author: MOORE, Judge.

text:
    In the Interest of E.M., a child.
    No. 77-2601.
    District Court of Appeal of Florida, Fourth District.
    Aug. 30, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Victor 0. Mead, Asst. Public Defender, Orlando, for appellee.
   MOORE, Judge.

In this appeal by the state we are called upon to decide the effect of the filing of an amended petition for delinquency more than thirty days from the date the original complaint was referred to the intake office.

A timely complaint alleging burglary of a structure and trespass was filed on September 21, 1977 with the Division of Youth Services. Thereafter, and within the time prescribed by statute and rule, a petition alleging delinquency by reason of trespass was filed with the court. On October 24, 1977, more than thirty days subsequent to the filing of the complaint, an amended petition alleging delinquency on the basis of the burglary was filed with the court. The trespass and burglary are both based upon the same factual situation. Respondent successfully argued before the trial court that the filing of an amended petition acted to vitiate the original petition, and since the amended petition was filed more than thirty days subsequent to the filing of the complaint it should be dismissed with prejudice pursuant to Rule 8.110(e), Fla.R.Juv.P. (1977). We disagree with the ruling of the trial court and reverse.

In our opinion, this case is controlled by Rule 8.110(c) which provides:

“At any time prior to the adjudicatory hearing an amended petition may be filed or the petition may be amended on motion. Amendments shall be freely permitted in the interest of justice and the welfare of the child. A continuance may be granted upon motion and a showing that the amendment prejudices or materially affects any party.”

In the case sub judice no motion for continuance was requested nor was there any showing that the amended petition prejudiced or materially affected the respondent. It is true, as suggested by respondent, that the crime of trespass (a misdemeanor) is different from the crime of burglary (a felony). Unlike criminal law, however, the petition in juvenile proceedings merely alleges an act of delinquency and although it is necessary to prove the substantive behavior, the final result is an adjudication of delinquency and not conviction of a crime.

Respondent relies upon Wilcox v. State, 248 So.2d 692 (Fla. 4th DCA 1971), a decision of this Court involving the filing of an amended information which was subsequently withdrawn. We find the Wilcox case factually distinguishable, not only because it was a criminal case but also because the amended information was withdrawn and the state attempted to prosecute the defendant on the original information.

As the filing of an amended petition is permissible at any time prior to the adjudicatory hearing pursuant to Fla.R.Juv.P. 8.110(c), the trial court’s dismissal of the petition in this case must be and is reversed with instructions to reinstate the amended petition for further proceedings pursuant thereto.

REVERSED and REMANDED.

ANSTEAD and DAUKSCH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The HOSPITAL AND WELFARE BOARD OF HILLSBOROUGH COUNTY, Appellant, v. The ESTATE of Enoch DIXON, Appellee.
    No. 77-1635.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 1978.
    Robert A. Mora of Allen, Dell, Frank & Trinkle, Tampa, for appellant.
    James L. Lee, Jr., Tampa, for appellee.
   PER CURIAM.

Reversed on authority of In re Estate of Jelley, 360 So.2d 1313 (Fla.2d DCA filed Aug. 2, 1978).

GRIMES, C. J., and SCHEB and OTT, JJ., concur.


text:
    Steven Wayne TRIMBOLI, Appellant, v. STATE of Florida, Appellee.
    No. 77-1008.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 1978.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Dismissed. See Section 924.06(3), Florida Statutes (1977); Honeycutt v. State, 359 So.2d 503 (Fla.2d DCA 1978).

HOBSON A. C. J., and OTT and DAN-AHY, JJ., concur.


text:
    Richard D. CAPSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 77-1297.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 1978.
    Robert E. Jagger, Public Defender, and Dane E. DiSano, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Richard D. Capshaw appeals the summary denial of his motion to vacate sentence for the crime of robbery. He contends that the record does not conclusively show that he is entitled to no relief.

We agree with appellant and reverse.

In his motion appellant alleged ineffective assistance of counsel because his appointed attorney failed to inform him that he may have lacked mens rea which could be asserted as a defense, and did not inform the court that appellant was too sedated to intelligently plead guilty to the charge.

The trial judge summarily denied the motion on the basis of a transcript of the plea hearing and the medical records compiled upon appellant while he was hospitalized in the psychiatric wing of Polk General Hospital following a suicide attempt.

The record reveals that appellant’s plea of guilty was taken two days after his discharge from the hospital, and that several different types of tranquilizing drugs were administered to him while he was hospitalized. Valium, Tofranil, Artane and Mellaril were prescribed for administration to appellant after his discharge.

At the plea hearing appellant’s drugged condition was not brought to the attention of the trial judge nor did the judge inquire into appellant’s sobriety, although at one point appellant himself asked if his tranquilizers were to be continued.

We find that the record does not conclusively refute appellant’s allegations. An evidentiary hearing is therefore required to determine the bearing of appellant’s condition on his ability to make a knowing, intelligent and voluntary decision to enter his plea, and the effectiveness of his counsel under the circumstances. See Merritt v. State, 165 So.2d 245 (Fla.2d DCA 1964); Fla.R.Crim.P. 3.850.

Reversed for further proceedings consistent with this opinion.

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


author: PER CURIAM. ANSTEAD, Judge,

text:
    Phillip JOHNSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-2551.
    District Court of Appeal of Florida, Fourth District.
    Aug. 30, 1978.
    Richard L. Jorandby, Public Defender, and Larry S. Weaver, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and DAUKSCH, J., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

This case is similar to Mims v. State, 352 So.2d 68 (Fla. 4th DCA 1977), in that appellant’s defense to drug possession charges was that he had no knowledge that the illegal drugs were in a satchel possessed by him and containing his barber tools. Despite a request, no instruction was given requiring knowledge on appellant’s part. The jury specifically asked the court if appellant would be guilty if he had no knowledge that the drugs were in his satchel. The judge declined to answer the question except to tell the jury that the case must be decided on the instructions and evidence already submitted. Guilty verdicts were ultimately returned. As in Mims, I believe it was reversible error to refuse an instruction on knowledge. Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).


author: PER CURIAM. LETTS, Judge,

text:
    BELVEDERE CONSTRUCTION COMPANY, Appellant, v. Sam SHELTON, Jr., Safeco Insurance Company, and Capeletti Brothers, Inc., Appellees.
    No. 77-416.
    District Court of Appeal of Florida, Fourth District.
    Aug. 30, 1978.
    Sam Daniels of Daniels & Hicks, Miami, and Fleming O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Wallis E. Schulle of Simpson, Brodbeck & Schulle, West Palm Beach, for appellee-Sam Shelton, Jr.
    Richard J. Meehan and Kenneth J. Scherer of DeSantis, Cook, Meehan & Cohen, P. A., North Palm Beach, for appellee-Capelet-ti Brothers, Inc.
   PER CURIAM.

AFFIRMED.

DAUKSCH, J., and BLACK, SUSAN, Associate Judge, concur.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting:

I dissent.

This case involves the loaned servant doctrine. A contractor, Capeletti Brothers, Inc. while working on the 1-95 project, mistakenly broke a 24 inch water main. Thereupon the City sent out a second contractor, Belvedere Construction Company, to repair the break.

Upon arriving at the scene Belvedere was in need of a crane to help lift the broken pipe out of the trench up onto the canal bank in order to repair it. Belvedere had no such crane, so the Capeletti crane operator was asked to help move the pipe for Belvedere Construction Company. He refused, without permission from his employer, which permission was sought and given. The actual words used by the crane operator in describing his own supervisor’s response to the request for help to move the pipe were:

A. He came up where I was. He says, do anything to help them move the pipe or anything you can do to help them — -to help them. . . . Anything you can do to assist these men to help them get the water line back together do so.

Similarly the supervisor’s version of what he told his crane operator was:

A. I told him he could go ahead and assist in taking the pipe out.

Pursuant to this instruction from his own supervisor, the crane operator helped to move the pipe and in so doing was assisted by a workman from Belvedere Construction Company who gave him the “standard signal” to pick up the pipe which had been attached to the crane by a form of chain sling owned and placed around the pipe by Belvedere’s work force. The crane operator’s description of what next ensued was:

A. Right. When he give me the signal, I picked the pipe up about two foot off the ground. I stopped. He walked back beside the crane where I was. He said, “I want you to pick it up higher.”
And when I picked it up higher is when the chain slipped off of it.
Q. All right. And what do you mean by “the chain slipped off of it”?
A. Well, the chain slipped off the end of the pipe and it went in the ditch and hit Sam Shelton.
Q. And that was one of the Belvedere employees dressed in the uniform or whatever that they had on that day, is that correct?
A. Correct.
Q. That was giving you directions?
A. Right.

Thus the only “direction” from a Belvedere employee consisted of standard hand signals and an oral request to pick the pipe up higher. I am convinced that this occurrence is not sufficient to support the loaned servant doctrine.

The major significance of the loaned servant doctrine in this case is succinctly expressed in appellant’s brief wherein it is noted. “Both Mr. Shelton and the crane operator were Capeletti employees. Thus, if the crane operator’s negligence was the sole proximate cause of the accident, Mr. Shelton’s sole remedy, under normal circumstances, would be workmen’s compensation. However, if the loaned servant doctrine applied and the crane operator became a Belvedere employee, Mr. Shelton could maintain a third-party action against Bel-vedere even if the only negligence in the case was that of his ‘co-employee,’ the crane operator. In addition, if the crane operator became a Belvedere employee under the loaned servant doctrine, Belvedere would lose its indemnity action against Capeletti because it would be chargeable with the crane operator’s ‘active’ negligence. Thus, if the jury found the loaned servant doctrine applicable, Belvedere would be found liable to Mr. Shelton and unable to get indemnity from Capeletti — the exact result reached by the jury below.”

The general rule is that the loaned servant doctrine is applicable if the third-party to whom the servant is loaned has complete control over said servant and directs his (the servant’s) conduct at all times. Burton v. Diamond Sand and Stone Company, 327 So.2d 95 (Fla. 2d DCA 1976). Accordingly, an employee of one organization cannot become the loaned servant of another if the original employer retains any control or direction. It is true that the jury was thus instructed, but I believe it was error to let this issue go to the jury under the undisputed facts of this case.

The order to move the pipe came from the crane operator’s OWN SUPERVISOR and the only direction from the third-party was standard hand signals on how high to raise it and then an oral request to raise it higher. Such do not place the operator under the complete control and sole direction of the third-party. O’Connell v. Roefaro, 137 A.2d 325 (S.Ct.Penn.1958). The operator’s own supervisor remained on the site and Capeletti Brothers, Inc. obviously had a personal interest in moving the pipe since they were the ones who had fractured it in the first place. Accordingly, the work being done was more than the work of Belvedere Construction Company. See Stuyvesant Corp. v. Waterhouse, 74 So.2d 554, 557 (Fla.1954).

There remains the question of whether the instruction even if error, was reversible. I believe it was because the verdict could not have been reached without it.

I would reverse.


text:
    Clarence THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. JJ-181.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1978.
    Clarence Thomas, in pro per.
    No appearance for appellee.
   PER CURIAM.

Defendant seeks review of the denial without evidentiary hearing of his motion to vacate, set aside or correct the sentence. Defendant’s assertion that consecutive sentences imposed for the burglary and grand larceny were illegal since the offenses arose out of a single transaction is, as determined by the trial court, without merit. Estevez v. State, 313 So.2d 692 (Fla.1975); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); State v. Kirkland, 322 So.2d 480 (Fla.1975). Accordingly, the order denying defendant’s motion to vacate is AFFIRMED.

SMITH, Acting C. J., and MELVIN and BOOTH, JJ., concur.


text:
    Ervin YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. JJ-382.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1978.
    Ervin Young, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s denial of his motion to mitigate a ten year sentence for possession of a controlled substance, heroin. The trial court found that appellant’s assertions that he had been promised a maximum sentence of five years for the offense by the public defender representing him were not supported by testimony received at an evidentiary hearing on the motion. After a review of the transcript, we affirm the trial court’s order. Accordingly, the denial of appellant’s motion to mitigate sentence is affirmed.

SMITH, Acting C. J., and MELVIN and BOOTH, JJ., concur.


author: MELVIN, Judge.

text:
    Johnnie AMERSON, Maxine Robinson and Margaret Stapleton, Appellants, v. The JACKSONVILLE ELECTRIC AUTHORITY, Appellee.
    No. GG-299.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1978.

      Robert H. Graddy, Jacksonville, for appellants.
    Dawson A. McQuaig and William Lee Allen, Jacksonville, for appellee.
   MELVIN, Judge.

Appellants, residential purchasers of electricity from the appellee, Jacksonville Electric Authority (JEA), seek review of an adverse final judgment holding that the JEA is not required to file and seek approval of its rate changes with the Florida Public Service Commission (PSC) and, secondly, that the JEA is not required to comply with Chapter 120, Florida Statutes (Administrative Procedure Act), in setting its rates and charges. We affirm.

The PSC’s power to regulate is based upon the provisions of Chapter 366, Florida Statutes (1975). With limited exceptions, not relevant. here, the jurisdiction of the PSC is limited to “public utilities”, which are defined in Section 366.02, Florida Statutes (1975), as:

. every person, corporation, partnership, association or other legal entity . supplying electricity . to or for the public within this state, directly or indirectly for compensation; but the term ‘public utility’ as used herein does not include either a cooperative now or hereafter organized and existing under the rural electrification cooperative law of the state nor a municipality . ..”

Thus, the statute by its very terms specifically excludes electric utilities operated by Rural Electrification Cooperatives and municipalities from its rate change jurisdiction.

Further, Section 366.11, Florida Statutes (1975), provides certain exemptions from the PSC’s jurisdiction stating, in part:

“No provision of this chapter shall apply in any manner, other than as specified in ss. 366.04(2), and (3), 366.05(7) and (8), and 366.055, to utilities owned and operated by municipalities, whether within or without any municipality . . ..”

It is apparent from a reading of the statute and the case law that municipally-owned utilities are excluded from PSC rate change jurisdiction. See Storey v. Mayo, 217 So.2d 304, at 307 (Fla.1968), cert. denied 395 U.S. 909, 23 L.Ed.2d 222, 89 S.Ct. 1751 (1969).

It is equally apparent from a reading of the enacting legislation (Chapter 67— 1569), Laws of Florida, as amended by Chapter 71-698, Laws of Florida) that the JEA is an electric utility operated by the City of Jacksonville and that it, therefore, lies within the jurisdictional exclusions pronounced by Sections 366.02 and 366.11, Florida Statutes (1975).

Appellants’ remaining point is directed to whether the JEA must comply with the provisions of the Administrative Procedure Act in setting its rate and changes. We hold that it does not.

The APA’s jurisdiction encompasses certain actions of “agencies” as defined in Section 120.52(1), Florida Statutes, which states:

“(1) ‘Agency’ means:
“(a) The governor in the exercise of all executive powers other than those derived from the Constitution.
“(b) Each other state officer and each state department, departmental unit described in s. 20.‘04, commission, regional planning agency, board, district, and authority, including, but not limited to, those described in chapters 160, 163, 298, 373, 380 and 582.
“(c) Each other unit of government in the state, including counties and municipalities to the extent they are expressly made subject to this act by general or special law or existing judicial decisions.”

Thus, by the above statute, the legislature has specifically chosen to include municipalities within the meaning of the word “agency” only if “expressly made subject to this act by general or special law or existing judicial decisions.”

Appellants have not cited us to, nor are we aware of, any “existing judicial decision” characterizing a municipality as an agency for the purposes of Chapter 120, Florida Statutes.

Further, we have not been cited to a general or special law making a municipality subject to the act. See Sweetwater Utility Corp. v. Hillsborough County, 314 So.2d 194 (Fla.2d DCA 1975), holding that the Board of County Commissioners of Hillsbor-ough County was not an “agency” within the meaning of Section 120.52(1)(c), Florida Statutes (1974 Supp.).

In summary, we hold that the JEA is: 1) Not required to file and seek approval of its rate changes with the PSC pursuant to Chapter 366, and 2) not required to comply with Chapter 120, in setting its rates and charges.

Accordingly, the final judgment appealed from is AFFIRMED.

SMITH, Acting C. J., and ERVIN, J., concur.


author: SMITH, Acting Chief Judge.

text:
    William N. AYLIN, Appellant, v. STATE of Florida, Appellee.
    No. JJ-130.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1978.

      James P. Judkins, of Davis & Judkins, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Acting Chief Judge.

Having properly reserved the right to do so, Aylin appeals from a circuit court judgment convicting him, after a plea of nolo contendere, on a charge that he and others

did agree, conspire, combine and confederate each one with the others to commit the felony of possession of in excess of 100 pounds of CANNABIS and . WILLIAM NORMAN AYLIN did, in the County of Leon, State of Florida, do an act in furtherance of said conspiracy in that on October 14, 1976, WILLIAM NORMAN AYLIN did depart Tallahassee Municipal Airport enroute to possess in excess of 100 pounds of CANNABIS and to proceed to Stella Maris, Long Island, Bahamas .

We need address only one of the several issues presented. We find, as appellant contends, that the conspiracy charged is not a felony of the third degree, as found by the trial court. Rather, it is a misdemeanor of the first degree. The speedy trial time proscribed by Rule 3.191, Fla.R. Cr.P., was therefore 90 days, not 180 days. Appellant was not brought to trial within 90 days and his motion for discharge should have been granted.

Section 893.13(l)(a), Florida Statutes (1977), provides in part:

(1)(a) Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to:

2. A controlled substance named or described in s. 893.03(1)(c), (2)(c), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084; except that the sale, delivery, or possession of in excess of 100 pounds of cannabis as controlled in s. 893.03(l)(c) shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Section 893.13(l)(e) provides:

(e) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained . . Any person who violates this provision is guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.

The question of statutory construction is whether, by Section 893.13(l)(a)2, the legislature made simple possession of more than 100 pounds of cannabis a second degree felony or, instead, made possession of that quantity punishable as a second degree felony only when it was sold, manufactured, delivered, or possessed with intent to sell, manufacture, or deliver. It is apparent both from Section 893.13(l)(a) and from the text of the session law, Chapter 76-200, Laws of Florida, that the legislature deliberately subsumed the new 100-pound quantity element under the older prohibition of selling, manufacturing, delivering, or possessing with intent to sell, manufacture, or deliver. It follows that the present information, lacking allegations of a conspiratorial purpose to possess cannabis with intent to sell, manufacture, or deliver it, does not charge a conspiracy to commit the second degree felony proscribed by Section 893.-13(l)(a)2. Rather, the offense-object of the alleged conspiracy was the third degree felony of simple possession of cannabis, proscribed by Section 893.13(l)(e).

It is a misdemeanor of the first degree to conspire to commit an offense classified as a felony of the third degree. Section 777.04(4)(d), Florida Statutes (1977). Because the information charged that Aylin was guilty of such a conspiracy, the State was obliged to bring Aylin to trial within 90 days, which it failed to do. Aylin’s motion for discharge should have been and now must be granted. The judgment is REVERSED and Aylin is DISCHARGED.

MELVIN and BOOTH, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    Sylvester BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 76-1216.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1978.
    Richard L. Jorandby, Public Defender, Laurie Sistrunk and Marc Kirk, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Anthony J. Golden and Charles Stampelos, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellant, Sylvester Brown, was indicted for involuntary sexual battery upon a female person under the age of eleven years. A jury found appellant guilty of the lesser included offense of injuring the sexual organs of a person under the age of eleven years in an attempt to commit sexual battery.

Debra Harris, age ten, testified at trial that on July 7th, 1975, Sylvester Brown had sexually penetrated her on two occasions in her mother’s home. The child’s testimony was strongly corroborated by her mother, Clara Nell Harris, who testified at length without objection about the sexual orgy which Sylvester put Clara through before he molested Debra. Summarized, Clara testified that Sylvester had been her boy friend and had lived with her for a period of time, but they had broken up some four months prior to July 1975. On July 7th Clara accompanied Sylvester to a neighbor’s house where he forced her to drink some whiskey. She eventually left and he followed her out and took her in his car to an orange grove in Winter Park where he forced her to have intercourse with him. They then returned to Clara’s apartment where he forced his way in, undressed Clara and proceeded to indulge in various forms of sexual activity with Clara. After an hour or so with Clara, Sylvester called Debra into Clara’s bedroom where he engaged in intercourse alternately with Clara and Debra. Eventually, Debra went back to her bedroom and Sylvester again forced Clara to perform various sexual acts. Clara says she eventually passed out, probably from the drinks Sylvester had forced her to consume. When Clara revived Sylvester was just returning from another attack on Debra. He had additional sexual relations with Clara and then fell asleep.

Sylvester’s account of the evening was somewhat different. Sylvester testified that as he was leaving a gas station Clara pulled up behind him and asked him to work on her car, which he did. He and Clara had a few drinks from a bottle in his car during the course of which Clara asked him to move back into her house. When they returned to Clara’s house she invited him in and they watched television for awhile before he fell asleep. The next thing he remembered was being naked in Clara’s bed and being awakened by the police. Sylvester’s explanation was that when living with Clara he would often fall asleep fully clothed and she would undress him and get him to bed. Sylvester denied having any sexual relations that evening with either Clara or Debra.

Counsel for Sylvester attempted to attack Clara’s credibility by showing the stormy past relationship between Clara and Sylvester, but the court sustained the State’s repeated objections to such inquiry. We think this was reversible error in this case because Clara’s bizarre account of the evening, which consumed an extraordinary amount of the trial, so damned Sylvester that, if the jury believed Clara’s story, guilt was clear. Stripped of his right to try and impeach Clara’s testimony, Sylvester was virtually defenseless.

In addition to the attempt to discredit Clara’s story by showing her bias or animus, appellant also attempted to cross-examine the medical examiner, a witness for the State, regarding his examination of Clara and Debra on the night in question. The record reflects that both Clara and Debra were taken to the hospital for examination in the early morning of July 8th. The court sustained objections to this inquiry also on the grounds of immateriality and because it exceeded the inquiry on direct examination which the State expressly restricted to the medical examination of Debra. The ruling that the questions were beyond the scope of the direct examination is no doubt correct and appellant should have called the medical examiner in his own case in chief if the evidence would have helped his case. However, it serves once again to point up the impact and importance of Clara’s testimony.

All witnesses are subject to cross examination for the purpose of discrediting them by showing bias, prejudice or interest. Davis v. Ivey, 93 Fla. 387, 112 So. 264 (1927); McDuffie v. State, 341 So.2d 840 (Fla. 2nd DCA 1977); Webb v. State, 336 So.2d 416 (Fla. 2nd DCA 1976). Thus, the proposed cross-examination of Clara was proper and its refusal was prejudicial to appellant.

Appellee contends that appellant cannot rely on the exclusion of the proposed cross-examination of Clara as error because appellant failed to make a proffer of the evidence. We concede that good trial practice would suggest a proffer be made in this situation so as to demonstrate beyond peradventure of doubt that the evidence sought to be elicited would further the proponent’s case. However, the rule in this jurisdiction is found in Boykin v. State, 40 Fla. 484, 24 So. 141 (1898), to the effect that:

“It is the duty of a party appealing to an appellate court to make the errors apparent of which he complains; and where, in the examination of witnesses on the trial, any of his questions have been excluded on objection, and such questions do not in and of themselves indicate whether the answers thereto will be material or pertinent evidence or not, it is his duty, in order to have the rulings thereon reviewed on appeal, to make an offer at the trial of what he proposes to elicit or prove by such questions, so that both the trial and appellate court can determine whether the proposed evidence is material or not; otherwise, he fails to make his alleged error to appear, and the appellate court will so declare.”

See also McCall v. State, 55 Fla. 108, 46 So. 321 (1908); Kelly v. State, 55 Fla. 51, 45 So. 990 (1908); Starke v. State, 49 Fla. 41, 37 So. 850 (1905).

In the case at bar it was quite obvious from counsel’s questions that he was laying a foundation to impeach Clara’s credibility and thus a proffer, though desirable, was not necessary to preserve the point for appellate review.

In view of the foregoing, we believe appellant is entitled to a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

ANSTEAD and LETTS, JJ., concur. ■


text:
    Fernando MARCANO, a/k/a Fred Marcano, etc., et al., Appellants, v. Ante PUHALOVICH et al., Appellees.
    No. 77-972.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1978.

      Robert J. Telfer, Jr., Titusville, for appellants.
    John G. Rooney, of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for appellee.
   MOORE, Judge.

This is an action for damages alleged to have been suffered by a bicyclist as .the result of a collision between his bicycle and an automobile driven by the appellee. The parties will be referred to as they appeared in the trial court. At the close of the defendant’s case the trial court granted a directed verdict in favor of the defendant from which verdict and resulting judgment this appeal follows.

The plaintiff contends the trial erred in directing a verdict against plaintiff and in failing to grant a motion for new trial. Plaintiff also contends the court erred in taxing the costs of copies of depositions.

The facts reveal that at approximately 6:15 A.M. on February 21, 1976 the plaintiff, Fred Marcano, and a young friend were proceeding on their bicycles in single file across a bridge from which they intended to fish. The bridge consisted of two lanes, one each for travel in an easterly and westerly direction. There was also a walkway on each side of the bridge. With Fred in the lead, the boys proceeded in an easterly direction on the roadway staying as close as possible to the walkway, intending to park their bicycles at the eastern most end of the bridge and returning to fish from the north side of the bridge.

The defendant, Ante Puhalovich, and his son, also intending to go fishing, approached the bridge in defendant’s automobile from the same direction of travel as the boys on their bicycles. In order to pass the first boy the defendant moved to his left into the westbound lane of traffic, returning to the eastbound lane after successfully passing. There is conflicting evidence as to the location of the defendant’s vehicle, with respect to the east and westbound lanes of travel, immediately upon approaching the plaintiff. This conflict, however, exists in the testimony of the defendant and his son. All of the evidence reveals that the defendant had his lights on and was traveling well within the speed limit. Although not seen by the defendant, both boys testified that they had reflectors and generator lights on the front and back of their bicycles. Shortly after passing the first boy, the collision between defendant’s automobile and plaintiff’s bicycle occurred. Neither the plaintiff nor the first boy saw the actual collision. The plaintiff testified that although he did not hear the vehicle approaching him he nevertheless maintained his direction of travel in a straight line without veering to one side or the other. From this testimony he contends that defendant struck him from behind. On the other hand, the defendant testified that as he was approaching and passing the plaintiff the latter turned left (to the north) and struck his automobile on the righthand side near the right front wheel well. The only physical evidence, as depicted in photographic evidence, indicates a dent in the right fender of the vehicle some distance back from the front of the vehicle.

Upon seeing the plaintiff’s turn to the north the defendant testified that he immediately turned his vehicle to the north, crossing the westbound lane, in an attempt to avoid the collision.

Plaintiff’s entitlement to recovery depends upon the existence of negligence by the defendant in the operation of his automobile. The mere occurrence of an accident does not give rise to an inference of negligence which must be proved by the plaintiff by a greater weight of the evidence. Novitch v. Nu Way Auto Service, 315 So.2d 203 (Fla.3d DCA 1975). Absent such proof the court would be correct in granting the directed verdict and denying the motion for new trial. In granting a motion for directed verdict, however, the court must determine that there is no evidence to support a finding for the party against whom the verdict is sought. The authority to direct a verdict must be exercised with great caution as in doing so the court is encroaching upon the right of a litigant to a jury trial and such a right should not be denied unless, as a matter of law, no reasonable inferences can be drawn from the evidence in favor of the non-moving party. Sun Life Insurance Co. of America v. Evans, 340 So.2d 957 (Fla.3d DCA 1976).

Defendant relies heavily upon Lake v. Coe, 346 So.2d 618 (Fla.3d DCA 1977) wherein the plaintiff testified that he did not remember anything after having worked on his motorcycle on the side of the road until he awakened at the hospital. Based upon that testimony it was the plaintiff’s contention that the defendant left the paved portion of the road and struck the plaintiff. Unlike the Lake v. Coe case the plaintiff in the instant case testified that he was on the roadway and never veered the direction of his travel on his bicycle from the straight line. If such testimony is accepted by the jury a reasonable inference arises as to the negligence of the defendant in failing to avoid the collision. Thus, the trial court was incorrect in granting the directed verdict against the plaintiff because there was a reasonable inference of negligence when the evidence is viewed in the light most favorable to the plaintiff.

Accordingly, the trial court’s order granting defendant’s motion for directed verdict is reversed and this cause is remanded with directions to grant the plaintiff a new trial. In view of this holding the trial court’s order taxing costs of copies of depositions is also reversed.

REVERSED and REMANDED.

DOWNEY, C. J., and LETTS, J., concur.


text:
    Christopher J. WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 77-2497.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1978.

      Richard L.' Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

ON MOTION TO DISMISS OR QUASH

Appellee has moved to dismiss this appeal on the ground the Circuit Court did not have jurisdiction to enter the order appealed from and thus it is a nullity not subject to appeal.

On June 12, 1975, the trial court entered a judgment and sentence against appellant. On December 16, 1976, the trial court denied a motion to vacate that judgment and sentence. On December 28, 1976, appellant appealed that order. While that appeal was pending appellant filed a second motion to vacate the judgment and sentence based upon different grounds than those stated in the original motion to vacate. This second motion was denied November 10, 1977. On November 29, 1977, this court dismissed the appeal from the order denying the first motion to vacate.

On similar facts, the Third District Court of Appeal held that upon the filing of the notice of appeal to review the order denying the first motion to vacate the cause was transferred to the appellate court, and the trial court was thereafter without jurisdiction to vacate. Gobie v. State, 188 So.2d 34 (Fla. 3rd DCA 1966). We agree with that decision and hold the trial court in this case had no jurisdiction to enter the order on the second motion to vacate, thus that order is a nullity and not subject to appeal.

Accordingly, the motion to dismiss is granted.

DOWNEY, C. J., and ANSTEAD and MOORE, JJ., concur.


text:
    PGL OF GEORGIA, INC., Petitioner, v. GIFFEN ROOFING COMPANY, d/b/a Giffen Industries of Orlando, Inc., and R. J. Coody and Associates, Inc., Respondents.
    No. 78-298.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1978.
    David C. Beers of Rogers & Dowling, Orlando, for petitioner.
    S. William Fuller of Berry & Fuller, Sanford, for respondent Giffen.
   PER CURIAM.

Certiorari denied.

CROSS, ANSTEAD and MOORE, JJ., concur.


author: MILLS, Judge.

text:
    Vernon J. NEFF et al., Petitioners, v. BILTMORE CONSTRUCTION COMPANY, INC., and Department of Administration, Division of Administrative Hearings, Respondents.
    No. GG-43.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1978.

      James B. Loper, of Hamilton, Douglas & Bennett, Tampa, for petitioners.
    William E. Sizemore and Thomas M. Gonzalez, of Shackleford, Farrior, Stallings & Evans, Tampa, Dennis P. Thompson, of Richards, Nodine, Gilkey, Fite, Meyer & Thompson, Clearwater, Kenneth G. Oertel, Tallahassee, for respondents.
    Dan F. Turnbull, Jr., Tallahassee, amicus curiae.
   MILLS, Judge.

Petitioners seek review of a final order of the respondent, Division of Administrative Hearings, contending that the hearing officer erred in ruling that certain prevailing wage determinations made by the Division of Labor were rules under the Administrative Procedures Act.

Respondent, Biltmore Construction Company, entered into a contract with the City of Tampa to construct a water treatment facility for the City. The prevailing wage rate determinations prepared by the Division of Labor were incorporated in and made a part of the contract as required by Section 215.19, Florida Statutes (1975). Work on the project commenced shortly after the contract was signed on 20 April 1976. In January 1977, some of the petitioners, employees of Biltmore, filed affidavits with the City that they were not being paid the prevailing wage rate. An attempt by the City to resolve the dispute failed. Biltmore then filed a petition with the Division of Administrative Hearings seeking a determination that the wage rate determinations were invalid rules.

At the hearing of this case, the hearing officer permitted the transcript of the case of Matthews Corporation v. Department of Commerce, previously heard by him, to be received in evidence and his final order stated that the issues in the Matthews case and this case were identical. Quoting extensively from his order in the Matthews case, the hearing officer ruled as he ruled in the Matthews case, the wage rate determinations were invalid rules.

We agree with the hearing officer that the facts and the issues in this case are similar to those in the Matthews case. But as he did in the Matthews case, he did in this case, he erred in ruling that the wage rate determinations were rules. This case is controlled by our recent decision in State of Florida, Department of Commerce, Division of Labor v. Matthews Corporation, 358 So.2d 256 (Fla. 1st DCA 1978), in which we held that wage rate determinations applicable to public construction contracts are not rules because each determination is applicable only to construction of the particular public building specified in the determination and has no prospective application to any other contract. Because they are not rules, the wage rate determinations are not subject to an attack of invalidity on the ground they were not adopted pursuant to Section 120.54, Florida Statutes (1975).

Petitioners urge that Biltmore was not substantially affected by the prevailing wage rate determinations within the meaning of Section 120.56, Florida Statutes (1977). We need not reach this issue because we have held the wage rate determinations are not rules.

Petitioners also argue that Biltmore was estopped from seeking a determination that the wage rate determinations were invalid rules. Again, we need not reach this issue because we have held that wage rate determinations are not rules.

The petition for review is granted and the final order is reversed.

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


author: McCORD, Chief Judge.

text:
    Ray Alton NORMAN, Appellant, v. STATE of Florida, Appellee.
    No. GG-437.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1978.

      Charles G. Brackins, Fort Lauderdale, and Jeffrey L. Meldon, Gainesyille, for appellant.
    Robert L. Shevin, Atty. Gen., Michael H. Davidson, Asst. Atty. Gen., and L. Arthur Lawrence, State’s Atty., for appellee.
   McCORD, Chief Judge.

Appellant, Ray Alton Norman, was convicted under Count I of an information of possession of more than five grams of cannabis and under Count II of possession of cannabis with intent to sell same. He appeals the judgments and sentences. We affirm on Count I and reverse on Count II.

The initial question on this appeal is whether or not the trial court erred in denying appellant’s motion to suppress the seized marijuana. The evidence viewed in the light most favorable to the state reflects the following: On November 14, 1976, Deputy Sheriff Leyon Beach received information from a confidential informant (reliability not shown) that marijuana belonging to certain persons (not appellant) was stored in a barn on the outskirts of Live Oak. He relayed this information to Sheriff Leonard. The sheriff knew that the property was owned by a Mrs. Hobgood (who was not one of the persons the informant named as owner of the marijuana) and that appellant, Ray Alton Norman, had farmed the property for the previous several months. He also knew that no one was living in the house on the property. He testified that at that time he did not have enough probable cause to obtain a search warrant.

That evening the sheriff went to the farm, and finding the gate locked, he climbed the fence and walked 250 yards to one of several tobacco barns (the pack-house) which had been identified by the confidential informant as the building containing the marijuana. Looking through the window with the aid of his flashlight, he saw substance which he identified as marijuana wrapped in tobacco sheets with some of it protruding from under the sheets. He left the farm and went back to town and then had the farm staked out in surveillance to see who would go and come from it.

Three days later, while on watch at the farm, Deputy Beach observed a truck stop at the gate. The driver opened it and drove back, among the barns. About 15 or 20 minutes later, the truck came out and crossed the highway into a field. Deputy Beach pulled behind the truck and asked the driver (appellant) for his driver’s license and advised him of his constitutional rights. He then told appellant that he knew there was marijuana in the barn. He testified that he did not place appellant under arrest at that time but told him that he would like to talk to him and appellant said he would tell him the whole story. Deputy Beach then told appellant to wait and tell it to the Sheriff later but that he would like to go in and see if the marijuana was still there if appellant would agree. He told appellant that he did not think appellant was involved with the marijuana, but he did feel that appellant knew it was there. He stated that appellant then said:

“Yeah, I knew it was there.” Appellant asked if he could unload the hay off the truck for the cows in the field, and upon unloading it, the two of them went back across the highway to the house and on back to the barns. Deputy Beach testified that he knew which barn the marijuana was stored in and that he purposely went to the wrong barn; that upon doing so, appellant said, “No, it’s not in this one, it’s in the packhouse over there,” pointing to the right barn; that they went over to it and appellant opened the door “and you could see it all in there”; that he told appellant this was a felony and that he would confiscate the marijuana, and appellant said that was all right with him. Deputy Beach then asked appellant if he would come in and talk to the sheriff, and since appellant agreed, he did not place him under arrest. They then went to the sheriff’s office and waited for him for 30-45 minutes, and being advised that it would be several hours before the sheriff would be back in town, Beach placed appellant under arrest, went back out to the farm in a truck, loaded the marijuana he had seen and brought it to the jail.

The evidence shows that appellant was a resident of Moultrie, Georgia, and was renting the farm and working it. Deputy Beach testified that he asked appellant if he was renting the farm and appellant advised that he was. The Sheriff testified that at the jail appellant told him that he had received an anonymous telephone call telling him not to look in those barns and that about two weeks prior to his arrest, he had looked in the packhouse and saw marijuana.

It is clear that the sheriff, on his initial trip to the farm, was a trespasser when he climbed the fence and walked 250 yards to the barn. The fact that he was a trespasser, however, does not make his observance of the marijuana through the barn window at that time an unreasonable search. As stated by the District Court of Appeal, Second District, in Cobb v. State, 213 So.2d 492 (Fla. 2 DCA 1968):

“The right given under the Constitution of the United States and the State of Florida is the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches. It has been held that the protection afforded the people against unreasonable searches and seizures does not extend to the grounds of the property even though the searching authority is a trespasser.”

There the Second District Court of Appeal quoted with approval from Martin v. United States, 155 F.2d 503 (5th Cir. 1946), at page 505:

“The Fourth Amendment secured the people against not all, but only unreasonable searches and seizures of their persons, houses, papers, and effects. Enclosed or unenclosed grounds or open fields around their houses are not included in the prohibition. Hence, the examination by the officers without a search warrant of the 5-gallon jug left on the ground under appellant’s car was not in violation of the Amendment. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898.”

The Second District Court of Appeal also quoted with approval from Monnette v. United States, 299 F.2d 847 (5th Cir. 1962), where the court further held it to be well settled that a trespass upon grounds surrounding a building does not constitute an illegal search; that the protection of the Fourth Amendment does not extend to the grounds, again citing Hester v. United States. See also United States ex rel. Saiken v. Bensinger, 546 F.2d 1292 (7th Cir. 1976); Brock v. U. S., 256 F.2d 55 (5th Cir. 1958); Hodges v. U. S., 243 F.2d 281 (5th Cir. 1957).

We agree with the foregoing authorities. The sheriff’s initial intrusion, though a trespass, does not render his view through the barn window an unreasonable search. We might take a different view if the house on the farm had been an occupied residence, but the sheriff knew that it was not occupied. The barn, under these circumstances, did not have the same protected status under the Fourth Amendment as would a dwelling house and the curtilage thereof.

Appellant, contending that the sheriff’s initial view of the marijuana through the barn window was an unreasonable search, asserts that appellant’s subsequent consent to search, acquired as a result of the information obtained from the alleged unreasonable search and alleged unlawful arrest based thereon, became fruit of the poisonous tree and inadmissible under that doctrine which was pronounced by the Supreme Court of the United States in Wong Sun v. U. S., 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963). Since we do not find the sheriff’s initial excursion to the barn to have constituted an unreasonable search, the doctrine of Wong Sun is not applicable. The search by Deputy Beach from which the marijuana was confiscated was made with appellant’s voluntary consent.

Appellant also contends that there was not competent substantial evidence to support the jury’s verdict finding appellant guilty of possession of marijuana and possession with intent to sell marijuana. The evidence is sufficient to show possession of more than 5 grams of marijuana exclusive of mature stalks. It is further sufficient to show that appellant was renting the farm, had actual knowledge of the presence of the marijuana and had the ability to reduce it to his control. We, therefore, find no deficiency of competent substantial evidence to support the verdict and conviction as to Count I.

As to Count II, however, we are unable to find evidence to support same. There is no direct evidence of intent by appellant to sell the marijuana. The only evidence of ownership of the marijuana is that it was owned by persons other than appellant. The only evidence or inference to be drawn from the evidence presented in the case is that appellant had custody and control of the marijuana which was owned by other persons. The evidence is, therefore, insufficient to show possession by appellant with intent to sell.

The judgment and sentence as to Count I is affirmed and the judgment and sentence as to Count II is reversed with directions to discharge appellant on Count II.

BOYER, J., and MASON, ERNEST E., Associate Judge, concur.


author: LETTS, Judge.

text:
    Application of the STATE OF NEW YORK FOR the PRODUCTION of Sylvia BERGER.
    No. 78-854.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1978.
    Rehearing Denied Sept. 22, 1978.
    Lawrence J. Miller of Capp, Reinstein & Kopelowitz, P.A., Fort Lauderdale, for appellant Sylvia Berger.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee State Attorney’s Office, Broward County.
   LETTS, Judge.

This cause is affirmed.

Pursuant to the authority of McGrath v. People of the State of New York, 258 So.2d 291 (Fla. 2d DCA 1972), we remand to the Circuit Court for the entry of an order, amending the one appealed from, designating an appropriate future date and period of days, for the required appearance of the witness at the New York proceedings.

AFFIRMED AND REMANDED IN ACCORDANCE HEREWITH.

CROSS and MOORE, JJ., concur.


text:
    COPLAN PIPE & SUPPLY CO., INC., a Florida Corporation, Appellant, v. CENTRAL BANK & TRUST COMPANY, a Banking Corporation, Sunrise Point, Inc., a Florida Corporation, and Boys Electric Corporation, a Florida Corporation, Appellees.
    No. 77-1756.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.
    Rehearing Denied Oct. 6, 1978.

      Herman Grayson, Miami Beach and Frank M. Brezina, Miami, for appellant.
    Shevin, Shapo & Shevin and David A. Freedman, Miami, for appellees.
    Before HENDRY and HUBBART, JJ. and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant/plaintiff appeals from a summary final judgment entered in favor of appellees/defendants in a mechanics lien foreclosure. We reverse.

Appellant, a materialman which supplied plumbing materials to a condominium project known as Sunrise Point, filed a mechanics lien foreclosure suit against appel-lees Sunrise Point, Inc., the general contractor of the project; Central Bank & Trust Company, the fee simple owner (in trust) of the project; and others, for the cost of various materials it had delivered to the project which had not been paid for by the plumbing sub-contractor (not a party herein).

Prior to filing the aforementioned foreclosure suit, appellant filed a separate breach of contract suit against the general contractor, Sunrise Point, Inc., alleging that by virtue of a separate agreement with the general contractor, the latter was to pay the sub-contractor’s debt to appellant in exchange for the continued delivery to the project of certain materials furnished by appellant. Certain conditions, including a timely completion date, were made prerequisites to the agreement’s effectiveness.

Subsequently, the breach of contract suit proceeded to jury trial whereupon, at its conclusion, a jury returned a verdict in favor of the general contractor, Sunrise Point, Inc. Implicit in the verdict was the jury’s determination that pursuant to the agreement, appellant had failed to meet certain of the preconditions required as a prerequisite to the enforcement of the agreement.

After the verdict was rendered in the contract suit, appellees amended their answer in the mechanics lien foreclosure suit to add the affirmative defenses of election of remedies, collateral estoppel, estoppel by judgment and res judicata, relying upon the adverse judgment rendered against appellant in the contract suit. Appellees thereupon moved for summary judgment based upon the above named defenses. Summary-judgment was subsequently entered in favor of appellee based upon estoppel by judgment. From that summary judgment, this appeal has been taken.

Collateral estoppel, or estoppel by judgment, is a judicial doctrine which in general terms prevents identical parties from relitigating issues that have previously been decided between them. Mobil Oil Corporation v. Shevin, 354 So.2d 372 (Fla.1977). Sub judice, the issues in the breach of contract action were entirely different from the issues in the mechanics lien foreclosure case, thus precluding the reliance upon the doctrine of estoppel by judgment. See Remington Construction Co. v. Hamilton Electric, Inc., 181 So.2d 183 (Fla.3d DCA 1965).

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

Reversed and remanded for further proceedings.


author: HENDRY, Judge.

text:
    Dr. Robert KIRSNER, Appellant, v. The UNIVERSITY OF MIAMI, Appellee.
    No. 77-1760.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.
    Marks & Leinoff and Allan B. Marks, Miami, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Robert T. Wright, Jr. and Charles C. Kline, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant/plaintiff, Dr. Robert Kirsner, appeals from a final judgment rendered in favor of appellee/defendant, The University of Miami, in an action which sought declaratory relief. The final judgment is self-explanatory and is set forth as follows:

“This action came on for trial by the Court, neither party having demanded trial by jury. Plaintiff, a tenured member of the University’s faculty, sought a declaration that the University was obligated to pay Plaintiff the same salary he received as ‘Department Chairman’ even though he no longer performed the duties of a ‘Department Chairman.’ Plaintiff’s claim was based on a letter dated December 10, 1973 which was prepared and given to him by the Dean of the University’s College of Arts and Sciences. The essence of the letter was that in consideration for Plaintiff’s resignation as Department Chairman, his future yearly salary as a faculty member would not be reduced even though he no longer performed a Department Chairman’s duties in addition to his duties as a regular faculty member.
“Among the defenses raised by the University were the following:
“1. The Dean of the College of Arts and Sciences lacked both the actual and apparent authority to make the promise set forth in the letter of December 10, 1973.
“2. There was no consideration flowing to the University to bind it to the promise set forth in the letter of December 1Ó, 1973.
“After hearing all of the evidence, the Court finds and concludes as follows:
“FINDINGS OF FACT
“1. It was the University’s usual custom and practice to increase a faculty member’s salary by a specified formula if he assumed the duties of the Department Chairman of a large department. Plaintiff’s department was a large department and he received such an increase upon becoming Department Chairman. It was also the University’s usual custom and practice to reduce a faculty member’s salary by a specified formula if he resigned or was removed as Chairman of a large department.
“2. Plaintiff did not voluntarily resign as Department Chairman but was removed by the Dean of the College of Arts and Sciences on November 19, 1973. The Dean had the authority to remove Plaintiff as Department Chairman. The letter of December 10,1973 characterized Plaintiff’s removal as a ‘resignation’ only as a face-saving device to avoid unduly embarrassing Plaintiff.
“3. The Dean of the College of Arts and Sciences was authorized by the University to advise Plaintiff that his salary would not be reduced for the remainder of the then current 1973 — 1974 academic year and for the 1974-1975 academic year, ending May 31, 1975, in recognition of his past services to the University.
“4. The Dean did not have the authority to promise on behalf of the University that Plaintiff’s salary would not be reduced after May 31, 1975. The promise to this effect was gratuitously volunteered by the Dean after he removed Plaintiff as Department Chairman and was not bargained for by Plaintiff.
“5. The University took no action and made no statement that would reasonably lead Plaintiff to believe that the Dean of the College of Arts and Sciences had any authority to make the promise contained in his letter of December 10,1973. Plaintiff should have known that the Dean lacked such authority.
“6. Plaintiff’s salary was not reduced to reflect his removal as Department Chairman until after May 31, 1975 in accordance with the commitment actually authorized by the University.
“7. Plaintiff’s salary was reduced after May 31, 1975 by the specific formula normally applied by the University when reducing the salary of a faculty member relieved of the duties of Department Chairman of a large department.
“CONCLUSIONS OF LAW
“1. The Dean of the College of Arts and Sciences lacked the actual, apparent, or implied authority to bind the University not to reduce Plaintiff’s salary after May 31, 1975.
“2. There was no consideration sufficient to bind the University to the promise set forth in the letter of December 10, 1973.
“3. The fact that Plaintiff has tenure as a member of the University’s faculty, does not affect the University’s right to reduce that portion of his salary paid to him for performing the duties of a Department Chairman since tenure does not apply to administrative duties and positions.
“FINAL DECREE
“1. Having made the foregoing findings of fact and conclusions of law, the rights of the parties are hereby:
“DECLARED AND ADJUDGED as follows:
“1. The letter dated December 10, 1973 from the Dean of the University’s College of Arts and Sciences to Plaintiff does not constitute a binding contract.
“2. The University is not obligated to pay Plaintiff the additional salary of a Department Chairman after May 31, 1975.
“3. This order shall constitute the final judgment of the Court which is that Plaintiff shall take nothing by this suit and Defendant shall go hence without day.
“DONE AND ORDERED, in Chambers at Miami, Dade County, Florida on this 20 day of May, 1977.”

After careful reviewing the record, it is our opinion that there was substantial, competent evidence to support each of the trial judge’s findings of fact. As such, we will not substitute our judgment for that of the trial judge’s. Whitman v. Pet Incorporated, 335 So.2d 577 (Fla. 3d DCA 1976).

As for the conclusions of law, it is apparent from the record that there was no “bargained for” consideration to support any alleged contract between Dr. Kirsner and the University, as the former had no “right” to the position of chairman and was clearly subject to dismissal by the University at any time. See Lake Sarasota, Inc. v. Pan American Surety Co., 140 So.2d 139 (Fla. 2d DCA 1962). Therefore, whether Dr. Kirsner “resigned” or was, as the trial judge found, “removed” by the University from the chairmanship, is of little legal consequence.

Further, even if consideration could be found for the “letter contract,” it is clear from the record that the Dean of the College of Arts and Sciences lacked either the actual or apparent authority to bind the University to any contractual arrangement with Dr. Kirsner. See Thomkin Corporation v. Miller, 156 Fla. 388, 24 So.2d 48 (1945) and Stiles v. Gordon Land Co., 44 So.2d 417 (Fla.1950). In addition, the University never intended to ratify the aforementioned unauthorized act of its agent, the Dean. Costello v. Lipsitz, 547 F.2d 1267 (5th Cir. 1977).

In conclusion, there being substantial, competent evidence to support the “findings of fact,” and the “conclusions of law” being both logically and legally following from those factual findings, the judgment appealed from is hereby affirmed.

Affirmed.


author: PEARSON, Judge.

text:
    Stuart VORZIMER and Nedda Vorzimer, his wife, Appellants, v. Sam S. KAPLAN, Appellee.
    No. 77-2150.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.

      Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for appellants.
    Steel, Hector & Davis and Henry J. Whelchel, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

The appellants, Stuart Vorzimer and Nedda Vorzimer, his wife, are the owners of a residence. They appeal a final judgment of foreclosure which found that the plaintiff, Sam S. Kaplan, a builder, was entitled to a mechanic’s lien for overage above the written contract under which the defendants’ residence was constructed.

On this appeal, the defendants present three points. The first urges that the circuit judge applied a mistaken principle of law in holding that a written contract could be modified by oral agreements reached prior to execution of the written instrument. The second urges that the trial court erred in relying upon a deposition which was not introduced into evidence. The third urges that because the builder was seeking only to recover “profits,” he could not maintain a statutory mechanic’s lien.

We reverse and direct a new trial upon a holding that the trial court made contradictory findings in its final judgment and that the evidence does not support the judgment entered in that there is no correlation between the changes allegedly made after the execution of the contract and the amount for which the lien was allowed.

Initially, confusion was created in this case by the fact that the trial judge refused to admit.into evidence the deposition of one of the parties, Nedda Vorzimer. The deposition was clearly admissible in evidence under Fla.R.Civ. P. 1.330(a)(2). Thereafter, the trial judge allowed the use of the deposition in oral argument and it is apparent from the judgment that he relied thereon. While the trial judge’s action would ordinarily be considered harmless error, it cannot be so considered in this case inasmuch as it prevented the defendants from having an opportunity to explain or to counteract the evidence relied upon by the trial judge. See the principle of law in Ruff v. Georgia S. & F. Ry. Co., 67 Fla. 224, 64 So. 782, 785 (1914).

The ordinary rule applied in attempts to change a written instrument providing for a flat fee for certain services is that the terms of a valid, written contract cannot be varied by a verbal agreement where such an agreement was made before or at the time of the instrument in question. Such agreements are considered as waived or merged into the written contract. See Prescott v. Mutual Ben. Health & Accident Ass’n., 133 Fla. 510, 183 So. 311 (1938). It is not clear from this record what changes, if any, in the contract were made by its modification subsequent to its execution. In our view, the record is altogether too vague to satisfy the rule that in order to establish parol changes in a written contract, the evidence must show a new “meeting of the minds” of the contracting parties. Cf. Tropicana Pools, Inc. v. Boysen, 296 So.2d 104 (Fla. 1st D.C.A. 1974).

In view of the state of this record, we think that the greater justice to the parties will be gained by a new trial. Therefore, the judgment is reversed and the cause remanded for a new trial in the light of the principles herein set forth.

Reversed and remanded.

      . “(5) During the course of completion of the contract, the Plaintiff and Defendants agreed to make certain changes in the types of material which were originally scheduled to be used in the property. These changes resulted in both increases and decreases in the basic contract price.

        “(6) The reasonable value of the labor and materials actually furnished to construct the residence is $106,745.00.
      “(7) The Defendants have actually paid to the Plaintiff the sum of $97,000.00.
      “(8) The Court finds that demand upon the Defendants has been made for payment of the balance of $9,745.00 due on the contract, but that the Defendants have refused to make said payment.”


text:
    Honorable Robert A. BUTTERWORTH, in his capacity as a County Court Judge in and for Broward County, Florida, Petitioner, v. Robert W. HARDIN, Respondent.
    No. 77-278.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.

      Michael J. Satz, State’s Atty., and William W. Herring and Patti Englander, Asst. State’s Attys., Fort Lauderdale, for petitioner.
    Bernard S. Yedlin, Miami, for respondent.
   DOWNEY, Chief Judge.

The State of Florida has appealed the issuance of a writ of prohibition in which the Circuit Court of the Seventeenth Judicial Circuit prohibited the County Court from proceeding to trial of appellee for violation of a municipal ordinance.

Appellee filed a request for transfer of his ordinance violation from the Municipal Court of Pembroke Pines to the County Court of Broward County. The Municipal Judge signed the order of transfer and seven days later the Clerk of the Municipal Court received the order and effected the transfer on that same day. Appellee sought a writ of prohibition in the Circuit Court to prohibit the Appellant County Judge from proceeding with a trial of his case. It was appellee’s contention that the Municipal Court had not complied with the three day requirement for transfer of the record to the County Court.

Section 932.61, Florida Statutes (1975), requires a municipal judge to forthwith entertain a petition for transfer to a court providing jury trials and, upon finding the petition to be correct, order by written endorsement on the petition, the transfer of the cause to the appropriate court. The statute goes on to provide that the Clerk of the Municipal Court shall within three days from receipt of the judge’s order transfer the original record to the appropriate court.

There is no claim here that the municipal judge did not entertain the petition forthwith or that the clerk did not transfer the record within three days as required by the statute. On the contrary, appellee alleged in his petition for writ of prohibition in the Circuit Court that “the municipality had failed to transfer the said cause to the County within the requisite three (3) days from the date of the signing of the order of transfer, pursuant to F.S. 932.61(4).” Ap-pellee argued the three day requirement was mandatory and jurisdictional and, thus, the County Court should not be allowed to proceed.

We need not reach the merits of appel-lee’s contention regarding the mandatory versus directory aspect of the statutory section involved because the three day time specification was complied with. That requirement pertains to the clerk’s transfer of the record after receipt of the judge’s order, not three days after the date of the order.

In view of the foregoing the County Court acted within its jurisdiction in denying appellee’s motion to dismiss the charges and the issuance of the writ of prohibition was error and is accordingly reversed.

CROSS, J., concurs.

DAUKSCH, J., dissents without opinion.


text:
    John H. GOSSETT, d/b/a John H. Gossett Construction Company, and the St. Paul Fire & Marine Insurance Company, a Minnesota Corporation, Appellants, v. D’ANGELO PLASTERING COMPANY, INC., a Florida Corporation, Appellee.
    No. 77-1078.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.
    Ronald P. Gossett, Fort Lauderdale, for appellants.
    Joseph R. Delucca, Hialeah, for appellee.
   LETTS, Judge.

This cause is affirmed upon the authority of the Supreme Court case of Peacock Construction Company, Inc. v. Modern Air Conditioning, Inc., 353 So.2d 840 (Fla.1977).

MOORE and BERANEK, JJ., concur.


text:
    AUTO SAFETY SERVICE, INC., and Casualty Reciprocal Exchange, Appellants, v. John MARTEIN and Sarah Martein, his wife, Appellees.
    No. 77-1080.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.

      Marc Cooper, Robyn Greene and Sharon L. Wolfe of Greene & Cooper, and Corlett, Merritt, Killian & Sikes, Miami, for appellants.
    Fred C. Bamman, III, Fort Lauderdale, for appellees.
   MOORE, Judge.

This is an appeal from a final judgment in favor of the plaintiff who was a customer of Auto Safety Services, Inc. The plaintiff sustained injury when Auto Safety’s watch dog jumped on him knocking him to the ground. Plaintiff was awarded $42,000 as compensatory damages for his injuries and his wife was awarded $10,000 on her derivative claim. The plaintiff was also awarded $3,500 as punitive damages.

The only point on appeal which we consider to have merit concerns the propriety of the award of punitive damages. Appellant contends, and we agree, that its motion for directed verdict on the issue of punitive damages should have been granted because there was insufficient evidence to support such an award.

The general principles applicable to awards of punitive damages have constantly been reiterated and are not in dispute:

“Punitive or exemplary damages are allowable, however, solely as punishment or ‘smart money’ to be inflicted for the malicious or wanton state of mind with which the defendant violated plaintiff’s legal right, and can only be imposed in cases where either by direct or circumstantial evidence some reasonable basis for an inference of wantonness, actual malice, deliberation, gross negligence, or utter disregard of law on defendant’s part may be legitimately drawn by the jury trying the case.” Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222-223 (Fla.1936). See also, Buie v. Barnett First National Bank of Jacksonville, 266 So.2d 657, 659 (Fla.1972).

In the instant case, the dog allegedly had been involved in two prior incidents. The dog’s owner was aware that the dog had previously bitten one person who drove into the owner’s premises seeking roadway instructions at a time when the premises were closed to the public. The testimony concerning the second incident is very ambiguous and it appears that the dog’s owner never learned of the incident. A review of the totality of the evidence fails to reveal any reasonable basis from which the jury could have inferred wantonness, actual malice, deliberation, gross negligence, or utter disregard of the law on the defendant’s part. Its motion for directed verdict on the issue of punitive damages therefore should have been granted.

Although we consider the jury’s award of damages to be generous, they are not such as to shock the judicial conscience and we may not substitute our judgment for that of the jury.

AFFIRMED in part; REVERSED in part.

DOWNEY, C. J., and RIVKIND, LEONARD, Associate Judge, concur.


text:
    Edward W. MICHALOW, Appellant, v. STATE of Florida, Appellee.
    No. 77-1174.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.

      Richard L. Jorandby, Public Defender, and Marc R. Goldstein, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

As a condition of probation the appellant was directed to “rectify” his marital situation and to make his child “legitimate” within one year. The appellant contends that this condition is improper and is tantamount to an order that he get married, and specifically, that he marry the mother of his child. We agree that such a provision is beyond the trial court’s authority. Accordingly, Condition No. 11 of the order of probation is hereby stricken. We find no merit in the other points raised by appellant and the order of probation is hereby affirmed as modified.

AFFIRMED AS MODIFIED.

ANSTEAD and DAUKSCH, JJ., and BASKIN, NATALIE, Associate Judge, concur.


author: ANSTEAD, Judge.

text:
    Charles Otho DALTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-1378.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler and Tatjana Ostapoff, Asst. Public Defenders, and William H. Larkins, Legal Intern, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant, Charles Otho Dalton, Jr., contends that the trial court erred in refusing to allow him credit against his sentence for time spent in a state mental hospital. We disagree and affirm.

Dalton was arrested on December 28, 1965, and subsequently charged with first degree murder. Prior to trial he was lodged in the Indian River County jail. Upon trial, he was convicted, sentenced to death, and transferred to the state prison at Raiford. He was returned to the county jail when a new trial was ordered by the Supreme Court.

Dalton then filed a motion claiming that he was not mentally competent to stand trial. On February 16, 1968, the trial court entered an order finding Dalton mentally incompetent and ordering him committed for treatment at a state mental hospital. Another competency hearing was conducted on July 14, 1976, after which an order was entered again finding Dalton incompetent and confirming his commitment. Finally, on March 17, 1977, after a hearing on competency, Dalton was adjudicated sane, mentally competent to stand trial and was returned to the county jail.

Dalton entered a plea of guilty to second degree murder on April 28, 1977, and was adjudged guilty and sentenced to life imprisonment on the same day. The trial court allowed credit for all time spent in the county jail or state prison but denied his request for credit for time spent in the state mental hospital.

In Dorfman v. State, 351 So.2d 954 (Fla.1977), the Florida Supreme Court framed the issue involved on appeal as:

[WJhether one sentenced to a prison term after he has spent time in a state mental hospital under a court committal order must be given credit against his sentence for the time spent in hospital confinement.

This question was answered in the negative by the Supreme Court’s decision. Justice England expressed the court’s reasoning as follows:

It is convenient rhetoric to say, as Dorf-man argues, that incarceration is incarceration whether spent in a jail cell or a hospital. There is an obvious difference, however, between confinement in a prison (or in a prison infirmary during a period of imprisonment), as part of a criminal sentence, and a period of treatment in a mental hospital for the purpose of helping the individual to return to society.

351 So.2d 954 at 957.

Dalton contends that Dorfman is not applicable because Dorfman was hospitalized as a mentally disordered sex offender, a commitment related to Dorfman’s conviction, whereas here the commitment was unrelated to the charges pending against Dalton. We cannot agree that this distinction requires a different result. If anything, there would seem to be more justification for crediting time spent in a commitment related to the offense, than for crediting time spent in a completely unrelated commitment.

The adjudication of incompetency and commitment were the result of Dalton’s own motion claiming that he was incompetent to stand trial. The purpose of the commitment was to treat Dalton’s mental illness and to return him to a state of mental competency, so he would be capable of standing trial. The standards used to determine the competency of a defendant are essentially the same as those used in civil commitment proceedings. Daniels v. O’Connor, 243 So.2d 144 (Fla.1971); Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Just as in Dorfman, supra, the prosecution of a defendant adjudicated incompetent, is suspended during the time he is committed.

We believe the decision in Dorfman is controlling here. Accordingly, the judgment and sentence of the trial court are affirmed.

AFFIRMED.

DAUKSCH, J., and BASKIN, NATALIE, Associate Judge, concur.


text:
    FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. STATE of Florida, Appellee.
    No. 77-1763.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.
    Jack L. McRay, Tallahassee, for appellant.
    William W. Carpenter, Asst. Public Defender, Sanford, for appellee.
   PER CURIAM.

Appellant has filed a notice of appeal directed to an order rendered in a criminal case. Since appellant had no standing in the court below it has no standing here and this matter is dismissed.

APPEAL DISMISSED.

DOWNEY, C. J., and DAUKSCH and MOORE, JJ., concur.


author: BERANEK, Judge.

text:
    Dr. Yvette ANS, Dr. Roy Ans, and Ans and Ans, P.A., Petitioners, v. John PAGNOTTI, as personal representative, Respondent.
    No. 78-1231.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.
    Norman S. Klein of Schwartz, Klein & Steinhardt, P.A., North Miami Beach, for petitioners.
    Edward A. Perse, of Horton, Perse & Ginsberg, and Brumer, Moss, Cohen & Rodgers, Miami, for respondent.
   BERANEK, Judge.

This petition for common law certiorari has been considered on motion to dismiss filed by the respondent. This is a medical mediation proceeding. The panel has met, conducted a hearing, and rendered a decision finding actionable negligence. The petition for writ of certiorari seeks review of the decision of the medical mediation panel and seeks to question the sufficiency of the evidence. The respondent has filed a motion to dismiss the petition asserting this Court lacks jurisdiction and that the recent opinion of the Third District Court of Appeal in Hubacher v. Landry, 360 So.2d 42, Opinion filed June 13, 1978, warrants dismissal.

It is our conclusion that the petition for common law certiorari herein does not demonstrate jurisdiction and same is hereby dismissed. We adopt the reasoning of the Court in Hubacher v. Landry, supra. We stress that this case involves a decision by a mediation panel on the merits which is questioned on evidentiary grounds. No issue as to jurisdiction is involved as was the situation in this Court’s prior decisions in Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977), and Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977).

The respondent’s motion to dismiss the writ of certiorari is hereby granted.

CROSS and DAUKSCH, JJ., concur.


text:
    Harvey Thomas ANDERSON, Petitioner, v. FIRST STATE BANK OF LANTANA, First American Bank of Lake Worth, N.A., and Central Bank of Palm Beach County, Respondents.
    No. 78-1474.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.
    Timothy H. Kenney, Palm Beach, for petitioner.
    Paul B. Erickson, Palm Beach, for respondents.
   Petition for Writ of Certiorari to Circuit Court, Palm Beach County; James R. Stewart, Judge.

Petition for Writ of Certiorari is hereby DENIED.

ANSTEAD, DAUKSCH and MOORE, JJ., concur.


text:
    Russell Kent PERRY, Appellant, v. STATE of Florida, Appellee.
    No. II-156.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1978.

      Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for appellee.
   MELVIN, Judge.

Appellant-defendant appeals from the judgment and sentence imposed upon him for leaving the scene of an accident with injury or death. Defendant contends that he stands convicted of a misdemeanor for which no punishment is provided by law.

Information alleged that defendant:

“. . . the driver of a vehicle involved in an accident resulting in . injury or death . . ., unlawfully and willfully failed to remain at the scene of the accident or to otherwise comply with the provisions of Section 316.062, Florida Statutes, contrary to the provisions of Section 316.027(1) and 316.027(2), Florida Statutes.”

Following a jury trial, the jury returned a form verdict which recited the following: “We, the jury, find the defendant guilty of leaving the scene of accident resulting in death or injury.” Judgment of guilt was entered for the offense of “leaving scene of accident with injury or death” and a sentence .of one year imprisonment was imposed.

Defendant contends that the jury verdict found him guilty of a misdemeanor under Section 316.027(1), Florida Statutes, since the verdict failed to make the specific finding of willfulness necessary to constitute the felony offense under Section 316.027(2), Florida Statutes. Accordingly, defendant urges that the trial court was without authority to impose a sentence upon him. Defendant relies upon State ex rel. Miller v. Patterson, 284 So.2d 9 (Fla.2d DCA 1973); State ex rel. Seal v. Shepard, 299 So.2d 644 (Fla.1st DCA 1973); and Holmes v. State, 342 So.2d 134 (Fla.1st DCA 1977). We find defendant’s contentions without merit.

Stanfill v. State, 360 So.2d 128 (Fla.1st DCA 1978), held that Sections 316.-027(1) and (2), Florida Statutes, proscribe only one offense, viz., willfully leaving the scene of an accident involving death or injury to a person, and further that such offense is a felony. Stanfill v. State, supra, receded from this court’s holding in State ex rel. Seal v. Shepard, supra, which had adopted the reasoning of State ex rel. Miller v. Patterson, supra.

It is clear that the verdict rendered is defective in that it failed to contain the essential element of “willfulness” set forth in Sections 316.027(1) and (2), Florida Statutes. There is no doubt, however, that the jury intended to find the defendant guilty of the felony charge of willfully leaving the scene of an accident resulting in death or injury. The information properly charged defendant with willfully leaving such scene. Pursuant to an agreement between the parties, there was no instruction given on any lesser included offenses. The jury was instructed that “willfulness” was an essential element of the offense.

At the conclusion of the jury charge conference, the court inquired of defense counsel:

“THE COURT: . . . Have I omitted anything?
MR. PIERCE: No, Your Honor.
THE COURT: Anything in addition that you wish, or do you wish to recite anything that you object to, Mr. Pierce?
MR. PIERCE: No, Your Honor.”

Thereafter, the court submitted to counsel for the state and the defendant the proposed verdict forms and asked if such forms were acceptable. Counsel for the state replied in the affirmative and counsel for the defendant advised the court that the forms were acceptable. The verdict forms, apparently prepared by a court official, reflected the following:

“-We, the jury, find the defendant NOT GUILTY.
“-We, the jury, find the defendant GUILTY OF LEAVING THE SCENE OF ACCIDENT RESULTING IN DEATH OR INJURY.”

Although the verdict forms were defective, defendant not only failed to enter an objection thereto at trial but also expressed his agreement to its submission. Any verdict form error was, therefore, invited error. His complaint post verdict is out of season.

The defendant first expressed his displeasure with the verdict in his motion for a new trial, as follows: “1. That the verdict is contrary to law or the weight of the evidence.” This shotgun type blast at the sufficiency of a verdict while employing the verbiage of Fla.R.Crim.P. 3.600(a)(2) does not, with any specificity, direct the attention of the court to any particular subject as to which correction is desired.

In Richardson v. State, 345 So.2d 380 (Fla.3d DCA 1977), the court considered a challenge to the sufficiency of the form of a verdict in a prosecution for receiving or 'concealing stolen property knowing it to have been stolen, and ruled:

“The point claiming error in the form of the verdict was not preserved for appeal because the defendant not only failed to object to the form of the verdict but also actually agreed to its submission.” (Cite omitted)

In Kirkland v. State, 357 So.2d 766 (Fla.1st DCA 1978), the appellant challenged the legal sufficiency of the verdict and judgment based thereon in that the same failed to state that defendant had knowledge that the property was stolen at the time that he received it. In disposing of this claimed error, the court at 767 ruled:

“The cases establish that defects in the form of the verdict, such as in this case, are waived on failure to object at some point during the trial proceedings.” (Cites omitted)

We have examined the evidence and find that the same is legally sufficient to support a verdict and judgment of guilt as to the charge of willfully leaving the scene of an accident resulting in injury or death.

The judgment, which must conform to the verdict, is defective in the same particular. Accordingly, the judgment is reversed and remanded with directions to the trial court to enter a proper judgment. The defendant need not be present for such purpose.

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

      . It is now clear that Section 316.027(1) is not a lesser included offense of the charge. Stanfill v. State, supra.


text:
    William B. KURLAK and Lula N. Kurlak, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
    No. JJ-253.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1978.
    Thomas F. Condon, of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appellants.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for appellee.
   MELVIN, Judge.

Appellant-plaintiff Kurlak filed his appeal from an adverse final summary judgment finding no liability on the part of appellee-defendant United Services Automobile Association, under its policy of insurance issued to Kurlak.

The facts are not in dispute. Kurlak drove his automobile to the Hobby Shop at the Pensacola Naval Air Station where there is provided a place for parties to repair their automobiles. It was Kurlak’s purpose to replace shock absorbers on his car. When he had replaced the shock absorbers according to the directions, he then needed to grease certain parts that had been replaced. In a working area close to Kurlak, an individual by the name of Cer-vene was greasing his automobile. Kurlak requested Cervene to let him borrow the grease gun that Cervene was using. Cer-vene then remarked to Kurlak to hold up the piece of paper that Kurlak had in his hand and that Cervene would expel some grease from the gun onto the paper for his use. Kurlak held out the paper in his hand, Cervene expelled the grease from the grease gun, but the grease didn’t stop when it contacted the paper as the parties evidently contemplated that it would. The grease penetrated the paper and penetrated the skin on Kurlak’s hand thereby resulting in injuries to him for which he incurred medical expenses exceeding $7,000.

Cervene’s automobile was not covered by any insurance at the time of the accident. Kurlak’s policy, which included coverage for injuries arising from the negligent acts of uninsured motorists, was in full force and effect. The pertinent clause in Kurlak’s uninsured motorist coverage provides:

“To pay all sums which the insured * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury * * * sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile. . . . ”
(Emphasis added)

The question presented here is simply whether or not the injury to Kurlak was one that arose out of the maintenance of the uninsured automobile owned by Cer-vene.

We hold that it did not. At the time of the act of Cervene in causing grease to be expelled from the grease gun onto the paper in Kurlak’s hand, Cervene had ceased the maintenance on his car and was engaged in an act of attempting to help Kur-lak with the greasing of Kurlak’s car. Nothing about the maintenance or operation of the Cervene vehicle caused the accident or injury to Kurlak’s hand. See Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978), Opinion filed August 22, 1978, not yet reported.

The final summary judgment appealed from is AFFIRMED.

SMITH, Acting C. J., and BOOTH, J., concur.


text:
    John Henry BATTLE, Appellant, v. STATE of Florida, Appellee.
    No. 76-1202.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky and Joy B. Shearer, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

ON PETITION FOR REHEARING

In his petition for rehearing the appellee has pointed out that in the recent case of State v. Abreau, 363 So.2d 1063 (1978) by the Supreme Court of Florida, the court held that the rule set forth in DeLaine v. State, 262 So.2d 655 (Fla.1977), is still the law of Florida. Having reconsidered our opinion filed June 7, 1978, in the light of State v. Abreau, supra, the appellee’s petition for rehearing is granted, our opinion filed June 7, 1978, is withdrawn and the judgment and sentence appealed from is affirmed.

LETTS and MOORE, JJ., concur.


text:
    Gary Bernard WOOLBRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. LL-20.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1978.

      Gary Bernard Woolbright, in pro. per.
   PER CURIAM.

The trial court did not err in finding that appellant’s motion to vacate, set aside or correct sentence did not substantially comply with Rule 3.850, Florida Rules of Criminal Procedure. Swain v. State, 355 So. 865 (Fla. 1st D.C.A. 1978). The order appealed is affirmed without prejudice to appellant’s rights to file a proper motion.

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


author: DANAHY, Judge.

text:
    Lester JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1140.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1978.
   DANAHY, Judge.

Appellant filed a motion to vacate his sentence under Fla.R.Crim.P. 3.850. In that motion he alleged that a prior conviction was invalid under Gideon v. Wainwright and that the trial court had used the prior conviction to enhance his sentence in this case.

The trial court denied appellant’s motion without an evidentiary hearing. We reverse. If the allegations contained in the motion are true, appellant is entitled to be resentenced without reference to the prior conviction. Wolfe v. State, 323 So.2d 680 (Fla.2d DCA 1975). Accordingly, we remand the case so that the trial court may hold an evidentiary hearing to test the truth of appellant’s allegations.

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

      . 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

      . We have reviewed the transcript of the sentencing hearing, and we can find nothing which refutes appellant’s allegations. In fact, we note that the court made a specific reference to appellant’s prior conviction.


text:
    FREEPORT SULPHUR COMPANY, DIVISION OF FREEPORT MINERALS COMPANY and Sulphur Terminals, Inc., Petitioners, v. Joseph W. LANDERS, Jr., Secretary, Florida Department of Environmental Regulation, et al., Respondents.
    No. KK-259.
    District Court of Appeal of Florida, First District.
    Sept. 18, 1978.
    William L. Earl, Miami, and Henry Dean, of Peeples, Earl & Blank, Miami, and John T. Allen, Jr., St. Petersburg, for petitioners.
    Joseph W. Landers, Jr., Tallahassee, Louis de la Parte, Tampa, John P. Harllee, III, of Harrison, Harllee, Porges & Mastry, and Dewey A. Dye, Jr., of Dye, Cleary, Scott, Deitrich & Price, Bradenton, for respondents.
   PER CURIAM.

Before petitioners seeking a writ of prohibition challenged the Department of Environmental Regulation’s jurisdiction, pursuant to Fla.Admin.Code Rule 17-1.60, to review interim orders of hearing officers in proceedings under Section 120.57, Florida Statutes, 1977, they challenged the rule in Section 120.56 proceedings. The hearing officer found Rule 17-1.60 to be invalid. Therefore the issue of this petition for writ of prohibition is now moot. We of course are not asked in this proceeding, nor do we decide, the appropriateness of the hearing officer’s order entered in another ease as to the validity of the rule.

The petition for writ of prohibition is DENIED.

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


text:
    The LEWIS STATE BANK, Appellant, v. Paul FRANK, a/k/a Paul R. Frank, David Hirsch, Robert Greenberg, and Mary Lou Nix, Appellees.
    No. HH-374.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1978.
    John D. Buchanan, Jr., of Henry, Buchanan, Mick & English, Tallahassee, for appellant.
    Jim L. Dye of Dye & Thrasher, Mark H. Rodman, Tallahassee, for appellees.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we affirm the judgment of the trial court which found that the appellees were discharged by payment of the original note executed by the parties. Having affirmed on this issue, it is unnecessary and we do not consider the other issues raised by either the appellant or the appel-lees.

Accordingly, the final judgment is affirmed.

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


text:
    STATE of Florida, Appellant, v. Carlos NORMAN, Appellee.
    No. II-468.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1978.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellee.
   PER CURIAM.

The State appeals an order granting ap-pellee’s habeas corpus petition in an extradition proceeding. We agree that the court erred and reverse. It is well established that the scope of inquiry in this type of a proceeding is limited to a determination of whether the jurisdictional prerequisites to the issuance of the extradition warrant exist. State v. Cox, 306 So.2d 156 (Fla.2d DCA 1974). Here it is clear from the record that the jurisdictional requirements for extradition were met and the matters urged by appellee exceeded the proper scope of inquiry. Therefore, the order granting appellee’s petition for habeas corpus is reversed and the case is remanded with directions to enter an order delivering appellee to the appropriate agent for the State of Arkansas.

McCORD, Chief Judge, and MILLS and BOYER, JJ., concur.


text:
    Franklin D. LEWIS, Petitioner, v. FLORIDA COMMISSION ON ETHICS, Respondent.
    No. KK-245.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1978.
    J. Lofton Westmoreland and T. Sol Johnson of Johnson, Green & Westmoreland, Milton, for petitioner.
    Robert L. Shevin, Atty. Gen., William C. Sherrill, Jr., Asst. Atty. Gen., for respondent.
   PER CURIAM.

At oral argument the parties stipulated before the court that respondent would not proceed, insofar as petitioner is concerned, under Article II, Section 8 of the Florida Constitution, but would confine its purported authority to that derived from Chapter 112, Florida Statutes. Upon consideration of the petition and response, the briefs filed by the respective parties and oral argument before the court, and without addressing the merits of the controversy between the parties, we conclude that the discretionary writ of prohibition should not be granted. Accordingly, the petition for writ of prohibition is denied.

IT IS SO ORDERED.

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