidence, § 801.5 (1977). We also fail to see the applicability of the best evidence rule — as codified in Section 90.952, Florida Statutes (1981) — to such pronouncements. See C.W. Ehrhardt, Florida Evidence, Best Evidence Rule, § 952.1 (1977).

We reverse the involuntary dismissal and remand for further proceedings.

HURLEY, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . During pre-trial preparation, the plaintiff’s attorneys served the following request for admission upon the defendant, McFarland:
      24. That plaintiff, JAMES K. JENKINS, was duly authorized by the Circuit Court in and for Lee County to proceed pro hoc vici [sic] in the representation of A.L. Gillen and others.
      She replied:
      (24) I have no knowledge and therefore deny. Florida Rule of Civil Procedure 1.370(a) provides in part:
      An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.
      The record does not reflect an order requiring McFarland’s compliance with the rule.

      . The trial court had previously entered a partial summary judgment, finding that the defendant, Gillen, had executed and delivered to the plaintiff the subject mortgage and underlying note.

      . The record reveals that after the trial, the plaintiff obtained written orders from the trial court in Lee County, dated after the trial hereof, attesting to his having been authorized to represent the defendants in the criminal cases.

      . Moreover, we could better understand all of the concern about licensure if the defendants had established no effort by the plaintiff to become admitted by the court in Lee County for the limited purpose of representing alleged drug smugglers there. The present epidemic of drug trafficking throughout the country has transformed the previous local practice of criminal law to one of typical interstate appearances. It is as common for a Florida lawyer to defend alleged smugglers in North Carolina as it is for a Georgia lawyer to do the same in any Florida county that has a beach or an airstrip. Today’s successful criminal defense counsel could appropriately christen his wings or fins "Pro Hac Vice."

      .Fraser, Hearsay and the Truth of the Matter Asserted: An Evidentiary Island, 58 Fla.B.J. 94 (1984).


author: HERSEY, Judge.

text:
    Artie May FARMER, Appellant, v. Ernest C. FARMER, Appellee.
    No. 83-1555.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1984.
    As Modified on Denial of Rehearing June 25, 1984.
    Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Barry G. Roderman of Barry G. Roder-man, P.A., Fort Lauderdale, for appellee.
   HERSEY, Judge.

Appellant, ex-wife, appeals an order extinguishing the liability of appellee, ex-husband, to pay for the college education of his adult child.

In dissolution of marriage proceedings in 1976 the parties agreed in open court that the husband would pay for the college education of the parties’ son. The stipulation was memorialized in paragraph 12 of the final judgment entered in those proceedings:

12. It is further ordered that the husband shall be responsible to provide the college education for the parties’ minor son, Ernest C. Farmer, III, providing husband’s ability to do so at the time of Ernest C. Farmer, III reaches the college age is adequate.

The sole condition precedent to ex-husband’s liability under this provision is his financial ability to perform. The record contains no evidence of financial inability, nor is there evidence of any other substantial change of circumstances. Accordingly, modification was inappropriate. See e.g., O’Brien v. O’Brien, 407 So.2d 374 (Fla. 1st DCA 1981); Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3d DCA 1981); Floyd v. Floyd, 393 So.2d 22 (Fla. 2d DCA 1981); Rubin v. Rubin, 418 So.2d 1065 (Fla. 3d DCA 1982). We therefore reverse the order which modified the provision in paragraph 12.

REVERSED and REMANDED.

DOWNEY and DELL, JJ., concur.


author: WIGGINTON, Judge.

text:
    AVALON MARION I.C.F. and Shelby Mutual Insurance Company, Appellants, v. James H. STARK, Appellee.
    No. AU-411.
    District Court of Appeal of Florida, First District.
    May 18, 1984.
    Rehearing Denied June 13, 1984.

      Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellants.
    Seymour H. Rowland, Jr., Ocala, for ap-pellee.
   WIGGINTON, Judge.

Appellants, employer/carrier, appeal the deputy commissioner’s order awarding to appellee wage loss benefits from February 27, 1983. We affirm.

After suffering a work-related injury, ap-pellee, the co-owner/manager of an adult congregate living facility, continued in his employment at the facility at a reduced rate of pay due directly to his physical limitations resulting from the injury. The record contains substantial competent evidence that appellee is working to full capacity and has not voluntarily limited his income. Therefore, the deputy commissioner’s award of wage loss benefits was not error.

AFFIRMED.

MILLS and SHIVERS, JJ., concur.


text:
    STATE of Florida, Appellant, v. William G. SKAFF, Appellee.
    No. AV-294.
    District Court of Appeal of Florida, First District.
    May 18, 1984.

      Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for appellant.
    Sharon W. Ehrenreich of McKeever & Johnson, Gainesville, for appellee.
   PER CURIAM.

The cursory search, or “protective sweep,” of the defendant’s residence at which he was arrested on an outstanding drug conspiracy warrant and which produced a small quantity of controlled substance found in the defendant’s bedroom which, in turn, formed the basis for a subsequent search warrant of the residence was not supportable under the requisite exigency standard applicable to such searches. See Dedmon v. State, 400 So.2d 1042 (Fla. 1st DCA 1981); United States v. Bowdach, 561 F.2d 1160 (5th Cir.1977); Newton v. State, 378 So.2d 297 (Fla. 4th DCA 1980); McNair v. State, 354 So.2d 473 (Fla. 3rd DCA 1978). These authorities stand for the proposition that protective sweeps are confined to situations where the police have reasonable grounds to believe their security may be jeopardized by others on the premises. The officers in the instant case testified that such sweeps were routine procedure when making such arrests. That will not support such a search.

The officers had no information indicating that the defendant was armed or dangerous although they did indicate that they were aware that he had at some time in the past been charged with aggravated assault. There was no indication that any other persons resided with the defendant at the subject premises or that anyone else would likely be present when the arrest warrant was executed. And the officers had surveilled the premises intermittently prior to the arrest.

The state, however, points to the fact that the defendant offered resistance when the officers failed to produce a warrant although he asked to see it several times. The officers were able to subdue the defendant and calm him down after displaying the warrant. Although the defendant was not justified in his resistance of the officers who had advised the defendant of their identity and of their possession of a warrant for his arrest, such does not by itself constitute the kind of exigent circumstances as will support a protective sweep of the entire premises as there was still no indication that others might be present.

Based upon the authorities, the trial court was clearly correct in granting the defendant’s motion to suppress.

AFFIRMED.

THOMPSON, NIMMONS and BAR-FIELD, JJ., concur.


author: BASKIN, Judge.

text:
    R.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1069.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.

      Bennett H. Brummer, Public Defender, and Michael 0. Mathis, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Brill and Calianne Lantz, Asst. Attys. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   BASKIN, Judge.

We reverse the order adjudicating R.M. delinquent based upon our finding that the conviction for grand theft was not supported by the evidence. The state failed to demonstrate that R.M. had either the requisite intent to steal the automobile or knowledge that the vehicle he was driving was stolen. State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Allen, 362 So.2d 10 (Fla.1978); R.M. v. State, 412 So.2d 44 (Fla. 3d DCA 1982). R.M.’s “unrefuted, exculpatory and not unreasonable explanation of his possession” of the stolen automobile— that he borrowed it from his stepfather— “rendered the state’s case ... insufficient as a matter of law to establish guilt.” R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981). See Fisk v. State, 138 Fla. 815, 190 So. 10 (1939); R.M. v. State; A.R. v. State, 393 So.2d 1174 (Fla. 3d DCA 1981).

Reversed.


author: SHIVERS, Judge.

text:
    Tura YOHN, Appellant, v. STATE of Florida, Appellee.
    No. AR-500.
    District Court of Appeal of Florida, First District.
    May 23, 1984.

      Robert B. Staats of Staats, Overstreet & White, Panama City, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Mrs. Yohn appeals her conviction and sentence for manslaughter. Appellant raises several points on appeal, one of which merits discussion. Appellant contends that the trial court erred in refusing to instruct the jury that the State had the burden of proving beyond a reasonable doubt that the defendant was sane. We conclude that the trial court did not err and affirm. Although we find that, considering all the instructions, the Standard Jury Instructions given were sufficient, we certify the question presented as one of great public importance.

Appellant was charged with first degree murder in the shooting death of a woman who was having an affair with appellant’s husband. Appellant raised the defense of insanity. At trial, the expert testimony in regard to appellant’s sanity at the time of the offense was conflicting. A psychiatrist and a psychologist testified for the defense that appellant was legally insane at the time of the shooting, but another psychiatrist testified for the State that appellant was legally sane at that time.

Appellant requested several special jury instructions relating to the defense of insanity. These instructions, inter alia, stated that the State had the burden of proving beyond a reasonable doubt that appellant was sane at the time of the incident. The trial court refused to give these instructions and instead gave the current Standard Jury Instructions relevant to this issue, including the instruction on insanity (Fla.Std.Jury Instr. (Crim) 3.04(b)) and the State’s burden to prove guilt beyond a reasonable doubt (Fla.Std.Jury Instr. (Crim) 2.03)).

Appellant’s Requested Jury Instructions Nos. 8 and 11 appear to be correct statements of Florida law. In Florida, all men are presumed sane, but where there is testimony of insanity sufficient to present a reasonable doubt of sanity in the minds of the jurors the presumption vanishes and the sanity of the accused must be proved by the prosecution as any other element of the offense, beyond a reasonable doubt. Holmes v. State, 374 So.2d 944 (Fla.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1845, 64 L.Ed.2d 267 (1980), rehearing denied, 448 U.S. 910, 100 S.Ct. 3057, 65 L.Ed.2d 1140 (1980). The refusal of a trial court to give a requested instruction is not error, however, when the instructions which are given, considered as a whole, correctly state the law and fairly present the theory of the requesting party to the jury. See Spanish v. State, 45 So.2d 753 (Fla.1950); Scott v. State, 396 So.2d 271 (Fla. 3d DCA 1981).

The instant case is strikingly similar to Rotenberry v. State, 429 So.2d 378 (Fla. 1st DCA 1983). Rotenberry involved the affirmative defense of entrapment which, procedurally, operates in a fashion similar to that of the affirmative defense of insanity. Rotenberry requested a special instruction on the issue of entrapment which stated that the State must prove beyond a reasonable doubt that the defendant was not entrapped. The trial court in Roten-berry refused to give the requested instruction, giving instead the Florida Standard Jury Instruction on entrapment as well as the Standard Jury Instruction concerning reasonable doubt and the State’s burden of proof. This court found that, considering the totality of the instructions given, the instructions were adequate, but the question was also certified to the Florida Supreme Court as one of great public importance.

As in Rotenberry, we find that the instructions given in the instant case were adequate when all of the instructions given are considered as a whole. AFFIRMED.

We certify to the Florida Supreme Court the following question, passed upon in this ease, as one of great public importance:

IF THE STATE HAS THE BURDEN TO PROVE BEYOND A REASONABLE DOUBT THAT A DEFENDANT WAS SANE AT THE TIME OF THE OFFENSE WHEN THE DEFENSE OF INSANITY HAS BEEN RAISED, IS THE GIVING OF THE PRESENT INSANITY INSTRUCTION, AS SET FORTH IN STANDARD JURY INSTRUCTION 3.04(b), ALONG WITH THE GENERAL REASONABLE DOUBT INSTRUCTION SUFFICIENT, NOTWITHSTANDING THE DEFENDANT HAVING SPECIFICALLY REQUESTED THE COURT TO INSTRUCT THE JURY THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS SANE AT THE TIME OF THE OFFENSE?

BOOTH and JOANOS, JJ., concur.

      . The record reveals the following instructions, inter alia, requested by appellant.
      Appellant’s requested jury instruction No. 8:
      You are instructed that where the Defendant, as in the present case, raises the issue of insanity as a defense and presents evidence that at the time of the commission of the offense he was insane, there is no longer any presumption of sanity. In that instance the burden of proof shifts to the state of Florida and the state of Florida must prove, beyond a reasonable doubt, that the Defendant was sane at the time of the alleged offense. Thus, in the present case if the state of Florida fails to present evidence sufficient to convince you beyond a reasonable doubt that the Defendant was sane at the time of the alleged offense, that it will be your duty to return a verdict of not guilty by reason of insanity.
      Appellant’s requested jury instruction No. 9:
      It is sufficient as a defense of insanity if the evidence raises in the minds of the jurors a reasonable doubt as to the sanity of the Defendant at the time of the alleged crime, and if therefore there is a reasonable doubt as to his sanity at that time, it is your duty to find him not guilty by reason of insanity.
      Appellant's requested jury instruction No. 10:
      There has been evidence as to the Defendant’s mental condition at the time of the commission of the alleged offense. The jury may consider the testimony of a layman who has given his opinion as to the sanity or insanity of the Defendant, on the basis of the facts known to him.
      Appellant’s requested jury instruction No. 11:
      INSANITY
      One of the defenses asserted in this case is that the Defendant is not guilty by reason of insanity at the time of the alleged crime.
      DEFINITION
      The law does not hold a person criminally accountable for his conduct while insane, since an insane person is not capable of forming the intent essential to the commission of a crime. A person is sane and responsible for his crime if he has sufficient mental capacity when the crime is committed to understand what he is dong [sic] and to understand that his act is wrong. If at the time of an alleged crime a defendant was by reason of mental infirmity, disease or defect unable to understand the nature and quality of his act or its consequences or, if he did understand it, was incapable of distinguishing that which is right from that which is wrong, he was legally insane and should be found not guilty by reason of insanity.
      Insanity may be permanent, temporary or may come and go. It is for you to determine the question of the sanity of the Defendant at the time of the alleged commission of the crime.
      2.08 PRESUMPTION
      Until the contrary is shown by the evidence, the Defendant is presumed to be sane. However, if the evidence tends to raise a reasonable doubt as to his sanity, the presumption of sanity is overcome.
      CONTINUING MEASURE OF INSANITY
      Where insanity of a permanent type, or of a continuing nature, or possessed of the characteristics of a chronic disorder of the mind, as distinguished from temporary insanity, or disorders of the mind produced by violence or disease, is shown to have existed a short time prior to the commission of an alleged crime, it is presumed to continue up to the time of the commission of the alleged crime, unless this presumption is overcome by competent evidence.
      If the evidence presented tends to raise a reasonable doubt as to the sanity of the Defendant at the time of the alleged offense, the State must prove beyond a reasonable doubt that the Defendant was legally sane at the time of the commission of the alleged offense.

      . The trial court gave the following instructions, inter alia:

      The defendant has entered a plea of not guilty. This means you must assume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the indictment, through each stage of the trial until it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. To overcome the defendant’s presumption of innocence, the State has the burden of proving the following two elements: (1) The crime with which the defendant is charged was committed; second, the defendant is the person who committed the crime. The defendant is not required to prove anything. Whenever the words reasonable doubt are used you must consider the following: A reasonable doubt is not a possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if after considering, comparing and weighing all the evidence there is not an abiding conviction of guilt or if having a conviction it is one which is not stable, but one which waivers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.
      It is to the evidence introduced upon this trial and to it alone that you are to look for that proof. A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflicts in the evidence, or the lack of evidence. If you have a reasonable doubt, you should find the defendant not guilty. If you have no reasonable doubt, you should find the defendant guilty. It must be proved only to a reasonable certainty that the alleged crime was committed in Bay County.
      In issue in this case is whether the defendant was legally insane when the crime was allegedly committed. You must assume that the defendant was sane unless the evidence causes you to have a reasonable doubt about her sanity. If the defendant was legally insane, she is not guilty. To find her legally insane, these three elements must be shown to the point you have a reasonable doubt about her sanity: (1) The defendant had a mental infirmity, defect, or disease; (2) This condition caused the defendant to lose her ability to understand or reason accurately; and (3) Because of the loss of these abilities the defendant (a) did not know what she was doing; or (b) did not know what would result from her actions; or (c) did not know it was wrong, although she knew what she was doing and its consequences.
      In determining the issue of insanity, you may consider the testimony of experts and nonexpert witnesses. The question you must answer is not whether the defendant is legally insane today or has always been legally insane, but simply if the defendant was legally insane at the time the crime allegedly was committed. If your verdict is that the defendant is not guilty because of legally insane, [sic] that does not mean she will be released from custody. I can conduct additional proceedings to determine if she should be committed to a mental hospital or given other treatment. It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable or less reliable than other evidence.

      . Appellant’s requested jury instruction No. 11 recites the language of the former standard jury instruction on insanity, Instruction 2.11(b) — 1, Florida Standard Jury Instructions in Criminal Cases (1975).


author: SCHWARTZ, Chief Judge.

text:
    JULIEN P. BENJAMIN EQUIPMENT COMPANY, Appellant, v. BLACKWELL BURNER COMPANY, Appellee.
    No. 83-2349.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.

      Gerald E. Rosser, Miami, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

The trial court dismissed a third-party indemnity action brought by the appellant, Julien P. Benjamin Equipment Company, which had been sued for personal injuries as the distributor of an allegedly defective product, against the appellee, Blackwell Burner Company, the manufacturer of the product. We reverse on the holdings that, contrary to Blackwell’s contentions, neither the manufacturer’s settlement of a prior action brought against it by the same plaintiff, Rebhan Leasing Corp. v. Trias, 419 So.2d 352 (Fla. 3d DCA 1982), rev. denied, 427 So.2d 738 (Fla.1983), nor the fact that the plaintiff’s complaint in this case alleges only active negligence by the distributor, Seaboard Coast Line R. Co. v. Brown, 297 So.2d 843 (Fla.2d DCA 1974), precludes the maintenance of the indemnity claim on the presently asserted ground that the distributor’s liability, if any, arises only vicariously for a defect created in the product by the manufacturer. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Pender v. Skillcraft Industries, Inc., 358 So.2d 45 (Fla. 4th DCA 1978).

Reversed.

      . Such a finding as the basis for liability would of course make indemnity unavailable as a matter of law. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).


text:
    Julio PEDROSO, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2443.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.

      L. Mark Dachs, Miami, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

This is an appeal from a court order finding the appellant in contempt for refusing to comply with a subpoena duces tecum, as ordered to by the court. We affirm.

The appellant is the records custodian of Eight & Eight Centro Medico, Inc. (Medico). In the course of conducting a Medicaid fraud investigation of Medico, the Auditor General’s Office caused the trial court to issue a subpoena duces tecum requiring the appellant to produce for inspection medical and health claims forms submitted to the Medicaid fiscal agency for sixty-two named Medicaid patients of Medico. The appellant did not comply and the court issued an order to show cause why he should not be held in contempt. The appellant then filed a motion to quash the subpoena. After a hearing on the motion and the motion was denied, the appellant was ordered to comply with the subpoena by October 6, 1983. Action on the order to show cause was also stayed until that date. On October 6, the appellant appeared before the court and announced through counsel that although he was physically able to comply with the subpoena and court order, he would, nonetheless, refuse to do so. The court found the appellant to be in indirect civil contempt and imposed a fine of $500 payable within 90 days. The court order allowed the appellant to purge himself of contempt by complying with the subpoena within six days of the order. This appeal followed.

The appellant contends that section 455.241, Florida Statutes (1983), prohibits him from turning over patients’ medical records to the Auditor General absent written authorization by the individual patients. We disagree. We find that the written authorization requirement of section 455.-241 is not applicable in Medicaid fraud investigations by the Auditor General. The more specific statutes dealing with Medicaid fraud investigations control over this general statutory provision. See Adams v. Culver, 111 So.2d 665 (Fla.1959).

As a prerequisite to receiving federal Medicaid funds, a state must have a Medicaid fraud control unit responsible for conducting a statewide program investigating and prosecuting all aspects of fraud in connection with the provision of medical assistance. 42 U.S.C.A. § 1396b(q) (1983). Pursuant to this requirement, section 409.2664, Florida Statutes (1983), mandates that the Auditor General conduct a statewide Medicaid fraud control program, and enumerates the Auditor General’s powers and duties with respect thereto. Under this statute, the Auditor General may enter upon the premises of any health care provider participating in the state Medicaid program to examine all accounts and records which could in any manner be relevant in determining the existence of fraud in the program. All participating physicians are required to make available to the Auditor General any such accounts or records. § 409.2664(2)(a). Additionally, the Auditor General may subpoena witnesses or materials and collect evidence for possible use in either civil or criminal proceedings. § 409.-2664(2)(b).

The appellant argues that section 409.2664 does not nullify the written authorization requirement of section 455.241. A simple reading of section 409.2664 indicates appellant’s argument is without merit. The statute requires the Auditor General to:

[safeguard the privacy rights of all individuals and provide safeguards to prevent the use of patient medical records for any reason beyond the scope of a specific investigation for fraud or abuse or both, without the patient’s written consent, (emphasis added)

§ 409.2664(l)(g). The statute further provides that:

[a]t no time are the accounts or records of non-Medicaid patients to be reviewed or turned over to the Auditor General without the patient’s written consent, (emphasis added)

§ 409.2664(2)(a). The provisions of the statute clearly indicate that the Auditor General can subpoena and examine the accounts and records of Medicaid patients pursuant to a Medicaid fraud investigation without the prior written consent of the Medicaid patients. We therefore find the appellant’s grounds for refusing to comply with the subpoena duces tecum to be without merit.

We turn now to the court’s order adjudging the appellant to be in indirect civil contempt. The appellant contends that the order must be vacated because it does not contain a continuous purging provision. The state, on the other hand, maintains that the order should be sustained as an adjudication of indirect criminal contempt. We agree with the state.

The purpose of a criminal contempt proceeding is to vindicate the authority of the court or to punish conduct that is in violation of a court order. Pugliese v, Pugliese, 347 So.2d 422 (Fla.1977); Carter v. State, 409 So.2d 127 (Fla. 5th DCA 1982). The purpose of a civil contempt proceeding is to coerce action or nonaction by a party. Pugliese; Carter. In the present case, the appellant’s conduct, his refusal to follow the court’s order to comply with the subpoena duces tecum, was susceptible to either criminal or civil contempt proceedings. See Carter; Little Beaver Theatre, Inc. v. State ex rel. Gerstein, 259 So.2d 217 (Fla. 3d DCA 1972); Schaffer v. State, 429 So.2d 372 (Fla. 3d DCA 1983). Since the nature of the conduct is not determinative of the character of the order, a determination must be made of whether the order is civil or criminal. Pugliese.

The court’s use of the word “civil” and the inclusion of a purging provision in the order would tend to characterize the order as being civil. On the other hand, the court specifically found that the appellant was purposely defying its order and imposed a lump sum fine, not a continuous fine, indicating an intent to punish, not coerce. See Pugliese. Reviewing the record, we find that the purpose of the contempt order was to punish the appellant for his purposeful defiance of the court’s order, and that the court complied with the requirements of Florida Rule of Criminal Procedure 3.840 concerning indirect criminal contempt. The court’s use of the word “civil” is not controlling. See Carter. The purging provision was an indication to the appellant that the court would vacate its sentence, the $500 fine, if the appellant complied with the subpoena duces tecum pursuant to its order within six days from the date of the judgment. Cf. Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960) (affirming lower court’s finding of contempt for refusing to answer questions before the grand jury after immunity was granted and the imposition of a sentence of two years with a provision allowing petitioner to purge the contempt by answering the questions within 60 days). We construe the six-day period as running from the effective date of this court’s mandate and the appellant may avoid the fine by complying with the subpoena pursuant to the court order. See Reina.

Affirmed.

      . It is also pertinent to note section 11.50, Florida Statutes (1983):
      (l)(a) The Auditor General shall investigate, on his own initiative or when required by the Legislative Auditing Committee, public assistance made under the provisions of chapter 409. In the course of such investigation the Auditor General shall examine all records and make inquiry of all persons who may have knowledge as to any irregularities incidental to the disbursement of public moneys, food stamps, or other items to recipients.
      (b) All public assistance recipients, as a condition precedent to qualification for assistance under the provisions of chapter 409, shall first give in writing, to the Department of Health and Rehabilitative Services and to the Division of Public Assistance Fraud, consent to make inquiry of past or present employers and records, financial or otherwise.

      (6) The provisions of this section shall be liberally construed in order to carry out effectively the purposes of this section in the interest of protecting public moneys and other public property, (emphasis added)


text:
    Sylvan M. COHEN, Co-Trustee, Appellant, v. Rose King FRIEDLAND, Appellee.
    Nos. 83-2884, 83-3004.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Cohen, Shapiro, Polisher, Shiekman & Cohen and A. Budd Cutler, Miami, for appellant.
    Steel, Hector & Davis and Arthur J. England, Jr. and Thomas R. Julin, Miami, Stein-berg & Wohl, Miami Beach, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

In Cohen v. Friedland, 447 So.2d 896 (Fla. 3d DCA 1983), we reversed a decision of the Circuit Court. General Jurisdiction Division which removed appellant Cohen as co-trustee of the George Friedland trust. Rose Friedland (the sixth wife of the beneficiary, George Friedland) subsequently had herself appointed guardian of the now incompetent George Friedland, then instituted this proceeding on a Rule to Show Cause in the Circuit Court Probate Division to transfer trust assets to a guardianship account. This appeal is from an order which directs the co-trustee Cohen to transfer $200,000 in trust principal to the newly created guardianship and another order which denies Cohen’s motion to set aside the prior order.

Cohen, as co-trustee, along with the daughters of George Friedland, opposed the transfer of trust funds to the guardianship account. Cohen perceives the transfer of funds as a “back-door” attempt to terminate his duties as a trustee, and, at least as to $200,000, to revoke the trust. He argues on appeal that this court’s previous ruling establishes the law of the case, and therefore, the probate orders were entered in error.

Although our earlier decision will not shield the trustee from all further review of his actions in regard to the trust, the allegations upon which the probate orders were entered are the same as those which formed the basis of the prior action. The first order was entered ex parte, again without competent and substantial proof that Cohen has failed to carry out his trust responsibilities. The orders under review thus directly conflict with our earlier opinion which held that the co-trustee Cohen has “exercised and will continue to exercise his best judgment” in determining whether to invade the trust principal.

A trustee, in the strictest sense, holds legal title to property which he administers for the named beneficiary in accordance with the terms of the instrument creating the trust. White v. Bacardi, 446 So.2d 150, 155 n. 5 (Fla. 3d DCA 1984) (citing Reinecke v. Smith, 289 U.S. 172, 53 S.Ct. 570, 77 L.Ed. 1109 (1933)). The trust agreement provides that the beneficiary, George Friedland, is to receive the income of the trust, and that the trustees in their sole discretion may invade the principal of the trust estate to provide for his “maintenance, comfort and welfare.” In the absence of proof that the trustee has failed to perform, dr has performed arbitrarily, a court is without authority to remove trust assets from control of the trustee to be administered by the court or other guardian. “To the extent to which discretion [to revoke the trust] is conferred upon the trustee, the exercise of the power is not subject to the control of the court, except to prevent an abuse by the trustee of his discretion.” Restatement (Second) of Trusts § 330 comment 1 (1959).

The case of In re Estate of Herskowitz, 338 So.2d 210 (Fla. 3d DCA 1976), relied upon by the trial court, is distinguishable. There the facts showed clearly that the trustee had arbitrarily and capriciously refused to make payments from a testamentary trust for the support of the minor beneficiaries because of a feud with the children’s guardian. In this case the claimed failure to carry out trust duties relates to payment of creditor’s bills which are contested, or for which no formal demand has been made upon the trustee.

The orders under review are reversed and the cause is remanded with instructions to return the $200,000 in funds from the guardianship account back to the trust account.

      . In that litigation, George Friedland, as sett-lor/beneficiary/co-trustee of the George Fried-land trust, instituted suit against the other co-trustee Cohen seeking to revoke the trust. The trust could only be terminated with the consent of both co-trustees. Cohen initially opposed the trust revocation because it was not "in the best interests of George Friedland."

        Mr. Friedland, at age 81, had married Rose King Friedland (whom he had known only six days) and within the first seven months of their marriage, had spent more than $120,000 in gifts for her. He also began transferring his assets into her name alone. Cohen, a long-time friend of Mr. Friedland, would not agree to invade the principal nor dissolve the trust for fear that Mr. Friedland "would soon be a pauper if permitted unbridled access to the trust assets.” Rose Friedland replaced Mr. Friedland as co-trustee when he became incompetent. (Quotations from Brief of Appellants, Cohen v. Friedland, Case No. 82-2479).

      . Cohen asserts that of some $130,000 in alleged unpaid debts of the beneficiary, $55,000 is for attorney's fees incurred by Rose Friedland in her unsuccessful effort to terminate the trust. The propriety of paying these sums from the trust funds is contested by Cohen. Further, $22,000 represents bills for medical services purportedly provided to George Friedland and paid for by Rose Friedland for which no formal demand for payment has been made upon the trust.


author: BERANEK, Judge. BERANEK, Judge,

text:
    Rosa Lee SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 83-157.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrew N. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

The defendant appeals raising as the sole issue an adjudication ordering her to pay $10 to the Crimes Compensation Fund. We reverse on the authority of Jenkins v. State, 444 So.2d 947 (Fla.1984), with instructions that a determination of defendant’s ability to pay be made only after adequate notice to the defendant in accordance with the Supreme Court’s recent cited opinion on this subject.

We also wish to address a further rather troublesome issue presented in this case. The defendant’s trial occurred in the Nineteenth Judicial Circuit where she was found to be indigent. In accordance with Chapter 27 governing Public Defenders and Rule of Appellate Procedure 9.140, the Public Defender from the Nineteenth Circuit was initially designated as trial counsel. Thereafter, the same Public Defender from the Nineteenth Circuit was designated as appellate counsel for the limited purpose of filing the initial appellate papers. The Public Defender (trial counsel) proceeded in accordance with Appellate Rule 9.140(b)(3) in the filing of the notice of appeal, directions to the clerk, designations to the court reporter, and the statement of judicial acts to be reviewed. After the preparation and filing of the record on appeal and the transcript of testimony, the Public Defender for the Fifteenth Circuit was designated as appellate counsel for the handling of the matter before the Fourth District Court of Appeal, pursuant to Section 27.51(4)(d), Florida Statutes (1981).

The record on appeal contains a 387-page transcript of the defendant’s trial. This transcript cost $1,064.25, and was paid for by the Board of County Commissioners of Indian River County out of tax money from that County. The sole point raised on appeal relates to the $10 payment to the Crimes Compensation Fund, and the only portion of the transcript necessary or even remotely relevant to this point on appeal is the defendant’s sentencing hearing. In all, approximately three pages of this transcript were necessary.

Recognizing the practical and constitutional problems inherent in attempting to determine relevant portions of a transcript for appeal purposes, this court requested the Public Defenders involved to comment on their compliance with Florida Rule of Appellate Procedure 9.140(d), which provides as follows:

(d) Record. Within 50 days of filing the notice, the clerk shall prepare the record prescribed by Rule 9.200 and serve copies of the index on the Attorney General and all parties. The clerk shall retain the original of the record and shall forthwith transmit copies thereof to the court, to the Attorney General and to the office of a public defender appointed to represent an indigent defendant. Counsel for a non-indigent defendant may, upon request, simultaneously receive from the clerk a copy of the record (other than a transcript of the trial proceeding) at the cost prescribed by law.
If a defendant’s designation of a transcript of proceedings requires expenditure of public funds, trial counsel for the defendant (in conjunction with appellate counsel whenever possible) shall serve, within 10 days of filing the notice, a statement of the judicial acts to be reviewed and a designation to the court reporter requiring preparation of only so much of the proceedings as fairly supports the issues raised. Either party may file motions in the lower tribunal to reduce or expand the transcript. [Emphasis supplied.]

Obviously, this rule was designed to protect the public treasury from the expenditure of unnecessary monies for the preparation of trial transcripts. There are obvious conflicting interests. Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), it is clear that an indigent defendant has the right to a full transcript even in situations where counsel can find no merit to any issue. We fully recognize that a defendant’s appellate rights may not be lessened by his inability to pay for the transcript. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959). Recognizing the existence of competing principles (public economy and full appellate review), we still think the rule requiring a consultation between trial counsel and appellate counsel in the early stages of the appeal has merit and will result in a better appellate product rather than sacrificing any of the defendant’s rights.

We recognize that there are practical problems in existence. The Public Defender of the Fifteenth Circuit does not know about an appeal filed by a Public Defender of the Nineteenth Circuit unless the Public Defender from that circuit directly contacts him and advises of it. Similarly, we are cognizant of the fact that the trial attorney is often designated as “appellate counsel” for the filing of the initial appeal papers. The Public Defender for the Fifteenth Circuit points out that his office is not actually formally designated as appellate counsel until after the transcript is prepared and filed. , We think these are matters of form rather than of substance. In a situation where the Public Defender for one circuit serves as trial counsel and the Public Defender from another circuit serves as appellate counsel, this fact is statutorily mandated and well known by both offices. Thus, as we construe Appellate Rule 9.140(d), counsel from the two offices are required to confer regarding the statement of judicial acts to be reviewed and the designation to the court reporter so as to limit the transcript, if possible.

We compliment the offices of the Public Defender of the Fifteenth and the Nineteenth Circuit for their excellent responses to our inquiries in regard to this matter. We are confident that these offices are fulfilling their statutory responsibilities and the further requirements of the Rules of Appellate Procedure. We note, however, that Rule 9.140(d) is phrased in mandatory language and that there was in fact no conference or any contact whatsoever between trial and appellate counsel in this case. We thus hold that whenever possible, trial and appellate counsel are to confer as specifically required by the Rule. Such a conference may or may not result in a shorter transcript. Even if the conference does not minimize transcript costs, it may well serve other useful purposes. Involving appellate counsel early will benefit the defendant in the long run. Obviously, trial counsel is the one who is knowledgeable as to perceived errors in the trial court and is certainly in a position to alert future appellate counsel as to those perceived errors which were preserved by having been brought to the attention of the trial court.

We are required to reverse this case under the mandate of Jenkins v. State, supra, and to remand for further proceedings.

Obviously, it is not financially worthwhile to the taxpayers of this state to transport the appellant back from prison and hold another hearing to determine the $10 issue involved in this appeal. Unfortunately, thousands of tax dollars have already been spent on this $10 issue. A further sentencing procedure will cost the taxpayers unnecessary money, but we have no other choice under the existing structure and strictures of the judicial system.

REVERSED AND REMANDED.

LETTS and HERSEY, JJ., concur.

BERANEK, Judge,

concurring specially.

In addition to the preceding opinion, I write separately due to my unique position as a resigning judge. I have announced my resignation from the Fourth District Court of Appeal to return to the private practice of law. I have decided to render further proceedings in this case unnecessary by personally paying the $10 to the Crime Compensation Fund on the defendant’s behalf. This payment will be made by me as a private citizen on the first day after my resignation becomes effective. Lest there be any doubt, the payment is not being made out of any sympathy for the defendant. I seriously doubt that the defendant is concerned with this issue.


text:
    Larry Leon GORE, Appellant, v. STATE of Florida, Appellee.
    No. 83-412.
    District Court of Appeal of Florida, Fifth District.
    May 31, 1984.
    Ed Leinster of Ed Leinster, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Nappier v. State, 363 So.2d 803 (Fla.1978).

ORFINGER, C.J., and COBB and SHARP, JJ., concur.


author: COBB, Judge.

text:
    SEA WINDS OF NEW SMYRNA BEACH, INC., Appellant, v. OSCEOLA MANAGEMENT & FINANCIAL SERVICE, INC., and Equity General Insurance Company, Appellees.
    No. 83-1133.
    District Court of Appeal of Florida, Fifth District.
    May 31, 1984.
    W.C. Hutchison, Jr., of Hutchison & Má-mele, Sanford, for appellant.
    Leslie King O’Neal of Markel, McDo-nough & O’Neal, Orlando, for appellees.
   COBB, Judge.

The trial court dismissed an insurance carrier, Equity General Insurance Co., as a party defendant herein pursuant to section 627.7262, Florida Statutes (Supp.1982). The order of dismissal was entered on August 1, 1983. Subsequently, the Florida Supreme Court, while upholding the constitutionality of the statute, held that it did not apply retroactively. VanBibber v. Hartford Accident & Indemnity Ins. Co., 439 So.2d 880 (Fla.1983). The incident giving rise to the instant suit occurred prior to the October 1, 1982, effective date of the statute.

Accordingly, the order dismissing Equity as a party is reversed and the cause remanded for further proceedings.

REVERSED and REMANDED.

DAUKSCH and SHARP, JJ., concur.


text:
    Jennifer EDISON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1233.
    District Court of Appeal of Florida, Fifth District.
    May 31, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

DISMISSED. See Robinson v. State, 373 So.2d 898 (Fla.1979); Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982).

ORFINGER, C.J., and SHARP and CO-WART, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    Leroy HAROLD, Appellant, v. STATE of Florida, Appellee.
    No. 82-1397.
    District Court of Appeal of Florida, Fifth District.
    May 31, 1984.

      James K. Freeland, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ON MOTION TO WITHDRAW

ORFINGER, Chief Judge.

Harold appeals from a judgment of conviction of armed robbery. Because his privately retained counsel has filed an “An-ders” brief which we reject, we need not discuss the merits of the ease at this point.

Appellant was represented by court-appointed counsel at trial. Although his trial counsel filed the notice of appeal from the judgment of conviction, and the public defender was then appointed as appellate counsel, privately retained counsel filed a notice of appearance on behalf of appellant and requested to be substituted as counsel in place of the public defender. This motion was granted, and new counsel was given an extension of time to file appellant’s brief. Appellant’s privately retained counsel ultimately filed what is referred to as an “Anders" brief accompanied by a motion for leave to withdraw. The motion and brief represented that counsel had determined the appeal to be frivolous. We must determine if privately retained counsel may file an “Anders ” brief and for reasons set forth below, we conclude that he may not.

In Anders, the Supreme Court struggled with the question of the extent of the duty of a court-appointed counsel to prosecute a first appeal from a criminal conviction, when the attorney has “conscientiously determined that there is no merit to the indigent’s appeal.” The rationale of the majority opinion is found in these excerpts:

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. ... His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss' the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires.
This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindi-gent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled. This procedure will assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.

Id. at 744-745, 87 S.Ct. at 1400. (emphasis added)

The Anders decision, while establishing the necessity for a brief filed by the public defender or court appointed counsel, as opposed to a letter stating that there is no merit to the appeal, is a natural extension of the decisions in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). In examining these cases, the Anders court reasoned:

Beginning with Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055 (1956) where it was held that equal justice was not afforded an indigent appellant where the nature of the review “depends on the amount of money he has,” at 19, 76 S.Ct. at 591 and continuing through Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), this Court has consistently held invalid those procedures “where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.” At 358, 83 S.Ct. at 817.

Id. 386 U.S. at 741, 87 S.Ct. at 1398.

Other decisions have clearly pointed to the fact that Anders applies only to briefs filed by court-appointed counsel provided to indigent defendants. In Jones v. Estelle, 584 F.2d 687 (5th Cir.1978), the court indicated that court-appointed counsel was obligated to withdraw the appeal where so instructed by his client, and in such case the Anders requirement would not apply. In so holding, the court noted:

To be sure, if the client persists in demanding an appeal, Anders applies in full force, and the attorney must comply with its procedures. ... We say only that where, as here, court-appointed counsel gives his client good-faith and effective advice to withdraw an appeal he believes meritless and the client voluntarily instructs him to do so, the Anders requirements do not apply.

Id. at 691. (emphasis added)

No case has been cited, nor has independent research revealed any decision wherein a court has held that an Anders brief may be filed by privately retained counsel. Logic dictates that privately retained counsel should not be permitted to file, nor should an appellate court accept, an Anders brief. An indigent defendant does not have the right to pick and choose the lawyer who will represent him. Williams v. State, 427 So.2d 768 (Fla.2d DCA 1983); Wilder v. State, 156 So.2d 395 (Fla. 1st DCA 1963). Neither does the public defender have the right to decline representation of those indigent clients assigned to him. A public defender is obligated to both file and handle the appeal of an indigent defendant. Such representation is required by the nature of his office and withdrawal is only permitted under limited circumstances. See section 27.51(4), Florida Statutes (1983).

The Florida Bar Code of Professional Responsibility recognizes the special obligation of appointed counsel to his client and provides that the attorney “should not seek to be excused from undertaking the representation except for compelling reasons.” Fla.Bar Code Prof.Resp. EC 2-29. Such compelling reasons do not include the repugnance to the attorney of the subject matter of the proceeding, or the belief of the lawyer that the defendant in a criminal proceeding is guilty. Thus, the public defender and appointed counsel have a duty to their clients which supersedes the attorney’s usual discretion to pursue only those cases which he or she wishes. This includes the filing of an appeal even if the attorney has not had an opportunity to evaluate the merits of the indigent’s case.

The unique position of the public defender must be considered against the backdrop of the professional standards imposed on all attorneys. A lawyer should not accept employment if he knows or it is obvious that the claim or defense is not warranted or is frivolous. Fla.Bar Code Prof.Resp. DR 2-109. Once an attorney undertakes to prepare the appeal he has an obligation to represent his client zealously within the bounds of the law. Fla.Bar Code Prof.Resp. EC 7-1. However, there is a considerable difference between the options available to private and publicly appointed counsel who, after reviewing the relative merits of the case, decide that an appeal is not warranted. If the public defender believes the appeal to be meritless, he cannot simply recommend that his client obtain other counsel. The public defender must either obtain his client’s consent to dismiss the appeal or review the record and bring to the appellate court’s attention, by way of an Anders brief, any possible grounds for reversal.

By contrast, if private counsel determines that he cannot ethically and properly present his client’s appeal, he has the option to either 1) secure his client’s permission to dismiss the appeal, after fully disclosing to his client his opinion as to the merits of the appeal; 2) advise his client to obtain other counsel, meanwhile taking such steps as are reasonably necessary to avoid foreseeable prejudice to the rights of the client; or 3) move to withdraw from the case, refunding any portion of a pre-paid fee which has not yet been earned. DR 2-110. The paying client then is free to seek other counsel who can argue his cause. By this method the rights of the client in securing counsel and the ethical obligations of a lawyer who thinks the appeal has no merit are balanced, and neither prejudices the other. For these reasons, privately retained counsel may not file an Anders brief asserting that the appeal is frivolous.

We strike the “Anders ” brief filed on behalf of appellant. We also deny the motion to withdraw at this stage pending counsel’s compliance with DR 2-110(A), which provides that a lawyer shall not withdraw until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, has given due notice to the client allowing time for employment of other counsel, has delivered to the client all papers and property to which the client is entitled and has made provision to refund any part of a fee paid in advance that has not been earned. DR 2-110(A)(2) and (3). At such time as appellant’s attorney can demonstrate to this court that appellant has either consented to withdrawal or that the attorney has fulfilled his obligations under DR 2-110, a renewed motion to withdraw will be considered by the Court.

APPELLANT’S BRIEF STRICKEN: MOTION TO WITHDRAW DENIED.

DAUKSCH and COBB, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The Anders court was concerned with the propriety of the California procedure wherein the public defender, having conscientiously determined that there was no merit to the indigent’s appeal, merely filed a "no-merit” letter with the court advising of that conclusion. The dissenting opinion (Mr. Justice Stewart) argues only that a “no-merit" brief does nothing more for the indigent client than does a letter of like substance, but even here, the emphasis is on the fact that the court is dealing with indigent appellants represented by public defenders (or court appointed counsel).


author: WESSEL, JOHN D., Associate Judge.

text:
    F.R.W.P., INC., a Florida corporation, Appellant, v. The HOME INSURANCE COMPANY, a foreign corporation, and A-1 Fargo Van & Storage, Inc., a Florida corporation, Appellees.
    No. 82-1344.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    John P. Kelly and W.M. O’Bryan of Fleming, O’Bryan & Fleming, Fort Lauder-dale, for appellant.
    Michael J. Kennedy of Peterson & Fogarty, P.A., West Palm Beach, for appellee, Home Ins. Co.
    Michael J. Murphy of Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, for appellee, A-l Fargo Van & Storage, Inc.
   WESSEL, JOHN D., Associate Judge.

This appeal presents several issues, however, we need address only one. The trial court’s denial of appellant’s request for a jury trial on each claim constituted reversible error and, therefore, we reverse and remand for new trial.

Appellant (FRWP) was the owner of improved real property that was leased as a warehouse to the appellee, A-l Fargo Van & Storage, Inc. (A-l Fargo). A-l Fargo insured the property with the appellee, Home Insurance Company (Home). A fire totally destroyed the warehouse while insured by A-l Fargo with Home. FRWP duly filed a proof of loss with Home. Home, however, refused to honor the request for proceeds. FRWP then instituted an action, containing a jury trial request, against Home for breach of contract and fraud.

Home answered and raised various affirmative defenses including doubt as to which entity, FRWP or A-l Fargo, was entitled to the proceeds. Home also requested a trial by jury. Subsequently, Home filed a counterclaim against FRWP raising the same issues as its affirmative defenses. FRWP answered Home’s counterclaim alleging that A-l Fargo breached its lease contract, intentionally misrepresented that FRWP was not a beneficiary of the Home policy and had no insurable interest in the destroyed warehouse. Home also brought A-l Fargo in as a third party defendant.

The action was set for jury trial, but at the pretrial conference on A-l Fargo’s ore tenus motion, the trial court bifurcated Home’s counterclaim and third party claim against A-l Fargo so as to determine each claim’s request for declaratory relief without a jury. Ultimately, without FRWP’s consent, the trial judge decided the numerous factual questions at issue.

The trial court was undoubtedly correct to assume that the disposition of the counterclaim and the third party action, declaring the rights of and between the parties, would be “more orderly” disposed of in a non-jury trial. However, all of the issues presented, including those raised in the declaratory action, entitled FRWP to a jury trial.

In a declaratory action based on equitable claims, the right to a jury trial is directory (permissive). § 86.071, Fla.Stat. (1983); Gerstein v. “Pleasure Was My Business”, 136 So.2d 8 (Fla. 3d DCA 1961); Rachleff v. Mahon, 124 So.2d 878 (Fla. 1st DCA 1960). However, when the action is based upon common law claims the right to a jury trial is mandatory. Olin’s, Inc. v. Avis Rental Car System of Florida, 131 So.2d 20 (Fla. 3d DCA 1961).

The issues raised by FRWP’s complaint, the answer filed by Home which raised equitable defenses, Homes’s counterclaim reiterating those defenses and the third party action against A-l Fargo, clearly presented factual questions — including, a determination of the intent of the parties regarding the intended beneficiary when A-l Fargo procured the fire insurance from Home and whether that intent changed — that should have been resolved by a jury.

Obviously, the issues involved in the instant action present both legal and equitable matters, however, we find they are sufficiently intertwined as to require resolution by jury. Construction Systems & Engineering, Inc. v. Jennings Construction Corp., 413 So.2d 1236 (Fla. 3d DCA 1982); Cheek v. McGowan Electric Supply Co., 404 So.2d 834 (Fla. 1st DCA 1981); Napolitano v. H.L. Robertson & Associates, Inc., 311 So.2d 757 (Fla. 3d DCA 1975); Westview Community Cemetery of Pompano v. Lewis, 293 So.2d 373 (Fla. 4th DCA 1974); Adams v. Citizens Bank of Brevard, 248 So.2d 682 (Fla. 4th DCA 1971). In addition, the trial court erred by deciding the third party and counterclaims itself without first obtaining each parties’ consent. Petrou v. South Carolina Insurance Co., 435 So.2d 316 (Fla. 4th DCA 1983); see Fla.R.Civ.P. 1.430(d).

Accordingly, we hold that appellant was entitled to a jury trial and, consequently, we do not decide the other issues raised on appeal.

REVERSED and REMANDED for a jury trial.

ANSTEAD, C.J., and HURLEY, J., concur.

      . "FRWP, INC. (FRWP) contends it should recover as a third-party beneficiary of a contract of insurance issued by Home to A-l Fargo Van & Storage, Inc., (FARGO) and paid for by FARGO on certain property owned by FRWP and under lease pursuant to a Lease Agreement to FARGO. Such right of third-party beneficiary, however, must be based upon the relationship and intent of the contracting parties, as tempered by operation of law establishing public policy, if any such exists.
      "Whereas in the instant case, the initial intent of the contracting parties was to protect and thereby benefit FRWP, this Court finds that such intent clearly changed, however, when the existence of a second insurance policy issued by Hartford Insurance Company (Hartford) to FRWP became known to all the parties. Immediately thereafter, FARGO attempted to obtain cancellation of one or the other policy, since FARGO, pursuant to the Lease Agreement, was paying FRWP the amount of the insurance premium charged for the Hartford policy on the subject premises, which attempted cancellation both FRWP and HOME refused. Had cancellation occured and any premium refund been paid by either carrier, FARGO would have been entitled to the proceeds.
      "FRWP, pursuant to the Lease Agreement, could have required greater coverage under the policy issued by Hartford, if the facts of cost and expense of replacement justified it. Indeed, FRWP need only have extended the limits on its existing policy with Hartford and billed FARGO for any increased premium. It is clear that FRWP set the terms of the Lease Agreement, drew the Lease Agreement and specifically declined to amend the Lease Agreement. FRWP is, therefore, bound by the Lease Agreement. "It is the further opinion of this Court that although FARGO did have an insurable interest in the leased premises besides and beyond business interruption and the other enumerated interests referred to at trial, such question need not even be reached to resolve the matter. In this case, the only party entitled to question such interest is HOME which has not done so and which would be clearly barred from doing so, having declined to cancel the policy after being put on notice of the existence of the Hartford policy issued to FRWP.”