text:
    John H. COPELAND and Minnie T. Copeland, his wife, Appellants, v. CAPITAL BANK OF MIAMI, f/k/a National Industrial Bank of Miami, Appellee.
    No. 78-1291.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Rehearing Denied July 30, 1979.

      Susan Goldman, Miami, for appellants.
    Frank, Strelkow & Gay, North Bay Village, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Appellee, Capital Bank of Miami, f/k/a National Industrial Bank of Miami, filed a mortgage foreclosure action alleging that appellants, the Copelands, had defaulted under a note and mortgage. Appellants’ answer denied that appellee was entitled to a judgment of foreclosure, and their primary affirmative defense was that the mortgage and note were void for total want of consideration; appellants also counterclaimed for reformation and rescission on the grounds that the mortgage and note were executed by them in connection with the issuance by appellee bank of an irrevocable letter of credit and that no money had ever been paid by the bank pursuant to the letter of credit. Appellee filed its answer to the counterclaim. The cause proceeded to a non-jury trial and, on December 20, 1977, a final judgment of foreclosure was entered. No further action was taken by the defendant after the entry of the final judgment until after the expiration of the appeal time. No appeal from the final judgment was filed. On January 25, 1978, the defendants filed a motion to set aside final judgment of foreclosure pursuant to Florida Rule of Civil Procedure 1.540. This motion attempted to reargue the merits of the cause under an allegation:

“1. That the Plaintiff indulged in fraud, trickery, misrepresentation and other unethical, unfair and improper methods by which to induce the Defendants to execute certain documents enuring to the benefit of the Plaintiff and to the detriment of the Defendants. As a result of which a Final Judgment of Foreclosure was entered herein as aforesaid.”

In May of 1978 the trial court entered its order denying motion to set aside the final judgment. This appeal is from that order.

Appellants herein contend that reversible errors were committed by the trial court as a matter of law, and that this appellate court should grant a new trial on the basis that the court reporter’s notes from the trial are missing and no transcript is obtainable, through no fault of the appellants. They maintain that the missing transcript of the court reporter’s notes is essential to their cause because the absence of the crucial transcript effectively precludes proper appellate review, since the crux of their appeal is the legal insufficiency of the documents in evidence at the non-jury trial. The record does, in fact, reveal that appellants have made a conscientious effort to reconstruct the record pursuant to Florida Appellate Rule 9.200(b)(3). The trial court, however, expressed in its order denying reconstruction of the record that it had no recollection of the testimony and evidence presented at the non-jury trial. Counsel for appellee bank also had no recollection of the testimony and evidence which had been presented, and unsuccessfully attempted to reconstruct the events of the trial with the aid of one of the bank’s witnesses who had testified at trial.

Although there is strong authority in this state for the proposition that where a lost or otherwise unavailable trial record cannot be reconstructed, a new trial must be granted, see, e. g., Werner v. Harper, 328 So.2d 511 (Fla. 1st DCA 1976); Jackson v. State, 308 So.2d 600 (Fla.3d DCA 1975); and Van Scoyoc v. York, 173 So.2d 483 (Fla.2d DCA 1965), the proposition does not apply to this particular case. If the present appeal resulted directly from a final judgment which had its basis in the evidence and pleadings contained in a lost record, then the general proposition might well hold true. But, as pointed out by the appel-lee:

“A Final Judgment of Mortgage Foreclosure was entered by the lower court on December 20, 1977. No motion for a new trial nor a petition for rehearing was filed nor was a direct appeal taken from the said Final Judgment.”

Instead, subsequent to the expiration of the time for taking an appeal, a motion in this cause was filed in the trial court to set aside the final judgment of foreclosure, alleging that it had been procured through “fraud, trickery, misrepresentation and other unethical, unfair and improper” conduct on the part of the appellee bank. As already mentioned, the court was unable to reconstruct the record. What the court did was to postpone the foreclosure sale in order to hear evidence on the motion and, thereafter, to enter an order denying the motion and re-affirming the prior judgment.

We are presented, therefore, not with an appeal from a cause in which the record has been lost, but rather from a matter growing out of a prior cause in which the record has been lost. Under these circumstances, we are unable to apply the general proposition in the Werner, Jackson and Van Scoyoc cases, supra, but rather we must hold that a new trial should not be granted as a result of the lost record in the prior (though intimately-associated) cause.

We base this holding on several grounds: First, as mentioned above, we are not in-dined to expand the holdings in cases such as Werner, Jackson and Van Scoyoc, supra. Second, we must hold that as between two innocent parties, the one seeking the benefit must, in addition to bearing the burden of proof of its motion to set aside the judgment, bear the responsibility of producing sufficient evidence to meet its burden and must, therefore, bear the unfortunate consequences of a lost record or other lost evidence essential to its position. In other words, with two innocent parties, the one seeking the benefit must be attributed with the loss and must bear any consequent burdens. See the general equitable principle in Baader v. Walker, 153 So.2d 51 (Fla.2d DCA 1963); Griffin v. Gulf Life Insurance Co., 146 So.2d 901 (Fla.lst DCA 1962); and Eulette v. Merrill, Lynch, Pierce, Fenner & Beane, 101 So.2d 603 (Fla.3d DCA 1958). Third, and based upon the same principle, the passage of time, during which the existence of evidence has a natural tendency to dissipate or abate entirely (for innumerable reasons), must be viewed as a factor for which the movant, vis-a-vis the party moved against, should assume the greater responsibility. This pre-supposes the absence of any legal or equitable principle not dependent upon the lost record that the movant could put forth to shift the burden. Fourth and finally, we are averse to an underwriting of the appellant’s position because we foresee far too many opportunities that conceivably could arise for a losing party, months after the final judgment, to take advantage of lost evidence by the use of motion practice under Florida Rule of Civil Procedure 1.540. This is, of course, no reflection on any of the present parties, but unfortunately may be a just reflection on a small number of litigants who might find the temptation of such circumstances too great to resist.

Accordingly, we affirm the order denying the motion to set aside the final judgment of foreclosure and the order of sale incorporating by reference and re-entering the final judgment of foreclosure, and we hereby remand the cause for appropriate proceedings consistent therewith.

Affirmed.

HENDRY, J., dissents.

      . The court reporter who attended the December 1977 trial was employed by a court reporting agency, Marvin Taub & Associates, Inc., that declared bankruptcy, and the individual court reporter is believed to have moved out of the state of Florida. The subject notes have not been located, although appellants have shown due diligence in their attempt to locate the court reporter and the notes.

      . The appellee bank is an innocent party until shown to be otherwise.

      . We readily note the passage of time in this particular case was extremely short.


source: Caselaw Access Project

author: SCHWARTZ, Judge. HUBBART, Judge

license: Public Domain

text:
    Reinaldo Demetrio MENESES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-183.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Rehearing Denied July 30, 1979.
    Pertnoy & Greenberg and Steven M. Greenberg, Miami, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The appellant seeks review, pursuant to Fla.R.App.P. 9.140(g), of the summary denial of his motion for post-conviction relief filed under Fla.R.Crim.P. 3.850. We reverse for an evidentiary hearing.

The defendant had been charged with a lottery-bolita violation in which the primary evidence against him consisted of wiretap evidence of telephone conversations in which he was allegedly involved. After his motion to suppress the wiretap was denied, he entered a nolo plea to the court on January 31, 1977, reserving the right to appeal the denial to this court. During the course of the colloquy, the assistant state attorney, in response to the trial judge’s request for a statement of the factual basis of the plea, stated

“. . .a voice gram was done. The voice print verified the fact MENESES was who was heard on these calls. They were all tape recorded and transcribed. That the facts were that the same voice had made the tape recorded calls was the one who had been on the tape recording earlier. It was compared by Earl Richardson over at the Public Safety Department.”

On March 15, 1977, after reviewing a pre-sentence investigation which recommended a fine and the state’s recommendation of “some substantial time in jail,” the court adjudicated the defendant guilty and sentenced him to two years in the state prison.

Raising only the wiretap suppression issue, Meneses then appealed to this court, which affirmed the judgment and sentence in Cuba v. State, 362 So.2d 29 (Fla.3d DCA 1978). Our mandate to the circuit court issued on September 29, 1978. Subsequently, the defendant sought direct conflict cer-tiorari review of that decision in the Supreme Court of Florida.

On December 6, 1978, while that petition was pending, and without, securing leave to do so from the supreme court, the defendant filed the Rule 3.850 motion now before us in the circuit court. The motion, which was sworn to, alleged that the quoted statement of the prosecutor, made when the plea was taken, was untrue. The defendant alleged that, not only was there no identification of Meneses’ voice as of that time, as stated, but that on February 9, 1977, the P.S.D. expert referred to, Earl Richardson, had written to the assistant state attorney in question that he could not identify Meneses as one of the persons on the tape. The motion also stated that the prosecutor did not correct her misstatement and did not supply the obviously exculpatory contents of the report either to defense counsel or the court before the defendant was sentenced on March 15, 1977. Based primarily on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the motion sought vacation of the judgment and sentence and either the outright dismissal of the information because of prosecutorial misconduct or leave to withdraw the nolo plea and have the case set for trial. The trial judge denied the motion without a hearing, and the defendant has taken this appeal.

The state presents two separate arguments for affirmance of the order below. It is first contended that the circuit court lacked subject matter jurisdiction even to consider the motion because of the penden-cy of the certiorari proceedings in the supreme court. We do not agree. It has indeed been held that a Rule 3.850 motion may not be considered while the judgment from which relief is sought is on direct appeal in the district court of appeal. Barton v. State, 193 So.2d 627 (Fla.2d DCA 1966); Grizzell v. State, 187 So.2d 342 (Fla.lst DCA 1966). While we have no occasion here to consider the propriety of these decisions, there is no reason why the rule they announce should be applicable to this situation, in which this court’s appellate jurisdiction over the case terminated upon the issuance of the mandate, 3 Fla.Jur.2d Appellate Review § 31 (1978), cf. Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977). By its own terms, a motion for relief under Rule 3.850, which is an entirely collateral proceeding which does not affect the finality or enforceability of the underlying judgment, see, e. g., Heilmann v. State, 310 So.2d 376 (Fla.2d DCA 1975), cf. Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963), “may be made at any time.” We see no juridical, conceptual, or even administrative basis for declining to entertain such a motion merely because of the pendency of an application for the purely discretionary issuance of a writ of certio-rari by the supreme court. See Duzinski v. American Baseball Cap, Inc., 366 So.2d 443 (Fla.1979).

On the merits, the state, citing Hand v. State, 334 So.2d 601 (Fla.1976), and Peel v. State, 150 So.2d 281 (Fla.2d DCA 1963), argues that the alleged misstatements and suppressions of the prosecutor were in effect irrelevant since they followed the nolo plea and were apparently unrelated to its entry. We hold otherwise for two reasons. In the first place, the allegations of the motion raise a real question, which should be explored in an evidentiary hearing, as to whether the state had knowledge of the contents of the expert’s report before the plea, when, under Brady, it had a duty to reveal it which is unquestioned even by the state. Annot., Withholding Evidence by Prosecution, 34 A.L.R.3d 16 (1970). Secondly, Brady specifically holds, at 373 U.S. 87, at 83 S.Ct. 1197, at 10 L.Ed.2d 218, that suppression of favorable evidence

“. . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (emphasis supplied)

Because the strength of the state’s case on the merits is often a very pertinent factor in a trial judge’s sentencing determination, the clear allegation in the motion before us that the favorable evidence became available before the defendant was sentenced therefore requires a hearing for this reason as well. Cf. also State v. Pitts, 249 So.2d 47 (Fla.lst DCA 1971).

Since the record thus does not show “conclusively that the appellant is entitled to no relief,” F.R.App.P. 9.140(g), the order below is reversed and the cause remanded for an evidentiary hearing.

Reversed and remanded.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would affirm the order under review on the ground that the trial court lacked jurisdiction to entertain the defendant’s motion to vacate under the established law of this state.

The defendant at the time he filed his motion to vacate was pursuing his appellate remedies through a petition for writ of certiorari filed in the Florida Supreme Court in which he sought a reversal of this court’s affirmance of his criminal conviction. So long as the defendant continues to pursue such appellate remedies upon direct review of his criminal conviction, it is settled law that the trial court lacks jurisdiction to entertain a motion to vacate the said conviction under Fla.R.Crim.P. 3.850. Brooks v. State, 209 So.2d 271 (Fla. 1st DCA 1968); Barton v. State, 193 So.2d 627 (Fla. 2d DCA 1966); Gobie v. State, 188 So.2d 34 (Fla. 3d DCA 1966); Grizzell v. State, 187 So.2d 342 (Fla. 1st DCA 1966). As such, the trial court was eminently correct in summarily denying the defendant’s motion to vacate for lack of jurisdiction.

The orderly administration of justice requires, it seems to me, that the defendant pursue in one court at a time whatever legal remedies he desires to employ in attacking his criminal conviction. While pursuing his appellate remedies, the defendant ought not be allowed to simultaneously seek collateral attack relief in the trial court. Unnecessary confusion and needless expenditure of judicial time and effort are avoided by such a rule. Until today, I had thought that such was the prevailing law on the subject. Now it appears that Brooks v. State, 209 So.2d 271 (Fla. 1st DCA 1968), is no longer good law, and Barton v. State, 193 So.2d 627 (Fla. 2d DCA 1966); Gobie v. State, 188 So.2d 34 (Fla. 3d DCA 1966), and Grizzell v. State, 187 So.2d 342 (Fla. 1st DCA 1966), are in serious doubt. I am not persuaded that we should turn an about face on such decisions in favor of a practice which is dubious at best, and, in all likelihood, will lead to considerable confusion and waste of judicial resources.

By the court’s decision herein, a busy trial judge is required to hold an evidentiary hearing on a motion to vacate, which, if denied, will be a complete waste of time and effort should the Florida Supreme Court later grant certiorari in the cause, quash our decision and reverse the defendant’s conviction. On the other hand, if the trial judge grants the motion to vacate, the Florida Supreme Court will, in effect, be ousted of jurisdiction to further entertain the defendant’s petition for certiorari, an anomaly in itself, after expending, and thus wasting, its judicial labor thereon.

To further complicate the matter, it should be noted that (a) either party may appeal an unfavorable ruling by the trial court on the motion to vacate, and (b) successive motions to vacate may be filed and appeals taken from rulings thereon so long as new grounds are raised in each motion. See Whitney v. State, 184 So.2d 207, 209 (Fla. 3d DCA 1966); 9A Fla.Jur. “Criminal Law” § 540 (1972). By requiring the trial court to entertain such motions and the appellate courts to review rulings thereon regardless of the status of other appellate remedies being simultaneously pursued by the defendant, a practice has been adopted which is likely to lead to the proliferation of a single criminal case in various courts resulting in considerable confusion as to the status of each remedy as well as needless expenditure of judicial time and effort on remedies later mooted at both the trial and appellate levels. Even if this is workable, which I doubt, I see nothing to commend such an unnecessarily complex practice particularly at a time when the state’s judicial resources are already strained by ever increasing caseloads. See England, “1979 Report on the Florida Judiciary,” 53 Fla.Bar.J. 296-305 (1979).

If the defendant herein wants to file and be heard on a motion to vacate in the trial court prior to the Florida Supreme Court’s disposition of his petition for certiorari, he has only to seek an order from the Supreme Court temporarily relinquishing jurisdiction to the trial court for just that purpose. Such is the established practice in this court, and, so far as I am aware, in every other appellate court in this state. It is based on settled law and is both fair and orderly. I see no reason to change it in favor of a practice which is fraught with the difficulties which this decision engenders.

I would affirm.

      . The proceeding remains pending at this writing. The supreme court has not yet either accepted jurisdiction or denied the petition.

      . See however, Womack v. United States, 129 U.S.App.D.C. 407, 408, 395 F.2d 630, 631 (1968), followed in, e. g., Woollard v. United States, 416 F.2d 50, 51 (5th Cir. 1968) which held that
      “. . . there is no jurisdictional bar to the District Court’s entertaining a Section 2255 motion [the federal equivalent of a Rule 3.850 motion] during the pendency of a direct appeal but that the orderly administration of criminal law precludes considering such a motion absent extraordinary circumstances.” [e.s.]
      See also Johnson v. United States, 385 A.2d 742 (D.C.App.1978) (“special circumstances” presented which require consideration of motion to vacate notwithstanding pendency of direct appeal); United States v. Tindle, 173 U.S. App.D.C. 77, 522 F.2d 689 (1975) (same).

        We likewise need not revisit Gobie v. State, 188 So.2d 34 (Fla.3d DCA 1966) in which, over a dissent by Judge Pearson, this court held that the trial court could not consider a Rule 1, now 3.850, motion, while an appeal from the denial of an earlier motion under the rule was still pending.

      . It seems far more likely that a 3.850 motion would result in obviating the necessity of ruling on a petition for certiorari, than the reverse.

      . We acknowledge that Brooks v. State, 209 So.2d 271 (Fla.lst DCA 1968), which holds that even the pendency of a petition for certiorari in the United States Supreme Court ousts the trial court of jurisdiction to consider a 3.850 motion, is contrary to this conclusion. We think Brooks was wrongly decided.


author: BOOTH, Judge.

text:
    Darthy Ann CLEMENT, Appellant, v. ROUSSELLE CORPORATION, formerly Service Machine Company, Inc., a foreign corporation, Appellee.
    No. GG-480.
    District Court of Appeal of Florida, First District.
    July 10, 1979.
    Rehearing Denied Aug. 2, 1979.

      Steven H. Gary, of Green, Simmons, Green & Hightower, Ocala, for appellant.
    Marion R. Shepard, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a judgment entered on a jury verdict in favor of defendant in a suit for negligence, breach of warranty and strict liability in the manufacture of a punch press machine. Plaintiff below, appellant herein, injured her hand in an accident in August of 1973 while operating the punch press manufactured by defendant in 1962. The machine was owned and maintained by* plaintiff’s employer, Spicer Industries, a non-party.

Plaintiff proved that the machine was sold by defendant without a guard device, and sought to prove that this constituted a breach of duty on the part of defendant and a cause of the accident. There were no eyewitnesses to the accident and plaintiff herself could not say what actually happened to cause her hand to come under the moving part of the press.

Defendant presented evidence that the employer had the duty to outfit the machine with a guard device suitable to the use of the machine in the employer’s shop. Defendant further introduced evidence that industry standards and regulations adopted after the sale but prior to the accident placed the duty on the employer, rather than the manufacturer, to outfit the machine with a guard device.

On appeal, plaintiff contends that the trial court erred in allowing defense counsel to argue that the contributory negligence of Spicer Industries was the cause of the injury, and in failing to instruct the jury to disregard defense counsel’s closing argument regarding the contributory negligence of Spicer Industries. Plaintiff also contends that the trial court erred in allowing into evidence the American National Standards Institute Standards (ANSIS) and Occupational Safety and Health Law Regulations (OSHA) standards promulgated in 1971, after defendant sold the drill press, but prior to the accident.

After careful consideration of the arguments and briefs of counsel and review of the record in the cause, we conclude that the judgment below be affirmed. The jury was entitled to find on the evidence presented that defendant’s negligence, if any, in failing to attach a point of operation guard to the drill press it sold in 1962 was not the proximate cause of plaintiff’s injury in 1973. The trial court correctly allowed defendant’s argument to the jury as to the negligence of Spicer Industries, and introduction into evidence of the 1971 industry standards and government regulations.

Plaintiff contends that because defendant’s answer failed to allege as an affirmative defense the negligence of Spi-cer Industries, no evidence or argument on that point was proper. This contention confuses contributory negligence, which is an affirmative defense to be specially pleaded, with proximate cause, a requirement of plaintiff’s cause of action put at issue by a general denial. A defendant who has answered with a general denial, is entitled to prove, and to argue to the jury, that the accident was due solely to the negligence of a person not party to the suit. Crews v. Warren, 157 So.2d 553 (Fla. 1st D.C.A. 1963); Green v. Kersey, 189 So.2d 236 (Fla. 2nd D.C.A. 1966); Isaacs v. Powell, 267 So.2d 864 (Fla. 2nd D.C.A. 1962); Alves v. Adler Built Industries, Inc., 366 So.2d 802 (Fla. 3d D.C.A. 1979). The rule is not changed by the fact that the third party is, as here, immune from suit by the plaintiff. In the Isaacs and Alves cases supra, the non-party, whose negligence was held properly considered as the proximate cause of the injury, was a parent of the plaintiff and immune from suit. Immunity from suit does not prevent the defendant, an outsider to the immune relationship, from proving that the negligence of the immune non-party was the sole cause of the accident.

Appellant contends, however, that the Workmen’s Compensation Act is violated if the employer, who is immune from suit in tort by his employee, can be considered by the jury as the entity whose negligence was the sole proximate cause of the injury. In support of this contention, appellant relies on authorities which hold either (1) the jury cannot be informed that plaintiff in the tort action has workmen’s compensation benefits or (2) that the contributory negligence of plaintiff’s employer may not be imputed to plaintiff in the tort action so as to reduce the damages recovered. Here the court granted plaintiff’s motion in limine, without objection by defendant; that defense witnesses be instructed to make no express or implied reference to workmen’s compensation. That ruling was complied with. No mention was made of workmen’s compensation, nor did the defendant here plead, seek to prove, or argue, that the employer’s contributory negligence should be imputed to plaintiff so as to reduce damages.

In Santiago v. Package Machinery Company, 123 Ill.App.2d 305, 260 N.E.2d 89 (1970), the court considered and rejected a contention similar to that of plaintiff herein. The Santiago case was an action in negligence and strict liability against the manufacturer of a plastic injection molding machine for injuries received by the plaintiff while operating the machine on the job. The jury verdict returned for defendant was affirmed on appeal, the court holding (260 N.E.2d at 92, 93):

“Plaintiff contends that the trial court erred in admitting evidence which in her words ‘allowed the defendant to interject the negligence of the plaintiff’s employer as a defense.’ . . . Defendant, on the other hand, contends that it is always permissible to admit evidence offered for the purpose of proving that the conduct of another was the sole proximate cause of the injury.
******
The instant case was tried on two counts — one charging negligence and the other charging strict liability in tort. If the plaintiff is to prevail, she must prove that her injuries were proximately caused by defendant’s negligence ... or by a condition of the product which was unreasonably dangerous and in existence at the time it left the defendant’s control . Manifestly then the defendant could avoid all liability by proving that the sole proximate cause of the injury was the conduct of another. We find no error in the admission of evidence supporting this contention.” (emphasis theirs)

In Gates & Sons, Inc. v. Brock, 199 So.2d 291 (Fla. 1st D.C.A. 1967), this court affirmed a verdict for plaintiff in a suit against the manufacturer of a snap-tie device which broke causing the plaintiff’s scaffold to fall. This Court ruled that hospital bills reflecting payment of workmen’s compensation were probably excluded because receipt of workmen’s compensation benefits was not material. On close reading, however, the opinion indicates that the negligence of the employer, as a sole proximate cause of the accident, was a factor considered by the jury. The opinion points out that plaintiff’s employer did not give a specific warning to its employees to refrain from attaching scaffold brackets to snap-ties they knew to be bent, and notes the testimony of a metalurgical engineer that the broken snap-tie had no inherent defect in the metal but broke because of a 42.5 degree bend. This evidence went to the employer’s negligence, in allowing use of bent snap-ties, as proximate cause of the accident. This court held a jury question was presented on the question of proximate cause, stating:

“Next, the question of proximate cause is raised. Rather than delve into all the testimony of the witnesses, we think it sufficient to say that the testimony presented on product design and use was of such nature as to generate a jury question on the issue of proximate cause and the jury was properly instructed in this regard . . . ” (e. s.)

A jury question on proximate cause was also presented in the instant case. Plaintiff’s own testimony supports the jury verdict based either on the employer’s negligence or a combination of the negligence of the employer and the plaintiff. The jury verdict can also be supported by evidence tending to establish that there was no breach of duty on the part of the manufacturer.

Plaintiff also contends that the trial court erred in allowing into evidence ANSI and OSHA Standards, which were promulgated after the manufacture and sale of the drill press in question here, but prior to the accident. These standards were admissible for several reasons. First, to refute plaintiff’s claim of a continuing duty on the part of the manufacturer to track down and locate the owner of a drill press sold eleven years previous so as to warn of the danger of operating the machine without a point of operation guard. Several years prior to this accident, the ANSI and OSHA standards expressly placed the duty of equipping drill presses with point of operation guards on the employer. Thus, whatever may have been the duty of the manufacturer in 1962 under a standard which did not specify who had the duty to place the guard on the machine, the intervening standards placed that duty on shop owners. Plaintiff’s expert testified that OSHA requires owners of older punch presses to bring them into compliance with the 1971 standards.

Second, the 1971 ANSI and OSHA standards were properly used in cross examination of plaintiff’s expert, James J. McCarthy, a safety specialist. This witness stated, as one of his credentials, the development of a training program for federal officers charged with enforcement of OSHA standards. He also stated that he acted as a consultant to OSHA. However, despite his employment by that agency, he disagreed with the agency standards promulgated in 1971 which placed the responsibility for providing a point of operation guard on the drill press on the employer rather than the manufacturer. His views on this matter were highly pertinent to show his bias and to test his expertise.

Accordingly, the judgment below is AFFIRMED.

MILLS, C. J., and ERVIN, J., concur.

      . Defendant’s argument to the jury, in pertinent part:
      “Your job under the best of circumstances is to have the parties before you who are charged to be responsible and you can then decide whether they are responsible. But I question whether that’s really being done. If this law suit involves a wrongdoing other than the plaintiff, and I think it probably does, they are not here. And 1 am talking about Spicer Industries. Who has Mr. Green brought in? Who has the Plaintiff brought in and says these are the people who are responsible for my injury; these are the people I want to . ”
      To the extent that defendant’s argument to the jury tended to imply that plaintiff could sue Spicer the trial court could have instructed the jury that plaintiff could not sue Spicer. The specific point is not raised here, the issue on appeal going rather, to the alleged error in allowing argument as to the employer’s negligence and in refusing to instruct the jury to disregard that argument.

      . Atlantic Coast Line R. Co. v. Webb, 112 Fla. 449, 150 So. 741 (1933); 65 C.J.S. Negligence § 201(3) at 432, 433:
      “The general issue or general denial puts in issue all the material allegations of the complaint, which plaintiff must prove to maintain his cause of action
      ***** *
      Defendant may . . . show under the general issue that the injury was caused by the negligence of a third person for whom he was not responsible, such as by an independent contractor; and this rule applies although other reasons for the accident are set up in the answer or a demurrer was sustained to a former answer setting up the negligence of such other persons.”

        Caudle v. Birmingham Electric Co., 247 Ala. 34, 39-40, 22 So.2d 417, 421 (1945):
      “It is true that there was no issue of contributory negligence in the case, but under the general issue the defendant could show not only that the acts of the motorman [defendant’s employee] were not the cause of the collision, but in order to show that the acts of the motorman were not the cause, could show that the acts of the driver of the automobile [a non-party] were the cause.” (e. s.)

      . Isaacs v. Powell, 267 So.2d 864, 867 (Fla. 2nd D.C.A. 1962), suit in strict liability against keeper of wild animals:
      “If a jury were to decide in this case, therefore, that the sole efficient cause of Scott’s injury was the intentional assumption of the apparent risks on the part of the boy’s father and his placing of the boy within reach of the danger, it would be a defense available to appellees. Clearly, though, this defense would be related only to causation and is not dependent upon any theory of imputation of the father’s fault to the son, which is now irrelevant in view of the extent of strict liability in these cases and the limited defenses available thereunder.” (emphasis theirs)

        Alves v. Adler Built Industries, Inc., 366 So.2d 802, 803 (Fla. 3d D.C.A. 1979):
      “We affirm because the negligence of the defendants, if any (which we do not rule upon), was not the proximate cause of the accident. The negligence on the part of the parents in failing to properly supervise the two-year-old child, when they were on notice of the propensity of the child to play in and about the sand pile, was the proximate cause of her demise . . ’’

        . Tampa Sand and Material Company v. Johnson, 103 So.2d 250 (Fla. 2nd D.C.A. 1958), a new trial granted following jury questions and court’s answers as to workmen’s compensation; Cook v. Eney, 277 So.2d 848 (Fla. 3d D.C.A. 1973), error to allow questions of plaintiff in medical malpractice suit as to his receipt of social security and workmen’s compensation benefits; Gates & Sons, Inc. v. Brock, 199 So.2d 291 (Fla. 1st D.C.A. 1967), no error to disallow copies of hospital bills in evidence showing payment by workmen’s compensation carrier; Eichel v. New York Central Railroad Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963), evidence of disability payments received by plaintiff under Railroad Retirement Act were inadmissible in an action against railroad by a former employee; 77 A.L.R.2d 1154: “Prejudicial effect of bringing to the jury’s attention fact that plaintiff in personal injury is entitled to workmen’s compensation benefits.”

      . 2A Larson, Workmen’s Compensation Law, § 75.22:
      ”[I)t is generally held that the employee cannot be met with a defense that his own employer’s negligence contributed to the injury. [Cases cited on negligent employer’s right to reimbursement from tort judgment for benefits paid].”

        Nyquist v. Batcher, 235 Minn. 491, 51 N.W.2d 566 (1952) unique Minnesota statute allows contributory negligence of employer as a defense under the factual situations defined in subsection (1) but not under subsection (2) of Minn.Stat.Ann. § 176.06.

      . There was no issue of plaintiffs contributory negligence for the jury.

      . 1971 ANSI and OSHA Regulations:
      “It shall be the responsibility of the employer to provide and insure the usage of either a point of operation guard or a properly applied or adjusted point of operation device on every operation performed on & mechanical power press.” (emphasis theirs)

      . 1960 ANSI Regulations:
      “Each press shall be equipped and operated with a point of operation guard or point of operation protection device for every press operation performed except where the point of operation is limited to an opening of ‘/4th inch or less.”

      . Record Testimony pp. 389, 392.

      . See, e. g. Record Testimony 387:
      “Q You disagree with that portion of the [OSHA and ANSI] standard that says that the user, the employer, Spicer Industries is obligated by that standard to install point of operation guards and not the manufacturer? A Oh, yes.”


author: PER CURIAM.

text:
    Charles McCLENDON, Appellant, v. STATE of Florida, Appellee.
    No. LL-412.
    District Court of Appeal of Florida, First District.
    July 10, 1979.
    Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant, convicted below of two counts of robbery, two counts of burglary, two counts of grand larceny, and aggravated battery, appeals his convictions claiming insufficient evidence. He also contends that one of the grand larceny charges and the aggravated battery charge were lesser included offenses of one of the robbery charges, precluding judgment and sentence on those counts. After careful consideration, we affirm in part and reverse in part.

All of the charges grew out of a January 15, 1978 breakin at the isolated trailer residence of elderly, blind C. M. “Chick” Miller. Miller’s housekeeper Ida Gebhart, there cooking supper, testified that she saw four men enter the trailer, then the first man, whom she identified as appellant, “grabbed Mr. Miller and knocked him down on the floor . . ., dragged him across the trailer . . ., and started fighting with him and told him to shut up.” Miller testified that appellant came bursting in the door and “shot me in the hand and hit me over the head with some object . . ., and knocked me down on the floor, . pulled me down and ransacked my pockets and took what little money that I had [$20] and my knife,” then “put the gun barrel to my temple and said, ‘shut up or I will blow your brains out.’ ” Other state evidence established that the four men took a shotgun, two radios, and a television set from Miller’s residence, as well as the money and keys in Mrs. Gebhart’s purse. In addition, it was later discovered that a television set and part of a gun were taken from Mrs. Gebhart’s nearby trailer, and that the batteries had been stolen from both Miller’s and Gebhart’s automobiles.

After reviewing the lengthy trial transcript, we find sufficient evidence establishing appellant’s participation in the incident. State evidence proved that he had on the night of the offense borrowed a car later found abandoned near the trailer with the stolen goods in and around it. Furthermore, Mrs. Gebhart identified him at trial as a perpetrator, although her testimony was slightly contradicted by statements made just after the incident. Finally there was evidence of an inculpatory statement made by appellant to another man on the day after the offense. In short, the direct and circumstantial evidence sufficiently identified appellant’s involvement in the episode and supported the jury’s verdict.

We agree with appellant, however that the grand larceny charge against him for the items stolen from Miller’s residence was a lesser included offense of the Miller robbery, precluding judgment and sentence on the larceny charge. Several cases decided since the effective date of the new “single transaction” statute, Section 775.021(4), Florida Statutes (1977), have held that a defendant cannot be sentenced on lesser included offenses arising out of the same criminal transaction as the higher offense. See, e. g., Sellars v. State, 362 So.2d 33 (Fla. 1st DCA 1978); Ennis v. State, 364 So.2d 497 (Fla. 2d DCA 1978); Purvis v. State, 370 So.2d 32 (Fla. 2d DCA 1978), Opinion filed 1979. In Brown v. State, 206 So.2d 377, 383 (Fla.1968), the court held that larceny is necessarily included in the crime of robbery. See also Taylor v. State, 330 So.2d 44 (Fla. 1st DCA 1976). Although the state’s information charged that only money was taken during the Miller robbery, the evidence showed that the items listed in the grand larceny count were taken during the same continuous sequence of events, and the prosecutor so conceded during his closing argument. The judgment and sentence for grand larceny of Miller are accordingly reversed. See Kimbrough v. State, 356 So.2d 1296 (Fla. 4th DCA 1978); Taylor v. State, supra.

The same reasoning does not apply to the argument that the aggravated battery of Miller, i. e. the shooting, was a lesser included offense of the robbery. Certainly it could not be contended that aggravated battery is “necessarily included” in the offense of robbery under the Supreme Court’s analysis in Brown v. State, supra. The question then is whether the aggravated battery was a “category four” lesser included under Brown. Analyzing the facts here, we find that the aggravated battery was a complete and separate crime from the robbery and that the shooting of Miller was not an essential element in the robbery charge. See Jackson v. State, 338 So.2d 231 (Fla. 3d DCA 1976); Williams v. State, 366 So.2d 817 (Fla. 3d DCA 1979). That judgment and sentence will therefore be upheld.

Accordingly, the judgments and sentences on Count I, II, IV, V, VII, and VIII are AFFIRMED and the judgment and sentence on Count VI is REVERSED.

AFFIRMED in part and REVERSED in part.

ROBERT P. SMITH, Jr., Acting C. J., and ERVIN and LARRY G. SMITH, JJ., concur.


text:
    Tommy Dale EDGE, Appellant, v. STATE of Florida, Appellee.
    No. KK-386.
    District Court of Appeal of Florida, First District.
    July 17, 1979.

      Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Lee Mandell, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Tommy Dale Edge urges on appeal that the evidence was insufficient to establish that the value of the item which he was accused of taking was $100 or more. We agree and reverse the conviction of grand larceny.

The information charged Edge with taking a trombone worth $100 or more, but the evidence adduced at trial through the testimony of the State’s expert witness was that the instrument had a fair market value of less than $100. Though the witness had initially testified that the trombone was worth $115, he acknowledged upon further questioning that that fair market value included the trombone case and he insisted that the trombone and case were a unit. He did acknowledge, however, that the trombone itself, absent a case, would be worth less than $100. Since the information charged only the theft of the trombone, and not the theft of the trombone and case, only the instrument may be considered in determining whether the fair market value is $100 or more. Negron v. State, 306 So.2d 104 (Fla.1975). We find the other issues raised by Edge to be without merit.

The judgment and sentence for grand larceny are, therefore, REVERSED and REMANDED with instructions that the trial court enter a judgment for petty larceny and re-sentence appellant accordingly.

MILLS, C. J., ROBERT P. SMITH, Jr., J., and HENRY CLAY MITCHELL, Jr., Associate Judge, concur.


text:
    J. Ed STRAUGHN, as Executive Director of the State of Florida, Department of Revenue, Appellant, v. G. J. M., INC., Appellee.
    No. LL-486.
    District Court of Appeal of Florida, First District.
    July 17, 1979.

      Jim Smith, Atty. Gen., and William D. Townsend, Asst. Atty. Gen., for appellant.
    Bill R. Hutto and C. Michael Barnette of Fitzpatrick, Syfrett & Hutto, Panama City, for appellee.
   PER CURIAM.

Appellant seeks review of an order denying his motion to set aside a default contending the default was erroneously entered since his answer had been served prior to entry of the default. Appellant relies upon Mon-Con Properties, Inc. v. American Mechanical, Inc., 289 So.2d 744 (Fla. 4th DCA 1974); Merrill Lynch, Pierce, Fenner & Smith, Inc., 296 So.2d 570 (Fla. 3d DCA 1974), cert. denied, 305 So.2d 208 (Fla.1974); and Willyerd v. Anderson, 312 So.2d 504 (Fla. 4th DCA 1975). Although it is conceded that appellant’s answer was served by mail prior to entry of the default by the clerk pursuant to Fla.R.Civ.P. 1.500(a), the trial court properly denied appellant’s motion to set aside the default since a final judgment had been entered before appellant moved to set aside the default and appellant’s motion did not seek to set aside the final judgment previously entered. Once the final judgment had been entered upon the default, appellant should have sought to have the final judgment and default set aside by a motion pursuant to Fla.R.Civ.P. 1.540(b), or the court, under Fla.R.Civ.P. 1.500(d), could have granted relief upon its own motion.

The order denying the motion to set aside the default is AFFIRMED.

McCORD, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    John G. BRADY et al., Appellants, v. Ralph TURLINGTON, as Commissioner of Education, et al., Appellees.
    No. MM-97.
    District Court of Appeal of Florida, First District.
    July 17, 1979.
    Ralph Armstead, Anna Bryant Motter, Jack L. McLean, Jr., Larry K. White and Kristine Knab of Legal Services of North Florida, Inc., Tallahassee, for appellants.
    James D. Little, Gen. Counsel, Miami, and Judith A. Brechner, Deputy Gen. Counsel, State Board of Education, Gainesville, for appellees..
   PER CURIAM.

In a rule challenge proceeding a hearing officer of the Division of Administrative Hearings, Department of Administration, upheld a rule of the State Board of Education requiring that students attempting to qualify for a high school diploma must show attainment of minimum performance standards as measured by a State Student Assessment Test taken before or after the effective date of the rule. As against appellants’ claim of an illegal retroactive application of the rule, the hearing officer held that “the proposed rule simply defines mastery and ability and, through the rescor-ing of existing test results, seeks to apply this definition to students who will graduate this year.” In operation the rule exempts from retaking the test those who satisfactorily performed before the rule was adopted; and it does not irremediably disadvantage those who did not so perform, for they may now have another opportunity to do so. The rule is valid as against due process objections. See Cox v. Hart, 260 U.S. 427, 43 S.Ct. 154, 67 L.Ed. 332 (1922); County of Palm Beach v. State, 342 So.2d 56 (Fla.1976). See also Florida State Board of Education v. Brady, 368 So.2d 661 (Fla. 1st DCA 1979).

AFFIRMED.

MILLS, C. J., and ROBERT P. SMITH, Jr., J., and HENRY CLAY MITCHELL, Jr., Associate Judge, concur.


author: ERVIN, Judge.

text:
    BERRY GROVES, INC., Appellant, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Appellee.
    No. MM-222.
    District Court of Appeal of Florida, First District.
    July 17, 1979.
    William L. Earl, Miami, and Robert C. Apgar, Tallahassee, of Peeples, Earl, Smith, Moore & Blank, Miami, for appellant.
    Judith Brown, Herbert M. Webb, Gaines-ville, for appellee,
   ERVIN, Judge.

The policy action taken by St. Johns River Management District was emerging, not established. The order entered by the District sufficiently explicated the policy taken. See McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Finally, the evidence does not show that the District should be estopped from establishing a one-inch drainage limitation.

Affirmed.

McCORD, Acting C. J., and LARRY G. SMITH, J., concur.


text:
    R. M. and W. P., juveniles, Appellants, v. The STATE of Florida, Appellee.
    No. 77-2431.
    District Court of Appeal of Florida, Third District.
    July 17, 1979.

      Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal by R.M. and W.P., juveniles, from an adjudication of delinquency based upon the trial court’s finding them guilty of the crimes of robbery.

Appellants challenge the sufficiency of the evidence to sustain the convictions. We find the point well taken as to appellant R.M. and reverse as to his conviction. Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); K. W. U. v. State, 367 So.2d 647 (Fla. 3d DCA 1979); J. H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979).

We have carefully considered the points on appeal by appellant W.P., and in the light of the record on appeal, briefs and argument of counsel we have concluded that W.P. has failed to demonstrate reversible error. Therefore, the order declaring W.P. a delinquent is affirmed. The order declaring R.M. a delinquent is reversed.


text:
    Harry JONES, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 77-2500.
    District Court of Appeal of Florida, Third District.
    July 17, 1979.
    Harry Jones, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having filed his response thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal from the order revoking the defendant’s probations and the subsequent judgments and sentences is wholly frivolous. The order of revocation is modified by deleting the reference.to the defendant’s failure to pay the costs of supervision. See Depson v. State, 363 So.2d 43, 44 (Fla. 1st DCA 1978). The order, judgments and sentences are otherwise entirely affirmed.

Affirmed as modified.


author: KEHOE, Judge.

text:
    Hector David RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1323.
    District Court of Appeal of Florida, Third District.
    July 17, 1979.
    Kogen & Kogan and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, defendant below, appeals a criminal conviction and sentence of imprisonment entered after a jury trial on multiple charges of uttering worthless checks. He asserts three points on appeal, one of which we agree requires reversal and remand for a new trial.

Appellant has worded the issue for our consideration as follows:

“THE TRIAL COURT ERRED IN ALLOWING THE STATE TO ELICIT TESTIMONY CONCERNING WHOLLY UNRELATED CONDUCT OF THE DEFENDANT TWO YEARS PRIOR TO THE CRIMES CHARGED, THE INVOLVEMENT OF THE DEFENDANT IN OTHER CURRENT COLLATERAL UNCHARGED CRIMES, AND THE FACT THAT DEFENDANT WAS KNOWN BY NAMES OTHER THAN HECTOR RODRIGUEZ, SOLELY TO ESTABLISH THE DEFENDANT’S CRIMINAL PROPENSITY AND TO PREJUDICE THE JURY AGAINST HIM, THEREBY DEPRIVING THE DEFENDANT OF HIS CONSTITUTIONALLY GUARANTEED PRESUMPTION OF INNOCENCE AND HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL BY JURY AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, §§ 9, 12 OF THE FLORIDA CONSTITUTION.”

Our review of the record persuades us that the appellant was prosecuted not only for the offenses charged in the information filed against him but that he was irremediably prejudiced by the improper admission of evidence of collateral crimes which made it impossible for him to receive a fair trial. The record clearly indicates that the prosecution relied upon evidence of alleged collateral misconduct and collateral crimes in order to convict the appellant. The prosecutor was repeatedly permitted to introduce evidence that the appellant may have committed similar crimes at some point prior to the crimes charged. This evidence was admitted despite the defense counsel’s frequent objections and strenuous efforts (including several motions for mistrial) to keep it from the ears of the jury.

It is readily apparent that; the collateral crimes rule of Williams v. State, 110 So.2d 654 (Fla.1959) was not followed in this instance and that the sole purpose for which the prejudicial evidence was admitted (despite the State’s protestations that it was properly admitted to show a common scheme) was to assail the appellant’s character when his character had never been placed in issue. We believe that the prejudicial effect of this evidence outweighed any possible relevance it may have had and that the totality of this prejudice is such that a new trial is necessary.

In light of the fact that we have reversed the appellant’s conviction, his point that the trial judge erred in failing to grant him a continuance in order to allow him sufficient time to investigate and depose the state’s witnesses prior to trial is now moot. We are confident that the trial judge will insure that the appellant is given sufficient time before retrial to complete the discovery process without unnecessary delay.

Reversed.

      . Relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. Evidence of other crimes is admissible in a criminal trial if relevant to prove anything other than the bad character of the defendant or his propensity to commit the crime charged. Evidence which is relevant is inadmissible if its sole purpose is to show the propensity of the defendant to commit the crime charged.


text:
    Anna FESTA, Appellant, v. John L. BRITTON, Appellee.
    No. 78-1847.
    District Court of Appeal of Florida, Third District.
    July 17, 1979.
    Cohen & Kokus and Linda Koenigsberg, Miami, for appellant.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, respondent in the circuit court action and claimant in the mediation proceedings, brings this appeal from a final judgment entered by the circuit court requiring her to pay appellee a panelist fee of $100 plus $58.17 costs and interest. The judgment was entered pursuant to a petition for a rule nisi filed in the circuit court by appellee after appellant failed to pay him the panelist fee awarded by the court. A show cause order was issued for August 3, 1977, and, after appellant failed to appear, the circuit court entered the final judgment appealed. In our opinion, the circuit court lacked jurisdiction to hear this matter. The petition for a rule nisi, was in essence, a complaint for damages in the amount of $100. This amount is below the minimal jurisdictional amount for such causes of action in the circuit court. Art. V, § 20(d)(4), Fla.Const. See also Murphy v. Shoemaker, 287 So.2d 143 (Fla. 4th DCA 1973). Accordingly, the final judgment appealed is reversed.

Reversed.


text:
    Jon Lee SUSENBACH, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2040.
    District Court of Appeal of Florida, Third District.
    July 17, 1979.
    Bennett H. Brummer, Public Defender, and Carl L. Masztal, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. Williams v. State, 110 So.2d 654 (Fla.1959); Harrelson v. State, 259 So.2d 526 (Fla. 1st DCA 1972).


text:
    COMMUNITY ART ALLIANCE, INC., Children’s Home for Neurological Disorders, Inc., and E. F. L., Inc., Appellants, v. Janet RENO, State Attorney for the Eleventh Judicial Circuit of Florida, Appellee.
    No. 78-2147.
    District Court of Appeal of Florida, Third District.
    July 17, 1979.
    Sam W. Kleinfeld and Thomas G. Murray, Miami, for appellants.
    Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.1977); North Bay Village Lions Foundation, Inc. v. City of Miami Beach, 338 So.2d 236 (Fla.3d DCA 1976).


author: PER CURIAM. SCHWARTZ, Judge

text:
    Linda VALENSTEIN, Appellant, v. DOCTORS HOSPITAL and S. Peter Hansen Stokley, M.D., F.A.C.S., Appellees.
    No. 78-2327.
    District Court of Appeal of Florida, Third District.
    July 17, 1979.

      Milton E. Grusmark and David Javits, David Jaffe, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and T. E. Scott, Pred-dy, Kutner & Hardy and Edward G. Rubi-noff, Miami, for appellees.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed on the authority of Lustig v. McCormick, 358 So.2d 844 (Fla. 3d DCA 1978).

SCHWARTZ, Judge

(specially concurring).

The plaintiff’s medical malpractice case, which allegedly arose on December 4, 1974 and which was filed in the circuit court on November 16, 1977, was dismissed with prejudice on the ground that the statute of limitations, Sec. 95.11(4)(b), Fla.Stat. (1975), barred her claim. The statute was found to have run even though 64 days remained in the two year limitations period when she submitted her claim to medical mediation on October 1, 1976, and even though the complaint was filed within sixty days after the mediation panel issued its written decision (against her) on the merits of the claim in September, 1977. The trial court held inapplicable the provisions of Sec. 768.44(4), Fla.Stat. (1975), which states:

“The filing of the claim shall toll any applicable statute of limitations, and such statute of limitations shall remain tolled until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated. In any event, a party shall have 60 days from the date the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is otherwise terminated in which to file a complaint in circuit court.” [Emphasis supplied]

The court so ruled because the mediation proceeding, without anyone’s objection, continued beyond the ten-month period when its “jurisdiction” over the subject matter terminated, under Sec. 768.44(3), Fla.Stat. (1975), on August 1,1977. Since the date of filing, November 16, 1977, was more than 64 days after August 1, when the “tolling” effect of 768.44(4) ceased, the action was deemed untimely filed. In Lustig v. McCormick, 358 So.2d 844 (Fla. 3d DCA 1978), we indeed held that in a substantially identical situation, Sec. 768.44(4) was properly so interpreted to bar the plaintiff’s case. Accord: Ludwig v. Glover, 357 So.2d 233 (Fla. 1st DCA 1978), cert. denied, 362 So.2d 1053 (Fla.1978). Since I feel myself bound by a controlling decision of this court, I concur in affirmance of the judgment below on the authority of the Lustig case.

I also feel bound, however, to point out my essential disagreement with these decisions. The reason for our courts’ insistence upon a strict adherence to the “jurisdictional” periods provided by Sec. 768.44(3), e. g., Love v. Jacobson, 358 So.2d 1179 (Fla. 3d DCA 1978); Febles v. Abercrombie, 358 So.2d 568 (Fla. 2d DCA 1978) is “to mitigate the plaintiffs pre-litigation burden imposed by the [mediation] Act [e. s.],” State ex rel. McGuirk v. Cowart, 344 So.2d 624, 627 (Fla. 3d DCA 1977), which, as “cast upon the claimant reaches the outer limits of- constitutional tolerance [e. s.] . . .” Carter v. Sparkman, 335 So.2d 802, 806 (Fla.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977). As the fourth district held in Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978):

“Since the medical mediation procedure enacted by Part II, Chapter 768 is in derogation of the common law, and is an impediment to the constitutional guarantee of access to the courts of this state, strict compliance with the statutory provisions of Chapter 768 is required. Carter v. Sparkman, 335 So.2d 802 (Fla.1976); Mercy Hospital, Inc. v. Badia, 348 So.2d 631 (Fla. 3d DCA 1977).”

However, in the present context, and in, for example, Young v. Bramlett, 369 So.2d 652 (Fla. 1st DCA 1979), the “jurisdictional” time provisions, which were thus meant as a plaintiff’s shield to limit the restrictions upon his access to the courts, have been mechanically and ironically, but successfully employed as a defendant’s sword to destroy the claimant’s action altogether. I think this result is wrong.

To avoid it — if the issue were an original one — I would read Sec. 768.44(4) to provide for the tolling of the limitations period until the decision of the panel is rendered, or its jurisdiction is otherwise terminated, whichever is later. I consider this interpretation of the statute to be the proper one when the subsection is considered, as it must be, in the light of the purpose for which it was enacted. 30 Fla.Jur. Statutes, § 105 (1974). Alternatively, since, as we all know, only the defendant desires or gains any advantage from the medical mediation process, I would hold that a defendant’s failure, as in this case, to raise the jurisdictional point before the panel estops him from claiming any benefit which may accrue as a result of the panel thereafter continuing to consider the case. Cf. Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979); compare State ex rel. McGuirk v. Cowart, supra, (claimant who requested delay in mediation proceeding precluded from insisting on 10-month jurisdiction limitation); State ex rel. Mercy Hospital v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977) (same). It must be remembered that we are dealing in this case not with the jurisdiction of the panel itself, which is of course not subject to waiver or estoppel, but rather with the effect of the panel’s activity upon the limitations defense, which is. Salcedo v. Asociacion Cubana, Inc., supra; 21 Fla.Jur. Limitation of Actions, § 88 (1958).

Notwithstanding all of the foregoing, however, which I suppose is really directed to the supreme court and to the second and fourth districts, which seem not yet to have considered the issue, the bottom line is that the present appellant gets not even a meaningless dissenting vote. I reluctantly concur.

      . I followed the same course in a similar situation in Diners Club, Inc. v. Brachvogel, 370 So.2d 443 (Fla. 3d DCA 1979) (specially concurring opinion).

      . I suggest that this case adds to the doubts as to the validity of the mediation act, as expressed by Justice Adkins, specially concurring in Simmons v. Faust, 358 So.2d 1358 (Fla.1978) and by the fourth district, speaking through Judge Moore, in Ballard v. Curatolo, 363 So.2d 864 (Fla. 4th DCA 1978).


text:
    CRITERION INSURANCE COMPANY, Appellant, v. Brenda WELCH, Appellee.
    No. 79-25.
    District Court of Appeal of Florida, Third District.
    July 17, 1979.

      Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and David S. Currie, Miami, for appellant.
    Harris, Albury & Morgan, Richard G. Payne, Key West, for appellee.
    Before BARKDULL and HUBBART, JJ., and RIEGLE, HORACE D. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Allstate Insurance Company v. Chastain, 251 So.2d 354 (Fla.3d DCA 1971).


text:
    Joyce STEWART et al., Appellants, v. Roslyn Debs GOLDBERG, Appellee.
    No. 79-112.
    District Court of Appeal of Florida, Third District.
    July 17, 1979.
    Markus & Winter and Laurie S. Silvers, Miami, for appellants.
    A. M. Schwitalla, Coral Gables, for appel-lee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. See Williams v. Gunn, 279 So.2d 69 (Fla. 1st DCA 1973).


text:
    Eddie SLATTERY a/k/a Eddie Damrau, Appellant, v. The STATE of Florida, Appellee.
    No. 79-867.
    District Court of Appeal of Florida, Third District.
    July 17, 1979.
    Eddie Slattery, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. Garcia v. State, 228 So.2d 300 (Fla. 3d DCA 1969).


text:
    Mary F. WICKERS, Petitioner, v. Stephen R. SCHWARTZ, D.P.M., Saul Lipsman, D.P.M., and Sidney J. Lerner, P.A., a Professional Association, Respondents.
    No. 79-884.
    District Court of Appeal of Florida, Third District.
    July 17, 1979.

      Kenneth B. Sherouse, Jr., Miami, for petitioner.
    Horton, Perse & Ginsberg and Edward A. Perse, Thomas J. Schulte, Miami, for respondents.
    Before HAVERFIELD, C. J., and KE-HOE and SCHWARTZ, JJ.
   PER CURIAM.

On the authority of Hewitt v. Caffee, 368 So.2d 1342 (Fla.3d DCA 1979), certiorari is granted and the cause is remanded with directions that the clerk issue a notice of termination of the mediation proceedings pursuant to Fla.R.Med.P. 20.190(c). See also Blouin v. Ferguson, 372 So.2d 194 (Fla.3d DCA 1979); Diggett v. Conkling, 368 So.2d 74 (Fla.4th DCA 1979).

Certiorari granted.


author: BERANEK, Judge.

text:
    Nancy RAFFA, Appellant, v. The DANIA BANK et al., Appellees.
    No. 78-957.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1979.
    Rehearing Denied Aug. 1, 1979.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appellant.
    Clark J. Cochran, Jr., of Hainline & Billing, P. A., Fort Lauderdale, for appellee.
   BERANEK, Judge.

Plaintiff/appellant sued appellee, a bank, for the wrongful conversion of plaintiff’s car. This is the second appearance of this controversy before this court. See Raffa v. Dania Bank, 321 So.2d 83 (Fla. 4th DCA 1975).

The case was tried on conflicting evidence before a jury on the claim of wrongful conversion and compensatory and punitive damages. At the conclusion of the trial the jury returned the following verdict:

“VERDICT
“WE, THE JURY, find for the Plaintiff, NANCY RAFFA, and assess her damages against the Defendant, THE DANIA BANK:
Compensatory SNONE_
Punitive $25000.00_
“SO SAY WE ALL.
“DATED this 7th day of March, 1978.
('Signature).
FOREMAN”

The defendant filed a motion for judgment in accordance with its prior motion for directed verdict and a separate motion for new trial based on an alleged impropriety in the verdict. The court initially entered final judgment in plaintiff’s favor for $25,000 punitive damages. Subsequently, the court reversed itself and granted the motion for judgment in favor of defendant in accordance with defendant’s prior motion for directed verdict. Final judgment was entered in favor of defendant against the plaintiff. Defendant’s motion for a new trial was never ruled upon in view of the grant of the motion for directed verdict.

The law is well settled that punitive damages require an underlying award of compensatory damages. McLain v. Pensacola Coach Corp., 152 Fla. 876, 13 So.2d 221 (1943); Sonson v. Nelson, 357 So.2d 747 (Fla. 3d DCA 1978). A verdict which finds no compensatory damages whatsoever and punitive damages of $25,000 is within this prohibition. At trial neither plaintiff nor defendant asked to have this improper verdict corrected while the jury was still impaneled and might have done so. Also, no party asked for an instruction to the effect that punitive damages could not be assessed without at least a finding of some compensatory damages nor did any party ask for an instruction to the jury on nominal damages.

On appeal plaintiff/appellant seeks to have the $25,000 punitive damages judgment reinstated and the defendant seeks affirmance of the directed verdict eventually entered in its favor. It should be noted that the defendant’s directed verdict was not the result of the impropriety of the verdict. It was instead based on the trial court’s finding that plaintiff’s proofs had been lacking.

We hold the directed verdict in favor of the defendant to be erroneous. The jury found in favor of plaintiff on the issue of liability and there was evidence which, if believed, supported this verdict of liability. We thus reject defendant’s contention and find the evidence was sufficient to support the jury’s verdict on the issue of liability in favor of plaintiff. Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA 1979).

We also cannot accept plaintiff/appellant’s position that the correct disposition of this matter is to reinstate the $25,000 punitive damages. Such a disposition would violate the established law previously stated to the effect that punitive damages may not be assessed without a finding of compensatory damages. We, therefore, cannot condone a judgment based on an improper and inconsistent verdict absent some showing that defendant waived the right to complain about the improper verdict. Since the defendant filed both a motion for judgment in accordance with its motion for directed verdict (improperly granted by the trial court) and a motion for new trial based solely on the impropriety of the verdict there has been no waiver. The trial court never ruled upon the motion for new trial because a ruling was unnecessary in view of the action in granting the directed verdict. We do not find the absence of such a ruling to constitute a waiver of the motion for new trial on defendant’s part.

Based on the above, we hold the trial court erred in granting defendant’s motion for judgment in accordance with its motion for directed verdict and entering judgment thereon. This judgment is vacated and the matter remanded to the trial court with directions to grant the motion for new trial filed by the defendant.

REVERSED AND REMANDED WITH DIRECTIONS.

ANSTEAD and DAUKSCH, JJ., concur.


text:
    James P. STEBBINS, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee. FLORIDA ROCK AND TANK LINES, INC., Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    Nos. KK-226, KK-250.
    District Court of Appeal of Florida, First District.
    July 18, 1979.
    John B. Gibbons and Kirk M. Gibbons, of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, P.A., Tampa, for James P. Stebbins.
    J. Richard Moore, of Corrigan & Moore, Jacksonville, for Florida Rock and Tank Lines, Inc.
    Alan E. DeSerio, Jerrold K. Phillips and H. Reynolds Sampson, Dept, of Transp., Tallahassee, for appellee.
   PER CURIAM.

The final summary judgment is reversed and the case is remand to the trial court for further proceedings. Commercial Carrier Corporation v. Indian River County consolidated with Cheney v. Dade County, 371 So.2d 1010 (Fla.1979), Cases No. 51,462 and 53,178, Opinion filed April 19, 1979. We note that the trial court did not have the benefit of this clarifying opinion at the.time of the judgment here appealed.

McCORD, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jimmy REVELS, Appellee.
    No. LL-422.
    District Court of Appeal of Florida, First District.
    July 18, 1979.
    Robert L. Shevin, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellant.
    Thomas Osteen of Weed, Bishop & Os-teen, Perry, for appellee.
   PER CURIAM.

The trial court held that an information charging Revels with a conspiracy to commit a felony, to wit: possession of more than 100 pounds of cannabis with intent to sell, Sections 777.04 and 893.13, Florida Statutes (1977), charged only a misdemean- or and that accordingly, Revels was entitled to discharge under the speedy trial rule, Fla.R.Crim.P. 3.191, since he had not been brought to trial within 90 days of his arrest. It appears that the trial court did not have the benefit of our opinion in Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978) at the time the orders were entered. On the authority of Aylin, supra, this cause is reversed and remanded for further proceedings consistent therewith.

McCORD, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


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

text:
    The SOUND TRANSPORTATION PLANNING COALITION, INC., Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Florida Department of Environmental Regulation, and Leon County, Florida, Appellees.
    No. MM-151.
    District Court of Appeal of Florida, First District.
    July 18, 1979.
    Stephen Lindsey Gorman, Tallahassee, for appellant.
    James W. Anderson, Tallahassee, for ap-pellee Florida Dept, of Transp., Alfred W. Clark, Tallahassee, for appellee Florida Dept, of Environmental Regulation, and F. E. Steinmeyer, III, County Atty. and 0. Earl Black, Jr., Asst. County Atty., Tallahassee, for appellee Leon County, Florida.
   ROBERT P. SMITH, Jr., Judge.

Sound Transportation Planning Coalition, Inc. (STPC), a Tallahassee-based corporation of persons concerned with transportation developments as they affect the ecology, appeals from an order of the Department of Environmental Regulation granting a complex source air quality permit to the Department of Transportation for construction of additional traffic lanes on Thomasville Roád. We affirm.

The Department of Environmental Regulation did not offend Farrell v. Amica Mutual Ins. Co., 361 So.2d 408 (Fla.1978), by reinstating the previously dismissed Section 120.57 proceedings, which were initiated by STPC to contest the issuance of a permit to DOT, then dismissed by DER when Fla.Admin.Code.R. 17-2.04(8), requiring such a permit, was purportedly repealed by DER action. When the Division of Administrative Hearings subsequently held that Rule 17-2.04(8) was irregularly repealed, DER reinstated the cause on motion by DOT. The prior dismissal was not a determination on the merits of DOT’s application, but only recognition that the underlying rule requiring the permit, was no longer in effect. Reinstatement of the proceedings when the rule was revived therefore did not disturb a prior decision on the merits, but was in effect a measure conveniently restoring the controversy to its prior condition. There was no prejudice to STPC in reinstatement of the proceedings. Section 120.68(8), Florida Statutes (1977). A renewed application by DOT and a renewed objection by STPC would have had the same effect. There is no cause to extend the Farrell rule to the extent of forbidding renewed proceedings for a required permit for construction, of which DER had jurisdiction, without a determination of the merits.

On the merits we find no error in DER’s action granting the permit.

AFFIRMED.

MILLS, C. J., and HENRY CLAY MITCHELL, Jr., Associate Judge, concur.


text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, for the Use and Benefit of CONSOLIDATED PIPE & SUPPLY COMPANY, INC., an Alabama Corporation, Appellant, v. HOUDAILLE INDUSTRIES, INC., a Delaware Corporation, and Federal Insurance Company, a New Jersey Corporation, Appellee.
    No. MM-257.
    District Court of Appeal of Florida, First District.
    July 18, 1979.
    Rehearing Denied Aug. 2, 1979.

      Clyde N. Wells, Jr., Jacksonville, for appellant.
    Edward L. Nowak, Jacksonville, for ap-pellee.
   ERVIN, Judge.

Does the failure of a performance bond to include specific reference to the notice provisions and time limitations of Section 255.05(2), Florida Statutes (1975), even though the bond required the contractor to comply with the provisions of Section 255.05, make the bond a common law, rather than a statutory bond? We conclude it does not. There is language in United Bonding Ins. Co. v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971) and S. W. Fla. Water Mgt. Dist. v. Miller Const., 355 So.2d 1258 (Fla. 2d DCA 1978) indicating that statutory bonds must refer to both the statute creating the bond as well as the limitations periods stated in the statute, but we think such language must be restricted to the facts in those cases which are distinguishable from those here. In both Holly Hill and Miller the performance bonds failed to refer to Section 255.05, failed to contain any limitation with respect to the time within which a suit on the bond could be commenced and, most importantly, granted broader coverage than the minimum required by the statute.

The primary test in ascertaining whether a bond is statutory or one at common law is to determine if the minimum obligation placed upon the principal and his surety by statute has been expanded by the bond. See Fulghum v. State, 92 Fla. 662, 109 So. 644 (1926). Here the bond, while containing no reference to the statutory limitation, specifically cited Section 255.05. Finally, it did not expand the principal’s obligation to laborers and suppliers as set forth in the statute. Indeed, the bond practically restated word-for-word the minimum obligation: “[I]f such Contractor shall promptly make a payment to all persons supplying labor, material, equipment and supplies, used directly or indirectly by the said Contractor or any subcontractor(s) in the prosecution of the work provided for in said Contract, . . ., then this obligation [shall] be void; . . . .”

If any ambiguity arguably existed in the bond, it could hardly be construed against the surety which did not prepare the bond. Appellant Consolidated Pipe and Supply Co., Inc., a supplier to a subcontractor, brought suit in the name of the state for its use and benefit as required by Section 255.05(1). The bond's drafter, the State of Florida and the nominal plaintiff, is the only party that is subject to the rule of strict construction — not the surety.

We conclude that the lower court correctly held the bond was statutory. Since the complaint failed to allege compliance with the one-year time limitation of Section 255.-05(2), the lower court’s order granting the motion to dismiss is affirmed.

McCORD, Acting C. J., and LARRY G. SMITH, J., concur.

      . Compare the above language with Section 255.05(1), stating that “such contractor shall promptly make payments to all persons supplying him labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors in the prosecution of the work provided for in said contract; . .

      . Section 255.05, Florida Statutes (1975), subsequent to the execution of the bond, was amended by Ch. 77-81, § 1, Laws of Florida, by providing a suggested bond form, which, like the present bond, makes specific reference to Section 255.05, but does not incorporate the statute’s notice and time provisions, which remain unchanged.


text:
    Lester Duane RADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 78-1347.
    District Court of Appeal of Florida, Second District.
    July 18, 1979.
    Jack 0. Johnson, Public Defender, James R. Wulchak, Asst. Public Defender, and Charles L. Stutts, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The primary issue on appeal is whether the court erred in denying appellant’s motion for discharge under the speedy trial rule. Our review of the record reveals that appellant’s contention that he was not brought to trial within the speedy trial period is without merit.

However, the court erred in failing to give appellant sufficient credit for the time he spent in jail before sentencing. Appellant was arrested in Palm Beach County on January 13, 1978, on warrants from Hills-borough County, Broward County and the State of Washington. He was transferred from Palm Beach County Jail to Broward County Jail on January 18, 1978. On January 29, 1978, the Broward County court sentenced him to time spent in the Broward County Jail and gave him credit for time served. The following day the State of Washington waived extradition.

On March 2,1978, appellant was transferred to Hillsborough County. There, after conviction, the court sentenced him and gave him credit only for the 144 days spent in the Hillsborough County Jail. This was not enough. Even through during a portion of his Palm Beach County and Broward County jail time he was also being held to answer for other charges, he was entitled to additional credit from January 13, 1978, to January 18, 1978, and from January 29, 1978, to March 2, 1978, against the Hillsborough County charge. Deaver v. State, 326 So.2d 222 (Fla. 2d DCA 1976). But, he was not entitled to credit from January 18,1978, to January 29, 1978, because he received this credit against the Broward County sentence. Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974).

Accordingly, we affirm the judgment but remand the cause with directions that the court grant additional credit on the sentence in accordance with this opinion. Appellant need not be present for this purpose.

GRIMES, C. J., and HOBSON and BOARDMAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Carroll W. THARP, Jr., Appellee.
    No. 78-1356.
    District Court of Appeal of Florida, Second District.
    July 18, 1979.
    Jim Smith, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, and Gordon B. Scott, Asst. Public Defender, New Port Richey, for appellee.
   PER CURIAM.

Reversed on authority of State v. Allen, 362 So.2d 10 (Fla.1978).

HOBSON, Acting C. J., and SCHEB and RYDER, JJ., concur.


text:
    STATE of Florida ex rel. Robert Lee LEWIS, Appellant, v. William T. “Bill” ROBERTS, as Sheriff of Pinellas County, Appellee.
    No. 78-1742.
    District Court of Appeal of Florida, Second District.
    July 18, 1979.
    Jack F. White, Jr., St. Petersburg, for appellant.
    James T. Russell, State’s Atty., and C. Marie King, Asst. State’s Atty., Clearwater, for appellee.
   PER CURIAM.

The appellant has been available for extradition for more than thirty days since the denial of his petition for habeas corpus became final. Therefore, he is entitled to discharge upon the authority of Hill v. Roberts, 359 So.2d 911 (Fla. 2d DCA 1978).

REVERSED.

GRIMES, C. J., and HOBSON and BOARDMAN, JJ., concur.


author: DANAHY, Judge.

text:
    Oliver HARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 78-2255.
    District Court of Appeal of Florida, Second District.
    July 18, 1979.

      Jack 0. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

On April 21, 1978, appellant Oliver Hart-ley pled guilty to burglary and grand theft charges, and was sentenced to five years probation. He appeals from the revocation of his probation for violating the condition of probation requiring him to live and remain at liberty without violating any law.

On November 30, 1978, appellant’s probation officer filed an affidavit alleging violation of the above condition in that appellant burglarized a residence and “obstructed justice by disguise person giving police officers an incorrect identification of himself . . ”

At the revocation hearing, no evidence was presented on the alleged burglary violation. A police officer testified that he interviewed appellant after appellant’s' arrest on a burglary charge and that appellant told the officer his name was Joe Hardy, spelled it as Hardy, and gave an incorrect birth date. The court found appellant had violated the probation condition by obstructing justice by being a disguised person and giving false information to the police officer. The court revoked probation and adjudicated appellant guilty of the original charges of grand theft and burglary, assigning concurrent five year jail sentences with credit for all time served.

Appellant argues that he could not be guilty of obstructing justice by disguised person since giving a false name and birth date does not come within the ordinary meaning of disguise. We agree.

Section 843.03, Florida Statutes (1977), provides that:

Whoever in any manner disguises himself with intent to obstruct the due execution of the law, or with the intent to intimidate, hinder or interrupt any officer, beverage enforcement agent, or other person in the legal performance of his duty or the exercise of his rights under the constitution or the laws of the state, whether such intent is effected or not, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

“Disguise” may be defined as: to change the style of dress of, to give a new form or character, or to hide or obscure the true character by altering appearance. Webster’s New International Dictionary, 747 (2d Ed. 1957). Courts have interpreted the word “disguise” to refer to concealment of identity by masks or vestments. Hardyman v. Collins, 80 F.Supp. 501 (S.D.Cal. 1948), rev'd, 183 F.2d 308 (9th Cir. 1950), aff’d, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951). “Disguise” is a change of guise or appearance, especially by unusual dress. Darneal v. State, 14 Okl.Cr. 540, 174 P. 290 (1917), 1 A.L.R. 638 (1919).

These definitions all contain some reference to physical concealment in dress or appearance, and do not encompass appellant’s conduct of giving police a false name and birth date. We hold that the term “disguise” as used in Section 843.03, Florida Statutes (1977), is not so broad as to include appellant’s conduct.

Since the evidence presented at appellant’s probation revocation hearing showed no violation of law as charged, the revocation cannot stand. We reverse the finding of violation, revocation of probation, and the ensuing judgment and sentence.

OTT, Acting C. J., and RYDER, J., concur.


text:
    C. J. STOLL, INC., Petitioner, v. WINNEBAGO INDUSTRIES, INC., John W. White and Mary E. White, his wife, Respondents.
    No. 79-1087.
    District Court of Appeal of Florida, Second District.
    July 18, 1979.
    Steven C. Sweet of John T. Allen, Jr., P. A., St. Petersburg, for petitioner.
   PER CURIAM.

We deny the petition for writ of certiora-ri without prejudice to the right of petitioner to seek review of the matters contained therein by way of an appeal from the final judgment.

HOBSON, A. C. J., and SCHEB and RYDER, JJ., concur.


text:
    William Walden CHENEY and Travelers Insurance Company, Appellants, v. DADE COUNTY, Appellee.
    No. 76-1655.
    District Court of Appeal of Florida, Third District.
    July 18, 1979.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court 353 So.2d 623 was entered on December 20, 1977 affirming the order of the Circuit Court of Dade County, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed April 19, 1979, 371 So.2d 1010 and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on January 5, 1978 is withdrawn, the judgment of this court filed December 20, 1977 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings not inconsistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.15(b), Florida Appellate Rules).


author: TATE, Justice. SUMMERS, Chief Justice

text:
    STATE of Louisiana, Appellee, v. Earl D. TOUCHET, Jr., Appellant.
    No. 63276.
    Supreme Court of Louisiana.
    April 9, 1979.
    Dissenting Opinion July 23, 1979.
    Logan L. Nichols, Jennings, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard N. Marcantel, Dist. Atty., Charles R. Cassidy, Asst. Dist. Atty., Abbott J. Reeves, Research & Appeals Division, Asst, Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant, 19 years of age, pleaded guilty to distribution of marijuana, La.R.S. 40:966(A)(1) and was sentenced to fours years imprisonment at hard labor.

Upon his appeal, he relies upon two assignments of error: 1) that the court imposed an unconstitutionally excessive sentence, and 2) that the court erred in not following the sentencing guidelines provided by La.C.Cr.P. art. 894.1.

The evidence taken at the plea of guilty indicates that the offense involved a sale of marijuana at a profit of $1.00.

The defendant, a 19-year-old man, had no prior convictions and had been employed steadily. Following his arrest he had cooperated fully with the police. Although charged with only one sale, he admitted that he had within the last three months made several other sales for the same individual, whose identity he revealed.

In sentencing the defendant to four years in the penitentiary, the trial judge stated that one reason is for him “to be a lesson to all the other young people that they are not going to get by with it. . We’re simply not going to have all these young people running up and down the streets in brand new cars, beautifully dressed, selling pot for a dollar a lid. They must have to sell a lot of it to buy these new cars.”

In imposing sentence, the trial court made no attempt to comply with the provisions of La.C.Cr.P. art. 894.1 (1977). The article sets forth three factors which justify a sentence imposing imprisonment, and eleven other factors which tend to indicate suspension of sentence or probation as appropriate. The statute provides that the latter, “while not controlling the discretion of the court, shall be accorded weight” by the trial court in its sentencing decision. The enactment concludes that the trial court “shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

In State v. Jackson, 360 So.2d 842 (La.1978), we discussed at some length the purpose of the article in requiring each sentence be particularized. We noted that not only public protection and deterrence are objectives of the sentencing process, but also rehabilitation. In that unanimous opinion, authored by former Chief Justice Sanders, we observed that the code provision “requires that the sentence be individualized. . . . The article establishes procedures designed to adapt the sentence to the offender as well as the offense.” 360 So.2d 843-44.

We have repeatedly stated that, even without formal objection at the time, where the trial judge imposes a sentence without adequate compliance with the mandatory requirement of La.C.Cr.P. art. 894.1 that he state the considerations and the factual basis for his sentence, this court may vacate a sentence and remand for re-sentencing, when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Jackson, 360 So.2d 842 (La.1978); State v. Scarborough, 359 So.2d 982 (La.1978); State v. Sepulvado, 359 So.2d 137 (La.1978). See also State v. Gibson, 362 So.2d 769 (La.1978). See also State v. Gist, 369 So.2d 1339 (La.1979).

In the present case, the trial court reasons do not reflect that it adequately followed the sentencing guidelines that should be considered before imposing a sentence of incarceration as provided by La.C.Cr.P. art. 894.1. Absent such compliance, we lack appropriate criteria by which to measure whether these sentences are excessive in the performance of our constitutional duty imposed upon us by Article 1, Section 20, La.Const. of 1974. See State v. Sepulvado, 367 So.2d 762 (La.1979).

Accordingly, we must vacate the defendant’s sentence and remand the case to the trial court with instructions for it to properly consider the sentencing guidelines provided by La.C.Cr.P. art. 894.1.

Decree

Although the conviction is affirmed, the sentence imposed is vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence the defendant in accordance with law.

CONVICTION AFFIRMED; BUT REMANDED FOR RE-SENTENCING IN ACCORDANCE WITH LAW.

SUMMERS, Chief Justice

(dissenting).

I adhere to the proposition that the Constitution does not authorize this Court to review sentences of this nature on a claim that they are excessive. La.Const. Art. 1, § 20. In my view the Constitution denies the Legislature the authority to adopt any law which imposes an excessive punishment. Therefore, unless this Court is prepared to declare the penal provision unconstitutional, it is not authorized to set aside a sentence within the perimeters of that law on the ground that the punishment is excessive.

I am also of the opinion that Article 894.1 of the Code of Criminal Procedure does not require the sentencing judge to articulate the reasons for his sentence in every case. The Article does not purport to divest the sentencing judge of the broad discretion requisite to a proper performance of that important function. The guidelines are general and intended as standards to be applied in aid of sentencing when appropriate in a given case.

I respectfully dissent.

      . The assignments of error were filed with the trial court on November 29, 1978, and forwarded by supplemental volume filed with this court on November 30, 1978. Although not In the usual form of assignments for error, we are unwilling to deprive the defendant of appellate review, feeling that the filing of assignments of error with the trial court, was in substantial compliance with La.C.Cr.P. art. 844,

      . The following colloquy then occurred between the court and the defendant:
      “THE COURT: Do you have a new car?
      "THE DEFENDANT: No, sir.
      "THE COURT: You don’t have any car at all?
      “THE DEFENDANT: Yeah, I got a car but it’s not a new one,
      "THE COURT: Okay. Well, you’re one of the unlucky ones, then.”