text:
    OLD REPUBLIC LIFE INSURANCE COMPANY, Appellant, v. Edith M. RUCKS, Appellee.
    No. 77-2638.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.
    Emory C. Teel, III, of Fee, Parker & Fee, P. A., Fort Pierce, for appellant.
    Richard V. Neill of Neill, Griffin, Jeffries & Lloyd Chartered, Fort Pierce, for appel-lee.
   PER CURIAM.

This is an appeal from a judgment for attorney's fees. The appellant claims that under Section 627.401(2), Florida Statutes (1975), attorney’s fees are not recoverable on insurance contracts not issued for delivery in Florida.

The appellant sold the appellee’s deceased husband two policies of credit life insurance on loans made to the Rucks by the Federal Land Bank of Columbia, South Carolina. Mr. Rucks was a Florida resident, the policies were purchased in Florida, and certificates of insurance were issued in Florida. The certificates referred to a master policy on file with the Federal Land Bank in Columbia.

Section 627.401(2) provides that the statute authorizing the recovery of attorney’s fees, Section 627.428(1), is not applicable to contracts of insurance not issued for delivery in Florida. However, Section 627.401(5) states that the only provision of Part II of Chapter 627 [which includes Sections 627.-401(2) and 627.428(1)] applicable to credit life insurance policies is Section 627.428(1), attorney’s fees. In addition, in a previous review of this case, this court held that the contract of insurance consists of both the certificate and the master policy. Bucks v. Old Republic Life Insurance Co., 345 So.2d 795 (Fla. 4th DCA 1977).

It would appear that the legislature specifically intended that credit life insurance policy holders be entitled to attorney’s fees under Section 627.428(1). When we consider the fact that the policies were sold in Florida to a Florida resident and certificates issued in Florida, together with the statutory provisions and this court’s previous decision in this case, supra, we believe the trial court was correct in assessing attorney’s fees. We further find no support in the record for appellant’s claim that the amount of the award was excessive. There was abundant evidence to support the award.

Accordingly, the judgment of the trial court is affirmed.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.

      . Blue Cross of Florida, Inc. v. Turner, 363 So.2d 133 (Fla. 1st DCA 1978).


source: Caselaw Access Project

author: DOWNEY, Chief Judge.

license: Public Domain

text:
    GORE NEWSPAPERS COMPANY, Marion Hale, Jack Brennan and Jeffery Rodack, Petitioners, v. The Honorable James M. REASBECK, Circuit Court Judge, and Michael Gora, Respondents.
    No. 78-1726.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.
    William D. Ricker, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for petitioners.
    Arthur M. Wolff of Wolff & Gora, Fort Lauderdale, for respondent Gora.
   DOWNEY, Chief Judge.

This is an original proceeding pursuant to Fla.R.App.P. 9.100(d), initiated by petition to review a series of orders excluding the press from access to a judicial proceeding.

During the course of a hearing on a motion to suppress evidence in a criminal case pending in the Circuit Court of Broward County, respondent Michael Gora, as attorney for the defendant, requested the Court to place several news reporters under oath as witnesses in the case and exclude them from the Courtroom under the rule authorizing sequestration of witnesses. Although the State objected, the respondent trial judge complied with counsel’s request without the slightest showing that the individuals involved were likely to be witnesses in the proceeding. From the transcript it should have been obvious to any casual observer that the reporters were not in fact going to be witnesses. The entire charade was simply a ruse by counsel for the defendant to exclude the press from that proceeding.

The proceeding involved a motion to suppress evidence in a criminal case. The State witnesses had been sworn and excluded under the rule of sequestration. After the first witness for the State had testified, Mr. Gora inquired of the Court as to the identity of a certain person in the courtroom. The judge opined the person was a reporter from one of the newspapers. Gora then requested that the person be sworn as a witness and sequestered, which the judge did without further ado.

Later, during the examination of his own witness, Gora stopped his examination and inquired of the Court as to the identity of another person who had entered the courtroom. That person, at Gora’s request, was sworn and excluded over objection of the State. After a colloquy in which the State argued that the proceeding was public and that Gora’s request was not made in good faith but was made to exclude all spectators from the courtroom, Mr. Gora stated:

“I will tell you I intend to, regardless of who comes in that door, from police officers or reporters, whoever, I am going to put them under the Rule until I know what they are here for. And it is my understanding that I have a right to.” (A.28)

Shortly thereafter Gora again interrupted his examination of the witness and had another person sworn and excluded. Again the State argued that Gora was successfully excluding the public and the press from the proceeding by this tactic when he did not even know the identity or purpose of the persons being sworn. The State requested that before complying the Court require Gora to make at least a proffer of the testimony of the witness, but the trial judge ruled that counsel had “a right to put anyone under the rule that he wants to.”

A review of the transcript of the hearing discloses very clearly two things: first, Mr. Gora had not the slightest intention of calling the sequestered persons as witnesses as he had no idea of their identity nor had he any reason to believe they knew anything about the case in question and second, the trial judge exercised no discretion whatsoever in acceding to counsel’s request though it was quite obvious that the rule of sequestration was being subverted.

The petitioners, Gore Newspapers Company, and the sequestered reporters, Hale, Brennan and Rodack, have petitioned this court under Fla.R.App.P. 9.100(d) to review the aforementioned orders of sequestration issued by the trial judge. The orders are not written but the record contains a transcript of the proceedings which should suffice for purposes of this review. We note also that, although the proceeding has been completed and a transcript thereof is now available, the question is not moot because, as the Supreme Court of the United States held in Nebraska Press Association et al. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), the issue of whether an order unconstitutionally impinged on freedom of the press in violation of the First Amendment is not moot since the controversy between the parties is capable of repetition, yet it evades review. Unless the tactics used here to close the courtroom to the public and the press are condemned, they could fall into common usage by counsel who wish their case to be tried in a non-public setting.

Upon the filing of the petition in this court we requested responses to be filed to the petition. Mr. Gora responded and contends he is not a proper party to this appellate review. The petitioners had requested that Gora be enjoined from further abuse of the sequestration rule. It appears to us that Gora is not a proper party to this review proceeding and that the requested restraining order is inappropriate. Trial judges have full and complete control over the conduct of proceedings before them and it is up to the judge within the bounds of his judicial discretion to grant or deny motions for sequestration. This authority properly exercised by the trial judge should be adequate to prevent abuse of the various procedures available to counsel in the conduct of judicial proceedings.

The orders involved here are not the usual exclusionary or gag order; they are not so direct. But the result is equally as effective to exclude the public and the press as if the trial judge simply ordered the three reporters to wait outside until the proceeding was concluded. Thus, we find no difficulty in reviewing said orders under Fla.R. App.P. 9.100(d).

The purpose of the rule allowing sequestration of witnesses is to prevent the testimony of one witness from influencing the testimony of other witnesses. Wigmore on Evidence, § 1837, et seq. (3d Ed. 1940). Whether to sequester witnesses is a matter within the sound judicial discretion of the trial judge. Spencer v. State, 133 So.2d 729 (Fla.1961). It goes without saying that witnesses should not be sequestered indiscriminately. Normally “the rule” is invoked without ceremony as a routine matter; however, when its use is challenged, as it was here, the trial judge must determine that its use is proper and then exercise his discretion whether to allow sequestration.

Accordingly, we find the granting of the rule of sequestration was improper in this case and that the trial judge erred in failing to exercise his discretion by denying the requested invocation of the rule.

Respondent Michael H. Gora is dismissed as a party to this petition.

CROSS and ANSTEAD, JJ., concur.

      . The Supreme Court of Florida in State ex rel. Miami Herald Publishing Company v. McIntosh, 340 So.2d 904 (Fla. 1977), concluded similarly on the question of mootness.


author: PER CURIAM.

text:
    Brian PRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 78-471.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 1978.
    Jack 0. Johnson, Public Defender, and Thomas A. McDonald, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

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

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

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


text:
    Raymond Lyle BALDASARE, Appellant, v. STATE of Florida, Appellee.
    No. 78-1262.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find'that appellant has failed to demonstrate reversible error; therefore the judgment appealed is affirmed.

The only point which merits discussion is the discrepancy between the trial judge’s oral findings on revoking Baldasare’s probation, and the written revocation order. The order states that Baldasare violated Conditions H and L of his probation. Yet the judge only found that Condition L had been violated and the evidence was directed solely toward the violation of that condition.

The cause is therefore remanded for the purpose of striking the words “Condition (H)” from the Order of Revocation of Probation, otherwise affirmed.

Appellant need not be present for this purpose.

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


text:
    James L. MANNING, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1329.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HAYERFIELD, C. J., and KE-HOE, J. and CHARLES CARROLL (Ret.), Associate Judge.
   ON RECONSIDERATION, PURSUANT TO REMAND

PER CURIAM.

The judgment of this court entered on August 17, 1976 in Manning v. State, 336 So.2d 408 (Fla. 3d DCA 1976), was reviewed by the Supreme Court of Florida upon petition for certiorari filed by appellant, James L. Manning, whereupon the Supreme Court granted appellant’s petition and remanded the cause for further proceedings consistent with its recent decision in Clark v. State, 363 So.2d 331 (1978).

Now, therefore, on reconsideration of the appeal in light of Clark, our judgment affirming the trial court is vacated, and the judgment of the trial court is hereby reversed on the authority of Clark v. State, supra. The cause is remanded to the circuit court for a new trial.

It is so ordered.


author: MILLS, Judge.

text:
    ROBERT B. EHMANN, INC., Ehmann Construction, Inc., Mor-E, Inc., and Robert B. Ehmann, Individually, Appellants, v. Dale E. BERGH and Lura Bergh, Appellees.
    No. JJ-59.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1978.
    R. Scott Cross of Matthies & Cross, Ocala, for appellants.
    Chester J. Trow and Wayne L. Rubinas of Pattillo, Mackay & McKeever, Ocala, for appellees.
   MILLS, Judge.

CASE SUMMARY

Appellants (the judgment debtor and im-pleaded third party defendants) take this interlocutory appeal from an order granting appellees’ (judgment creditors) motion to implead the third parties as defendants in supplementary proceedings brought by the judgment creditors against the judgment debtor under Section 56.29, Florida Statutes (1975). We reverse.

FACTS

The Berghs (judgment creditors) obtained a judgment against Ehmann, Inc. (judgment debtor). Execution was issued but was unsatisfied. The Berghs filed a motion for supplementary proceedings and for im-pleader of third parties as defendants. The motion alleged that Robert B. Ehmann (third party) owned all the stock in both Robert B. Ehmann, Inc., and Ehmann Construction, Inc. (third party); that fifty percent of the stock of Mor-E, Inc. (third party) was owned by Robert B. Ehmann; that Robert B. Ehmann had abused the corporate entities so that the corporations had no separate will or purpose of their own other than to fulfill personal desires of Robert B. Ehmann; that Ehmann had caused the assets of the various corporations to be conveyed between himself and the corporations without adequate consideration and with the intent of defrauding the Berghs; that Robert Ehmann retains the beneficial enjoyment of property which was transferred from Robert B. Ehmann, Inc.; and that the various corporations and Ehmann represent an organizational fragmentation of a single economic enterprise under the common ownership and control of Robert B. Eh-mann. Ehmann, Inc. filed a motion to quash the Berghs’ motion. After a non-evidentia-ry hearing, the trial court denied Ehmann, Inc.’s motion and granted the Berghs’ motion.

ISSUE

Whether a trial court may grant a motion to implead third party defendants in supplementary proceedings under Section 56.29 without taking the testimony of the judgment creditor, without issuing a rule to show cause to the third party defendants and without permitting the third party defendants to file their defenses to the allegations of the show cause order.

Appellants contend that Section 56.29 and the case law of our State require that all three steps be taken before a third party is properly impleaded in a supplementary proceeding.

Appellees contend that the Florida Rules of Civil Procedure authorize a court upon motion by the judgment creditor to implead third parties.

DECISION

The trial court should conduct an examination of the judgment creditor or appoint a master to do this for it. Section 56.29(2), Florida Statutes. If the examination of the judgment creditor establishes the judgment creditor’s claim to property in the hands of third parties, the trial court should issue an order to show cause setting forth the findings of specific assets or transactions to which the third parties can respond in writing prior to further hearings. Tomayko v. Thomas, 143 So.2d 227 (Fla. 3d DCA 1962), and State ex rel. Phoenix Tax Title Corp. v. Viney, 120 Fla. 657, 163 So. 57 (1935).

In the case before us, the judgment creditors were not examined as required by Section 56.29(2); the trial court did not issue an order to show cause directed to the third party defendants specifying the judgment creditors’ claims to property in their hands; nor were the third party defendants given an opportunity to respond in writing to the judgment creditors’ claims. The third parties were denied their constitutional right to an opportunity for a full and fair hearing.

The judgment creditors argue that Section 56.29 does not set forth the procedure to be followed in adding third party defendants to a supplementary proceeding. They contend, therefore, that in the absence of procedural requirements in Section 56.29 for adding third party defendants the Florida Rules of Civil Procedure govern. Fla.R. Civ.P. 1.010. Fla.R.Civ.P. 1.100(b) provides that an application for an order shall be by motion and Fla.R.Civ.P. 1.250(c) provides that parties may be added by motion of a party at any stage of an action on just terms. The judgment creditors conclude that the order appealed is correct because it complies with these Civil Rules. We do not agree.

Although Section 56.29 does not prescribe the procedure for impleading third party-defendants, the case law of our State established the proper procedure many years ago and it has been followed since then. To-mayko and Phoenix cases, supra. It is logical, fair and affords due process. We see no reason to change it.

The Civil Rules referred to by judgment creditors are applicable to prejudgment actions but are not applicable to this post-judgment supplementary proceeding and for good reason. The proposed third party defendants were not parties to the initial main action and many times would have no knowledge of it. Under these circumstances, at the least, the judgment creditors should establish a prima facie case, by testimony under oath, that the proposed third party defendants hold assets subject to their claim, and the proposed third parties should be given an opportunity to respond in writing before a hearing. Fair play dictates no less.

Even if we were to assume that the Civil Rules were applicable to this case, we would be compelled to reverse because the motion to implead and the order granting the motion were not served on the proposed third party defendants, only the defendant in the original action. In addition, the order did not state what claims the judgment creditors were making against the third party defendants nor were third party defendants given an opportunity to respond in writing to the claims alleged in the motion to implead.

In view of our disposition of this case, it is unnecessary that we discuss the other points raised by appellants.

JUDGMENT

The order appealed is reversed.

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


text:
    Allen MELTON, Appellant, v. Louie L. WAINWRIGHT, etc., Appellee.
    No. II-204.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1978.
    George D. Rotchford, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Allen Melton’s parole was revoked for carrying a weapon without consent of his parole supervisor. Melton filed a petition for a writ of habeas corpus. The petition was denied and we affirm.

The uncontroverted facts of the case are that another man initiated a fight with Melton. During the fight, the assailant pulled a gun and, as the two men struggled for the gun, it went off and killed the assailant. Melton, having gained control of the gun, fled with it and hid it.

The standard for review of a parole revocation is whether the Parole and Probation Commission abused its discretion. State ex rel Florida Parole and Probation Commission v. Helton, 313 So.2d 413 (Fla. 1st D.C.A. 1975). In this case Melton not only defended himself, which he had a right to do, but he ran away with the gun and hid it. Under these circumstances, we do not believe the commission abused its discretion by revoking appellant’s parole.

AFFIRMED.

SMITH, Acting C. J., ERVIN, J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.


author: SMITH, Acting Chief Judge.

text:
    Emma L. ROE, Appellant, v. Vernon Frederick MACY, Appellee.
    No. II-22.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1978.
    Donald C. Jacobson, Daytona Beach, for appellant.
    No appearance for appellee.
   SMITH, Acting Chief Judge.

Emma Roe appeals from a judgment entered for the defendant after a nonjury trial before the court on appellant’s claim that appellee is the father of and is responsible for the support of the child born to appellant on November 27, 1976. Chapter 742, Florida Statutes (1975). Appellant urges that the trial court’s judgment for appellee is contrary to the manifest weight of the evidence and that a judgment for appellant or a new trial should be ordered.

Appellee, the putative father, admitted numerous sexual encounters with appellant from January through March 1976, but he denied that he was the child’s father. The theory of his defense was that appellant admitted having sexual intercourse with another man in January 1976, and that there was no competent medical or other scientific evidence supporting appellant’s claim that he, not the other man, was the child’s father. On the contrary, there was competent expert testimony, admitted at the trial, that the other man was of blood type AB. Hospital records received in evidence without objection as well as the mother’s testimony which was objected to but not excluded from consideration, tended to prove that both mother and child were of blood type 0. Appellee likewise admitted by deposition introduced into evidence that he was of blood type 0. No countervailing evidence was offered by appellee. Expert testimony received by the court was to the effect that appellant’s other consort, having AB type blood, could not possibly have been the father of a child having 0 type blood, born to a mother having 0 type blood.

Appellee’s only theory of defense at trial was that appellant may have conceived as a result of sexual relations with another named man who, the evidence shows, could not have been the child’s father. The critical medical or scientific evidence, though objected to in some respects by appellee, was neither excluded nor stricken by any ruling appearing in the record. It appears, therefore, that the trial court’s unexplicated judgment for appellee is contrary to the manifest weight of the evidence before the court. Contrast Yarmark v. Strickland, 193 So.2d 212 (Fla.3d D.C.A.1967), cert. denied, 201 So.2d 559 (Fla.1967), in which medical or scientific evidence was lacking. Nor is this a case in which the putative father asserted that the mother may have had sexual relations with others unnamed, and the trial court found that her testimony denying it was unworthy of belief. E. g., Connor v. Jablonski, 254 A.2d 763 (R.I.1969).

The judgment for appellee is REVERSED and the cause is REMANDED for a new trial. Appellant’s motion for attorney’s fees is DENIED without prejudice to renew it in the trial court should appellant ultimately prevail.

ERVIN, J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.


author: SMITH, Acting Chief Judge. MITCHELL, HENRY CLAY, Jr., Associate Judge,

text:
    Eleanor WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. JJ-5.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1978.

      Michael J. Minerva, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, and R. Baker King, Asst. State’s Atty., Jacksonville, for appellee.
   SMITH, Acting Chief Judge.

Wright appeals from her conviction of manslaughter after trial on an information charging murder in the second degree. She urges that the evidence was insufficient to support a conviction because the victim’s death was caused by the act of another for which appellant was not responsible; and that her trial was marred by a jury argument by the prosecutor commenting on appellant’s failure to testify. We find that the evidence was sufficient to support the manslaughter conviction but that a new trial is required by the prosecutor’s jury comment on appellant’s failure to testify.

The state’s evidence tended to show that appellant, driving an automobile, pursued and intercepted the automobile of an acquaintance, one Harvey, and fired a handgun at him several times at close range. The shots missed, but Harvey rapidly accelerated his car while “ducking bullets” and ran over and killed a pedestrian. Contrasting these facts with those in decisions holding that an assailant’s intent to kill is transferred by law from the intended victim to the victim inadvertently slain, appellant argues that the doctrine of transferred intent is applicable only when the accused’s deadly instrumentality causes death to the inadvertent victim. E. g., Lee v. State, 141 So.2d 257 (Fla.1962); Coston v. State, 139 Fla. 250, 190 So. 520 (1939). Here, appellant argues, the victim’s death was caused not by her pistol but by Harvey’s driving.

We think it unnecessary to rationalize the evidence here in terms of homicide offenses which require proof of an intent, existing in fact or implied in law, to kill the victim. Appellant was convicted.of manslaughter, which is a killing by the defendant’s “act, procurement, or culpable negligence” not constituting murder or excusable homicide. Section 782.07, Florida Statutes (1977). The issue is therefore one of causation, not whether the defendant intended to effect the death of a particular person. Here the trial court charged the jury on the causation principles stated in Parrish v. State, 97 So.2d 356, 359 (Fla. 1st DCA 1957), cert. den., 101 So.2d 817 (Fla. 1958), which held that “a person who by actual assault or threat of violence causes another person to do an act resulting in physical or corporal injury causing such other person’s death is criminally responsible for the homicide.” Parrish sustained a conviction for second degree murder, and was unconcerned with whether the accused intended the victim’s death. Because the victim died as a result of attempting to escape the defendant’s violence, the question was not intent but causation. The court pronounced a causative test which requires jury findings that the victim’s act to avoid the defendant’s violence must have seemed reasonably necessary; that the victim must have apprehended death or great bodily harm; that the victim’s apprehension was reasonable and well-grounded; and that the victim’s consequent injury was a natural and probable consequence of the defendant’s violence. The Parrish causation test is as applicable when a third person is killed as when the chosen victim is killed. The manslaughter verdict constituted a finding that appellant’s violence toward Harvey produced his well-grounded apprehension and flight, immediately resulting in the pedestrian’s death. The evidence was sufficient to sustain appellant’s conviction for manslaughter. See also Rosier v. State, 343 So.2d 972 (Fla. 1st DCA 1977).

Though the evidence was sufficient to convict, we find that the prosecutor improperly commented to the jury on appellant’s failure to testify. Appellant adduced no evidence, but relied on what she conceived to be weaknesses in the state’s case. By cross-examination of the state’s witnesses, appellant’s counsel sought to create jury doubts that a gun was involved in the fracas, or that appellant fired it at Harvey, or that she fired it repeatedly at Harvey. In jury argument defense counsel challenged the state’s evidence, which revealed no bullet holes in the car fired on, no wounding of Harvey despite repeated shots at close range, and, indeed, no evidentiary exhibit of the gun or spent cartridges. Defense counsel argued:

But let me tell you one thing that raises a greater doubt in my mind, an absolute greater doubt, that I think each of you ladies and gentlemen ought to consider. Mr. Harvey left, my client stayed there. She was there. Now, if my client did that firing, there is one thing that is absolutely essential to her firing a gun, and that’s a gun. Ain’t no way I can fire a gun without having a gun, and if she was there, as the testimony clearly indicates, and she was firing a gun, and she fired it three or four times, there has got to be a gun with three or four blank shells in it. There has got to be a gun with three or four blank shells. That is demonstrative evidence.
If my client fired a gun, the police department, they don’t have a gun, they don’t have a single blank shell, not even one to indicate there’s random firing going on out there at the scene .
I submit to you that in this case, the lack of demonstrative evidence alone indicates that Mr. Harvey was not telling the truth, that in truth and in fact, he’s the man who did run over those people, and almost willfully and deliberately.

During his reply, the prosecutor stated at sidebar what he proposed to argue: “One, that if she had stayed there, undoubtedly the gun would have been recovered; and two, she was the last person seen with the gun, and to ask Mr. Mahon [defense counsel] where the gun is.” Defense counsel objected to the italicized argument on the ground that it would comment on the accused’s failure to testify, and the court ruled:

THE COURT: Well, I — the state of record is such that I don’t think it’s improper for the Prosecutor to remark on that particular — in view of the comments that you made.
MR. MAHON: To ask Mr. Mahon where the gun is?
THE COURT: Yes, sir.

The prosecutor accordingly argued to the jury:

Mr. Mahon stated, in his argument, that she was last seen standing there with the gun. The complexity of that argument was that she continued to stand there. I don’t know if she did or didn’t. There’s no evidence to it one way or another, what she did.
But, I submit that had she stayed there, the State would have had a gun, and the State would have presented that gun to you.
Now, the only thing I know about that gun is that the person that had that gun was Eleanor Wright. And I asked [sic] Mr. Mahon: “Where is the gun?”. . ..

At oral argument appellate counsel, including the forthright trial prosecutor, treated the challenged comment as phrased in the manner rehearsed before the trial court, without the tense change recorded by the reporter. Either version of the phonetically ambiguous word “ask” would make the comment equally objectionable; but, there being no suggestion that the comment was delivered as reciting a prior and private inquiry of defense counsel, we treat the statement as a rhetorical question, “And I ask Mr. Mahon: ‘Where is the gun?’ ”

In these circumstances, the prosecutor’s comment could only have carried the impression to the jury that defense counsel knew what happened to the missing gun because his client knew, and that neither had revealed that information to the state and the jury. The comment was in purport a challenge to the defendant to come forth with the missing gun or with an explanation for its absence from the trial. As a demand for self-incriminating evidence or for a testimonial explanation, the comment violated a right secured to appellant by the Fifth and Fourteenth Amendments. Ard v. State, 108 So.2d 38 (Fla.1959); Way v. State, 67 So.2d 321 (Fla.1953); Gardner v. State, 170 So.2d 461 (Fla. 3d DCA 1965). The comment was different in kind from a legitimate argument challenging the defendant’s alibi for its lack of corroborating witnesses. Buchrem v. State, 355 So.2d 111 (Fla.1978); Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975). Neither was the comment justifiable as calling attention to the defendant’s failure to produce exculpatory evidence which the defense said would be produced. Lockett v. Ohio,-U.S.-, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Nor is it a sufficient justification that the prosecutor was replying to a prior defense argument, as of course he was. Had the prosecutor limited himself to calling attention to the uncontroverted evidence of appellant’s use of a handgun and to the defendant’s possession of it when last seen, no violation would have occurred. But if legitimate defense arguments concerning the absence of an allegedly essential exhibit cannot be made except at the risk that the defendant and his counsel will be called on for its production, or for an exculpatory explanation of its absence, the criminally accused will abruptly be deprived of the historic right to remain silent and to rely for a defense on the inadequacy of the state’s proof.

The conviction is REVERSED and the case REMANDED for a new trial.

ERVIN, J., concurs.

MITCHELL, HENRY CLAY, Jr., Associate Judge, concurring in part and dissenting in part.

MITCHELL, HENRY CLAY, Jr., Associate Judge,

concurring in part, dissenting in part.

I concur in the conclusion of the majority that the evidence was sufficient to support the conviction. However, the majority holds that the prosecutor improperly commented to the jury on Appellant’s failure to testify. I respectfully dissent on this point.

The record reflects, in my opinion, that the argument of the prosecutor was induced and invited by defense counsel’s prior argument and was not prejudicial to a fair trial. I would affirm the conviction.


text:
    Bobby Gordon SHEFFIELD, Appellant, v. STATE of Florida, Appellee.
    No. JJ-249.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1978.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Sheffield pleaded nolo contendere to a charge of robbery with a firearm reserving his right to appeal the denial of his motion for extensive psychiatric evaluation.

Sheffield sought to rely upon the defense of insanity. Two psychiatrists examined Sheffield and found him to be competent to stand trial and sane at the date of the alleged offense. Sheffield’s sanity was determined by the court pursuant to Fla.R. Crim.P. 3.210(a). Sheffield requested further psychiatric evaluations and/or voluntary hospitalization for psychiatric evaluation. After an extensive hearing on the motions, the trial court denied Sheffield’s request. Sheffield has not demonstrated an abuse of discretion by the trial court. Brown v. State, 245 So.2d 68 (Fla.1971); Olsen v. State, 338 So.2d 225 (Fla.3d DCA 1976). Accordingly, the judgment of conviction is affirmed.

We agree with Sheffield’s contention that the sentence imposed is illegal. See Noble v. State, 353 So.2d 819 (Fla.1977). Sheffield was adjudicated guilty of robbery with a firearm, in violation of Section 812.-13(2)(a) and was sentenced to a term of imprisonment “for the remainder of his natural born life and a minimum of 25 years in prison before parole is to be considered”. The restriction on eligibility for parole is not authorized by law for a felony in the first degree. Wright v. State, 342 So.2d 565 (Fla.1st DCA 1977). The sentence is therefore vacated and remanded with directions to delete this illegal provision from the sentence. Sheffield need not be present for this purpose.

SMITH, Acting C. J., ERYIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Gerald Wayne PAGE, Appellant, v. STATE of Florida, Appellee.
    No. JJ-281.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1978.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Gerald Wayne Page’s probation was revoked for failure to file timely monthly reports, failure to support dependents, and failure to make daily telephone contact with the parole supervisor pursuant to a requirement set by the supervisor.

Under the facts of this case, the requirement that Page file timely monthly reports was a court-imposed condition and Page admitted the untimely filings. Thus, this was a proper ground on which probation could be revoked.

As to the second reason, however, the failure to support dependents, we find that the record contains no showing that Page had the ability to support his dependents. Under the reasoning of Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978), we hold that revocation cannot be based on failure to support dependents unless there is evidence that the probationer had the ability to provide such support.

Finally, the requirement that Page make daily telephone contact with the probation supervisor was imposed by the supervisor and not by the court. We hold that probation may be revoked only for court-imposed conditions. Barber v. State, 344 So.2d 913 (Fla. 3d DCA 1977).

In summary, we find that the revocation of probation could properly be based on the failure to file timely monthly reports, but could not properly be based on the other two grounds. We do not know if the trial court would revoke probation and impose the same sentence for the sole reason that Page failed to file timely monthly reports. We, therefore, reverse and remand for proceedings consistent with this opinion.

SMITH, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Steve Douglas GRIFFITH, Appellant, v. STATE of Florida, Appellee.
    No. KK-439.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1978.

      Steve Douglas Griffith, in pro per.
    No appearance for appellee.
   PER CURIAM.

Griffith appeals an order denying his motion to require the clerk of the court to copy and send him, without cost, numerous documents in his case file. An affidavit of poverty accompanied the motion. Griffith claimed that the documents would be used for post-conviction relief. However, Griffith did not file a motion for post-conviction relief, nor did he assert that the documents were necessary to support a specific ground for post-conviction relief.

The order denying appellant’s motion is AFFIRMED.

SMITH, Acting C. J., ERVIN, J. and MASON, ERNEST E., Associate Judge, concur.


text:
    Edward HANSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-812.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.

       Judge Pearson participated in the decision in the case but did not hear oral argument.

   PER CURIAM.

We have carefully reviewed each of the points raised on appeal and, in our opinion, appellant has failed to show any reversible error. See, e. g., Spinkellink v. State, 313 So.2d 666 (Fla.1975); and Carroll v. State, 186 So.2d 834 (Fla. 4th DCA 1966). Accordingly, having reviewed the record, listening to arguments of counsel, and applying the applicable principles of law, we believe that the judgment and sentence appealed should be affirmed. See, e. g., Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); McNamara v. State, 357 So.2d 410 (Fla.1978); State v. Allen, 335 So.2d 823 (Fla.1976); Lynch v. State, 293 So.2d 44 (Fla.1974); Lane v. State, 353 So.2d 194 (Fla. 3d DCA 1977); Borders v. State, 312 So.2d 247 (Fla. 3d DCA 1975); Hampton v. State, 304 So.2d 498 (Fla. 4th DCA 1975); Thompson v. State, 300 So.2d 301 (Fla. 2d DCA 1974); Miller v. State, 300 So.2d 53 (Fla. 3d DCA 1974); Harris v. State, 229 So.2d 670 (Fla. 3d DCA 1970); Whitley v. State, 265 So.2d 99 (Fla. 3d DCA 1972); State v. Ell-Gee, Inc., 255 So.2d 542 (Fla. 3d DCA 1971); Paul v. State, 209 So.2d 464 (Fla. 3d DCA 1968); and Vaughn v. State, 198 So.2d 858 (Fla. 1st DCA 1967).

Affirmed.


author: HUBBART, Judge.

text:
    STATE of Florida, Appellant, v. Basilio GOMEZ, Appellee.
    No. 77-904.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.

      Janet Reno, State’s Atty. and George Volsky, Asst. State’s Atty., for appellant.
    Weiner, Robbins & Tunkey and Jeffrey S. Weiner, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is a motion to vacate judgment and sentence proceeding in a criminal case pursuant to Fla.R.Crim.P. 3.850 in the Circuit Court for the Eleventh Judicial Circuit of Florida. The trial court granted the motion, set aside the defendant’s robbery conviction and sentence, and ordered a new trial on the robbery charge. The state appeals.

The central issue raised by this appeal is whether newly discovered evidence in the form of a third party confession, which tends to establish the innocence of a convicted defendant, constitutes a valid ground for collateral attack of a judgment of criminal conviction and sentence under Fla.R.Crim.P. 3.850. We hold that it does providing the defendant overcomes the presumptive validity of his judgment of conviction and establishes by clear and convincing evidence that: (1) such confession was unknown at the time the judgment of conviction was rendered and (a) could not have been discovered through the use of reasonable diligence for presentation either at the original trial or on a motion for new trial, or (b) was not discovered because of actual dominating fraud, duress or other unlawful means, and (2) such confession is of such probative force that had it been so produced at trial, it would have prevented rendition of the judgment of conviction. As none of the elements of this ground was established in this case because the trial court failed to hold an evidentiary hearing on the defendant’s motion to vacate herein, we reverse and remand for a full evidentiary hearing.

A

The record in this case reveals that the defendant herein Basilio Gomez, his brother Cecilio Gomez, and two other codefendants were jointly charged by information with robbery before the Circuit Court for the Eleventh Judicial Circuit of Florida. The co-defendant Cecilio Gomez was tried first by a jury and acquitted. Subsequent thereto, the defendant Basilio Gomez was tried non-jury before the trial court, found guilty as charged, and sentenced to 20 years imprisonment. The defendant Basilio Gomez filed a timely motion for new trial on the ground that the evidence was insufficient to support the verdict. The trial court denied the motion.

The defendant Basilio Gomez then perfected a delayed Baggett appeal to this court from his conviction and sentence. While such appeal was pending, he filed a motion to temporarily relinquish jurisdiction in the cause to the trial court for the purpose of allowing him to file a motion to vacate judgment and sentence under Fla.R. Crim.P. 3.850 based on newly discovered evidence in the form of a third party confession. This court granted the motion and relinquished such jurisdiction for a period of thirty days.

Subsequent thereto, the defendant Basilio Gomez filed a motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850. In such motion it was alleged that several months subsequent to both the trial and the trial court’s ruling on the motion for new trial herein, the co-defendant Cecilio Gomez informed the defendant’s counsel that he [Cecilio Gomez] had in fact committed the robbery in the case without the assistance of the defendant Basilio Gomez, that a sworn affidavit signed by the co-defendant Cecilio Gomez to that effect was attached thereto and that the foregoing facts were unknown at the time of the defendant Ba-silio Gomez’s trial nor could they have been discovered by such defendant with the exercise of reasonable diligence.

The above motion came on for two hearings before the trial court within the thirty days allowed by this court to hear such motion. At the first hearing, the trial court continued the hearing at the request of the state as the prosecutor had not had an opportunity to review the motion. At the second hearing, the state requested by written motion that the trial court transfer the defendant’s motion to the trial judge who heard the original trial. The trial court denied this motion, announced that it had read the trial transcript in the case, and granted the defendant’s motion to vacate. No evidentiary hearing was held, and virtually no argument was heard thereon.

The state thereafter perfected an appeal to this court from trial court’s order granting the defendant’s motion to vacate herein. The defendant Basilio Gomez subsequently dismissed his original Baggett appeal from the original judgment of conviction and sentence.

B

It is the weight of authority in this state that any ground which would have been valid to collaterally attack a criminal conviction on a petition for a writ of error coram nobis may be raised on a motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850. Fast v. State, 221 So.2d 203 (Fla. 3d DCA 1969); Tolar v. State, 196 So.2d 1 (Fla. 4th DCA 1967); Falagon v. State, 167 So.2d 62 (Fla. 2d DCA 1964); Grant v. State, 166 So.2d 503 (Fla. 2d DCA 1964); Solitro v. State, 166 So.2d 474 (Fla. 2d DCA 1964). This is also the position taken in the federal courts as to motions to vacate judgment and sentence under 28 U.S.C. § 2255 from which Florida’s Fla.R.Crim.P. 3.850 is taken almost verbatim. Laughlin v. United States, 154 U.S. App.D.C. 196, 474 F.2d 444 (1973); Hilderbrand v. United States, 304 F.2d 716 (10th Cir. 1962); United States v. Rutkin, 212 F.2d 641 (3d Cir. 1954); Clark v. United States, 370 F.Supp. 92 (W.D.Pa.1974). See also Reviser’s Note to 28 U.S.C.A. § 2255 (1971). In our view, such authority is based on sound grounds. Fla.R.Crim.P. 3.850 was adopted in 1963 by the Florida Supreme Court in the wake of the Gideon decision to provide an omnibus collateral attack remedy in criminal cases, in lieu of the traditional habeas corpus and coram nobis writs, and to establish thereby a simplified expeditious and efficient post-conviction procedure. Although not intended to abolish such traditional post-conviction writs, the rule was clearly aimed at incorporating them in large part for the sake of judicial efficiency. State v. Weeks, 166 So.2d 892 (Fla.1964); Roy v. Wainwright, 151 So.2d 825 (Fla.1963).

It is also the weight of authority in this state that newly discovered evidence tending to establish the innocence of a convicted defendant is a valid ground for collateral attack of a criminal conviction under a writ of error coram nobis providing: (1) such evidence was unknown at the time the judgment of conviction was rendered' and (a) could not have been discovered through the use of reasonable diligence for presentation at the original trial or on a motion for new trial, or (b) was not discovered because of actual dominating fraud, duress, or other unlawful means, and (2) such evidence is of such probative force that had it been so produced, it would have prevented rendition of the judgment of conviction under attack. This ground has been reserved for those infrequent, but greatly unsettling cases where a miscarriage of justice has in all likelihood occurred in which a person stands convicted of a crime which he did not commit. Ex Parte Welles, 53 So.2d 708 (Fla. 1951); Lamb v. State, 91 Fla. 396, 107 So. 535 (1926); Nickels v. State, 86 Fla. 208, 98 So. 497, 502, 99 So. 121 (1923). See also 18 Am.Jur.2d “Coram Nobis” § 16 (1965); Frank and Frank, Not Guilty (1957).

Based upon the above lines of authority, our decisions have recognized that newly discovered evidence, whether in the form of a third party confession or other demonstrative or testimonial evidence, may constitute a valid ground for collateral attack of a criminal conviction under Fla.R. Crim.P. 3.850. Walden v. State, 310 So.2d 426 (Fla. 3d DCA 1975); Kellerman v. State, 287 So.2d 702 (Fla. 3d DCA 1973); Fast v. State, 221 So.2d 203 (Fla. 3d DCA 1969). The Fourth District Court of Appeal takes the same view, Diamond v. State, 233 So.2d 418 (Fla. 4th DCA 1970), as does apparently the First District Court of Appeal. See State v. Pitts, 241 So.2d 399 (Fla. 1st DCA 1970), vacated 247 So.2d 53 (Fla. 1971). Implicit in such decisions, however, is that the newly discovered evidence must meet the above traditional coram nobis requirements for such ground. Accordingly, the trial court is not compelled to accept the ground absent a showing that such requirements have been met. Walden v. State, 284 So.2d 440 (Fla. 3d DCA 1973).

The Second District Court of Appeal has reached a similar result on the issue herein, but unlike us, has held that newly discovered evidence as a ground for collateral attack of a criminal conviction can only be raised on a petition for writ of error coram nobis. Hallman v. State, 343 So.2d 912 (Fla. 2d DCA 1977); Hamilton v. State, 237 So.2d 255 (Fla. 2d DCA 1970). As to the latter, we respectfully disagree and conclude that such ground can also be raised on a motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850. Indeed, the motion to vacate proceeding is the preferred procedure.

The parties in this cause rely almost exclusively on cases involving motions for new trial under Fla.R.Crim.P. 3.600(a)(3) in which newly discovered evidence is asserted as a ground therefor. See Callaway v. State, 109 So.2d 364 (Fla. 1959); Harvey v. State, 87 So.2d 582 (Fla. 1956); Douth v. State, 85 So.2d 550 (Fla. 1956). Although analogous, we do not regard such cases as controlling. Compare Diamond v. State, 233 So.2d 418 (Fla. 4th DCA 1970). A motion for new trial differs fundamentally from a motion to vacate judgment and sentence in that the former is addressed solely to a finding of guilt either by a jury or by the court sitting without a jury. A motion to vacate judgment and sentence, on the other hand, is addressed to a final judgment of conviction and sentence, entered upon a prior finding of guilt, which has withstood a motion for new trial and a subsequent appeal or a voluntary waiver of same by the defendant. As such, a final judgment of conviction and sentence is entitled to much greater sanctity than a finding of guilt and indeed is considered presumptively valid. The burden rests on the defendant to establish by clear and convincing evidence a recognized ground for relief in order to prevail on a motion to vacate judgment and sentence. See State v. Pitts, 241 So.2d 399, 402, 414 (Fla. 1st DCA 1970), vacated 247 So.2d 53 (Fla. 1971). By contrast, a motion for new trial is addressed to the sound discretion of the trial court with no burden of proof allotted to either party. Bell v. State, 90 So.2d 704 (Fla.1956).

C

In the instant case, two third party confessions by the co-defendant Cecilio Gomez are alleged in the defendant’s motion to vacate herein as newly discovered evidence in this case. One is an oral confession to the defendant Basilio Gomez’s present defense counsel; the other is a sworn written confession apparently given to the same counsel. Such allegations appear to raise a valid ground for collateral attack of the robbery conviction and sentence herein although on remand they should be supplemented to include all the traditional coram nobis requirements for newly discovered evidence as discussed above. In our view, however, the ground asserted in the motion to vacate herein was never adequately established in the trial court because no evidentiary hearing was held on such motion and no supporting proofs were ever adduced. The trial court vacated the judgment of conviction and sentence herein based entirely on the unsupported allegations of the motion to vacate together with a review of the original trial transcript. Such action was clearly improper. State v. Weeks, 166 So.2d 892, 897 (Fla.1964). Accordingly, the order under review is reversed and the cause remanded to the trial court with directions to conduct a full evidentiary hearing on the defendant’s motion to vacate in accord with the views expressed herein.

Reversed and remanded.

      . See Baggett v. Wainwright, 229 So.2d 239 (Fla.1969).

      . Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (felony conviction in state court of insolvent defendant without counsel and without a knowing and intelligent waiver of counsel reversed as constituting a violation of due process under the 14th Amendment due process clause). The decision prompted a large volume of post-conviction collateral attack petitions filed by state prisoners in Florida who had been convicted of felonies in our courts without counsel. Roy v. Wainwright, 151 So.2d 825 (Fla.1963).


text:
    TRAVELERS INDEMNITY COMPANY, a Connecticut Corporation, Eddie Brown and Kenneth Brown, Appellants, v. Alzenia HICKS and Robert Hicks, her husband, Appellees.
    No. 77-1454.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.

      High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellants.
    Kuvin, Klingensmith & Lewis and R. Fred Letvis, Coconut Grove, Flinn & Jennings, Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.

       Judge Pearson participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

Appellant, defendant in the trial court and insurer of the tortfeasor, appeals from an order granting a new trial on the issue of damages in an automobile negligence case wherein the jury rendered a verdict in favor of appellees, plaintiffs in the trial court, for an amount less than the sum of the medical bills and lost wages.

In pertinent part, the order granting new trial provides as follows:

“THIS CAUSE having come on for hearing upon the Plaintiffs’ Motion for New Trial and the Court,' having heard argument of counsel and being otherwise fully advised in the premises, it is
“ORDERED, ADJUDGED AND DECREED:
“1. That the Plaintiffs’ Motion for New Trial be and the same is hereby granted; the verdict as returned by the jury is hereby set aside; and a new trial is ordered on the issue of damages only based upon the following grounds:
“a. The verdict as returned by the jury is so inadequate that it shocks the judicial conscience of this Court, the jury verdict is grossly inadequate, the verdict is contrary and against the manifest weight of the evidence and the jury verdict demonstrates that the jury was influenced by considerations outside the record and a jury of reasonable men and women could not have returned such verdict.”

The sole point on appeal for our consideration is whether the trial judge abused his discretion in entering an order granting a new trial. In light of the recent Florida Supreme Court case of Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978); and our decision in White v. Martinez, 359 So.2d 7 (Fla. 3d DCA 1978), it is our opinion that the trial judge did, in fact, abuse his discretion.

In Wackenhut, supra, the Supreme Court opined that orders granting motions for new trial should articulate reasons for so doing so that appellate courts may exercise proper appellate review. Mere conclusions to the effect that (1) the verdict is against the manifest weight of the evidence or that (2) the jury was influenced by considerations outside the record, without pointing to record support, are not amenable to judicial review. White, supra.

Even setting aside the deficiency in the order, our review of the record convinces us that the verdict returned was not against the manifest weight of the evidence. The record is replete with both conflicts and contradictions in the testimony concerning both the degree and extensiveness of appellee’s injuries, and the necessity and effectiveness of her medical treatment. With the disparities being what they are, we cannot say that a jury of reasonable men and women could not have returned, the verdict they did sub judice. See Crutcher Resources Corporation v. Rayner, 283 So.2d 392 (Fla. 2d DCA 1973).

Accordingly, the order granting new trial . is hereby reversed and the cause is remanded with directions to reinstate the jury ver-diet and enter judgment in accordance therewith.

Reversed and remanded with directions,


text:
    In re the ESTATE of Elizabeth W. BLAKEY, Deceased. Virginia S. HODGES, Appellant, v. FLAGSHIP FIRST NATIONAL BANK, etc., Eleanor Webb Mansolillo, Dorothy W. Delawder, Mary W. Murrell and Gladys W. Yancey, Appellees.
    No. 77-1723.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Steel, Hector & Davis and Henry J. Whelchel, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and John P. Horan, Richard A. Burt; Jack H. Eakle, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant/petitioner, the niece of the testatrix’s deceased husband, appeals from an order admitting a challenged will to probate and denying her petition for revocation of said will. Appellees/respondents are Flagship National Bank of Miami Beach, the designated personal representative of the deceased’s estate, and deceased’s four nieces, beneficiaries under the will.

On June 4, 1976, Flagship National Bank of Miami Beach filed a petition for administration of the Estate of Elizabeth W. Bla-key. Shortly thereafter, on June 8,1976, an order admitting the testatrix’s will of November 10,1972, to probate was entered by the trial court. This 1972 will had been executed by Mrs. Blakey when she was approximately eighty-five (85) years of age and in poor physical health. Appellant was a named beneficiary in the prior will of the testatrix but was excluded from the will of 1972.

On September 7, 1976, appellant filed a petition for the revocation of probate on the grounds that, at the time of the execution of the will, Mrs. Blakey lacked the requisite testamentary capacity. After a two day hearing on the petition, during which time the very able trial judge heard much contradictory testimony concerning the deceased’s powers of comprehension, a lengthy order was entered, replete with findings of fact and conclusions of law. In the order, the judge concluded that Mrs. Blakey possessed the requisite testamentary capacity in the execution of her last will and testament or, alternatively, that Mrs. Blakey executed her will during a lucid interval at which time she did possess the requisite testamentary capacity.

While appellant strenuously emphasizes that the greater weight of the evidence supports the view that Mrs. Bla-key lacked testamentary capacity, the record does reveal competent substantial evidence to the effect that the deceased at least possessed testamentary capacity during a lucid interval during which time she executed the will.

Testamentary capacity is to be judged solely at the time of the execution of the will, and as there was competent substantial evidence to sustain the trial judge’s conclusion of competency, we will not substitute our judgment for the judgment of the trial judge. In re Carnegie’s Estate, 153 Fla. 7, 13 So.2d 299 (1943); Skelton v. Davis, 133 So.2d 432 (Fla.3d DCA 1961).

Accordingly, the order admitting the last will and testament of Elizabeth W. Blakey to probate is hereby affirmed.

Affirmed.


text:
    CALDER RACE COURSE, INC., Appellant, v. Robert K. OVERSTREET, etc., et al., Appellees.
    No. 77-1849.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.

      Taylor, Brion, Buker & Greene and R. Bruce Wallace, Robert J. Paterno, Miami, for appellant.
    Stuart Simon, County Atty. and Robert L. Krawcheck, Asst. County Atty., for ap-pellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

This is an action challenging the assessed valuation of property for ad valorem tax purposes instituted by a taxpayer in the Circuit Court for the Eleventh Judicial Circuit of Florida. The trial court declined to upset the tax assessment herein as sustained by the county tax adjustment board. The taxpayer appeals.

The central issue presented for review is whether the cost less depreciation plus land value approach to assessing race track property for ad valorem tax purposes is a constitutionally acceptable method of assessing such property within the meaning of Article VII, § 4 of the Florida Constitution. We hold that it is and affirm.

A

The facts of this case are as follows. The Dade County Tax Assessor Alfred Blake assessed the horse race track premises of the plaintiff taxpayer Calder Race Course, Inc. for 1974 ad valorem tax purposes at $20,193,550. The land of the Calder Race Course was assessed at $4,452,268; the improvements thereon were assessed at $15,-741,282.

On July 29, 1974, the plaintiff Calder Race Course filed a petition for equalization of assessment before the Dade County Tax Assessment Board. The taxpayer Calder did not contest the land assessment herein, but did resist the improvements assessment. Calder’s petition was referred to a special master who held a hearing, took testimony and concluded that the improvements assessment exceeded just valuation despite a finding that the evidence presented did not exclude every reasonable hypothesis of a legal assessment. He recommended that the improvements assessment be reduced from $15,741,282 to $5,981,687. The Dade County Tax Adjustment Board thereafter conducted a full hearing at the request of the tax assessor, reviewed the special master’s report and the record, and upheld the tax assessor’s original assessment of Calder’s land and improvements.

Calder thereafter brought an original action to review the Tax Adjustment Board’s assessment in the Circuit Court for the Eleventh Judicial Circuit of Florida. The amended. complaint alleges that the just valuation of the race track improvements is $5,981,687 which taken with the uncontested land assessment makes the total property assessment $10,443,955. Calder has paid the tax based on this valuation. The case was tried non-jury in which evidence was received and argument heard from both parties. The trial court entered a comprehensive order making detailed findings of fact and conclusions of law and sustained the action of the Tax Adjustment Board. This appeal follows.

The trial court found from the evidence as follows. As of the taxing date, January 1,1974, Calder Race Course was a practically new horse race track facility, which in part was still under construction in Dade County, Florida. The original physical plant was completed in 1971 and consisted of a seven story glass enclosed, completely air conditioned and heated patron facility containing grandstand, club house, private club, press boxes, and various utility and media equipment areas. The grandstand and club house included seating, various snack and liquor bars, and closed circuit television theatres, all serviced by high speed electronically controlled elevators and escalators. The private club included a cocktail bar and lounge, dining room and kitchen. A second phase of construction expanding the patron facility was completed in November 1973, approximately two months prior to the taxing date. Phase three of the expansion of the patron facility was in progress on the taxing date and was completed during 1974.

In addition to the patron facility, the race course includes completely air conditioned and heated jockey quarters, an administration building, a racing department building with press room and library, a stable area including 1,758 concrete and aluminum stalls in 86 completely fire proof buildings, 246 grooms’ living quarters in 87 buildings and hundreds of fire proof feed and equipment rooms. Additionally, there is a stable, kitchen, laundry room, clothing store, sundry store, chapel, detention barn, maintenance building, trailer residence; blacksmith’s shop building, security building and guard house.

The main running surface of the race course consists of a synthetic surface which is not affected by rain and is free of holes and stones. Additionally, there is a turf or grass course and training or exercise track in the stable area. The mutuel facilities include the most sophisticated computerized totalizator in the thoroughbred business. There are some 445 selling and cashier windows. The race track has one of the largest closed circuit television systems of any race track in the nation. The total land area in question is approximately 204 acres. At the close of its fiscal year ending November 30, 1973, the plaintiff had invested approximately $26 million in improvements alone of which approximately $3 million represented construction in progress.

It is undisputed that the tax assessor used a cost approach in assessing Calder’s race track property. That is, he estimated the replacement costs of the race track improvements and deducted depreciation therefrom. He then added this total to the value of the race track land. See American Institute of Real Estate Appraisers, The Appraisal of Real Estate, 64-67 (6th ed. 1973). As the trial court noted in its final judgment, Calder “did not dispute the fact that the assessed value is well-supported by the cost approach to valuation, but instead asserted that the only proper approach is the income approach . . .”. As urged by Calder, the income approach is based on the net income which a fully informed person is warranted in assuming that the property will produce during the remainder of its useful life multiplied by an estimated capitalization rate which represents the return on investment. See American Institute of Real Estate Appraisers, The Appraisal of Real Estate, 70-71 (6th ed. 1973). Calder also urged that the value of the land should then be added to the value of the improvements as computed by the income approach. Finally, Calder did not contest the tax assessor’s estimate of the value of the land herein.

B

The law is well-settled that under Article VII, § 4 of the Florida Constitution a taxpayer’s property must be assessed at just valuation or fair market value for ad valorem tax purposes. This means the property must be assessed at an amount a purchaser willing but not obligated to buy would pay to a seller willing but not obligated to sell. ITT Community Development Corp. v. Seay, 347 So.2d 1024, Fla.; Burns v. Butscher, 187 So.2d 594 (Fla.1966); Walter v. Schuler, 176 So.2d 81 (Fla.1965); Root v. Wood, 155 Fla. 613, 21 So.2d 133 (1945).

The law is equally well-settled that the fixing of a valuation on property by a tax assessor for the purpose of ad valorem taxation is an administrative act involving the exercise of administrative discretion, and the courts will not in general control that discretion unless it is illegally or fraudulently exercised or exerted in such manner or under such circumstances as would amount in law to a fraud. Powell v. Kelly, 223 So.2d 305 (Fla.1969). The tax assessment is therefore presumed to be correct and in order to sustain his burden of proof in challenging such assessment, the taxpayer must present proof which excludes every reasonable hypothesis of a legal assessment. Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla.1969).

In assessing race track property for ad valorem tax purposes, it is a permissible, and, indeed, the preferred approach to follow the cost minus depreciation plus land value method as utilized by the tax assessor herein. Delaware Racing Ass’n v. McMahon, 320 A.2d 728 (Del.Super.Ct.1974) rev’d on other grounds, 340 A.2d 837 (Del.1975). It is also permissible to follow the income approach as urged by Calder providing a deduction is made for the value of the race track license to conduct pari-mutuel wagering. Hecht v. Dade County, 234 So.2d 709 (Fla. 3d DCA 1970). Where such a deduction has not been made, however, the income approach has been disapproved. Homer v. Hialeah Race Course, Inc., 249 So.2d 491 (Fla. 3d DCA 1970); Metropolitan Dade County v. Tropical Park, Inc., 231 So.2d 243 (Fla. 3d DCA 1970). Either the preferred cost approach or the income approach as modified may be utilized in assessing race track property so long as the final result under all the facts of the case satisfies the constitutional willing seller-willing buyer test within the broad limits of permissible administrative discretion.

C

Our review of the record reveals that the taxpayer Calder has failed to sustain its burden of proof to upset the tax assessment herein. The cost approach utilized by the tax assessor to value Calder’s race track was perfectly proper. And the $20,193,550 million assessment figure is well within the discretionary limits accorded to tax assessors in this area of law. The Calder race track facilities are practically new and have approximately $26 million invested therein. It is undisputed that the land value of the race track is over $4 million. The assessed value therefore appears to us to be a reasonable tax assessment for this new and admittedly successful race track. Indeed, the assessment may even be a little on the low side as Calder’s owners would be taking a significant investment loss were they to sell the property at the assessed valuation. At any rate, we believe the proofs before the trial court do not exclude every reasonable hypothesis of a legal assessment and, therefore, the courts have no authority to interfere with the tax assessor’s administrative discretion in this case. The trial court was eminently correct in sustaining the tax assessment herein.

We have carefully examined the balance of Calder’s contentions on this appeal and find them to be without merit. The judgment appealed from is accordingly affirmed.

Affirmed.


text:
    Felix AGUIAR, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1972.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Nov. 17, 1978.

      Manuel W. James, Key West, Alvin "E. Entin and Ronald A. Dion, Miami, for appellant. . ■
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

Appellant, Felix Aguiar, was convicted of possession of a controlled substance with intent to deliver, to-wit: over one hundred pounds of cannabis. There were eleven other co-defendants, however, this appeal concerns only Aguiar.

One of appellant’s points on appeal presents the question of whether the trial court erred in denying appellant’s motion to suppress certain physical evidence seized at the time and place of arrest.

At the hearing on the motion to suppress, there was testimony introduced that tended to show that various law enforcement agencies received telephone calls saying that a boat was operating in the Niles channel without running lights. There was also a report that someone had seen at least three boats and a camper on shore. Several officers of various law enforcement agencies met at the scene of the reported unusual activities. Upon arrival at the scene, the officers saw various persons walking from the boats to the beach with bales of some substance. The appellant was arrested a few feet from a camper contraband, that was parked on shore near where the boats were being unloaded. The appellant’s clothes were wet and muddy. Ten other persons were also arrested. There was testimony showing that the officers had gone on the property with the permission of the caretaker and that he was present when the officers made the arrests and seized the contraband.

Appellant sought to suppress the physical evidence which was seized by the officers at the time of the arrests. He contends that the arrests and seizures were invalid in that the officers were not at a location at which they had a legitimate and legal right to be when they made the observations which provided the probable cause.

The state takes the position that the appellant failed to show that he had standing to challenge the admission of the seized evidence.

It is our view that the record supports his right to challenge the seized physical evidence; however, appellant has failed to demonstrate that the seizure of the evidence was unlawful and inadmissable in evidence against him at trial. Therefore, we hold that the trial court was correct in denying appellant’s motion to' suppress.

We have also carefully considered the other points on appeal in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been made to appear. McGowan v. State, 351 So.2d 1116 (Fla.4th DCA 1977); Williams v. State, 338 So.2d 251 (Fla.3d DCA 1976); State v. Miller, 267 So.2d 352 (Fla.4th DCA 1972); State v. Ashby, 245 So.2d 225 (Fla.1971); Cobb v. State, 213 So.2d 492 (Fla.2d DCA 1968), and Garcia v. State, 142 So.2d 318 (Fla.2d DCA 1962). Therefore, the judgment and sentence are affirmed.

Affirmed.


author: KEHOE, Judge.

text:
    Corrie MARTIN, Appellant, v. The ESTATE of Jimmy Lee RICKS, Deceased, Tommy Lee Ricks, Walter B. Ricks and Annie T. Parks, Appellees.
    No. 77-2025.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rollo E. Karkeet, Hernando, for appellant.
    Christopher B. Knox, Fort Lauderdale, for appellees.
    Before PEARSON and KEHOE, JJ., and WILLIAM C. PIERCE (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a final judgment of partition dated August 31, 1977, entered by the trial court. Appellant’s two basic points on appeal are that, in paragraphs 4, 5, 6, and 7 of the final judgment, the trial court erred (1) by finding her responsible for appellees’ attorneys’ fees, and (2) by requiring her to pay appellees’ attorneys’ fees into the registry of the trial court as a condition precedent to having her special equity applied as a credit on her bid at a court sale of the property.

Appellant’s points on appeal are well taken. Sections 64.071 and 64.081, Florida Statutes (1977), set forth the procedures to be used in partition cases. Pursuant to these Sections, we believe that it was error for the trial court to require appellant to pay all of the attorneys’ fees in the cause and, also, error to require such fees to be placed into the registry of the trial court prior to a sale of the property. See McQueen v. Forsythe, 55 So.2d 545 (Fla. 1951); Adler v. Schekter, 197 So.2d 46 (Fla. 3d DCA 1967); and Deltona Corp. v. Kipnis, 194 So.2d 295 (Fla. 2d DCA 1966). Therefore, paragraphs 4, 5, 6, and 7 of the final judgment of partition are quashed and the cause is remanded for further proceedings in the trial court.

Quashed in part and remanded.


text:
    Shannon CABALLERO, Stephen R. Budman and Jacqueline Gross, Appellants, v. AVIS RENT A CAR SYSTEMS, INC., a Foreign Corporation, Appellee.
    No. 78-241.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Ezzo, Garel & Saylor and Bruce A. Say-lor, Miami, for appellants.
    Robert L. Dubé, Richard M. Gale, Miami, for appellee.
    Before HAVERFIELD, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Colhoun v. Greyhound Lines, Inc., 265 So.2d 18 (Fla. 1972); Ganem v. Ganem, 269 So.2d 740 (Fla.3d DCA 1972); Lescard v. Keel, 211 So.2d 868 (Fla.2d DCA 1968); Hopkins v. Lockheed Aircraft Corporation, 201 So.2d 743, 749 (Fla.1967), opinion on rehearing; Astor Electric Service v. Cabrera, 62 So.2d 759 (Fla.1953); Myrick v. Griffin, 146, Fla. 148, 200 So.2d 383 (1941).


text:
    In re the ESTATE of Paul WARREN, Deceased. Howard M. NEU, Attorney for the Personal Representative of the Estate of Paul Warren, Appellant, v. Gloria ZIMMERMAN, etc., Appellee.
    No. 78-304.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Neu & Sanderhoff and Howard M. Neu, North Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and John R. Kelso, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. In re Estate of Ryecheck, 323 So.2d 51 (Fla.3d DCA 1975); City of Hialeah v. Revels, 123 So.2d 400, 403-04 (Fla.3d DCA 1960); Andrews v. Cardosa, 97 So.2d 43 (Fla.2d DCA 1957).


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Roger A. JANKE, Appellee.
    No. 78-426.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.

      Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellant.
    Vega, Brown & Nichols, Naples, Daniels & Hicks and Sam Daniels, Miami, for appel-lee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Gulf Life Insurance Co. v. Conklin, 154 Fla. 4, 16 So.2d 337 (1944); 18 Fla.Jur. Insurance, § 437 (1971).


text:
    The STATE of Florida, Appellant, v. William Frederick BULL, Appellee.
    No. 78-469.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Janet Reno, State’s Atty. and Ira N. Lo-ewy, Asst. State’s Atty., for appellant.
    Morris & Feig, Hialeah, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Negron v. State, 306 So.2d 104 (Fla.1974).


text:
    Richard ALSTON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1602.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Richard Alston, in pro. per.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is not entitled to relief, the denial of his motion is affirmed.

Affirmed.