author: KARL, Justice.

text:
    David KERLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 50211.
    Supreme Court of Florida.
    June 30, 1977.

      Joe M. Mitchell, Jr., Melbourne, and Kenneth A. Studstill, Titusville, for petitioner.
    Robert L. Shevin, Atty. Gen., and A. S. Sid Johnston and Harry M. Hipler, Asst. Attys. Gen., for respondent.

      . McCormick on Evidence, Section 79, explains Greenleaf’s view as follows:
      “Greenleaf arguing in 1842 for a privilege distinct from marital incompetency, and furnishing the inspiration for the later statutes by which the privilege was formally enacted, spoke only of ‘communications’ and ‘conversations.’ Those later statutes themselves (except one or two) sanctioned the privilege for ‘communications’ and for nothing beyond. Accordingly it would seem that the privilege should be limited to expressions intended by one spouse to convey a meaning or message to the other. These expressions may be by words, oral, written or in sign-language, or by expressive acts, as where the husband opens a trunk before his wife and points out objects therein to her. . . .’’

   KARL, Justice.

We have for review, on petition for writ of certiorari granted, the decision of the District Court of Appeal, Fourth District, in Kerlin v. State, reported at 351 So.2d 1026 (Fla. 4th DCA, 1976), which purportedly conflicts with Mercer v. State, 40 Fla. 216, 24 So. 154 (1898). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

After a first trial resulted in a hung jury, petitioner, David Kerlin, a/k/a David Gi-glietti, was convicted of second degree murder and was sentenced to thirty years imprisonment for the killing of one George Fitch, who was found in his bedroom shot to death by a .22 caliber rifle.

During the course of petitioner’s trial, his wife, the state’s chief witness who had been given immunity for her testimony, testified as to her observation of the criminal actions (non-verbal communications) of her husband surrounding the murder of Fitch.

Petitioner’s wife testified that she and petitioner arrived in Florida in 1974 as hitchhikers from Virginia; that, upon arriving in Florida, they met Fitch and subsequently temporarily moved in with him in his home in Titusville; that, approximately one week prior to Fitch’s death, she observed petitioner take from Fitch’s mailbox what appeared to her to be a government check; and that petitioner gave her Fitch’s savings book and, thereafter, requested it back, at which time she accompanied him to the bank where he filled out a withdrawal slip, approached the teller and received a sum of money. After being cautioned not to repeat any conversations her husband had had with her, she testified, as to her observations of petitioner’s actions on the morning of the murder, that petitioner, she and the victim were alone in Fitch’s house, several persons having left the house earlier that morning; that the defendant put down the newspaper he was reading, went into one of the two bedrooms, came out with a rifle which she identified as State’s Exhibit Number 12, and walked into the victim’s bedroom; that she heard a muffled shot; that petitioner came out of the bedroom and reloaded the gun in front of her; that he went back into her bedroom and that she heard another shot; that, momentarily, petitioner came out and said, “Let’s go,” at which they ran from the house. She observed that petitioner had the victim’s wallet and checkbook and that he had blood on his face which did not appear to be occasioned by any cut or scratch.

To this testimony by the wife relating to petitioner’s conduct, the defense did not expressly object when the testimony was being .taken. There does appear in the record a vague “stipulation” which applied to petitioner’s first trial, to the effect that, before the jury was sworn during the course of the first trial, the defense made a motion in limine whereby he made objection to the possibility of testimony being elicited by the state attorney from Sandra Kreps Giglietti, the wife of the petitioner, as to matters protected as privileged communications between husband and wife. The stipulation further provided that the state attorney was cautioned not to inquire of said witness as to matters protected as privileged communications between husband and wife.

Petitioner testified at trial that he stole the check belonging to Fitch; that his wife knew of the stealing of the check and voluntarily went with him to the bank to cash it; that he was living at Fitch’s house the morning of the murder; but that he did not murder Fitch. On cross-examination, he testified that he did not get along well with Fitch and argued with him on several occasions, and that he forged Fitch’s signature. He further testified on cross-examination as follows:

“Q Now you heard her say that you walked into the bedroom; did you walk into the bedroom after you read the paper?
“A Before we left?
“Q Um-hmm.
“A I’m not sure if I walked into the bedroom; I think she walked into the bedroom. There’s a possibility that I could have; I’m not absolutely sure.
“Q Now, you heard her say that you came out of the bedroom with that rifle, you saw that rifle, didn’t you — did you get a chance to look at that rifle?
“A Yes, sir. I’ve seen it.
“Q Do you recognize that rifle as being Steve Proctor’s rifle?
“A It looks like the same one, yes, sir.
“Q That’s the rifle you fired on one occasion with Steve Proctor?
“A I believe so.
“Q You heard her say that you came out of the bedroom with that rifle?
“A Yes, sir.
“Q Did you at any time handle that rifle on that Sunday?
“A No, sir. I did not.
“Q Do you know where that rifle was that Sunday?
“A As far as I know, it was behind the door.
“Q Why do you say it was behind the door?
“A It was always kept behind the door.
“Q Did you see it behind the door that Sunday?
“A I didn’t happen to look behind the door that Sunday, no.
“Q Were you ever in George’s room that Sunday morning?
“A No, sir.
“Q You were not?
“A No.
“Q When you went to bed Saturday, was the gun behind the door of George’s room?
“A I do not know.
“Q When was the last time you’d seen the gun prior to going to bed Saturday night?
“A I couldn’t tell you the specific time.
“Q Okay. Now, you heard, you’ve heard Sandra say that after you came out of the bedroom with that gun, that you said something to her, you heard her say that?
“A Yes, I did.
“Q Didn’t you, in fact, say that George was going to cause trouble about the check; you were going to have to kill him?
“A No, sir.”

It was only at this point that the defense objected to the prosecutor’s remark. Although all the activities of petitioner relative to the stolen check had been explored on direct examination, the basis of his objection was that this remark constituted an alleged violation of the confidential relationship between a man and his wife. After lengthy debate, the trial judge denied the objection, and on further cross-examination, petitioner could not recall the content of any conversation with his wife.

The District Court of Appeal, Fourth District, affirmed the judgment and sentence “on the authority of Gates v. State, 201 So.2d 786 (3d D.C.A., Fla.1967) and Ross v. State, 202 So.2d 582 (1st D.C.A., Fla.1967).”

This cause brings before us the application of the privilege for communications between husband and wife and, more particularly, the question of whether this privilege extends to observation of criminal conduct (actions) of one spouse by the other.

In this Court’s early decision of Mercer v. State, supra, it was held that written communications between a husband and wife are inherently privileged from the character of the communication itself, and the privilege for marital communications protects them from introduction into evidence. Therein, this Court explained the rationale or public policy of the privilege to be the preservation of the peace, good order and limitless confidence between the heads of the family so as to promote a well-ordered, civilized society and opined:

“The matter that the law prohibits either the husband or wife from testifying to as witnesses includes any information obtained by either during the marriage, and by reason of its existence. It should not be confined to mere statements by one to the other, but embraces all knowledge upon the part of either obtained by reason of the marriage relation, and which, but for the confidence growing out of it, would not have been known. And the same rule prevails in full force even after the marital relation has been dissolved by death or divorce. Where the incompetency as witnesses of husband and wife on the ground of interest has been removed by statute, as is the case here, either of them may testify, for or against the other, to any fact, the knowledge of which was acquired by them independently of their marriage relation, in any manner not involving the confidence growing out of the marriage relation. As Mr. Greenleaf puts it: ‘The great object of the rule is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife; and whatever has come to the knowledge of either by means of the hallowed confidence which that relation inspires cannot be after-wards divulged in testimony, even though the other party be no longer living.’ 1 Greenl. Ev. (15th Ed.) §§ 254, 334, 337; . .” (Emphasis supplied.)

Even at common law, this communications privilege was recognized to be subject to limitations and exceptions which grew out of necessity, inter alia, to avoid harsh injustice to the excluded spouse which would follow from a strict enforcement of the rule. Explaining the nature of the exception, Dean Wigmore states in Wigmore on Evidence, Section 2239:

“The notion of necessity, indeed, might commendably have been a broader one; the necessity of doing justice to other persons in general, when the spouse’s testimony was indispensable, would have been at least as great. But the common lawyers here kept their eyes upon the ground, and did not allow their survey to exceed the range of immediate and unavoidable vision. Anyone could see that an absolute privilege in a husband to close the mouth of the wife in testimony against him would be a vested license to injure her in secret with complete immunity. This much the common lawyers saw, and were willing to concede. Just how far the concession went, in concrete cases, was never precisely settled. It was given varying definitions at different times. It certainly extended to causes involving corporal violence to the wife, and it certainly did not extend to all wrongs done to the wife. In modern statutes the spirit of the exception has usually been invoked to establish the exception for both husband and wife in all causes involving a ‘crime against the other’ or a ‘personal wrong.’
“But before noting the extent of this exception in detail, it is worth while to observe the common law cases and the statutory rules applying this exception are also equally open to explanation as instances in which the very reason of the privilege — at least the reason most frequently advanced — is lacking. That is to say, if the promotion of marital peace, and the apprehension of marital dissension, are the ultimate ground of the privilege, it is still an overgenerous assumption that the wife who has been beaten, poisoned or deserted is still on such terms of delicate good feeling with her spouse that her testimony must not be enforced lest the iridescent halo of peace be dispelled by the breath of disparaging testimony. And if there were, conceivably, any such peace, would it be a peace such as the law could desire to protect? Could it be any other peace than that which the tyrant secures for himself by oppression? And could the law pretend to regard the effect produced by a wife’s testimony in her own redress as being worth consideration on behalf of a husband who has already grossly violated his marital duties? If there had been any reason at all for the privilege, that reason surely fell away in such cases. The common lawyers, more creditably to themselves in point of consistency as well as humanity, might better have placed these cases upon this ground instead of upon that of necessity. It is satisfactory to find that this reasoning has by some judges been appealed to for that purpose.”

The Supreme Court of the United States, in Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1933), wherein the court held that a written communication in the form of a letter from a husband to his wife dictated by the husband to a stenographer was not privileged, opined:

“The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.
“The privilege suppresses relevant testimony and should be allowed only when it is plain that marital confidence can not otherwise reasonably be preserved. Nothing in this case suggests any such necessity.”

In an annotation to Blau v. U. S., 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306, 317 (1950), on the marital communications privilege in federal courts, it was stated that, in the absence of a statute which expands the common law privilege of confidential marital communications, seemingly, such privilege protects only utterances but not observations of facts.

The tendency in this state has been to take a restrictive view of the privilege, not permitting it to preclude from evidence a spouse’s observation of another spouse’s criminal actions, i. e. independent facts gained by his or her own observation and knowledge and not from any written or oral communications of his or her spouse.

Defendant in Porter v. State, 160 So.2d 104 (Fla.1963), was charged with the first degree murder of his mother-in-law by severing her head with a machete. During the course of the trial, Porter’s common-law wife, the only eyewitness to the crime other than the defendant himself, was permitted to testify in detail as to her observation of his criminal activities surrounding the murder, over defense objection that one spouse cannot testify against the other unless he or she be an interested party to the suit pending. This Court found the argument that this testimony should have been excluded to be without merit, determined that no reversible error had been made to appear and that the ends of justice did not require a new trial, and affirmed the judgment and death sentence.

Gates v. State, 201 So.2d 786 (Fla. 3rd DCA, 1967), was a battered child syndrome case in which the defendant was charged with murder in the second degree of his wife’s minor daughter. This wife was permitted to testify at trial over defense objections about a previous act of violence committed by Gates against the deceased child. Finding that the wife’s testimony was to an event, not to a communication, the district court held the testimony of the wife to be properly admissible, not falling within the husband and wife privilege.

Appellant in Ross v. State, 202 So.2d 582 (Fla. 1st DCA, 1967), argued that the physical act of delivering a stolen sweater to his wife was a confidential privileged communication, just as a statement to her as to how he had acquired the sweater would have been, and therefore, his objection to her testimony should have been sustained. In response to the posited question as to the trial judge’s failure to sustain the objection, Judge Wigginton, speaking for the unanimous court, opined:

“It occurs to us that if the testimony of the wife in Porter was subject to exclusion on any proper ground, its admission would have constituted such fundamental error as to require reversal of the judgment in that case. Since the Supreme Court refused to disturb the judgment it reasonably follows that the testimony of appellant’s wife in the case now reviewed, confined as it was to physical acts of her husband, must be considered as not constituting confidential communications privileged under common law principles. We therefore conclude that the ruling complained of was proper and free from error.” Ross v. State, 202 So.2d 582, 584.

Most recently, in Smith v. State, 344 So.2d 915 (Fla. 1st DCA, 1977), filed April 6, 1977, the district court held that testimony of the wife as to certain oral communications made to her by her husband after the shooting, regarding his killing of one Jose Fernandez, were improperly admitted into evidence over objection of the defense that such testimony invaded the confidential privilege between husband and wife. The wife testified in vivid detail as to the homicide and the cover-up. The district court noted- that the numerous activities of the defendant, about which his wife testified, are not covered by the marital privilege which, the district court explained, applies only to communications and not actions.

We approve the restricted interpretation of Dean Wigmore, an eminent authority on evidence, which limits the privilege of communications between husband and wife to spoken or written statements, signs or gestures, a view which has been adopted by the courts in this state. He explicitly stated, in Wigmore on Evidence, § 2337:

“The privilege has for its object the security from apprehension of disclosure — a security in consequence of which confidences will be freely given and not withheld. The protection therefore extends only to communications, not to acts which are in no way communications. The reasoning is analogous to that which establishes a similar limitation for communications between attorney and client (§ 2306 supra).”

McCormick on Evidence argues for a movement toward restriction of the privilege since extensions beyond verbal or written communications are unjustified. Generally, the acts which would be protected by the privilege are acts done in furtherance of a crime or fraud and, therefore, under the principle developed for the attorney-client privilege, should not be protected. McCormick on Evidence, § 79.

Public policy favors such a restrictive construction of the privilege since observations of criminal actions is not the type of communication contemplated by the privilege of confidential communication as being in the public interest to preserve a well-ordered, civilized society by preserving the peace and harmony of a family.

Although not necessary to the disposition of this cause since we find that the wife’s observation of petitioner’s criminal activities was not excludable from evidence on the basis of privileged communications, we note that the privilege was waived because the defense failed to object to the introduction of this testimony. The vague stipulation, which relates to the first trial and describes a general objection and a cautionary instruction by the judge, was not sufficient to constitute a proper objection to'the wife’s testimony as to petitioner’s conduct.

The privilege existing between husband and wife as to their communication is a personal privilege which may be waived by the communicating spouse. Tibado v. Brees, et al., 212 So.2d 61 (Fla. 2d DCA, 1968). Waiver occurs by failure to assert the privilege by objection or a voluntary revelation by the holder of the communication, or a material part thereof. Cf. 8 Wigmore on Evidence, § 83.

In Tibado, supra, appellant, at oral deposition prior to trial, voluntarily and without objection testified to confidential communications between him and his wife but, at trial, objected to the introduction of the deposition. The court held that, when he testified without objection on deposition to the privileged communications, they lost their confidential nature. Cf. Savino v. Luciano, 92 So.2d 817 (Fla.1957). The trial judge has no duty to exclude confidential communications in the absence of timely objection thereto. Cf. State v. Foster, 164 La. 813, 114 So. 696 (1927). By not objecting to the line of questioning relating to the conduct of petitioner, were such conduct contemplated by the privilege, petitioner effectively waived the privilege.

The next point involves the questions directed to petitioner on cross-examination by the state relative to certain oral conversation with his wife. After petitioner responded, “No, sir,” to inquiry by the state as to whether petitioner made a certain statement to his wife, defense objected as follows:

“Your Honor, my objection is based on Mr. Herring’s violation of the confidential relationship between a man and his wife that a conversation took place.” (Emphasis supplied.)

With regard to this specific objection, we note that the privilege does not protect testimony as to the fact of communicating or not communicating. If the purpose of the questioning was to show the act of communicating and not the disclosure of the substance of the communications, the testimony elicited does not come within inhibition of the privilege. An annotation to People of State of New York v. Daghita, 299 N.Y. 194, 86 N.E.2d 172, 10 A.L.R.2d 1385, 1391-2, discussing acts as confidential communications, explains:

“The majority of courts have held that the privilege does not protect testimony as to the fact of communicating or not communicating, as distinguished from the matter communicated.”

However, it appears that this objection was intended to exclude the conversation itself as being within the confidential communications privilege. The state posits that the trial court was correct in ruling that, once petitioner testified, he waived the husband-wife privilege as to confidential communications.

We cannot agree with this broad general assertion by the state. As previously stated, this privilege may be waived by the communicating spouse by voluntary revelation of the communication or a material portion thereof, but the fact that the defendant testifies in his own behalf without revealing the contents of the confidential revelation to his or her spouse does not constitute a waiver. Wharton’s Criminal Evidence, § 567. When a defendant testifies to conversations with his or her spouse, he thereby waives the privilege and may be cross-examined concerning such conversations. Sub judice, on direct examination of petitioner, no inquiry had been made into oral communications made by him to his wife. However, although the trial court erred in denying petitioner’s objection, it merely constituted harmless error because no privileged communications were forthcoming from petitioner who did not recall the contents of any conversation with his wife, if there was any.

Accordingly, we hold that the wife’s testimony as to observed conduct was properly admitted into evidence; that her testimony as to any conversations with petitioner, i. e., his statement, “Let’s go,” was properly admissible since not timely objected to by the defense; and that the trial judge erred in overruling petitioner’s objection to confidential oral communications, but such error was harmless under the totality of the circumstances.

Accordingly, the decision of the District Court of Appeal, Fourth District, is approved, and the writ heretofore issued is discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and SUNDBERG, JJ., concur.

      . We note with interest that the Florida Legislature in the 1976 Legislative Session codified the marital communications privilege recognized in Florida since 1889. Section 90.504, Florida Statutes, effective July 1, 1978, provides:
      “(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.
      “(2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.
      “(3) There is no privilege under this section:
      “(a) In a proceeding brought by or on behalf of one spouse against the other spouse.
      “(b) In a criminal proceeding in which one spouse is charged with:
      “1. A crime committed at any time against the person or property of the other spouse, or the person or property of a child of either; or
      “2. A crime committed at any time against the person or property of a third person, which crime was committed in the course of committing a crime against the person or property of the other spouse.
      “(c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.”
      The comment to Subsection (1) provides:
      “This subsection permits one spouse to refuse to disclose, and to prevent the other spouse from disclosing, confidential communications made during coverture. To be privileged, the communications must be made when confidentiality could be anticipated. The privilege is limited to expressions intended by one spouse to convey a meaning or message to the other and not to other ‘actions’ or ‘facts.’ See Ross v. State, 202 So.2d 582 (Fla. 1st Dist. 1967); Gates v. State, 201 So.2d 786 (Fla. 3rd Dist. 1967); McCormick, Evidence § 79 (2nd ed. 1972). The privilege survives death or divorce, to insure total freedom of communication by removing the apprehension of disclosure. 8 Wigmore, Evidence § 2340 (McNaughton rev. 1961).
      “Similar provisions are contained in Calif. Evid.Code § 980; N.J.Evid.Rule 28; Kansas Code of Civ.Pro. § 60-428.” (Emphasis supplied.)

      . Signs or gestures used to convey meaning are entitled to the same status as words spoken or written. 10 A.L.R.2d 1389, 1391.

      . In Kneale v. Williams, 158 Fla. 811, 30 So.2d 284 (1947), this Court held that the perpetration of a fraud is outside the scope of the. professional duty of an attorney, and no privilege attaches to a communication between attorney and client with respect to a transaction constituting the making of a false claim or perpetration of a fraud.

      . McCormick on Evidence, speaking to the policy and future of the privilege, states:
      “Accordingly, we must conclude that, while the danger of injustice from suppression of relevant proof is clear and certain, the probable benefits of the rule of privilege in encouraging marital confidences and wedded harmony, is at best doubtful and marginal.” § 86.

      . After much debate on the objection, the trial court ruled:
      “I think I am prepared to make a ruling in this instance that the privilege will not be invo-cable. The discussion here and the rest of this chapter in McCormick’s follows the line of Wigmore and the Model Code, and I don’t think the point has yet to have been reached in Florida. Therefore, the trial judge has the duty to face up to the problem and the future of this rule is said to be that if the evidence of a communication inquired into the administration of justice, the privilege should yield. The husband and wife privilege, historically grows out of a policy consideration designed to promote peace and harmony in the marriage, and it’s a poor public policy, and yet there is another public policy where society is involved in the prosecution for crime it should be examined— the way I take it that if the evidence of a communication is necessary for enforcement of laws against crimes, then the institution of marriage has to take second place. That’s a pretty extreme rule. It should make a basis for either upsetting a verdict in judgment on appeal or make some clarification on the law in the State of Florida. I don’t know the State wants to go that far.”


source: Caselaw Access Project

license: Public Domain

text:
    OMNI-VEST, INC., Petitioner, v. REICHHOLD CHEMICALS, INC., Respondent.
    No. 51185.
    Supreme Court of Florida.
    July 29, 1977.
    Rehearing Denied Nov. 7, 1977.

      J. B. Murphy, Jr., of Murphy & Beroset, Pensacola, and Cynthia S. Tunnicliff of Spector & Tunnicliff, Tallahassee, for petitioner.
    Robert P. Gaines of Beggs & Lane, Pensacola, for respondent.
   KARL, Justice.

We here review by certiorari the decision of the District Court of Appeal, First District, in Reichhold Chemicals, Inc. v. Omni-Vest, Inc., 352 So.2d 58, filed February 3, 1977. The District Court certified the controlling question involved in this cause to be one of great public interest. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

In a breach of contract action brought by petitioner, Omni-Vest, Inc., against respondent, Reichhold Chemicals, Inc., the jury returned a verdict in favor of petitioner in the amount of $75,000. Respondents filed a motion for a new trial and alleged, inter alia, that the court erred in overruling the objection of‘the respondents to the testimony of M. F. Gonzales as to the cost of filling the pit, that the jury verdict is contrary to the manifest weight of the evidence and is so grossly excessive as to demonstrate prejudice and passion on the part of the jury.

The trial court granted respondent’s motion for new trial unless petitioner should enter a remittitur in the amount of $62,000. Petitioner agreed to the remittitur, and final judgment was thereupon entered for petitioner in the amount of $13,000 plus costs.

Assigning as error the trial court’s denial of its motion for directed verdict, respondent appealed the final judgment in favor of petitioner. Petitioner cross-assigned as error the order 'of the trial judge requiring remittitur. The District Court of Appeal granted respondent’s motion to strike the cross-assignment of error. On petition for rehearing, the District Court wrote an opinion explaining its rationale for granting the motion and then certified the following question to this Court:

“When a plaintiff in a civil action consents to a remittitur ordered by a trial court following a hearing held on a motion for a new trial filed by defendant, is the plaintiff, in the absence of having actually received the fruits of the reduced judgment, precluded from cross-assigning as error the order of remittitur when the defendant has appealed the reduced judgment which has been entered following the remittitur?”

The District Court of Appeal decided this question in the affirmative, basing its decision squarely on this Court’s decision in Florida East Coast Ry. Co. v. Buckles, 83 Fla. 599, 92 So. 159 (1922), wherein it was held:

“It is clear that a plaintiff may not avail himself of the benefits of an order, such as was made in this case, and take judgment for the amount of the verdict less the remittitur, and subsequently assign such order as error. Plaintiff could have declined to make the remission required by the order as an alternative for a new trial, and stood upon his allegation of damages sustained; but, when he formally enters a remittitur damnum in compliance with the terms of the order, he is estopped to assert and assign error in the order. [Cases cited.]”

We adhere to our early decision in Florida East Coast Ry. Co. v. Buckles, supra, and therefore answer the certified question in the affirmative.

Accordingly, finding that the District Court of Appeal, First District, has correctly decided the question, we approve the decision under review in this respect and discharge the writ.

It is so ordered.

OVERTON, C. J., and BOYD and HATCHETT, JJ., concur.

ADKINS, ENGLAND and SUNDBERG, JJ., dissent.


text:
    STATE of Florida, Petitioner, v. Charles A. BASSHAM, Respondent.
    No. 50387.
    Supreme Court of Florida.
    Sept. 15, 1977.
    Robert L. Shevin, Atty. Gen., and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for petitioner.
    Robert E. Jagger, Public Defender, Frank J. Lynch, Jr., and Thomas P. McAl-vanah, Asst. Public Defenders, Dade City, for respondent.
   KARL, Justice.

This cause is before us on certiorari granted to review the decision of the District Court of Appeal, Second District, in State v. Bassham, 336 So.2d 616 (Fla. 2d DCA 1976), which directly conflicts with State ex rel. Williams v. Eastmoore, 297 So.2d 572 (Fla. 1st DCA 1974) and O’Bryan v. State, 326 So.2d 83 (Fla. 1st DCA 1976), certiorari denied 336 So.2d 602 (Fla.1976).

While respondent was in the custody of the Hillsborough County Sheriff’s Office, a detainer was placed on him by the Pasco County Sheriff’s Office on July 28, 1975. After having been transferred to Polk County as a result of a detainer filed by the Polk County Sheriff’s Office, respondent was delivered to the Pasco County Sheriff’s Office on March 1, 1976, at which time he was served with a capias for his arrest. He was arraigned, and trial was set for April 1, 1976, more than 180 days after the formal arrest of respondent. Relying on State v. Sutton, 269 So.2d 712 (Fla. 2d DCA 1972), the trial court granted respondent’s pro se motion for discharge under the speedy trial rule, although he recognized that Sutton, supra, conflicts with State ex rel. Williams v. Eastmoore, supra.

The sole question before us for review is whether a detainer placed by one county for a prisoner held by another county is considered custody within the contemplation of the speedy trial rule from which time speedy trial time commences to run.

We do not agree with the District Court’s affirmative response to this issue, but rather, we would adopt the rationale of the District Court, First District, in Eastmoore, supra, and O’Bryan, supra.

Rule 3.191(a)(1), Fla.R.Crim.P., provides in pertinent part:

“The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.”

Relator, in Eastmoore, supra, sought to prohibit his trial on three counts of armed robbery on the ground that he had been denied his right to speedy trial. Awaiting trial on charges unrelated to the armed robbery offenses, relator had been confined in the Palm Beach County jail during October, 1973. While he was confined there, officials from Putnam County, in October of 1973, placed a detainer against him oh the basis of the armed robbery charges which arose in Putnam County. The District Court denied the suggestion for writ of prohibition and explained:

“At the time the detainer was issued against relator he was not in custody as a result of the conduct or criminal episode arising in Putnam County but rather was in custody exclusively on the charges in Palm Beach County. The detainer did not place relator in custody as a result of his conduct in Putnam County. He was not placed in custody as a result of his alleged criminal episode in Putnam County until he was freed on the- Palm Beach charges and formally arrested on the Putnam County charges.
“We hold that under F.R.Cr.P. 3.191(a)(1) the 180-day time period in which the state had to bring relator to trial commenced to run when he was formally arrested on the Putnam County charges. . . . ”

In O’Bryan, supra, the First District Court of Appeal reiterated the proposition that “[t]he detainer warrant is not equivalent for purposes of speedy trial considerations, to an arrest on indictment or information.” This Court denied a petition for writ of certiorari seeking review of this decision. Accordingly, we hold that a de-tainer placed by one county for a prisoner held by another county is not considered custody within the contemplation of the speedy trial rule so as to commence the running of the speedy trial time.

To the extent that Hargrove v. State, 281 So.2d 390 (Fla. 2d DCA 1973), and State v. Sutton, supra, are inconsistent herewith, they are overruled.

The decision of the District Court under review is quashed, and this cause is remanded for further proceedings consistent herewith.

It is so ordered.

OVERTON, C. J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Lee Max HYDER, Respondent.
    No. 50493.
    Supreme Court of Florida.
    Sept. 15, 1977.
    Rehearing Denied Dec. 6, 1977.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for petitioner.
    Jack 0. Johnson, Public Defender, and Dan P. Brawley and Robert H. Grizzard, II, Asst. Public Defenders, Bartow, for respondent.
   KARL, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, in Hyder v. State, reported at 338 So.2d 847 (Fla. 2d DCA 1976), which conflicts directly with State ex rel. Williams v. Eastmoore, 297 So.2d 572 (Fla. 1st DCA 1974), and O’Bryan v. State, 326 So.2d 83 (Fla. 1st DCA 1976), certiorari denied 336 So.2d 602 (Fla.1976).

We are confronted here with the identical question as that raised in State v. Bassham, Fla., 352 So.2d 55, filed September 15, 1977, whether a detainer placed by one county for a prisoner held by another county is considered custody within the contemplation of the speedy trial rule from which time speedy trial time commences to run.

For the reasons stated in State v. Bass-ham, supra, the decision of the District Court in the instant case is quashed and the cause is remanded for further proceedings not inconsistent herewith.

It is so ordered.

OVERTON, C. J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


author: PER CURIAM.

text:
    REICHHOLD CHEMICALS, INC., Appellant, v. OMNI-VEST, INC., Appellee.
    No. DD-105.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1977.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellant.
    J. B. Murphy, Jr., Pensacola; Guyte P. McCord, III, and Cynthia S. Tunnicliff, Tallahassee, for appellee.
   PER CURIAM.

This case is being reconsidered upon ap-pellee’s motion for rehearing as to this court’s order striking appellee’s cross-assignments of error. The sole issue is whether a claimant may enter a remittitur, and then, upon appeal by the defendant in whose favor the remittitur was ordered, cross-assign as error the order directing a new trial unless the remittitur be entered.

Appellee, Omni-Vest, initially brought suit against appellant Reichhold for breach of contract. The jury returned a verdict in favor of the claimant in the amount of $75,000. Thereafter, the trial court entered an order granting the defendant’s motion for new trial, unless the claimant enter a remittitur in the amount of $62,000. The claimant thereupon entered its remittitur, and the trial court entered a final judgment in the amount of $13,000 plus costs. From that judgment, the defendant (appellant here) took an appeal, and appellee (claimant below) cross-assigned the order requiring remittitur. This court granted appellant’s motion to strike the cross-assignment of error. Appellee moved for rehearing, therefore this opinion. *

The early ease of Florida East Coast Ry. Co. v. Buckles, 83 Fla. 599, 92 So. 159 (Fla. 1942), is apparently controlling. In that case, the Supreme Court held:

“. . . It is clear that a plaintiff may not avail himself of the benefits of an order, such as was made in this case, and take judgment for the amount of the verdict less the remittitur, and subsequently assign such order as error. Plaintiff could have declined to make the remission required by the order as an alternative for a new trial, and stood upon his allegation of damages sustained; but, when he formally enters a remittitur damnum in compliance with the terms of the order, he is estopped to assert and assign error in the order. . . . ” (92 So. at 160)

It is apparent that blind application of the doctrine enunciated in the Buckles decision may lead to unjust and unfair results, as evidenced by the case sub judice. It is manifestly unjust and unfair, it appears to us, for a plaintiff to have a $75,000 jury verdict reduced to $13,000 by a remittitur and then, without the plaintiff having received the remaining $13,000, permit the defendant to appeal the reduced verdict which was occasioned by the defendant’s motion for new trial and yet prohibit the plaintiff a cross-appeal of the order which gave rise to the remittitur.

Obliquely recognizing such inequitable consequences of its Buckles decision, the Supreme Court granted limited relief in Ed C. Wright and Co. v. Adkins, 152 Fla. 512, 12 So.2d 296 (Fla.1943); In that case the court specifically distinguished the Buckles decision, in that the latter case involved a judgment in gross whereas in the former case, the verdict was in two distinct parts and error was assigned as to the disallowance of one part only. Further, in Adkins, no part of the judgment had been paid and nothing had been done by the appellee to work an estoppel. Thus, the effect of the Buckles decision was avoided.

Other attempts to ameliorate the harsh effect of the Buckles decision have been thwarted. For example in Dargis v. Ma-guire, 156 So.2d 897 (Fla.3d D.C.A.1963), the trial court ordered a remittitur, or in the alternative, a new trial, but stated in the order that compliance with the order would not be deemed to be a waiver or estoppel insofar as the right to cross-assign as error that portion of the order directing the plaintiff to enter the remittitur. Refusing to honor that particular portion of the re-mittitur order, the Third District held that the trial court could not confer upon the plaintiff the right to appeal from the remit-titur order which he voluntarily accepted.

We believe that by far the better, and certainly the fairer, rule would appear to be the so-called Wisconsin rule. That rule, which quite logically originated in Wisconsin and represents the modern trend of law, permits a plaintiff who has filed a remitti-tur pursuant to an order of the trial court to cross-assign that order when the defendant has appealed the final judgment. See Plesko v. City of Milwaukee, 19 Wis.2d 210, 120 N.W.2d 130 (Wis.1963); see also discussion and cases cited in 16 A.L.R.3d 1330 (1967).

Notwithstanding the fairness, equity, and justice of the Wisconsin rule, we are unable to adopt or follow it. District courts in Florida have been directed in no uncertain terms to leave all judicial changes in the law to the Supreme Court of Florida. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Accordingly, in deference to the Hoffman mandate and based upon our finding that there is no logical basis in the record at this stage of the proceedings by which the Buckles decision may be distinguished, we are of the view that in the interest of stare decisis, despite readily acknowledging that we question the justice of the result, we must continue to abide by our decision to grant appellant’s motion to strike.

However, we do feel compelled to take one additional step. The precise question presented by this case is: When a plaintiff in a civil action consents to a re-mittitur ordered by a trial court following a hearing held on a motion for a new trial filed by defendant, is the plaintiff, in the absence of having actually received the fruits of the reduced judgment, precluded from cross-assigning as error the order of remittitur when the defendant has appealed the reduced judgment which has been entered following the remittitur? Having answered the question in the affirmative, basing our decision squarely and entirely upon Florida East Coast Ry. Co. v. Buckles, supra, we certify the question to be of great public interest pursuant to Article V, Section 3(b)(3), Florida Constitution.

IT IS SO ORDERED.

BOYER, C. J., and RAWLS and MILLS, JJ., concur.


author: ANSTEAD, Judge:

text:
    Sheila E. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 76-734.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1977.
    Richard L. Jorandby, Public Defender, and Richard S. Power, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge:

This case is here for review of the denial of a motion to suppress by the appellant, Sheila Brown. We reverse.

Brown was arrested at a pool hall she operated, and a quantity of marijuana was found on her person. She moved to suppress the seized marijuana as being the product of an unlawful arrest.

At the hearing on the motion to suppress, the arresting officer testified that he entered the pool hall and saw Brown take a bag from her purse and throw it under a pool table. He retrieved the bag, found it contained marijuana, and arrested Brown. He then searched Brown and found more marijuana. Brown and another witness testified in contradiction to the officer’s testimony, stating in essence that Brown had nothing to do with the bag of marijuana found under the pool table. On the basis of this testimony, Brown asked the trial court to suppress the marijuana seized from her person after her arrest.

The trial court denied the motion to suppress stating that it was for the jury to determine whether the police officer, or Brown and her witness, were telling the truth about the events that prompted Brown’s arrest. At one point the trial court stated that if he treated the hearing like a trial, he would have to rule in favor of Brown on the motion to suppress. At another point, he stated that he didn’t have to believe Brown and her witness.

A motion to suppress presents issues solely for determination by the trial court. The jury is to play no role in the resolution of those issues. At the hearing, the judge has the responsibility of weighing the evidence and determining matters of credibility. Chaney v. State, 237 So.2d 281 (Fla. 4th DCA 1970).

The record in this case does not clearly show that the trial court determined whether probable cause existed for appellant’s arrest. Therefore, the case is remanded to the trial court for a period of 30 days with directions to make a written finding as to whether or not the State proved there was probable cause to arrest appellant and subsequently conduct a search of her person. That finding may be made upon the testimony already adduced before the trial judge or he may conduct a further hearing on the motion to suppress. Upon making the foregoing determination, the trial court is requested to furnish this court a certified copy of his findings.

DOWNEY and DAUKSCH, JJ„ concur.


author: ANSTEAD, Judge.

text:
    Sheila E. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 76-734.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1977.
    Richard L. Jorandby, Public Defender, and Richard S. Power, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

In a previous opinion we remanded this cause to the trial court with directions to make written findings as to whether or not there was probable cause to arrest appellant, Sheila E. Brown, and conduct a search of her person. Following these directions, the trial court entered an order finding that probable cause existed. By way of supplemental brief appellant has persuaded us that the foregoing procedure we ordered was incorrect and that appellant was entitled to a new trial rather than a further proceeding to determine probable cause. The reasons set forth in Land v. State, 293 So.2d 704 (Fla.1974) that led the court to conclude that a new trial was necessary if a trial court failed to specifically find a confession voluntary before submitting it to a jury also lead to a conclusion that a new trial is necessary if a trial court delegates to the jury the court’s duty to determine whether a search and seizure was lawful. Therefore, though a remand for a posttrial hearing to determine probable cause appears to be an expeditious way of remedying the error, the Supreme Court has indicated that such a procedure is inadequate to protect the rights of an accused.

Accordingly, we reluctantly reverse the judgment and sentence appealed and remand the cause for a de novo hearing on appellant’s motion to suppress, if the appellant seeks such a hearing, and a new trial.

DOWNEY and DAUKSCH, JJ., concur.

      . Brown v. State, 352 So.2d 60 (Fla. 4th DCA 1977).


author: PER CURIAM. ANSTEAD, Judge,

text:
    CAROLTON SQUARE ESTATES, INC., Appellant, v. Stephan J. BODZO and Barbara A. Bodzo, his wife, Appellees.
    No. 75-1565.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Jack A. Jensen, Deerfield Beach, for appellant.
    Christopher Todd, Boca Raton, for appel-lees.
   PER CURIAM.

Affirmed.

MAGER, C. J., and ALDERMAN, J., concur.

ANSTEAD, J., dissents.

ANSTEAD, Judge,

dissenting:

I believe that the testimony of the appellant’s president contained in his deposition precluded the entry of a summary judgment.


author:
PER CURIAM.
      ANSTEAD, Judge,

text:
    DISTRICT LODGE 57 OF the INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Appellant, v. TALISMAN SUGAR CORPORATION, Appellee.
    No. 76-1192.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Richard H. Frank of Law Offices of Frank & Meyer, Tampa, for appellant.
    R. Bruce Jones of Jones, Paine & Foster, West Palm Beach, John Bacheller, Jr. and Michael H. Campbell of Fisher & Phillips, Atlanta, Ga., for appellee.
   PER CURIAM.

Affirmed.

CROSS, J., and DRIVER, B. J., Associate Judge, concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

Article I, Section 6, of the Florida Constitution provides:

“The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.”

For the most part, the federal government has exclusive jurisdiction over collective bargaining involving private employees. But the National Labor Relations Act, 29 U.S.C. 151, specifically excludes agricultural workers from its provisions. Therefore, the National Labor Relations Board is without jurisdiction to resolve disputes between agricultural workers and their employers. And while there is Florida legislation governing collective bargaining by public employees, there is no such legislation in the private sector.

The appellant, District Lodge 57 of the International Association of Machinists and Aerospace Workers, AFL-CIO, claims that the agricultural workers of this state are being deprived of their right to collective bargaining by virtue of the lack of specific legislation nationally or in this state, spelling out and enforcing their rights of collective bargaining as guaranteed by Article I, Section 6, Florida Constitution. Judicial implementation, including a mandatory injunction to compel the employer to bargain, of the right to collective bargaining was sought and property denied in the court below. However, the point raised is not without merit.

The appellee employer, Talisman Sugar Corporation, raises three grounds for denial of relief to the appellant. The first ground asserted is that Section 6 gives no right to collective bargaining to any group. This assertion appears contrary to our Supreme Court’s statement describing the right to collective bargaining:

“It is a constitutionally protected right which may be enforced by the courts, if not protected by other agencies of government.”

The Supreme Court was referring to the right of collective bargaining of public employees before legislation was enacted establishing guidelines for the enforcement of the right. But there can be little doubt the court found there were definite rights involved when the Legislature was challenged:

“The Legislature, having thus entered the field, we have confidence that within a reasonable time it will extend its time and study into this field and, therefore, judicial implementation of the rights in question would be premature at this time. If not, this court will, in an appropriate case, have no choice but to fashion such guidelines by judicial decree in such manner as may seem to the court best adapted to meet the requirements of the constitution, and comply with our responsibility.”

The right to collective bargaining by agricultural workers is granted by the same Section 6 as relied on by the public employees.

As a second ground for denying the appellant relief the appellee appropriately relies on the Supreme Court’s decision in Dade County Classroom Teachers’ Ass’n., Inc. v. Legislature, quoted above, where a similar petition on behalf of public employees was denied by the court. The court ruled that the problem presented was one for legislative attention and not one for the courts.

And the third ground raised by the appel-lee also has merit. That is the claim that the Supreme Court has specifically held that no right to act as the exclusive bargaining agent is granted the appellant under Section 6.

On the basis of the latter two points, the petition was properly dismissed in the court below, and the arguments of the appellant should be directed to the appropriate legislative body, not the courts.

      . In this proposition appellant relies on Miami Water Works, Local No. 654 v. City of Miami, 157 Fla. 445, 26 So.2d 194 (1946) which has been “explicitly disaffirmed” by the Florida Supreme Court in Cannery, C., D., W. & A. Emp. v. Winter Haven Hosp., Inc., 279 So.2d 23 (Fia. 1973) at page 25. Another case relied on by appellant, Sax Enterprises v. Hotel Union, 80 So.2d 602 (Fla.1955), recognized a duty on the part of private employees to "afford to the employer á fair opportunity to engage in negotiations.” Surely, if the employees had a duty to bargain with the employer, the reciprocal duty would rest with the employer to bargain with the employees.

      . Dade County Classroom Teachers’ Ass’n., Inc. v. Legislature, 269 So.2d 684 (Fla.1972).

      . Dade County Classroom Teachers' Ass’n., Inc. v. Legislature, cited above.

      . Dade County Classroom Teachers’ Ass’n., Inc. v. Ryan, 225 So.2d 903 (Fla.1969).


author: MAGER, Chief Judge.

text:
    Shirley F. PERKINS and Virgil Perkins, Appellants, v. Robert H. PARE, M.D., and Martin Memorial Hospital Association, Inc., a nonprofit Florida Corporation d/b/a Martin Memorial Hospital, Appellees.
    No. 76-1755.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Rehearing Denied Sept. 28, 1977.
    See also, Fla.App., 352 So.2d 65.
    Dennis J. Hightower of Whitaker, Koepke & Associates, Orlando, for appellants.
    Michael B. Davis of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellee, Pare.
   OPINION ON PETITION FOR REHEARING

MAGER, Chief Judge.

Upon due consideration of the petition and after review of the record we are of the opinion that while an interlocutory appeal does not lie the matter should proceed for review by way of common law certiorari. Stuart v. Hertz Corporation, 302 So.2d 187 (Fla. 4th DCA 1974); Kauffman v. King, 89 So.2d 24 (Fla.1956); see also Article V, section 2, Florida Constitution (1968).

The order, for which review is sought by interlocutory appeal, is an “Order Extending Time For Mediation Hearing.” The appellant contends that the circuit judge acting as a judicial referee (under Section 768.133(2), Florida Statutes, renumbered Section 768.44(2), Florida Stat. (Supp.1976)) lacked the power to extend the time for a mediation hearing panel to hear and determine a mediation claim beyond the 10-month designated period prescribed in Section 768.133(3), Florida Statutes, renumbered Section 768.44(3), Florida Statutes (Supp. 1976).

The appellant presents a substantial issue for this court to review which directly affects the jurisdiction of the mediation panel over both the subject matter and the parties. If, as the appellant contends, the jurisdiction of the mediation panel terminated ten months after the claim was filed, then the order of the judicial referee “extending time for mediation hearing” is arguably an act “without or in excess of jurisdiction” or an order which “does not conform to the essential requirements of law and which may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate, . . Kauffman v. King, supra, at p. 26. See also Steak Enterprises, Inc. v. Claus, 341 So.2d 203 (Fla. 4th DCA 1976), and State ex rel. Mercy Hospital v. Vann et al., Third District Court of Appeal, 342 So.2d 1073, opinion filed March 1, 1977.

Medical liability mediation panels are “strange animals,” the nature of which is such that they are not capable of being characterized as falling within the scope of either Fla.App. Rule 4.2 or Section 120.-68(1), Florida Statutes (Supp.1976) (the latter relating to judicial review from intermediate agency actions). A mediation panel is not the type of tribunal that may be said to render “interlocutory orders in civil actions” or be involved in “intermediate agency action” within the contemplation of Fla.App. Rule 4.2 a, or Section 120.68(1), Florida Statutes (Supp.1976), respectively. Under these circumstances, common law certiorari appears to be the most logical and appropriate method (if not the only method of review). 5 Fla.Jur., Certiorari, § 8.

Where the legislature establishes a procedure to provide “reforms” in medical malpractice actions and where during the course of the administration of such procedures an injury or wrong is alleged, then the aggrieved party must be afforded a concomitant right of access to the court for redress of such injury or wrong. Article I, section 21, Declaration of Rights, Florida Constitution (1968). There is no principle of law more fundamental than that which declares for every wrong there is a remedy. Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780 (1931).

It would be appropriate in light of the particular circumstances of this case and the action herein for this court to offer the following gratuitous reflections. The notion of rendering justice is not simply an empty concept to which “lip service” is given. We must never lose sight in the avalanche of litigation of the fundamental objective of the judicial process, namely, to render justice. If it means that the court must take a proverbial “deep breath and swallow” and undo an act which at the time it was done was seemingly correct in order to reach what is now perceived to be a just determination — then so be it!

Accordingly, rehearing is granted, the order of February 15, 1977 vacated and set aside and the case proceed by way of common law certiorari.

CROSS and DOWNEY, JJ., concur.


author: CROSS, Judge.

text:
    Shirley F. PERKINS and Virgil Perkins, Appellants, v. Robert H. PARE, M.D., and Martin Memorial Hospital Association, Inc., a nonprofit Florida Corporation d/b/a Martin Memorial Hospital, Appellees.
    No. 76-1755.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Rehearing Denied Sept. 28, 1977.

      See also, Fla.App., 352 So.2d 64.
    Dennis J. Hightower of Whitaker & Koepke & Associates, Orlando, for appellants.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellee Pare.

      . Beta Eta House Corporation v. Gregory, 230 So.2d 495 (Fla. 1st DCA 1970).

   CROSS, Judge.

We treat as a petition for a common law writ of. certiorari an interlocutory appeal seeking review of an order extending time for mediation hearing in a medical malpractice action. We grant certiorari, and quash the order.

Petitioner submitted a claim for medical malpractice against Robert H. Pare, M.D., in the Circuit Court for Martin County, Florida, in September 1975. Upon failure of the clerk to select a mediation panel and set a hearing date, respondent on June 9, 1976 filed a motion requesting the judicial referee and clerk to select a panel and set the cause for hearing prior to July 17, 1976 so as not to deny respondent his right to a hearing pursuant to § 768.44, Florida Statutes (1976), which contains a ten-month limitation of jurisdiction. On June 23, 1976 a circuit judge acting as a judicial referee entered an order directing the clerk of the circuit court to proceed with the selection of arbitrators and schedule a hearing before the mediation panel on July 7, 1976.

Petitioner moved to dismiss or alternatively, strike the hearing date on the grounds that more than 120 days elapsed since the filing of the claim without selection of a mediation panel, or without setting the claim for hearing, or good cause for extension being shown. Petitioner also alleged the scheduled hearing date of July 7,1976 violates Florida Rules of Civil Procedure for failure to give thirty days notice of the trial date.

The motions to strike and dismiss came on for hearing and were denied except as to striking the hearing date, which was later to be re-set with proper notice upon completion of selection of panel members. The clerk of the circuit court, pursuant to the order of June 23, 1976, distributed a list of potential mediators on June 24, 1976. Petitioner filed objections to the selection of the panel members. Respondent filed a waiver of all challenges to proposed panel members, and requested an order requiring petitioners to select their choices of panel members. Respondent also filed a motion for extension of time to hear the mediation claim, allegedly to avoid prejudice to his right to a hearing before the mediation panel.

The motions came on for hearing, and an order was entered denying respondent’s motion to require designation and selection of a hearing panel, and denied all but one of petitioner’s objections to the proposed arbitrators. Subsequently, the judicial referee determined it was not possible to hold a hearing on the claim prior to expiration of the time set forth in § 768.44, Florida Statutes (1976), i. e., ten months, at which time jurisdiction would terminate. Notwithstanding, the judicial referee expressed his belief that the hearing procedure began by selection of the mediation panel, and entered an order extending the time for hearing on the claim until a panel was properly selected. An interlocutory appeal then followed. We treat the interlocutory appeal as a petition for a common law writ of certiorari.

Section 768.44, Florida Statutes (Supp. 1976), provides in pertinent part:

“(3) The clerk shall, with the advice and cooperation of the parties and their counsel, fix a date, time, and place for a hearing on the claim before the hearing panel. The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the claim is filed. If no hearing on the merits is held within ten months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.” (Emphasis added)

The language of the above quoted statute is explicit. It limits the jurisdiction of the mediation panel to a period of ten months from the date the claim is filed within which a final hearing on the merits must be concluded. Failure to observe this limitation period results in automatic termination of the jurisdiction of the panel. Such termination is final and cannot be extended, modified or reinstated by the panel, the judicial referee or by agreement of the parties. Trial courts have no discretion in matters which are jurisdictional. Moreover, selection of a mediation panel cannot be equated with a full and final hearing on the merits as is required by § 768.44, Florida Statutes (Supp.1976).

In the instant case, the jurisdiction of the mediation panel terminated as a matter of law at the expiration of the ten-month period. Accordingly, certiorari is granted and the order on review is quashed. Certiorari granted and order quashed.

MAGER and DOWNEY, JJ., concur.

      . See proposed Fla.R.Med.P. 20.190, effective September 1, 1977.


text:
    Alphonso MIMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-2109.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and James K. Green, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, ■ Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

MAGER, C. J., and DOWNEY, J., concur.

ANSTEAD, J., dissents, with opinion.

ANSTEAD, Judge,

dissenting:

The only defense offered to the charge of unlawful possession of narcotics was that the defendant was not aware of the contents of a package given to him by a co-defendant just prior to their arrest. At the trial, the co-defendant testified in Mims’ behalf. Mims’ counsel requested a jury instruction explaining that knowledge of the contraband was necessary for conviction. The trial court refused that request. By the jury’s subsequent questions it was obvious that the jury was concerned with the issue of knowledge. The standard jury instructions given did not cover knowledge. Under these circumstances I believe it was reversible error to refuse an instruction on knowledge. Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).


author: MAGER, Chief Judge. PER CURIAM.

text:
    Robert B. GERSTEN and Dina B. Gersten, his wife, Appellants, v. A. D. BESSEMER, as Executor of the Estate of Mary A. Bessemer, et al., Appellees.
    No. 76-1350.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1977.
    Rehearing Denied July 22, 1977.

      Rod L. Tennyson, of Tennyson & Fear-rington, West Palm Beach, for appellants.
    John E. Aurelius and John Bielejeski, Jr., of James, Bielejeski, Lunny & Aurelius, P. A., Fort Lauderdale, for appellees.
   MAGER, Chief Judge.

A final judgment of foreclosure was entered in favor of A. D. Bessemer, et al., plaintiffs-appellees, and against Robert B. Gersten and Dina B. Gersten, his wife, defendants-appellants, for failure to pay a recreational lease fee. The defendants have appealed and we reverse.

It is contended that a valid lien for nonpayment of a recreational lease fee was in existence prior to the establishment of the homestead property so as to give rise to the enforceability of such lien by foreclosure (and forced sale).

Factually, on February 25, 1969, the defendants executed a “Contract for Purchase and Sale” with the Behring Corporation for the construction and purchase of a home in a subdivision, Tamarac Mainlands. The contract specifically provided that the purchaser would agree to pay a monthly maintenance and recreational facility charge to the “seller or the City of Tamarac or assigns”.

On January 8, 1970, Behring recorded a “Declaration of Restrictions” covering the subdivision on which defendants’ home was being built. Included within the Declaration was the obligation of each unit owner to pay a monthly recreational fee for the use of a recreational facility to be built by Behring upon certain leased lots within the subdivision. The Declaration provided for the establishment of a lien upon such owners’ lots for nonpayment of the recreational lease fee and foreclosure in the same manner provided for foreclosure on real property-

On November 27, 1970 the defendants took title to their new home and received a deed at that time. (The deed does not appear in the record on appeal). At oral argument; counsel for the parties indicated that the deed made reference to the previously recorded Declaration of Restrictions. However, it was defendants contention that they had no actual notice of lien — the contract for sale made no reference to the lien and they were never informed of the Declaration of Restrictions. It was only after the closing that defendants became aware of the lien provisions.

It should be pointed out that defendants do not challenge their contractual obligation to pay a recreational fee pursuant to the original contract for sale. The essence of their position is the assertion that there was no lien which could have been the subject of a foreclosure against their homestead property.

Contrary to the defendants’ contentions about lack of (actual) notice, the record clearly reflects recordation of the “Declaration of Restrictions” which would constitute constructive notice of the obligation to pay the recreational assessment fee and constructive notice of the existence of a lien for nonpayment. Vetzel v. Brown, 86 So.2d 138 (Fla.1956). It might also be observed that defendants may have had “implied and actual notice” from the deed which was executed and delivered at the time of closing, and which deed purportedly makes reference to the Declaration of Restrictions containing the lien provision. However, since the deed is not contained in the record on appeal it is impossible for us to ascertain with any degree of certainty what, if any, notice was imparted by the deed. Cf. Pierson v. Sharp, 283 So.2d 880 (Fla. 4th DCA 1973).

A lien may be created only by contract of the parties or by operation of law. 21 Fla.Jur., Liens, § 3. The original “Contract for Purchase and Sale” makes no reference whatsoever to the creation of a lien. The unilateral recording of a Declaration of Restrictions, to which defendants were not a party, did not create a lien either by contract or by operation of law. Nor do the circumstances reflect creation of an equitable lien. See 21 Fla.Jur., supra, § 8. It would seem that the only way it can be urged that a lien was created by “contract” was at the time the parties executed the deed which allegedly incorporated by reference the Declaration of Restrictions. Since the parties tacitly recognized (at oral argument) that the deed did incorporate by reference the Declaration of Restrictions, it follows that a lien was created by contract at the time of closing. See Peninsular Point, Inc. v. South Georgia Dairy Co-op., 251 So.2d 690 (Fla. 1st DCA 1971).

However, the creation of a lien does not necessarily mean that it is enforceable in the case under consideration. There is no dispute in the record that the property in question is homestead property. It is the plaintiff’s contention that a valid “contractual” lien was created prior to the establishment of a homestead property and is thereby enforceable by foreclosure and forced sale. See 16 Fla.Jur., Homesteads § 41. Article X, section 4, Constitution of Florida, exempts homestead property, as follows:

“(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family:
(1) a homestead . . ” (emphasis added).

The “lien” in question, which was contractually created and arose as a result of the nonpayment of the recreational lease fee, does not fall within any of the permissible exceptions to forced sale set forth in Article X, section 4. In particular it is not an “obligation(s) contracted for the purchase” of the homestead such as a mortgage and thereby enforceable by foreclosure. Lewton v. Hower, 18 Fla. 872 (1882). Moreover, the lien was not one which as a matter of law, can be said to have been created prior to the establishment of the homestead. Rather, it is a lien which attached to the property after or simultaneously with the establishment of the homestead and therefore becomes subservient to the homestead protections. Quigley v. Kennedy & Ely Insurance, Inc., 207 So.2d 431 (Fla.1968). In other words, the lien was not a lawfully acquired prior lien.

As heretofore indicated, the lien was contractually created at the time the deed was executed and delivered to the defendants, which was the same time the homestead was established so that the homestead rights and the lien rights attached simultaneously. Under such circumstances, priority must be “accorded to the claimant of the homestead right”, Quigley, supra.

Accordingly, the final judgment of foreclosure is vacated and set aside and the cause remanded for further proceedings consistent herewith. Nothing contained herein is intended to preclude the plaintiffs-appellees from otherwise enforcing its rights against non-homestead property of the defendants-appellants or taking such other action as may be consistent herewith.

DAUKSCH, J„ and WEAVER, SIDNEY M., Associate Judge, concur.

ON REHEARING

PER CURIAM.

Upon due consideration of appellees’ petition for rehearing and upon further review of the record herein, we deny rehearing but conclude that the instant decision passes upon questions of great public interest which we herein certify to the Supreme Court, as follows:

1. Can a lien for nonpayment of recreational lease fees be created prior to the establishment of a homestead merely by the filing of a Declaration of Restrictions which makes specific reference to the creation of such lien?

2. If the answer to this question is in the affirmative does the lien attach to the subject property upon such creation (and filing)?

3. Where the contract for the purchase and sale makes no reference to the existence of a lien for the nonpayment of recreational fees but subsequent to the execution of such Contract the Declaration of Restrictions is filed of record creating such lien, does such lien automatically attach to the subject property at the time of such recor-dation or does such lien attach at the time of closing and execution of a deed of transfer where such deed makes reference for the first time to the questions of the prior recorded Declaration of Restrictions?

4. If the lien does not attach to the subject property until the time of the closing and execution of the deed of transfer because the deed makes reference for the first time to the existence of such lien, will such lien be subservient to the homestead on the theory that the homestead was established simultaneous with the attachment of the lien?

5.In light of the recent decision of the Supreme Court of Florida in Avila South Condominium Ass’n v. Kappa Corporation, 347 So.2d 599 opinion filed March 31, 1977, concluding in part that “[i]n order to avail himself of the homestead exemption, however, a debtor must establish the homestead character of his property as of the time the lien attaches” and with particular reference to the pleadings and proof herein, what essential factors should the pleadings and proof reflect in order for the homestead right to have been established simultaneously with the attachment of a lien for nonpayment of recreational lease fees?

MAGER, C. J., DAUKSCH, J., and WEAVER, SIDNEY M., Associate Judge, concur.

      . The plaintiffs-appellees are the assignees and successors in interest to the original developer

      . The filing of an application pursuant to Fla. App.Rule 4.5(c)(6) by either party is necessary to invoke the jurisdiction of the Supreme Court of Florida. Paoli v. Shor, 345 So.2d 789 (Fla. 4th DCA 1977); Gilliam v. Stewart; 291 So.2d 593 (Fla.1974).


text:
    FIRST WISCONSIN MORTGAGE TRUST, a Massachusetts business trust, Appellant, v. KLT, INC., an Illinois Corporation, HNC Realty Company; a Connecticut Corporation, and HNC Mortgage and Realty Investors, a Massachusetts business trust, Appellees.
    No. 76-2173.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.

      Bruno L. Di Giulian, of Di Giulian, Spel-lacy, Bernstein, Lyons &• Sanders, Fort Lauderdale, for appellant.
    Lewis I. Horwitz, of Broad & Cassel, Bay Harbor Islands, Burns, Middleton, Farrell & Faust, Palm Beach, for Appellees.
   PER CURIAM.

Affirmed.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


author: PER CURIAM. DOWNEY, Judge,

text:
    Larry Gene MERIDITH, Appellant, v. Debbie Ewing MERIDITH, Appellee.
    No. 76-780.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    F. D. McKnight of Yergey, Yergey & McKnight, Orlando, for appellant.
    James N. Powers, Orlando, for appellee.
   PER CURIAM.

Affirmed.

CROSS and LETTS, JJ., concur.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge,

dissenting:

The sole issue on this appeal in a dissolution of marriage proceeding is the propriety of awarding the husband’s undivided interest in the marital home to the wife as lump sum alimony. The majority has concluded that it was proper, but I feel it was not.

The parties are people of modest means. The husband is a well drilling supervisor whose entire net income is $179.35 per week. His only asset is an undivided one-half interest in the marital home and furniture of the parties, which one-half interest is worth approximately $15,500. The wife is employed by her father, a franchise automobile dealer. She receives a salary of $70.00 per week, plus the use of a fully maintained and insured automobile. She is also the owner of 50% of the corporate stock and president of a corporation which manages the advertising for her father’s automobile dealership. During several years she received as much as $2,000 per annum income therefrom.

The parties owned a home conveyed to them jointly as a gift by the wife’s sister. At the time they sold this home the parties had an equity therein of approximately $10,000, which was used to build the marital home owned by them at the time of the dissolution. The wife’s parents made a gift to the husband and wife of the money to buy the lot on which to build that home and the husband’s father contributed labor and materials in further improving the property-

The wife prayed for an award of the entire ownership of the marital home either as a special equity or as lump sum alimony. The trial court found in the final judgment that the wife was not entitled to a special equity (a finding supported by the record). However, the judge awarded her the husband’s undivided interest in the home as lump sum alimony, but did not award any periodic alimony, either rehabilitative or permanent. The judgment also awarded custody of the two minor children of the parties to the wife, together with $300 per month child support.

The husband thus emerges from this litigation stripped of approximately 40% of his income and his only asset. He makes no complaint about the child support award, but he contends the lump sum alimony award is not justified.

As I read what is being written today by the appellate courts of this state on the subject of lump sum alimony, I glean that the original Florida case discussing lump sum alimony, Yandell v. Yandell, 39 So.2d 554 (Fla.1949), has not been changed. That ease makes it clear that lump sum alimony, as provided by statute, “should be made only in those instances when some special equities might require it or make it advisable.” 39 So.2d at 556. As Judge Boyer points out in Cann v. Cann, 334 So.2d 325 (Fla.1st DCA 1976), the special equities to be considered in determining the propriety of a lump sum alimony award are not to be confused with a special equity which one spouse might acquire in property accumulated during the marriage. I digress somewhat to mention this only because it seems to me that a great deal of our problems in the disposition of property in dissolution of marriage cases today comes from the use of loose language causing confusion in the categories authorizing awards of money or property. Thus, the court in the Cann case made a timely effort to redefine the categories of relief available vis a vis the disposition of property between husband and wife.

Yandell purposes some instances in which lump sum alimony may be appropriate. Though I doubt the instances specified were meant to be exclusive, neither they nor any other equities are existent in this case such as to warrant an award of lump sum alimony. In a recent expression on the subject by the Supreme Court of Florida, Cummings v. Cummings, 330 So.2d 134, 136 (Fla. 1976), the Court reiterated a main criterion for such an allowance, when it stated:

“[I]t is evident that the award of lump sum alimony sub judice is unsupported since there is no positive showing of necessity on the wife’s part, even though the husband may possess the pecuniary ability to supply the necessity.” (Emphasis supplied.)

While couched in different terms this same requirement has mandated a reversal of lump sum alimony awards in numerous recent cases. See for example Jones v. Jones, 330 So.2d 536 (Fla.1st DCA. 1976); Herzog v. Herzog, 330 So.2d 116 (Fla.3rd DCA 1976); Gesford v. Gesford, 337 So.2d 1017 (Fla.4th DCA 1976).

Accordingly, I would reverse that aspect of the final judgment which awarded appellant’s interest in the marital domicile to appellee and remand the cause to the trial court with directions to (a) award the appel-lee and the minor children possession of the marital home until further order of the Court and (b) make such other provisions for payment of mortgages, insurance, taxes, and maintenance as may be equitable.


author: PER CURIAM. ALDERMAN, Judge,

text:
    Harris William PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 76-76.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.

      Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and James K. Green, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, J., and GREEN, OLIVER L., Associate Judgé, concur.

ALDERMAN, J., dissents, with opinion.

ALDERMAN, Judge,

dissenting:

In my opinion the evidence in this case is sufficient only to support a conviction under Section 794.011(5), Florida Statutes (1974 Supplement to Florida Statutes 1973). I would remand with instructions that the defendant be sentenced for a felony of the second degree.


author: PER CURIAM. MAGER, Chief Judge,

text:
    BAR BOY INTERNATIONAL, INC., Appellant, v. Joel F. PYLE, Sr., and Percy McIlwain d/b/a Kings Inn, and Coca Cola Bottling Company of West Palm Beach, Appellees.
    No. 76-1130.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Roy W. Allman, Fort Lauderdale, for appellant.
    W. R. Scott, Stuart, for appellees, Pyle and Mcllwain.
   PER CURIAM.

AFFIRMED.

CROSS and LETTS, JJ., concur.

MAGER, C. J., dissents, with opinion.

MAGER, Chief Judge,

dissenting:

A reading of the record suggests, most respectfully, that the ends of justice would best be served by reversing the order denying defendant-appellant’s motion to vacate.

The appellate record reflects allegations by the defendant-appellant that he had no notice or knowledge, constructive or otherwise, of the nonjury trial resulting in the final judgment rendered against it. Apparently defendant-appellant’s original counsel of record was aware of the trial date but had withdrawn as counsel of record prior to that date.

Whatever sanctions might be imposed upon defendant-appellant’s original counsel of record for alleged failure to advise his client of the trial, the circumstances of the instant case suggest that such conduct should not be visited upon the litigant; there is a sufficient showing of inadvertence or excusable neglect so as to necessitate relief from final judgment. Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971). At the least, I would remand the ease to the trial court for the purpose of conducting an evidentiary hearing or for otherwise ascertaining how the trial court determined that “the said defendant had proper notice of trial through its counsel of record.” I therefore respectfully dissent.


author: ALDERMAN, Judge.

text:
    In the Interest of R. P. C., a child.
    No. 76-1512.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1977.
    Rehearing Denied July 15, 1977.
    Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Assistant Public Defender, and Mark Goldstein, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Assistant Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

A juvenile, found guilty of attempted larceny, appeals an adjudication of delinquency. Two points have been raised and considered by the court, but only one, involving Section 39.03(2), Florida Statutes (1975), merits discussion.

The juvenile contends that the trial court erred in not dismissing the delinquency petition against him because the written report required by Section 39.03(2) was not timely filed. The relevant portion of the statute provides:

The person taking the child into custody shall, within 3 days, make a full written report to the appropriate intake officer, stating the facts by reason of which the child was taken into custody. The report shall:
(a) Identify the child, his parents, and the person to whom he was released.
(b) Contain sufficient information' to establish the jurisdiction of the court and to support a finding by the court that the child is delinquent or dependent. (Emphasis supplied.)

The written report in this case was filed seven days after the child was taken into custody. We find no reversible error and affirm.

The requirement of a written report within three days is a procedural step and not a substantive right. Without a showing of prejudice to the juvenile, noncompliance does not require reversal. Compare In the Interest of A. J. A., 248 So.2d 690 (Fla.3d DCA 1971), and Roberts v. State, 285 So.2d 385 (Fla. 1973), involving suppression of confessions obtained from juveniles in custody in violation of Section 39.03(3). In this case appellant has shown no prejudice resulting from the untimely filing of the written report.

This portion of Section 39.03(2) is distinguishable from Section 39.05(7), Florida Statutes (1975), which provides:

On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 30 days from the date the complaint was referred to the intake office.

The Legislature by Section 39.05(7) granted to every juvenile the right to be discharged from a delinquency petition not filed within thirty days from the date the complaint is referred to the intake office. The right of dismissal under Section 39.05(7) is a substantive right. In the Interest of S. L. M., 336 So.2d 391 (Fla.4th DCA 1976). No similar right of dismissal is granted in relation to the requirement of Section 39.03(2).

In this case it has not been shown that the juvenile suffered any prejudice as a result of the delay in filing the written report with the intake office. No other error having been shown, the adjudication of delinquency is affirmed.

AFFIRMED.

MAGER, C. J., and ANSTEAD, J., concur.

      . We have not overlooked the recent opinion from the First District, In re J. W. H., 345 So.2d 871 (Fla. 1st DCA opinion filed May 18, 1977). That case is distinguishable because there the child was prejudiced by the delay in filing the written report as provided in Section 39.03(2).


text:
    EDWARD L. NEZELEK, INC., Appellant, v. G. E. DRYWALL, INC., Larry Leatherwood and Eastern Air Lines, a corporation, Appellees.
    No. 76-2282.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1977.
    Rehearing Denied July 15, 1977.
    Robert J. Derham, Fort Lauderdale, for appellant.
    Larry Leatherwood, Pompano Beach, for appellees.
   PER CURIAM.

Upon consideration of the record on appeal and briefs of the respective parties, we determine that the order of the trial court in declining to vacate and set aside the default judgment constituted an abuse of judicial discretion. Goldstein v. Goldstein, 284 So.2d 225 (Fla.3d DCA 1973); Lake Towers, Inc. v. Axelrod, 216 So.2d 86 (Fla. 4th DCA 1968); Hurley v. Werly, 203 So.2d 530 (Fla. 2d DCA 1967); State Road Department v. Hufford, 161 So.2d 35 (Fla. 1st DCA 1964).

Accordingly, the order is vacated and set aside, and the cause remanded for further proceedings.

Reversed and remanded.

MAGER, C. J., and CROSS and AN-STEAD, JJ., concur.


text:
    James L. ADAMS, d/b/a A-1 Excavating Company, Appellant, v. DREYFUS INTERSTATE DEVELOPMENT CORPORATION, Appellee.
    No. 76-905.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.

      Nathan Loeb, Orlando, for appellant.
    John C. Briggs, Robertson, Williams, Duane & Lewis, P.A., Orlando, for appellee.
   ANSTEAD, Judge.

The appellant, James L. Adams, d/b/a A-1 Excavating Company, seeks to reinstate a jury verdict entered in his favor and thereafter set aside by the trial judge. The issue to be determined is whether the evidence of damages suffered by Adams as a result of a breach of contract by appellee, Dreyfus Interstate Development Corporation, was sufficient to sustain the verdict. We find that it was and reverse.

Adams contracted with Dreyfus to do certain land clearing and excavation for a price of $25,822.40. Adams calculated the price by charging 70 cents per yard for excavation of approximately 30,000 yards; $3,700.00 for land clearing; $594.00 for culvert work; and $800.00 for engineering services. Dreyfus agreed to the price and work was commenced. Adams submitted a request for partial payment in the amount of $4,600.00 and was paid $4,140.00, Dreyfus retaining 10% pursuant to the mechanic’s lien law. Adams submitted a second request for payment in the amount of $6,994.40 which Dreyfus refused to pay and terminated the contract.

Adams testified that at the time of termination he was due the 10% retainage, $460.00, plus $6,994.40 for work already performed, and that he was due an additional $9,284.00 as profit on that portion of the contract not yet performed. The jury found that Dreyfus was liable, agreed with the amount claimed for work already performed, but awarded only 10% of the $9,284.00 claimed as lost profits. The ver-diet was for $8,382.00. The trial judge set aside the verdict and entered a judgment for $500.00 as “nominal” damages.

When a contract is breached the innocent party is entitled to damages. The measure of damages is the amount which the innocent party would have received if the contract had been performed, less any deductions for expenses not yet incurred. The recovery should include any gains prevented and losses sustained, including the loss of prospective profits. Prospective profits must be proven with reasonable certainty. Reasonable certainty in this instance applies, not to the amount of profits expected, but to uncertainty as whether the loss was the result of the breach and whether any profits would have been earned at all.

Uncertainty as to the amount of damages or difficulty in proving the exact amount will not prevent recovery where it is clear that substantial damages were suffered and there is a reasonable basis in the evidence for the amount awarded. Ultimately the degree of certainty simply requires that the mind of a prudent impartial person be satisfied with the damages.

Adams’ proof on damages consisted largely of his own testimony and records. By his testimony he established the manner in which the contract price was determined and the amount of work already performed under the contract. He testified that he charged 70 cents per yard for excavation of which 40% was profit and the rest expense. He did not prove every item of expense included. However, we believe that his testimony of the amount charged per yard for expenses and profit, coupled with proof of the number of yards completed, establishes a sufficient basis to determine damages to the date of the breach. As to prospective damages Adams testified as to the balance due on the contract price for work yet to be performed and the remaining expenses to complete the contract. He claimed the difference in these two amounts as future profits, but the jury awarded him only 10% of the claimed figure.

A court cannot set aside the jury’s award because it might disagree with the amount or because it might have ruled differently on the same proof. We find that there was a reasonable basis in the evidence for the jury’s verdict.

Accordingly, it is ordered that the judgment setting aside the jury’s verdict is reversed with directions that the verdict and judgment thereon be reinstated.

CROSS and DAUKSCH, JJ., concur.

      . 9A Fla.Jur., Damages, § 27.

      . 9A Fla.Jur., Damages, § 82.

      . Conner v. Atlas Aircraft Corporation, 310 So.2d 352 (Fla.3d DCA 1975).

        . Talisman Sugar Corp. v. Farmland Development Co., 156 So.2d 392 (Fla.2d DCA 1963).


author: DAUKSCH, Judge.

text:
    Alexander DICAPRIO, Appellant, v. STATE of Florida, Appellee.
    No. 76-1576.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Rehearing Denied Aug. 3, 1977.

      John W. Tanner, P. A., Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Anthony C. Musto and Benedict Kuehne, Asst. Attys. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant appeals from an Order revoking his probation and sentencing him to the state penitentiary. However, tíife issue he raises on appeal relates to the original Order withholding adjudication of guilt and placing him on probation.

Appellant contends that the Circuit Court lacked subject matter jurisdiction to hear the case initially and to enter the Order of probation. Since subject matter jurisdiction cannot be conferred by consent, acquiescence or waiver, and lack of such jurisdiction can be raised at any time, even for the first time on appeal, we now consider the issue of jurisdiction on this appeal. Solomon v. State, 341 So.2d 537 (Fla.2d DCA 1977); Wilds v. Permenter, 228 So.2d 408 (Fla.4th DCA 1969).

Appellant was charged by information with possession and delivery of cannabis sativa L. The information contained no allegations of a prior conviction of Appellant of the Drug Abuse Law or that the amount of marijuana involved exceeded five grams. In the absence of such allegata, the offenses charged were only misdemeanors as a matter of law and the Circuit Court had no felony jurisdiction. Boley v. State, 273 So.2d 109 (Fla.4th DCA 1973). Therefore, the Circuit Court’s Order placing Appellant on probation was void. Pope v. State, 268 So.2d 173 (Fla.2d DCA 1972); Boley v. State, supra.

All proceedings flowing from this void Order, specifically the Order revoking probation and sentencing Appellant, are a nullity and must be reversed. Ware v. State, 231 So.2d 872 (Fla.3d DCA 1970); Solomon v. State, supra.

REVERSED.

ALDERMAN and ANSTEAD, JJ., concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    In the Interest of G. L. T., Jr., a child. George L. THOMAS, Jr., Appellant. v. STATE of Florida, Appellee.
    Nos. 76-930, 76-1492.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Rehearing Denied July 18, 1977.

      Richard L. Jorandby, Public Defender, and Steven H. Parton, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed upon the authority of In the Interest of R. P. C., 352 So.2d 75 (Fla. 4th DCA, opinion filed June 3, 1977).

AFFIRMED.

DOWNEY and ALDERMAN, JJ., concur.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting:

I must respectfully dissent. The Appellant was a juvenile taken into custody on February 24, 1976. The person who took him into custody was required to file an intake report within three days after the taking into custody occurred. Section 39.-03(2), Florida Statutes (1975). The intake report was not filed until March 3, 1976, therefore the child should have been discharged. In the Interest of J. W. H., et al., etc. v. State of Florida, 345 So.2d 871 (Fla. 1st DCA, opinion filed May 18, 1977).

I am aware of the opinion from our court referred to in the majority opinion here, to which I would have dissented if I were a member of that panel. The legislature used the word shall and as was said in J. W. H., supra, we should interpret words the way they are written and not the way they should have been written. In this case sub-judiee the lack of prejudice to the Appellant is quite obvious on its face and the detriment tó society should my position here prevail could possibly be great. However, the legislature must be taken at its word.


text:
    Kermitt Lamar HORN, Orange County Board of County Commissioners, and Providence Washington Insurance Company, an Insurance Corporation, and State Farm Mutual Automobile Insurance Company, Appellants, v. Betty Ann RAGINS, Individually and as wife of John Lester Ragins, John Lester Ragins, Individually and as husband of Betty Ann Ragins, and John Lester Ragins, as next friend of Janie Lee Ragins, Appellees.
    No. 76-2303.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    A. Craig Cameron, Gosney, Cameron & Parsons, Orlando, for appellants.
    James 0. Driscoll, Orlando, and R. David Ayers, Jr., Winter Park, for appellees.
   PER CURIAM.

This is an appeal from the dismissal of a third party complaint seeking contribution from the spouse of the plaintiff/appellee, Betty Ann Ragins, in a personal injury action. This court has recently decided that the common law doctrine of interspousal immunity does not apply to actions for contribution among joint tortfeasors. Accordingly, we must reverse the order of dismissal. However, since we perceive the question involved to be one of great public interest, we certify the following question to the Supreme Court of Florida:

Is the doctrine of interspousal immunity a bar to an action against a claimant’s spouse for contribution under the uniform contribution among joint tort-feasors act?

The order of dismissal is reversed.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.

      . Paoli v. Shor, 345 So.2d 789 (Fla. 4th DCA 1977).