author: PEARSON, Judge.

text:
    Joseph LEVITT, Appellant, v. Joseph VERMUCCIO, Appellee.
    Nos. 76-2221, 76-2319.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.

      James A. Baccus, Miami, for appellant.
    Ress, Gomez, Rosenberg & Berke and Miguel A. Orta, North Miami, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PEARSON, Judge.

These appeals are (1) from an interlocutory order requiring a resident plaintiff to post a cost bond, and (2) from a final judgment dismissing the complaint for plaintiff’s failure to answer a call of the trial calendar. The appeals have been consolidated for all appellate purposes.

On June 17, 1975, plaintiff Joseph Levitt filed a complaint against defendants Joseph Vermuccio and Alexander Stone alleging an assault and battery in which defendants Vermuccio and Stone threw coconuts striking the plaintiff and resulting in personal injuries. Subsequently, defendant Vermuc-cio filed his answer and a counterclaim for damages together with a motion for injunc-tive relief, both temporary and permanent. Defendant Stone filed responsive pleadings but subsequently was voluntarily dismissed from the suit through a settlement.

On October 18, 1976, Joseph Vermuccio filed a motion to require the plaintiff to post a cost bond in advance of trial. On December 3, 1976, the trial judge entered an order requiring plaintiff to post a pretrial cost bond in the sum of- $500. This order provided that plaintiff’s cause would be dismissed if the cost bond was not filed forthwith. Thereupon, the plaintiff moved the court for an order staying the proceedings in the trial court until the determination of plaintiff’s interlocutory appeal of the order requiring the posting of the cost bond. On December 6, 1976, plain tiff-appellant Levitt filed an interlocutory appeal of the trial judge’s order. On October 8, 1976, the trial judge set this cause for trial during a two week period commencing December 13, 1976. On December 11, 1976, the trial court held a calendar call for all causes set for the above-mentioned two week period. At that time, there was pending in this court plaintiff’s interlocutory appeal and in the trial court his motion for a stay pending the determination of the appeal. Counsel for Levitt failed to present himself at the call of the calendar. Therefore, on December 14, 1976, an order was entered dismissing this case.

The appellee has been unable to furnish us with any authority for the court’s action in requiring a resident plaintiff to post a cost bond. The motion for the bond cited no special circumstances but stated as follows:

. .on the grounds that the allegations of the plaintiff’s Complaint are, at best, spurious and without substance and this defendant is required to go forward with essential pretrial discovery for which the plaintiff should be required to post a cost bond to secure payment of all taxable costs incurred by the defendant in the event the cause of action is dismissed and/or there is a judgment entered for the defendant.”

We do not need to reach the question of whether or not the trial court may, under any circumstances, require a resident plaintiff to post a cost bond. A review of this record shows no basis upon which the court might in its discretion forbid the plaintiff access to the court unless a cost bond were posted. The order requiring a cost bond was, therefore, error.

Turning to the appeal from the final order of dismissal, we hold that this order was improperly entered because it finally terminated the cause during the pendency of the interlocutory appeal. While it is well established that the trial court may proceed with a cause during the pendency of an interlocutory appeal, it is also established that the trial court does not have jurisdiction to effect a final disposition of the cause in a manner that will frustrate the interlocutory appeal. See Buck Plumbing, Inc. v. Bel-Aire, Inc., 103 So.2d 670 (Fla.3d DCA 1958).

Accordingly, the interlocutory order requiring the posting of a bond is quashed, the final judgment dismissing plaintiff’s cause is reversed and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . If this order was not properly reviewable under Fla.App. Rule 4.2, the appeal court have been considered as a petition for certiorari. See State v. Johnson, 306 So.2d 102 (Fla.1974).

      . As to non-resident plaintiffs, see Section 57.011, Florida Statutes (1975).


source: Caselaw Access Project

license: Public Domain

text:
    Dale KING, Appellant, v. The STATE of Florida, Appellee.
    No. 77-270.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.

      Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The appellant, Dale King, was called as a prosecution witness at the trial of two persons who were accused in the same murder for which King had previously been adjudicated guilty. King refused to testify and claimed his privilege against self-incrimination. The trial judge ruled that he had waived his Fifth Amendment privilege because he had testified at his own trial. Upon further refusal, based upon the advice of his attorney, King was sentenced to sixty days incarceration for direct criminal contempt. This appeal is from the last order. We reverse.

King was found guilty on October 9, 1976, of charges growing out of the same incident that he now claims privilege. A notice of appeal from his conviction was timely filed on November 18, 1976. On January 5, 1977, King was called to testify as a prosecution witness against his code-fendants. At that time, his appeal was pending and his rights under the Fifth Amendment to the United States Constitution were valid and outstanding. See Mills v. United States, 281 F.2d 736 (4th Cir. 1960); and cf. Salem v. State, 305 So.2d 23 (Fla. 3d DCA 1974); Saunders v. State, 319 So.2d 118 (Fla. 1st DCA 1975); and United States v. Wilcox, 450 F.2d 1131 (5th Cir. 1971).

The State urges that if King had testified, he would have had immunity under Section 914.04, Florida Statutes (1975). We do not consider this argument inasmuch as appellant was not informed that he would be given immunity. See Ballengee v. State, 144 So.2d 68 (Fla. 2d DCA 1962).

Accordingly, the judgment of direct contempt and the sentence pursuant thereto are reversed and the cause is remanded with directions to discharge the defendant from this charge.


author: PER CURIAM.

text:
    W. S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-378.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.

      Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen. and Edwin D. Davis II, Legal Intern, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

W. S., a juvenile, was charged by petition for delinquency with robbery. He takes this appeal from an order adjudicating him delinquent and committing him to the Division of Youth Services. The sole question presented is whether the charge of robbery was established by substantial competent evidence.

We agree with the appellant that there was not substantial competent evidence to support a finding of robbery. However, the record does support a finding that W. S. was guilty of larceny. Therefore, we affirm the adjudication of delinquency, and remand the cause to the juvenile court for modification of the order consistent with this opinion.

Affirmed and remanded.


text:
    Sandra MONTGOMERY, Petitioner, v. The INDUSTRIAL RELATIONS COMMISSION, Department of Commerce, State of Florida and Crandon Drugs, Respondents.
    No. 77-410.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Arlyne Gordon Warshall, Miami Beach, Legal Services of Greater Miami, Inc., for petitioner.
    Kenneth H. Hart (Tallahassee), James R. Parks, Miami, for respondents.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

By this petition for certiorari, a claimant for unemployment compensation benefits presents for review a decision of the Industrial Relations Commission affirming a ruling of an appeals referee which dismissed, as untimely filed, her appeal from a hearing examiner’s adverse determination of her claim.

A rule of the Division of Employment Security, Unemployment Compensation, relating to Practice and Procedure before Appeals Referees, promulgated pursuant to statute, provided:

***** *
“(2) If it is shown that written appeal was not made within the time provided by these rules because of action or inaction of the Division which was prejudicial to the interests of appellant or because the appellant did not receive the Notice of determination or redetermination through postal delay within ten days from the date of mailing, the appeal shall be considered timely provided the appellant made a diligent effort to file at the earliest date possible.”
‡ $ sfc $ ‡ ‡

On consideration of the petition, and the record, briefs, and argument, we find merit in petitioner’s position that there was no sufficient showing that claimant’s appeal from the hearing officer’s determination was not taken within the time required.

Certiorari is granted. The decision of the Commission is quashed, and the dismissal of the petitioner’s appeal is vacated, with direction that the said appeal of the petitioner-claimant be considered and determined by the appeals referee.

It is so ordered.


text:
    Elena VISUNA, Lazaro Visuna, Mercedes Chambless Munoz, Individually, and as next friend, legal guardian and mother of Francisco Munoz, Arnaldo Garcia and Juana Maria Garcia, Appellants, v. METROPOLITAN TRANSIT AUTHORITY and Nathanial Billy Davis, Appellees.
    Nos. 77-452 and 77-464.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Abramson, Seremin, Mendigutia & Lib-man and Sidney Z. Brodie, Stabinski, Funt, Tucker & Levine, Miami, for appellants.
    Stuart L. Simon, County Atty. and John H. Moynahan, Jr., Asst. County Atty., for appellees.

      Before HUBBART and KEHOE, JJ., and CHARLES CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

Appellants filed actions against Metropolitan Transit Authority and Nathanial Billy Davis. There were three such actions, which were consolidated for trial in the court below. After certain discovery, plaintiffs noticed the actions for trial and filed pretrial catalogues. The court set the actions to be tried during the period of the weeks of December 1st and December 8th, 1975, being the last trial period to be held by Judge Goodhart before leaving the bench of the Circuit Court of Dade County. Instead of trial of the actions during said period, a continuance thereof was made by the court on its own motion when it appeared that one of the parties was hospitalized for an operation. From the record here it does not appear that any provision was made at that time as to a future date for the trial or as to procedures to be taken thereafter with reference to trial.

More than a year later, with no record showing of progress in the actions, defendants moved on January 3,1977 for an order of dismissal for want of prosecution. Prior to hearing, plaintiffs filed a pleading in an effort to show good cause for denial of the motion, as ground for which plaintiffs alleged the filing, on August 29, 1976, of a separate action by Elena Bisuna and Lazaro Bisuna who were plaintiffs in said actions against Arnaldo Garcia, who was one of their co-plaintiffs in such actions. The latter separate action involved matter which could have been but was not filed in the original actions as a crossclaim.

The trial court recognized that there was a non-record action involved, but granted the motion to dismiss for want of prosecution on the ground that the dismissal was called for because of the non-record activity under Fla.R.Civ.P. 1.420(c), which was then applicable. Plaintiffs then filed a motion to set aside the order of dismissal, on the ground that the motion was controlled by the rule prior to amendment, under which effect was given to non-record activity. That motion was denied. The above-numbered appeals were taken by plaintiffs from said orders.

We cannot agree with the contention of appellants that the filing of the separate action, in the nature of a cross-claim, by certain of the plaintiffs against a co-plaintiff was a non-record activity such as to preclude dismissal for want of prosecution. Therefore, it is not necessary for us to rule on the question of whether the motion was controlled by the earlier rule or the rule as amended, which required showing of record activity.

However, we find merit in the argument of the appellants that once they had noticed the actions for trial it was the duty of the court to set and proceed to trial thereof, and that the failure of the court to do so should not be basis for dismissal for want of prosecution.

In City of Miami v. Dade County, 321 So.2d 140, 142 (Fla. 3rd DCA 1975), this court said:

* * * * * SfS
“Rule 1.440, RCP, as last amended, effective January 1, 1973, requires that the clerk, after notice of trial, shall submit the notice and file to the court and that the court shall enter an order fixing the date of trial. The precise question before us, then, is when the trial court fails for a period of one year to enter an order setting a cause for trial, after proper notice under the rule was given by a party that the cause is ready for trial, it is the duty of a party to take some action within the one year period from the notice of trial so as to prevent dismissal of the cause by the trial court for failure to prosecute.
“From the reading of Rule 1.440(c), we hold that it is the duty of, and the trial court is required, to enter an order setting the cause for trial after notice is given that the cause is ready for trial, and if, in fact, it is ready for trial. * *”

The only distinction here is that the court, after having set the actions for trial, in effect withdrew or vacated the setting, and neither that judge nor his successor set the actions for trial thereafter for a period of more than one year, notwithstanding plaintiffs’ prior notice for trial and their continued and subsequent readiness for trial. That distinction is not material. The duty to set the actions for trial remained. Megdell v. Adeff, 296 So.2d 596 (Fla. 3rd DCA 1974); City of Miami v. Dade County, supra. Cf. Kizer v. Martin, 132 So.2d 14 (Fla. 1st DCA 1961); Neff Machinery, Inc. v. Allied Electrical Company, 258 So.2d 314 (Fla. 3rd DCA 1972).

For the reasons stated, we hold good cause was shown to avoid dismissal for want of prosecution. The order of dismissal is reversed, and the cause remanded for further proceedings.


text:
    V. S., Jr., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-768.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See State ex rel. Hardy v. Blount, 261 So.2d 172 (Fla.1972); State v. Ashby, 245 So.2d 225 (Fla.1971); Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977); Williams v. State, 338 So.2d 913 (Fla. 3d DCA 1976); State v. Miller, 267 So.2d 352 (Fla. 4th DCA 1972); Gustafson v. State, 243 So.2d 615 (Fla. 4th DCA 1971); Casso v. State, 182 So.2d 252 (Fla. 2d DCA 1966).


author: NATHAN, Judge.

text:
    Mark HILLBURN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-839.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

There was no reversible error in the trial court’s denial of a motion for discharge on speedy trial grounds, made orally after the jury had been impaneled and sworn, and trial was ready to commence. State v. Robinson, 336 So.2d 437 (Fla.2d DCA 1976); Rule 3.191, Fla.R.Crim.P.

Affirmed.


text:
    John C. EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-967.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See State v. Ashby, 245 So.2d 225 (Fla.1971); State v. English, 308 So.2d 636 (Fla. 3d DCA 1975); State v. Bell, 249 So.2d 748 (Fla. 4th DCA 1971); Hall v. State, 219 So.2d 757 (Fla. 3d DCA 1969); Martin v. State, 194 So.2d 291 (Fla. 3d DCA 1967); and Rodriguez v. State, 189 So.2d 656 (Fla. 3d DCA 1966).


text:
    Sydney LEVINE, Appellant, v. Rachel D. LEVINE, Appellee. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Appellant, v. Rachel D. LEVINE, Appellee.
    Nos. 77-1085, 77-2129.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 5, 1978.
    Eleanor Levingston Schockett, Miami, for Sydney Levine; Shutts & Bowen and William J. Kendrick, Miami, for Provident Life, appellants.
    Burton D. Greenfield, Miami, for appel-lee.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See City of Miami v. Spurrier, 320 So.2d 397 (Fla.3d DCA 1975).


text:
    George W. DuBREUIL, Appellant, v. James J. JAMES, Appellee.
    No. 77-1433.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    A. John Goshgarian and Howard J. Hoch-man, Miami, for appellant.
    Papy, DuVal, Poole & Usich and Harvie S. DuVal, Coral Gables, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Owens v. Smith, 154 So.2d 878, 881-882 (Fla.1st DCA 1963).


text:
    The STATE of Florida, Appellant, v. Ethelbert WORRELL, Appellee.
    No. FF-454.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1977.
    Robert L. Shevin, Atty. Gen., Michael H. Davidson, Asst. Atty. Gen., for appellant.
    Ethelbert Worrell, in pro per. and William J. Sheppard, Jacksonville, for appellee.
   UPON MOTION FOR MODIFICATION

PER CURIAM.

Although our per curiam opinion of 18 November 1977, 354 So.2d 989, affirmed the order of the trial court appealed, we did not intend to nor do we affirm the trial court’s disregard of Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967), which we adhere to and which the trial court should have followed. Nevertheless, for other reasons which it is unnecessary that we discuss here, we affirm the order appealed.

McCORD, C. J., arid MILLS and BOYER, JJ., concur.


text:
    John M. WATERS and City of Jacksonville, Appellants, v. W. J. HIERS, Appellee.
    No. FF-466.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1977.
    Rehearing Denied Jan. 12, 1978.

      Dawson A. McQuaig and William Lee Allen, Jacksonville, for appellants.
    Rodney W. Smith, Tallahassee, for appel-lee.
   PER CURIAM.

Appellants contend that the lower court erred in issuing a writ of mandamus directing them to comply with the Jacksonville Civil Service Board’s order. That order required Chief Wilfred Earle of the city’s fire department to be transferred from the Fire Prevention Section of the Department to the Control Section; it was based on a Civil Service Board rule prohibiting cross promotions between the four sections of the Department. We agree with Appellant that the rule did not apply to Chief Earle and reverse. We conceive that the transfer of Chief Earle from Control to Fire Prevention was just that — a transfer — and was not subject to Board approval under the Board’s own Rule 12.2(a).

REVERSED.

McCORD, C. J., BOYER and MELVIN, JJ., concur.


author: SCHEB, Judge.

text:
    Steven Leon BRADSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 77-143.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1977.
    Rehearing Denied Jan. 12, 1978.

      Robert E. Jagger, Public Defender, Clear-water, and J. Marion Moorman, Sp. Asst. Public Defender, Winter Haven, for appellant.
    Ronald M. Soskin, South Bend, Ind., for amicus curiae, Nat. Center for Law and the Handicapped.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Here we consider whether the trial court erred in striking appellant’s asserted defense of diminished mental capacity. We conclude that under Florida law there is no such defense and, therefore, the trial court acted properly. We affirm.

The state charged appellant with receiving and concealing stolen goods, i. e., motor vehicle inspection certificates, contrary to Section 811.16, Florida Statutes (1973). Appellant pled not guilty. Defense counsel contended appellant’s mental age was considerably lower than his chronological age of twenty-three years. Over the state’s objection the trial judge transferred the case to the juvenile division of the circuit court for disposition. Upon appeal by the state this court reversed, noting that Section 39.02, Florida Statutes (1973), and the Rules of Juvenile Procedure do not authorize trial of a person over eighteen years of age as a juvenile. State v. Bradshaw, 337 So.2d 1032 (Fla. 2d DCA 1976).

Thereafter appellant filed: (1) Notice of Intention to Rely Upon the Defense of Diminished Mental Capacity; and (2) Motion to have the Court Appoint a Psychologist to Evaluate Appellant’s Mental Condition. The trial court struck the defense and denied the motion to appoint an expert. Appellant then pled nolo contendere on November 6, 1976, reserving his right to appeal. The trial court withheld adjudication of guilt and placed appellant on probation for one year. This appeal ensued.

Appellant forcefully argues that he was charged with a specific intent crime and that mental retardation or lack of mental capacity goes to the very heart of such an offense. He points out that an individual may not be capable of forming a specific intent to commit a crime because of his diminished capacity, but yet may not be considered insane. Appellant concludes that without the defense of diminished mental capacity being available to him, the jury could not have properly considered whether he had the requisite specific intent necessary for conviction of the crime for which he was charged. We disagree.

The offense of receiving stolen goods is a variant of the crime of larceny and appears to be a specific intent crime. Therefore, it is incumbent upon the state to prove not only the act but also the specific intent, since each element of a criminal offense must be proven beyond a reasonable doubt. Newman v. State, 174 So.2d 479 (Fla. 2d DCA 1965). A defendant’s plea of not guilty places his intent in issue, thus one charged with a specific intent crime has the right to present evidence before the finder of fact relative to the issues of knowledge or intent. Therefore, lay testimony going to a defendant’s lack of specific intent may be admitted. However, it is improper, absent a plea of insanity, for the defendant to introduce expert testimony for this purpose. Tremain v. State, 336 So.2d 705 (Fla. 4th DCA 1976).

In Florida the test of mental capacity is the ability to distinguish between right and wrong, rather than a person’s intelligence or general mental capacity. Young v. State, 140 So.2d 97 (Fla.1962). See also Camp v. State, 149 So.2d 367 (Fla. 2d DCA 1963). Florida courts have rejected the concept of diminished responsibility as a defense to criminal conduct, unless framed within the defense of insanity. Tremain v. State, supra. Here appellant did not choose to tender a defense of insanity and made no showing of being incapable of distinguishing right from wrong. Since retardation or diminished mental capacity does not insulate a defendant from criminal responsibility, the trial court did not err in striking the asserted defense. For courts to allow the proffered defense might open the door to evasion of criminal responsibility by those who know right from wrong. The trial court therefore correctly rejected the proffered defense and appellant’s request to appoint an expert psychologist to support that defense.'

Affirmed.

HOBSON, A. C. J., and GRIMES, J, concur.

      . The state acknowledges and we agree that in extreme cases mental retardation could support a defense of insanity. The standard jury instruction for insanity has been recently modified by the supreme court in In Re Standard Jury Instructions, 327 So.2d 6 (Fla.1976), to read in part as follows:
      If at the time of an alleged crime a defendant was by reason of mental infirmity, disease or defect unable to understand the nature and quality of his act or its consequences or, if he did understand it, was incapable of distinguishing that which is right from that which is wrong, he was legally insane and should be found not guilty by reason of insanity. (Emphasis added.)
      In commenting upon this new instruction, the supreme court in Wheeler v. State, 344 So.2d 244 (Fla.1977) noted that it had adopted the “disease or defect” portion of the American Law Institute’s Model Penal Code, but had rejected the “irresistible impulse” portion of the same Code.


text:
    Howard REIN, Jr., Marion Jennings, J. T. Harper and Pat Bradley, comprising the Civil Service Board of the City of Pensacola, Florida, Appellants, v. Charles H. BLANCHARD, Appellee.
    No. GG-105.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1977.
    Rehearing Denied Jan. 13, 1978.

      Ralph H. Atwell, Pensacola, for appellants.
    Lefferts L. Mabie, Jr., and Louis K. Ro-senbloum of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   PER CURIAM.

By this appeal Howard E. Rein and the other members of the Civil Service Board of the City of Pensacola, Florida seek review of a writ of mandamus entered by a Circuit Judge construing Chapter 63-1775 Laws of Florida, as amended, and commanding the members of said Civil Service Board “to review the circumstances of discharge of petitioner Charles H. Blanchard of the City of Pensacola, Florida, and certify to the Pension Board of the City of Pensacola, Florida, the eligibility of said petitioner for pension benefits for a pension to which his period of service entitled him, effective to the date of said petitioner’s discharge by the Civil Service Board.”

We do not here determine whether or not said act or any amendment thereto is retroactive in application. We do hold, however, that under the facts of this case mandamus does not lie, therefore the peremptory writ here appealed is reversed.

REVERSED.

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.


author: HENDRY, Chief Judge.

text:
    Earl M. THOMPSON, William E. Thompson and James A. Thompson, Appellants, v. B. G. GROSS, Mina C. Gross, Walter C. Ward and Joanna King Ward, Appellees.
    No. 76-1537.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.

      Edward C. Vining, Jr., Miami, for appellants.
    Richard W. Wasserman, Miami Beach, for appellees.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   HENDRY, Chief Judge.

This appeal is taken from a final judgment rendered in favor of appellees/de-fendants and against appellants/plaintiffs in a suit filed by the latter seeking the reformation of a note and mortgage to conform with the provisions of a prior preliminary deposit receipt.

Appellants have raised three points on appeal, none of which we believe warrant reversal of the final judgment.

Firstly, appellants claim as error the learned chancellor’s failure to apply “the rule” (as to the exclusion of witnesses from the courtroom) to appellees’ co-counsel. The exclusion of witnesses from the courtroom is, however, within the sound judicial discretion of the trial court, and unless an abuse of that, discretion is shown, such ruling will not be disturbed on appeal. Beavers v. Conner, 258 So.2d 330 (Fla.3d DCA 1972); 32 Fla.Jur. Trials, § 14 (1960). No abuse of the chancellor’s discretion has been shown.

Appellants’ second point argues that based upon the facts before the chancellor, reformation of the note and mortgage should have been granted. After carefully reviewing the record, however, it is our opinion that there was competent substantial evidence to support the chancellor’s finding that appellants, by their action and inaction, waived their rights, or were es-topped to assert their rights, to have the instruments modified or reformed. The record reveals that appellants accepted the mortgage payments from appellees in the alleged “mistaken” amount for seventeen (17) months before the “mistake” was found. It took appellants another ten (10) months from the time of the discovery to actually institute suit. As such, there was no error in denying reformation on the basis of either estoppel or waiver. See generally 5 Fla.Jur. Cancellation, Reformation, and Rescission of Instruments, §§ 42, 43 (1955).

Appellants lastly contend that the chancellor erred in allowing appellees to amend their answer to conform with the evidence, to reflect the affirmative defenses of estoppel, waiver and laches. We disagree, for Fla.R.Civ.P. 1.190(b) provides for the amending of pleadings to conform with the evidence in those situations when issues not raised by the pleadings are tried by either the express or implied consent of the parties. Sub judice appellants neither objected to any testimony elicited by appellees during the course of the trial aimed at establishing the various affirmative defenses nor effectively showed where such amendment had prejudiced them in maintaining their law suit. See Trawick’s Florida Practice and Procedure, § 14-6 (1977).

Accordingly, after carefully reviewing the record, briefs, and arguments of counsel, it is our opinion that the final judgment appealed from must be, and is hereby, affirmed.

Affirmed.


text:
    Ellen ROZIER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1757.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender and Randolph Ferguson, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen. and Lonworth Butler, J., Legal Intern, for appellee.
    Before HENDRY, C. J., HAVERFIELD, J., and DREW, E. HARRIS, (Ret.), Associate Judge.
   PER CURIAM.

Defendant, Ellen Rozier, presents two points on appeal of her conviction and sentence for manslaughter.

Only one point has merit, to wit: the trial court erred in sentencing her to five years imprisonment and then invoking Section 775.087(2), Florida Statutes (1975) by further ordering that she shall not be eligible for parole until she has served three calendar years of the sentence.

Manslaughter for which defendant was convicted clearly is not one of the crimes specified in Section 775.087(2), Florida Statutes which provides for a mandatory three year sentence upon conviction of the offenses listed therein when a firearm is used. Brewer v. State, 343 So.2d 628 (Fla. 4th DCA 1977); Biles v. State, 349 So.2d 662 (Fla. 4th DCA 1977).

Accordingly, the provision of the sentence requiring a minimum sentence of three years during which defendant would not be eligible for parole is hereby stricken. The judgment and sentence of the trial court are affirmed in all other respects.


text:
    Eddie Lee McCARTHY, as Administrator of the Estate of Edith Marie McCarthy, Deceased, etc., Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida d/b/a Jackson Memorial Hospital, Appellee.
    No. 76-2111.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.

      Ser, Keyfetz, DeCardenas & Levine and Edward P. Busch, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Henry Burnett, Miami, for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Adams Engineering Co. v. Construction Products Corp., 156 So.2d 497 (Fla.1963); St. Anne Airways Corp. v. Larotonda, 308 So.2d 129 (Fla.3d DCA 1975); Reddish v. Forlines, 207 So.2d 703 (Fla.1st DCA 1968); and Fla.R.Civ.P. 1.420(e).


text:
    Donald LANE, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2134.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., and Edwin D. Davis, II, Legal Intern, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

Donald Lane appeals his conviction for robbery, loitering and prowling.

Defendant first urges as reversible error the court’s denial of his motion to suppress his confession on the ground it was involuntary as he was under the influence of drugs at the time.

The determination of the issue of the voluntariness of a confession is for the trial court whose province it is to adjudge the credibility of the witnesses and the weight of the evidence. Von Horn v. State, 334 So.2d 43 (Fla. 3d DCA 1976). This determination must be supported by substantial competent evidence. Melero v. State, 306 So.2d 603 (Fla. 3d DCA 1975). After reviewing the record, we find that there was competent substantial evidence to sustain the trial court’s conclusion that defendant’s confession was freely and voluntarily given and he knowingly waived his constitutional rights. In fact, defendant’s written confession reflects that he was in complete control of his mental faculties at the time he wrote it.

Defendant next contends that the prosecutor in opening argument and a prosecution witness made statements which allegedly alluded to the fact that he had remained silent when he was first detained by the police and questioned about the robbery.

Although at first glance it appears that these statements made reference to defendant’s exercising his right to remain silent, when viewed and read in their proper context, it becomes readily apparent that these remarks were referring to defendant’s exculpatory statements denying any participation in the robbery.

Defendant’s last point is based upon allegedly improper prosecutorial comments made during opening argument.

We note that defense counsel failed to object to these comments and, therefore, this point should not be considered on appeal. See Thomas v. State, 326 So.2d 413 (Fla.1975). We further find the statements were proper as a prosecutor may outline the facts which he, in good faith, expects to prove and which are competent for him to prove. See Paul v. State, 209 So.2d 464 (Fla. 3d DCA 1968).

Affirmed.


text:
    Patricia GOLSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2136.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Johnson v. State, 308 So.2d 38 (Fla.1975); State v. Terry, 336 So.2d 65 (Fla.1976).


text:
    Harry J. JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2153.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Rubiera v. Dade County, 305 So.2d 161 (Fla.1974); Brown v. State, 328 So.2d 497 (Fla.3d DCA 1976).


text:
    W. W., T. S., and M. P., juveniles, Appellants, v. The STATE of Florida, Appellee.
    No. 77-634.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See: Padron v. State, 153 So.2d 745 (Fla.3d DCA 1963); Wetherington v. State, 263 So.2d 294 (Fla.3d DCA 1972); Byrd v. State, 297 So.2d 22 (Fla.1974).


text:
    Richard KANNER, Appellant, v. Melvyn B. FRUMKES, as Chairman, Eleventh Circuit Judicial Nominating Commission, Appellee.
    No. 77-798.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.

      William J. Brown, Miami, for appellant. Robert L. Shevin, Atty. Gen. and Joseph W. Lawrence II, Asst. Atty. Gen., Tallahassee, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

This is an appeal from an order dismissing a complaint for declaratory judgment seeking a determination of whether Section 286.011, Florida Statutes (1975), the Government in the Sunshine Law, is applicable to the Judicial Nominating Commission of the Eleventh Judicial Circuit.

The basic issue raised is whether the function of judicial nominating commissions is an executive one which cannot be limited by legislative act. We find this issue was resolved by our Supreme Court in In Re Advisory Opinion to Governor, 276 So.2d 25, 29-30 (Fla.1973):

“[2] The appointment of a judge is an executive function and the screening of applicants which results in the nomination of those qualified is also an executive function. It is the prerogative of the Legislature to provide for the number of persons to serve on each judicial nominating commission and the method of their selection. Once the judicial nominating commissions have been established by the Legislature they become a part of the executive branch of government. The function of the commissions being inherently an executive function, such cannot be limited by legislative action.”

Our Supreme Court further held in the case that the power and duty for promulgating rules of procedure for their hearings and findings (independent of any of the three standard recognized divisions of state government), must rest with the members of the commission. In re Advisory Opinion, supra, at 30-31.

The function of the judicial nominating commissions being executive in nature and the mandate therefor coming from the Florida Constitution, not from the legislature, the governor or the judiciary, it is clear that these commissions are not subject to Section 286.011, Florida Statutes (1975).

Affirmed.

      . “286.011 Public meetings and records; public inspection; penalties
      “(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meeting.”

      . Article V, Section 11(d), Florida Constitution (1976).


text:
    Louise Marie THOMPSON, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF SOCIAL AND ECONOMIC SERVICES, Appellee.
    No. 77-987.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.

      Irene Redstone and Bruce M. Boiko, Miami, for appellant.
    Roger J. Schindler, Miami, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   NATHAN, Judge.

This is an appeal from a summary dismissal of her petition to regain custody by the natural mother of two minor children who were permanently committed to the state’s care. Appellant did not appeal the original order of permanent commitment when it was entered in 1974. The sole question on appeal is whether the trial court correctly construed the provisions of Section 39.11(6), Florida Statutes (Supp.1977).

This section provides, in pertinent parts, that a permanent order of commitment “shall permanently deprive the parents . of any right to the child,” and that, once an order of permanent commitment has been entered, “the court shall no longer exercise jurisdiction over the child. . ."

Appellant contends that the statute, read as a whole, contemplates adoption as the reason for requiring finality of commitment procedures, and that where adoption proceedings have not been instituted, the statute should not preclude the court from hearing the natural parent’s petition to regain custody. She contends that unless she is allowed to re-open the original proceedings, she will have no avenue by which to seek permission to regain custody of her children.

We disagree, and affirm the ruling of the court below. Any rights the natural mother may have had to the children have been permanently lost. To allow final proceedings to be re-opened by means other than a proper appeal of the original order would be to wrench from the word “permanent” its intended meaning in this statute.

But this does not preclude her from establishing new rights through independent adoption proceedings. Once an order of permanent commitment is entered, the Division of Family Services stands in the shoes of the natural parents. Although the statute deprives the court of further jurisdiction over the child as far as the commitment proceedings are concerned, it has no effect on the Circuit Court’s jurisdiction over adoption proceedings. Thus appellant may petition the Circuit Court, as anyone else, for the right to adopt the children, and appropriate means are available for a complete review of her petition.

Affirmed.


author: KEHOE, Judge.

text:
    The MEADOWS OF BEAUTIFUL BRONSON, INC., a Florida Corporation, Appellant, v. E. G. L. INVESTMENT CORP., a Florida Corporation and Eric Lifschutz, jointly and Individually, Appellees.
    Nos. 77-1035, 77-1074.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Rehearing Denied Feb. 8, 1978.
    Levine, Reckson & Reed, Miami, for appellant.
    Burton B. Loebl, North Miami Beach, and Michael L. Lechtman, Miami, for appellees.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant brings these consolidated interlocutory appeals from an order dated May 4,1977, entered by the trial court denying a motion to dismiss the amended complaint of appellees, plaintiffs below. For the reasons set forth below, we are of the opinion that appellant’s motion to dismiss should have been granted; therefore, the order appealed is reversed.

Appellees are two of eight parties, collectively called FISCO, who entered into a written brokerage agreement with appellant for the sale of its Florida realty. Ap-pellees sued appellant for among other things, money damages alleging in an amended complaint the breach of the brokerage agreement. The other six members of the FISCO group were not joined in this suit. Appellees alleged that only they, as licensed brokers, had the right and obligation to sell and receive commissions for the sale of appellant’s realty under the brokerage agreement and that the other six members of FISCO signed the agreement merely as guarantors.

Thereafter, appellant filed a motion to dismiss the amended complaint for, among other reasons, appellees’ failure to comply with the Florida real estate laws. Appellant asserted in its motion that appellees failed to allege that they or all members of FISCO were licensed brokers or salesmen at the time the services under the agreement were rendered. Appellant also asserted that appellees failed to allege the registration of the name FISCO with the Florida Real Estate Commission or that the name was placed on their registration certificates at the time the services were rendered. Appellant’s motion to dismiss the amended complaint was denied and these consolidated interlocutory appeals followed.

Appellant contends, among other things, that the trial court erred in denying the motion to dismiss the amended complaint because appellees did not allege compliance with the registration requirements of the Florida real estate license laws, although they are seeking real estate brokerage commissions.

Our review of the agreement, herein under contention, reveals that all members of the FISCO group contracted to engage in and control the selling, marketing, advertising, and servicing of appellant’s Florida realty. Thus, the agreement required by its terms the rendition of real estate brokerage services in Florida by ap-pellees with others who were neither licensed nor registered real estate brokers or salesmen in Florida. Such a contract is, as a matter of public policy, void and unenforceable. Bradley v. Banks, 260 So.2d 256 (Fla.3d DCA 1972); Harris v. McKay, 176 So.2d 572 (Fla.3d DCA 1965); Pokress v. Tisch, 153 So.2d 346 (Fla.3d DCA 1963); and Sections 475.01 and 475.41, Florida Statutes (1975). Furthermore, appellees have not alleged that they, all other members of FISCO, and FISCO itself, were licensed and registered brokers at the time of the rendition of the services under the agreement. Such an allegation is essential to the validity of appellees’ complaint. Fort Orange Company v. O’Neal, 138 Fla. 325, 189 So. 685 (Fla.1939); Geneva Invest. Ltd. v. Trafalgar Developers, Ltd., 274 So.2d 581 (Fla.3d DCA 1973); Boca Raton Housing Association, Inc. v. Marqusee, 177 So.2d 370 (Fla.3d DCA 1965); and Sections 475.01 and 475.41, Florida Statutes (1975).

For the reasons set forth above, the order dated May 4, 1977, entered by the trial court denying appellant’s motion to dismiss appellees’ amended complaint is reversed. In light of this decision, it is unnecessary for us to discuss the other points raised on appeal by appellant.

Reversed.

NATHAN, J., dissents.


text:
    CITY OF HIALEAH GARDENS, a Municipal Corporation, Petitioner, v. Jose PRIETO, Jr. and Department of Commerce, Division of Employment Security, Respondents.
    No. 77-1120.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.

      Wepman & Wepman, Miami, for petitioner.
    Kenneth H. Hart, Jr., Tallahassee, James R. Parks, Miami, for respondents.
    Before HENDRY, C. J., and HAVER-FIELD, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

Petitioner employer appeals an order of the Industrial Relations Commission which affirmed the decision of the appeals referee that petitioner’s former employee is entitled to unemployment compensation benefits because he was discharged from his job.

Jose Prieto, Jr. was employed by the City of Hialeah Gardens as a police officer. A dispute arose between them and he was suspended. He was then advised that a hearing on this matter would be held pursuant to Section 112.531, Florida Statutes (1975). However, prior to the hearing, Prieto and the chief of police reached an agreement whereby Prieto would receive a letter of commendation in exchange for his resignation. The letter was offered and Prieto orally resigned. Shortly thereafter Prieto filed suit in the circuit court seeking to enjoin the City of Hialeah Gardens from violating his rights under Section 112.531, Florida Statutes (1975) and praying that he be reinstated. The cause was heard and the chancellor entered final judgment for the City based upon the finding that Prieto orally resigned his position. Prieto then filed for unemployment compensation benefits. The claims examiner disqualified him because he had resigned. Prieto appealed and the appeals referee reversed the disqualification determination of the claims examiner and found that Prieto was discharged. The City appealed the referee’s decision to the Industrial Relations Commission which entered an order affirming that decision. The City filed the instant petition for certiorari seeking review of this order. We reverse.

This cause is a classic example of when the doctrine of estoppel by judgment is to be applied. The equitable doctrine of estoppel by judgment precludes the parties from litigating in a second suit, issues which were actually decided in a previous suit even though the causes of action are different. See Gordon v. Gordon, 59 So.2d 40 (Fla.1952); Smith v. Florida East Coast Railway Company, 151 So.2d 70 (Fla. 3d DCA 1963); Hohweiler v. Hohweiler, 167 So.2d 73 (Fla. 2d DCA 1964).

As of necessity the issue of whether Prieto resigned or was discharged had and was litigated in the suit he brought in the circuit court. In that action the chancellor found that he, in fact, resigned. Thus, Prieto was precluded from litigating this same issue in the unemployment compensation proceedings. Accordingly, the Industrial Relations’ order affirming the decision of the appeals referee is reversed and the cause is remanded to the commission to enter an order reinstating the determination of the claims examiner that Prieto resigned and, therefore, is disqualified from receiving unemployment compensation benefits.

Certiorari granted.

      . Police Officers’ Bill of Rights.


text:
    Robert James JABBOUR, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1513.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Joseph Mincberg, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The trial judge sentenced Robert James Jabbour to three years incarceration to be followed by seven years probation, which is in excess of the five year maximum sentence permissible for the offense of sale of marijuana. Florida courts have held such sentences to be excessive. Moore v. State, 324 So.2d 690 (Fla. 1st DCA 1976); Watts v. State, 328 So.2d 223 (Fla. 3d DCA 1976); Magnin v. State, 334 So.2d 638 (Fla. 2d DCA 1976); Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977); Holmes v. State, 343 So.2d 632 (Fla. 4th DCA 1977); Sherman v. State, 344 So.2d 870 (Fla. 4th DCA 1977); Walker v. State, 345 So.2d 780 (Fla. 4th DCA 1977); Wright v. State, 345 So.2d 782 (Fla. 4th DCA 1977).

The sentence provides that Jabbour serve the three years imprisonment “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for imprisonment at hard labor as a sentence for any offense. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975); Lucas v. State, 350 So.2d 32 (Fla. 2d DCA 1977).

Therefore, the sentence is modified to the extent that the language “at hard labor” is stricken, and the probationary term is reduced to two years in accordance with the requirements of law. The other points raised on this appeal have been considered and are without merit. The judgment and the sentence, as modified, are

Affirmed.


text:
    Walter Lee ALLS, a minor, by his father and next friend, Monroe Alls, and Monroe Alls, Individually, Plaintiffs, v. 7-ELEVEN FOOD STORES, INC., and Crystal Springs Water Company, a division of Borden, Inc., Defendants.
    No. 77-2325.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.

      Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, Gaine & Gaine, Miami, for plaintiffs.
    Adams, George, Schulte & Ward, Miami, for defendants.
    Before NATHAN, HUBBART and KE-HOE, JJ.
   PER CURIAM.

A judge of the circuit court for the Eleventh Judicial Circuit of Florida has certified a question of law to this court pursuant to Fla.App. Rule 4.6, to wit:

“Whether a defendant against whom a default judgment has been entered may assert non-liability by means of a liability defense which has been the basis of the entry of a summary judgment in favor of a separate defendant, not in default, and when the defense is the total negligence of the plaintiff as the sole proximate cause of the accident?”

In common with many legal issues, the question as certified is a difficult one but not without controlling precedent in this state. Where there is such controlling precedent, this court lacks jurisdiction to entertain the certified question and must respectfully decline to answer it. See: Schwob Co. of Florida v. Florida Industrial Commission, 152 Fla. 203, 11 So.2d 782, 783 (1942); State v. Vernon, 289 So.2d 754 (Fla. 2d DCA 1974); Reaves v. L. W. Rozzo, Inc., 286 So.2d 221 (Fla. 4th DCA 1973).

Certified question denied.


text:
    Stephen MUSS, Individually and as Executor of the Estate of Alexander Muss, Deceased, Appellant, v. Charles H. ROSENBERG, Appellee.
    No. 77-2462.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Lapidus & Hollander, Miami, for appellant.
    Shevin, Shapo & Shevin, Richard Morton, Miami, for appellee.

      Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

The appellee filed a matter sounding in equity seeking, among other things, to enjoin the appellant from further distribution of assets of an alleged partnership to himself or his assigns.

A temporary injunction without notice and without bond was entered by the trial judge. Thereafter, the matter came on to be heard on a motion to dissolve, based principally upon the failure of the plaintiff to post an injunction bond. Following a hearing, the trial court denied the motion to dissolve and this interlocutory appeal ensued.

The appellant made an application for constitutional stay writ. Following oral argument thereon, the court announced it would determine the matter on the merits pursuant to Florida Appellate Rule 4.5 g(2).

The original complaint did not seek a temporary injunction without bond. There was no evidence submitted nor finding made by the trial judge that the original plaintiff did not have sufficient assets to post a bond. See: Fla.R.Civ.P. 1.610(b). Therefore, under a long line of authorities, the trial judge erred in refusing to dissolve the injunction. Ginsberg v. City of Daytona Beach, 103 Fla. 168, 137 So. 253 (1931); Hart v. Kapnias, 157 Fla. 846, 27 So.2d 145 (1946); Belk’s Department Store, Miami, Inc. v. Scherman, 117 So.2d 845 (Fla. 3d DCA 1960); Metropolitan Dade County v. Polk Pools, Inc., 124 So.2d 737 (Fla. 3d DCA 1960); Tampa Port Authority v. Deen, 179 So.2d 416 (Fla. 2d DCA 1965); Hoffman v. White, 235 So.2d 43 (Fla. 4th DCA 1970); Leopold v. Richard Bertram & Co., 265 So.2d 710 (Fla. 3d DCA 1972); Byrne v. Rec Centers, Inc., 309 So.2d 177 (Fla. 4th DCA 1975); La Gran Familia, Inc. v. Cuba Pharmacy, Inc., 349 So.2d 769 (Fla. 3d DCA 1977); Crow, Pope & Carter, Inc. v. James, 349 So.2d 827 (Fla. 3d DCA 1977).

For the reasons above stated, the order denying the motion to dissolve is reversed, with directions to dissolve the temporary injunction issued without bond.

Reversed with directions.

      . In fact, in the order denying the motion to dissolve, the trial judge initialed and crossed out the following:
      # sfc * * * #

        “ * * * the plaintiff does not have the monies available to post bond * * * ”


text:
    NEW MAGNOLIA BAPTIST CHURCH, INC. OF BRANFORD, Appellant, v. Frank ELLERKER, Cynthia Ellerker, and Elsie Birch, Appellees.
    No. EE-266.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1977.
    Rehearing Denied Jan. 12, 1978.

      William R. Slaughter, II of Slaughter & Slaughter, Live Oak, for appellant.
    John F. Roscow, III of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Helpling & Young, Gainesville, for appel-lees.
   PER CURIAM.

This case involves a dispute between two factions of a congregational, as distinguished from a hierarchical church. (See Baldwin v. Mills, 344 So.2d 259 (Fla. 1st DCA 1977) and cases therein cited) Although civil courts may not constitutionally delve into matters of an ecclesiastic nature they have the right, indeed the duty, of applying and enforcing sterile principles of property law. (Baldwin v. Mills, supra).

The law is also well settled that it is the obligation of an appellate court to approve and affirm a final judgment of a trial court which achieves a correct result even though the basis or reasoning applied by the trial court is erroneous. (Jones v. Dove, 300 So.2d 758 (Fla. 1st DCA 1974)).

Sub judice, we agree with appellant that the basis announced by the learned trial judge for the conclusion reached in the final judgment here appealed is incorrect; however, the result we find to be in accordance with the evidence and applicable law.

The resolution to incorporate approved by a majority of the congregation of the unincorporated church does not clearly reveal (does not prove by a preponderance of the evidence) an intent to authorize the trustees of the unincorporated church to convey the church property to the corporation which was belatedly formed. Accordingly, there is insufficient basis in the record to validate the conveyance by the church trustees (assuming arguendo that they enjoyed the status as trustees on the date they executed the purported deed, such status being in dispute but unnecessary for us to resolve) to the corporation, appellant here. Therefore, applying sterile principles of law, we conclude that the learned trial judge did not err in the result achieved by the final judgment here appealed.

AFFIRMED.

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


text:
    Charles SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 77-772.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant/defendant contends the trial court erred in excluding the testimony of a defense witness whose name was not included on the witness lists exchanged pursuant to Fla.R.Crim.P. 3.220 without first making an adequate inquiry into all the surrounding circumstances.

The defendant was tried by a jury on a charge of aggravated assault. At trial the defense called Mrs. Jeannette Smith as a witness. Her name had not been included on the witness list provided to the state pursuant to Fla.R.Crim.P. 3.220. The prosecutor pointed out the failure of the defense to disclose this witness to the state, and defense counsel candidly admitted that he had inadvertently failed to include Mrs. Smith on the witness list. The state objected to allowing this witness to testify. The defense made no proffer of the witness’ testimony, and without further inquiry into the circumstances surrounding the failure to comply with the rule the court sustained the state’s objection.

Fla.R.Crim.P. 3.220 provides that the trial court has the discretion to exclude witnesses not included on the witness lists. However, the Supreme Court of Florida has held that this discretion may be exercised only after the court has made an adequate inquiry into all of the surrounding circumstances, and failure of the trial court to inquire into these circumstances constitutes error. Bradford v. State, 278 So.2d 624 (Fla.1973); Richardson v. State, 246 So.2d 771 (Fla.1971). The inquiry should at least cover whether the violation was inadvertent or willful, whether it was trivial or substantial, the extent of prejudice to the state, and the feasibility of rectifying any prejudice by some means short of excluding the witness. Bradford, supra; Williams v. State, 264 So..2d 106 (Fla. 4th DCA 1972).

The importance of the omitted witnesses should also, we feel, be taken into consideration.

We therefore hold that the trial court abused its discretion in excluding Mrs. Smith’s testimony without first inquiring into all the surrounding circumstances. The failure of the trial judge to make such inquiry, however, does not require vacation of the judgment and sentence at this time. Barnes v. State, 294 So.2d 679 (Fla. 2d DCA 1974).

Accordingly, we temporarily relinquish jurisdiction of the cause to the trial court for a period of 45 days from the date of issuance of our mandate. The trial court shall hold a hearing inquiring into the circumstances surrounding defense counsel’s failure to comply with Fla.R.Crim.P. 3.220. The court shall enter an order stating its findings and ruling on whether the state’s objection at trial was well taken. Thereafter, within the said 45-day period, the court shall transmit to this court a transcript of the hearing, and a certified copy of its findings and ruling on the state’s objection. We will thereafter give further consideration to the question raised by this appeal.

GRIMES, Acting C. J., and DANAHY, J., concur.

      . Fla.R.Crim.P. 3.220 provides in pertinent part as follows:
      (a)(1) After the filing of the indictment or information, within fifteen days after written demand by the defendant, the prosecutor shall disclose to defense counsel the following information . . . within
      the State’s possession or control:
      (i) The names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto.
      * * * * * *
      (b)(3) Within seven days after receipt by defense counsel of the list of names and addresses furnished by the prosecutor pursuant to Section (a)(l)(i) of this Rule the defense counsel shall furnish to the prosecutor a written list of all witnesses whom the defense counsel expects to call as witnesses at the trial or hearing.
      * 5(5 * * * *
      (f) Continuing Duty to Disclose. If, subsequent to compliance with the rules, a party discovers additional witnesses or material which he would have been under a duty to disclose or produce at the time of such previous compliance, he shall promptly disclose or produce such witnesses or material in the same manner as required under those rules for initial discovery.

      . Fla.R.Crim.P. 3.220(j)(l) provides:
      If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order such party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.


author: RAWLS, Judge.

text:
    R. Bartow RAINEY, Velma C. Rainey, J. Howard Nichols and Barbara Ann Nichols, Petitioners, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. FF-73.
    District Court of Appeal of Florida, First District.
    Dec. 27, 1977.

      Edgar M. Moore of Smith & Moore, Tallahassee, for petitioners.
    Robert L. Shevin, Atty. Gen., Edwin J. Stacker, Asst. Atty. Gen., John D. Moriarty, Tallahassee, for respondent.
   RAWLS, Judge.

Petitioners seek review of an order of the Department of Revenue assessing $2,700 as delinquent documentary stamp taxes on an instrument entitled “Amendment to Note and Mortgage” plus a penalty in like sum for a total amount of $5,400.

In November of 1973 petitioners executed a promissory note in favor of Commonwealth Corporation in the sum of $1,800,000 secured by a mortgage on real property located in Leon County, Florida. The note provided for monthly interest payments at varying rates as determined by a formula set forth in the note. The principal was due on or before November 1975. Documentary stamps in the proper amount were affixed to the note and canceled. The note was assigned by Commonwealth Corporation to Schumacher Mortgage Company, Inc., a Delaware corporation. In May of 1975 petitioners, makers of the note, executed a written instrument entitled “Amendment to Note and Mortgage” which provided, inter alia, that:

“The designation of the holder (or payee) of said promissory note is amended to read — ‘SCHUMACHER MORTGAGE COMPANY, INC., Memphis, Tennessee’. The principal sum of said note is amended to read — ‘$1,850,000.00’. The interest rate specified in said note and the repayment provisions are amended to read as follows ‘This note will bear interest at the rate of eleven 11% percent per annum. Said principal and interest to be paid as follows: Interest shall be paid monthly on the unpaid balance and shall be calculated on the basis of a 365 day year. Principal and any unpaid interest shall be declared payable on or before May 1, 1977.”

It was further provided in said instrument that an additional provision be added to and made a part of the subject promissory note as follows:

“At the option of the maker, and upon payment of the sum of $18,500.00 on or before the due date, the term of this note may be extended for a period of one year and shall then be due on or before May 1, 1978.”

The instrument also provided that except as therein modified, the terms and conditions of the original promissory note and mortgage should remain unchanged and in full force and effect.

Petitioners paid $75.00 in documentary stamp tax representing the amount due on the $50,000 difference between the amount of the original note and the amended principal as reflected by the amendment.

On October 13, 1975 respondent Department of Revenue issued a proposed notice of assessment of tax and penalty against petitioners in the sum of $2,700 for documentary stamp tax alleged to be due under F.S. 201.08 plus a penalty of like amount pursuant to F.S. 201.17. An administrative hearing was held pursuant to F.S. 120.57. The hearing officer filed a recommended order concluding that neither the tax nor the penalty was properly assessed, concluding that the Amendment to the Note and Mortgage, although a contract, did not manifest any intention to discharge the original promissory note nor otherwise constitute a new promise to pay the original sum and that it was a written obligation to pay only insofar as the additional sum of $50,000 was concerned. The Department took exception to the hearing officer’s recommended order and entered a final order upholding the validity of its original assessment. Thereafter the Governor and Cabinet rejected the hearing officer’s proposed order and approved the order of the Department.

The Department seeks to rely on a prior decision of this court, State Department of Revenue v. McCoy Motel, Inc., 302 So.2d 440 (Fla. 1st DCA 1974). However, that case deals with a wrap-around mortgage in which a subsequent note was given in regular form for an amount greater than the first note with the holder of the second note agreeing to make payments under the first one. The note involved in that case, which we held to be subject to the tax, contained all of the requisites of a promissory note, specifically a promise to pay. The instrument upon which the Department seeks to impose the tax in the case sub judice contains no promise to pay. Indeed, it contains no promises at all. As the hearing officer stated, the clear language of the instrument reveals only the intent of the parties to amend the pre-existing obligation to pay.

In Maas Brothers, Inc. v. Dickinson, 195 So.2d 193 (Fla.1967), cited and relied upon by both parties, the Supreme Court of Florida said:

“In the same vein, it might be added that the marking and branding of the instruments to be taxed is a legislative function. The judicial function is to inspect disputed brands and to separate the taxable from the non-taxable, and if the instruments such as the one we are here concerned with are unbranded mavericks, the taxing authority must look to the legislature to brand them taxable; not this Court.” (195 So.2d at page 197)
“ * * * It is a fundamental rule of construction that tax laws are to be construed strongly in favor of the taxpayer and against the government, and that all ambiguities or doubts are to be resolved in favor of the taxpayer. This salutary principle is found in the reason that the duty to pay taxes, while necessary to the business of the sovereign, is still a duty of pure statutory creation and taxes may be collected only within the clear definite boundaries recited by statute, State ex rel. Seaboard Air Line R. Co. v. Gay (1948) 160 Fla. 445, 35 So.2d 403; 51 Am.Jur. Taxation Section 650.” (195 So.2d at page 198)

In accordance with the recitations above quoted we have carefully examined the instrument upon which the taxes sought to be imposed in the light of the specific wording of F.S. 201.08 in order to determine whether the instrument is “within the clear definite boundaries recited by the statute.” We find that it is not. The material portion of the statute provides as follows:

“On promissory notes, negotiable notes, written obligations to pay money, * * the tax shall be 15 cents on each $100 or fraction thereof. * * * ”

It is readily apparent that the subject instrument is not a note of any kind.

The fact that the subject instrument recited that the designation of the holder or payee was amended to read “Schumacher Mortgage Company, Inc.,” is of no materiality since the same legal effect had already been accomplished by the assignment from the original payee.

The order of respondent here reviewed imposing the documentary stamp tax and penalty is quashed.

IT IS SO ORDERED.

McCORD, C. J., and MELVIN, J., concur.


text:
    Donald S. CREWS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1726.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Jack R. Nageley, Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Donald Crews seeks reversal of his conviction for robbery following a jury trial and first urges as reversible error the denial of his motion for mistrial after the prosecution allegedly introduced evidence of another crime for which he was acquitted.

Defendant in the instant case was charged with the robbery of a 7-11 Store on July 18,1975 located in the same vicinity of a Lil’ General Store which was robbed at about the same time on the same date. Defendant was charged with the robbery of the Lil’ General Store and was acquitted. During his trial for the 7-11 Store robbery, the prosecutor asked Detective Cameron the following question:

******
“Q Did you have occasion, sir, to become involved in the investigation of a robbery that occurred at the Lil’ General Store out on West Dixie Highway?
“A Yes, sir.”
******

Defense counsel objected and moved for a mistrial. A sidebar conference was held at which the prosecutor explained that he meant to say 7-11 Store instead of Lil’ General Store and requested that he be allowed to reask the question, this time using 7-11 Store instead of Lil’ General Store. The motion for mistrial was denied and Detective Cameron was admonished by the trial judge not to mention anything in regard to the Lil’ General Store robbery. The prosecutor then questioned Detective Cameron:

******
“Q (By Mr. Godwin) Let me ask you this question again: In the course of your official capacity, did you become involved in the investigation of a robbery in North Miami at a 7-11 Store?”
sje s(: ijs * * *

The defendant contends that the above question indicated to the jury that he was involved in the robbery of the Lil’ General Store resulting in reversible error since he had been acquitted with respect to that robbery. We find this contention amounts to pure speculation or mere conjecture upon which reversible error cannot be predicated. See Sullivan v. State, 303 So.2d 632 (Fla.1974); Hutchins v. State, 334 So.2d 112 (Fla.3d DCA 1976). We conclude likewise on defendant’s same contention with regards to the isolated respective references of two other witnesses as to “two robberies” and “two stores”.

We also examined defendant’s second contention of insufficiency of the evidence and have determined that it is without merit in that an eyewitness to the robbery positively identified the defendant.

Affirmed.


text:
    Willie James COVINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1713.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Equiroz and Jose P. Rodriguez, Asst. Attys. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   HENDRY, Chief Judge.

Appellant, defendant below, was charged by information with uttering a forged instrument, forgery, grand larceny, and buying, receiving or concealing stolen property. A plea of guilty to uttering a forged instrument was entered at arraignment and the state abandoned the remaining charges. The trial court withheld adjudication and placed appellant on probation for a period of two (2) years, whereupon, this appeal has been taken.

In seeking reversal, appellant has raised two points on appeal, only one of which we need discuss, to wit: whether the trial court erred in accepting a guilty plea from appellant when the record reflects that appellant had not been properly advised of his right to counsel prior to the acceptance of said plea. After carefully reviewing the record, briefs and argument of counsel, it is our opinion that the trial court did so err, requiring reversal.

Fla.R.Crim.P. 3.111(d)(2) provides that: “A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into accused’s comprehension of that offer and his capacity to make that choice intelligently and understandingly has been made.”

In that appellant was not properly informed of the availability of a court appointed attorney upon a showing of indigency, no knowing and intelligent waiver of his sixth amendment right to counsel was made. Mason v. State, 176 So.2d 76 (Fla.1965); Simmons v. State, 175 So.2d 215 (Fla. 3d DCA 1965); French v. State, 161 So.2d 879 (Fla. 1st DCA 1964).

Accordingly, the judgment of the trial court must be reversed and remanded for further proceedings.

Reversed and remanded.


text:
    John H. GOODMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1761.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Edwin D. Davis, II, Legal Intern, for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed. See United States v. Resnick, 483 F.2d 354 (5th Cir. 1973).


text:
    Roy Allen FALIN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2156.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Grusmark, Jaffe & Karten, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Lorenzo v. Blackburn, 74 So.2d 289 (Fla.1954); Ballengee v. State, 144 So.2d 68 (Fla. 3d DCA 1962); Brizzie v. State, 120 So.2d 27 (Fla. 2d DCA 1960).


text:
    Leon Charles BACKUS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2297.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Alvin E. Entin, Miami, Manuel W. James, Key West, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Equiroz and Jose Rodriguez, Asst. Attys. Gen., for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965); Zicca v. State, 232 So.2d 414 (Fla. 3d DCA 1970); Heineman v. State, 327 So.2d 898 (Fla. 3d DCA 1976); United States v. Aranda, 457 F.2d 761 (9th Cir. 1972); United States v. Ramirez-Valdez, 468 F.2d 235 (9th Cir. 1972).


text:
    The STATE of Florida, Appellant, v. Christopher JOHNSON, a/k/a Christopher Porter, Appellee.
    No. 76-2384.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Richard E. Gerstein, State Atty., and Dennis L. Curran, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

The defendant-appellee confessed that the trial court erred in entering an order granting his oral motion for relief under Fla.R.Crim.P. 3.850, which vacated his judgment and sentence. Therefore, the order is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    Reynaldo GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-916.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    J. Edward Worton, Key West, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy and Jose R. Rodriguez, Asst. Attys. Gen., for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Holman v. State, 347 So.2d 832 (Fla. 3d DCA 1977).


text:
    Jane Ellen RUTKIN, Appellant, v. Burton RUTKIN, Appellee.
    No. 77-970.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Wolf & Schoninger and Steven M. Siegfried, Miami, for appellant.
    Evelyn Langlieb Greer, Miami, for appel-lee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Bergh v. Bergh, 127 So.2d 481, 486 (Fla. 1st DCA 1961); Lyon v. Lyon, 54 So.2d 679, 680 (Fla.1951); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    Carl JENKINS, Appellant, v. ALLSTATE INSURANCE COMPANY and Hartford Insurance Company, Appellees.
    No. 77-1344.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Chambers & Hayes, Homestead, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Sanchez v. Vigilant Insurance Company, 345 So.2d 396 (Fla. 3d DCA 1977); Government Employees Insurance Company v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977).


author: RYDER, Judge.

text:
    James BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1547.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.

      Braxton R. Ezell, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant Brown was charged by information with two counts of aggravated battery, each occurring separate from the other. The information alleged further that a pistol was used in the course of each distinct crime.

Appellant voluntarily entered a guilty plea to each charge. The transcript of the plea and sentencing hearing clearly reflects that the trial judge desired to sentence appellant to concurrent three-year terms, but he interpreted Section 775.087, Florida Statutes (1975) as mandating consecutive sentences. The trial judge also opined that the same statute prohibited appellant from receiving credit for time served. Appellant reserved the right to appeal and argues that Section 775.087, Florida Statutes (1975) does not prohibit either concurrent sentencing or the granting of credit for time previously served. We agree.

Section 775.087(2), Florida Statutes (1975) reads in part, “Any person who is convicted of any . . . aggravated battery . who had in his possession a ‘firearm’ . shall be sentenced to a minimum term of imprisonment of three years.” (emphasis added). Had the legislature intended that one convicted of two or more crimes under this statute must be sentenced consecutively, it seems logical that the statute would have been drafted to read, “Any person who is convicted of each . . . aggravated battery . . . Such is not the case with this statute. Use of the word “any” indicates that the sentencing judge is given discretion to sentence a defendant convicted on a multiple count information under the statute to consecutive or concurrent minimum three-year terms. Our interpretation of legislative intent here is supported by the fact that whenever the legislature wishes to require a sentence to be served consecutively, they have affirmatively provided for its imposition. See Section 944.40, Florida Statutes (1975), mandating the sentence of one convicted of escape to run consecutive to any former sentence.

It was error to deny appellant credit for time served. The mandatory minimum sentence provision of Section 775.087, Florida Statutes (1975), does not preclude allowance of credit for time served prior to imposition of sentence. Bacon v. State, 346 So.2d 629 (Fla.2d DCA 1977); Lingo v. State, 344 So.2d 629 (Fla.2d DCA 1977).

Appellant’s convictions are affirmed, but we remand this case for resentencing of appellant within the trial judge’s discretion consistent with this opinion. Appellant need not be present for this purpose.

HOBSON, Acting C. J., and DANAHY, J., concur.


text:
    Scott SCHURR, Appellant, v. ROYAL GLOBE INSURANCE COMPANY, the Travelers Indemnity Company, the Toro Company and Zaun Equipment Company, Inc., Appellees.
    No. 77-32.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.

      Robert C. Widman of Nelson Hesse Cyril & Weber, Sarasota, for appellant.
    W. Robert Mann and David W. Miner of Mann, Pay & Price, Bradenton, for Appel-lees Royal Globe Ins. and Zaun Equipment Co., Inc.
    Daniel A. Carlton of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellees The Travelers Indem. Co. and The Toro Co.
   PER CURIAM.

The trial court entered a directed verdict and final judgment against plaintiff/appellant and in favor of defendants/appellees. We reverse.

Appellant, Scott Schurr, filed this action for damages against appellees, The Toro Company, the manufacturer of the lawn mower; The Travelers Indemnity Company, its liability insurer; Zaun Equipment Company, the seller; and Royal Globe Insurance Company, its liability insurer.

Appellant began his case by testifying in his own behalf. He said that he had been employed as a mechanic at the Forest Lake Country Club in Sarasota but that part of his duties included the mowing of the putting greens. On the early morning of October 7,1974 he was mowing the green on the sixth hole by using a Toro Greensmaster Number 3 riding lawn mower. This lawn mower had been purchased by his employer from Zaun Equipment Company, Inc.

Appellant testified that he stopped the forward progress of the mower in order to clear the excess grass that had accumulated in front of the cutting blades. He left the motor idling in a neutral position. He said that as he got off the mower he pushed the lift pedal which raised the mower blades up from the ground and which was designed to stop the blades. He cleaned the grass off the left and middle blades which were stopped. He then reached in to clean the right blade, but this blade was still spinning. As a result he suffered an injury to his right hand including the partial amputation of one finger.

Appellant said that he did not expect the right blade to be on. He said he did not see the blade moving, nor did he hear it spinning. He admitted that prior to the accident the blades sometimes did not stop when the lift pedal was pushed and that at other times they did stop only to start spinning again at a later time.

At the conclusion of appellant’s testimony and before appellant rested his case, appel-lees moved for a directed verdict. The court concluded that since appellant was the only eyewitness to the case, it was evident that his putting his hand into the mower blade when he knew or should have known that it was spinning constituted the sole proximate cause of the accident regardless of any defect in the mower. At this point in order to protect the record appellant’s attorney proffered that if given the chance he would show that “there was no dead man’s control on the machine and that the failure to have the dead man’s control is a design defect” and that “there were not sufficient warnings or instructions on the machine, and that the lack of these warnings or instructions on the machine was a defect.”

Appellees rely heavily on the patent-danger doctrine as expressed in Farmhand, Inc. v. Brandies, 327 So.2d 76 (Fla. 1st DCA 1976), and our recent decision in Watson v. Lucerne Machinery & Equipment, Inc., 347 So.2d 459 (Fla. 2d DCA 1977), involving lack of proximate cause. These cases may be on point, but in the posture of this case we simply cannot tell. Appellant was out of court before he finished putting on his case. This was not an instance where the parties stipulated to specific facts which certain witnesses would say. For whatever it was worth the proffer of defective design seems inconsistent with appellant’s testimony which more nearly suggests a defect in the mechanism because two of the three blades did stop when the lift button was pushed. On this record we cannot even tell whether the so-called dead man’s control was the same thing as the lift mechanism.

In Carmichael v. Shelley Tractor & Equipment Co., 300 So.2d 298 (Fla. 4th DCA 1974), our sister court stated: “At trial upon the issues made by the pleadings, a party may not move for and obtain a directed verdict prior to the time that the party moved against has completed his case-in-chief. Otherwise, such party would be denied due process of law.” While our court in Floyd v. Ott, 221 So.2d 163 (Fla. 2d DCA 1969), refused to categorically say that a directed verdict for the defendant may never be granted before the plaintiff has finished his case, the circumstances here did not dictate following this exceptional practice. We believe the trial judge should not have attempted to determine this close case on liability before he had a chance to hear all the testimony that appellant had to offer. See Wilfork v. Associated Grocers of Florida, Inc., 343 So.2d 84 (Fla. 3d DCA 1977).

REVERSED.

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


text:
    Joseph Anthony BERNIER, Appellant, v. STATE of Florida, Appellee.
    No. 77-441.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Jack 0. Johnson, Public Defender, and Victoria J. Powell, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and order of probation, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of the order of probation; otherwise affirmed. Appellant need not be present for this purpose.

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


text:
    Harold HAMMOCK and Jackie W. Martin, Appellants, v. STATE of Florida, Appellee.
    No. 77-630.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, and Howard L. Dimmig, II, Legal Intern, Bar-tow, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellants have failed to demonstrate reversible error; therefore, the judgment appealed is affirmed.

The only point which merits discussion is the propriety of the appellants’ sentences to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed. Appellants need not be present for this purpose.

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


text:
    Thomas Charles KEGLER, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-698 and 77-705.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court and the order revoking appellant’s probation, but we agree with appellant that there are imperfections in the two sentences which the court imposed upon him. The present sentences do not specify the amount of credit for time served as Section 921.161(1), Florida Statutes (1975), requires. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover, the phrase “at hard labor” in the sentences is improper. Brooks v. State, supra. We remand these cases for correction of the sentences, and appellant need not be present at that time.

SCHEB, Acting C. J., and OTT and DAN-AHY, JJ., concur.


author: BOARDMAN, Chief Judge.

text:
    Harry Howard SEGAR, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-767.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Edward C. Flood, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

By information Harry Howard Segar, Jr. was charged with attempted first-degree murder. He filed a timely notice that he would rely upon the defense of insanity. After trial by jury he was convicted of the offense charged and sentenced to a term of fifty years in the state prison with credit for time served. Appellant contends that the trial court committed reversible error in refusing to instruct the jury of the consequences of a verdict of not guilty by reason of insanity. We agree and reverse the judgment and sentence. See Wheeler v. State, 344 So.2d 244 (Fla.1977); Roberts v. State, 335 So.2d 285 (Fla.1976); Fla.R. Crim.P. 3.460.

REVERSED and REMANDED for a new trial.

HOBSON and OTT, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Luthrell CHURCH and Ricardo Church, Appellees.
    Nos. 77-780, 77-781, 77-782 and 77-805.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, Victoria J. Powell, Asst. Public Defender, and James R. Wulchak, Legal Intern, Bartow, for appellees.
   GRIMES, Acting Chief Judge.

The state filed informations charging ap-pellees with having engaged in bookmaking to the extent of receiving or accepting more than five bets or wagers in one day, in violation of Section 849.25(3), Florida Statutes (1975). The appellees moved to dismiss the informations, and the trial court granted their motions. The state appeals. We hold that the informations should not have been dismissed.

The appellees presented testimony at the hearing which showed that the St. Peters-burg police placed bets with the appellees on state-regulated dog races and jai alai games through an informant. The bets were placed at a location on the south side of St. Petersburg and not at the official locations of the pari-mutuels involved. Winners were to collect from the appel-lees — at the same location where they placed their bets — the amount they would have received at the dog track or jai alai fronton less ten per cent.

Defense counsel also made an oral offer to stipulate that the appellees had taken the money wagered to the pari-mutuel location involved and placed the bets there. Even though the state attorney declined the offer to stipulate, the court seemed to accept these facts as true. The defense then went on to successfully argue that Section 849.-25(4), Florida Statutes (1975) specifically excludes pari-mutuel wagering from the acts proscribed by that section, and that the appellees were therefore improperly charged under that statute.

We believe the trial court erred in two respects. First, the court should not have considered the facts represented by defense counsel when the state attorney refused to stipulate. See State v. Montgomery, 310 So.2d 440 (Fla. 3d DCA 1975). Of course, Fla.R.Crim.P. 3.190(d) provides that facts in a written motion to dismiss which are not specifically denied or traversed by the state are deemed admitted. However, these motions contained no recitations of fact, so there was nothing for the state to traverse. State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974).

Furthermore, even if the appel-lees’ version of the facts had been properly before the court, the dismissal of the infor-mations would not have been justified. We do not read the exception of subsection (4) as rendering the statute inapplicable to the receiving of “off track” bets on state regulated pari-mutuel activities. This subsection simply recognizes that the receiving of bets within the enclosures of horse and dog tracks as authorized by Section 550.16, Florida Statutes (1975) or at jai alai or pelota frontons as authorized by Section 551.09, Florida Statutes (1975) is not prohibited under Section 849.25, Florida Statutes (1975). The fact that appellees’ conduct may also be covered by Section 550.16(7), Florida Statutes (1975) does not preclude a prosecution under Section 849.25, Florida Statutes (1975). Fayerweather v. State, 332 So.2d 21 (Fla.1976).

The order granting the appellees’ motions to dismiss is vacated, and the cause is remanded for further proceedings consistent with this opinion.

SCHEB and DANAHY, JJ., concur.

      . Sec. 849.25, Fla.Stat. (1975) provides:
      (1) As used in this section, the term “bookmaking” shall be deemed to be the taking or receiving of any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man, beast, fowl or motor vehicle.
      ij< ¡(5 * S)S ‡ ifc
      (3) Whoever engages in bookmaking to the extent that in any one day he receives or accepts more than five bets or receives bets totaling more than $500, or engages in a common bookmaking scheme with three or more persons, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any person who, having been convicted of violating this section, thereafter violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.
      (4) This section shall not apply to pari-mutu-el wagering in Florida as authorized by the laws of the state; however, this section shall not apply to any prosecutions filed and pending at the time of the passage hereof, but all such cases shall be disposed of under existing law at the time of the institution of such prosecutions.


text:
    Johnny Lamar MOON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1051.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Jack O. Johnson, Public Defender, Bar-tow, and Stephen O. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed from is affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. The appellant does not have to be present at resentencing.

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


text:
    Herman DONAHUE, Appellant, v. STATE of Florida, Appellee.
    No. 77-1137.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed from is affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. The appellant does not have to be present at resentencing.

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