author: BOARDMAN, Chief Judge.

text:
    Charles GRANVILLE, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-104 and 77-105.
    District Court of Appeal of Florida, Second District.
    July 29, 1977.
    Jack 0. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and Lawrence D. Shearer, Legal Intern, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant/defendant, Charles Granville, challenges the legality of a search of the automobile he was driving. We agree that the search was improper and that impoundment was unnecessary, and we reverse.

Prior to the incident which is the subject matter of this appeal, appellant had been identified as a possible suspect in the commission of a recent robbery. While on their way to appellant’s residence to question him, Officers Meredith and Sumner observed him driving along a street a'few blocks from his home and followed him in their patrol car.

Upon reaching his destination, appellant pulled into the private driveway of a friend’s residence, got out of the automobile, and walked toward the police cruiser which had pulled up next to the curb. Meredith asked to see appellant’s driver’s license and after appellant stated that he did not have one, Meredith frisked him. As he was doing so, Sumner told him that appellant’s license was suspended and ordered Meredith to arrest appellant. Meredith arrested him, turned appellant over to Sumner, and searched the automobile. He found a paper bag containing the wallet of the robbery victim and a woman’s purse. Appellant was then arrested for robbery and handcuffed.

At that point, appellant requested that the car not be impounded, but rather that the police return it to the owner, who lived only two blocks away. The police nevertheless continued the search and impounded the vehicle.

There is no evidence to suggest, nor does the state argue, that the warrant-less search made in this case was made for any reason other than to inventory the contents of the vehicle. The search was not incident to appellant’s arrest since appellant was in police custody and at a safe distance from the car at the time the search was made. The police did not have probable cause to believe that the vehicle contained contraband or evidence of a crime. There could have been no fruits of the offense for which appellant was arrested, that is driving without a valid driver’s license. A suspicion that appellant may have committed the robbery because he fit the general BOLO description of the robber was insufficient basis for the search. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Before an inventory search of a motor vehicle may be conducted there must be some necessity for impounding it. Altman v. State, 335 So.2d 626 (Fla.2d DCA 1976). When a vehicle is legally parked some justification for impoundment other than the fact that it is unattended must be shown. G. B. v. State, 339 So.2d 696 (Fla.2d DCA 1976). Here there was no justification for impounding the car. The vehicle was not abandoned or illegally parked, as in Godbee v. State, 224 So.2d 441 (Fla.2d DCA 1969); nor would it otherwise have had to be left on the highway, as in Urquhart v. State, 261 So.2d 535 (Fla.2d DCA 1971). The car was parked in the driveway of a private residence, the owner of which was a friend of appellant, and, unlike the situation in Cash v. State, 275 So.2d 605 (Fla.1st DCA 1973), the owner of the property on which the vehicle was parked had not requested that it be removed.

Cases which held that the vehicle seized was permissibly parked and not subject to impoundment include Weed v. Wainwright, 325 So.2d 44 (Fla.4th DCA 1975), where the automobile was parked in a Winn Dixie parking lot during business hours; G. B. v. State, supra, where the vehicle was legally parked outside the courthouse; and In re 1972 Porsche, 2 Dr., 307 So.2d 451 (Fla.3d DCA 1975), where the ear was legally parked on the street outside the residence of a friend of the defendant.

While we have recently held in State v. Dearden, 347 So.2d 462 (Fla.2d DCA 1977), that a silent arrestee need not be consulted as to his wishes concerning the care of his vehicle that case is not controlling here. Reasonable alternatives to impoundment were available, for example the car could have been left where it was, in the absence of objection by the owner of the property on which it was parked, or the owner could have been notified of the car’s location so that she could retrieve it. Furthermore, appellant did notify the police of his desire that the car not be impounded. Although appellant’s objection to impoundment was not made until after the search of the vehicle had begun and the evidence at issue here had been found, any belatedness in his objecting appears to have been due to the haste of the officers to search the car. Immediately upon discovering that there was a basis upon which to arrest appellant one officer took appellant into custody, while the other began searching the vehicle.

The circumstances in this case give every indication that the search was pretextual and therefore invalid. See Diggs v. State, 345 So.2d 815 (Fla.2d DCA 1977). When they came in contact with appellant, the police officers were on their way to his house to question him regarding the robbery they were investigating. Appellant had not committed any traffic violation. It was purely fortuitous that appellant did not have a valid driver’s license providing grounds for arrest, and the officers took advantage of this fortuity to conduct an inventory search of his car precedent to impoundment when they did not have probable cause for a search.

Accordingly, we conclude that there is no basis upon which the search can be upheld, and the cause is

REVERSED.

GRIMES and SCHEB, JJ., concur.


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    The BARNETT BANK OF TALLAHASSEE, a Florida Banking Corporation, Appellant (Plaintiff), v. CAPITAL CITY FIRST NATIONAL BANK, a National Banking Corporation, Godfrey Smith, S. E. Teague, Jr., Homer A. Brinkley; and Bernard Shiell, Appellees (Defendants).
    No. BB-21.
    District Court of Appeal of Florida, First District.
    Aug. 1, 1977.
    Julius F. Parker, Jr., of Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for appellant.
    C. Gary Williams, of Ausley, McMullen, McGehee, Carothers & Proctor, Helen C. Ellis of Keen, O’Kelley & Spitz, Dexter, Douglass, of Douglass & Powell, Tallahassee, Talbot D’Alemberte, of Steel, Hector & Davis, Miami, for appellees.
   MILLS, Judge.

Barnett Bank of Tallahassee (Barnett) appeals from a final summary judgment entered in favor of Capital City First National Bank (Capital City) and appeals from an order entered in favor of Smith, Teague, Brinkley and Shiell dismissing Count III of its corrected amended complaint with prejudice.

The issues raised by this appeal are whether the trial court erred in entering the summary judgment and the order of dismissal.

On 19 June 1974, Commonwealth Corporation (Commonwealth), which was not a party to this action, delivered a check in the amount of $61,345.00 to Barnett. The check was payable to Barnett and drawn on Commonwealth’s account at Capital City. The check was routinely forwarded to Capital City for collection. On 21 June, an official of Capital City called Barnett to advise that the check was being dishonored and returned to Barnett. The check was stamped “drawn against uncollected funds”.

On 20 June, prior to the check being dishonored, Smith, President of Capital City, received a call asking him to attend a meeting at the Commonwealth offices. The meeting was attended by Smith, Shiell, President of Commonwealth, Teague and Brinkley, directors of both Commonwealth and Capital City, Lewis, President of Lewis State Bank, and others. At the meeting Shiell announced that Commonwealth -was having severe cash flow problems and would need a substantial loan (two and one-half million dollars) by the close of business the next day (21 June). The loan was needed to cover checks that were outstanding and were expected to hit the bank on the 21st.

When Smith returned to his office at Capital City, he consulted his legal counsel, then proceeded to take action to protect Capital City from possible loss. This action included recording assignments of mortgages that were previously unrecorded, examining Commonwealth’s account, and finally dishonoring checks drawn against Commonwealth’s account, one of which was the check payable to Barnett.

Barnett’s corrected amended complaint was based on three counts.

Count I alleged that Capital City wrongfully and illegally dishonored the check payable to Barnett in that (a) there were adequate funds on deposit in Commonwealth’s account to pay the check and the check would have been routinely honored and paid but for information obtained by Capital City through its directors, Teague and Brinkley, by virtue of their dual positions as directors of both Capital City and of Commonwealth, or, in the alternative (b) the check was in fact routinely paid and debited against Commonwealth’s account on 20 June, and having paid the check, Capital City is accountable to Barnett for the amount of the item pursuant to Section 674.213(1), Florida Statutes (1973).

Count II alleged that because of Capital City’s superior knowledge, Capital City was able to defraud Barnett by routinely sending out for collection items pertaining to Commonwealth and payable to Capital City or Commonwealth’s accounts with Capital City, while at the same time dishonoring all checks drawn on it by Commonwealth.

Count III alleged that Capital City, Smith, Teague, Brinkley and Shiell conspired to defraud Barnett by revealing to Smith that Commonwealth had written checks for several million dollars for which checks Commonwealth did not have sufficient funds on deposit.

After the corrected amended complaint was filed, Capital City moved for summary judgment and the individual defendants moved for dismissal of Count III of the corrected amended complaint. Both motions were granted and this appeal ensued.

The real issue presented by Count I is whether the Barnett check was “paid”. Whether there were adequate funds in Commonwealth’s account to pay the check is not a material fact because a payor bank owes no duty to the payee of a check to pay the item, unless the check has been accepted. Section 673.409(1), Florida Statutes (1973), and Elmore v. Palmer First National Bank and Trust, 221 So.2d 164 (Fla.2d DCA. 1969). However, once final payment has been made, the payor bank is accountable for the amount of the item. Under Section 674.213(l)(c), Florida Statutes (1973), an item is finally paid when the payor bank has “. . . completed the process of posting the item to the indicated account of the drawer, maker or other person to be charged therewith . . Section 674.109, Florida Statutes (1973), defines the process of posting as:

“. . . [T]he usual procedure followed by a payor bank in determining to pay an item and in recording the payment including one or more of the following or other steps as determined by the bank:
(1) Verification of any signature;
(2) Ascertaining that sufficient funds are available;
(3) Affixing a ‘paid’ or other stamp;
(4) Entering a charge or entry to a customer’s account;
(6) Correcting or reversing an entry or erroneous action with respect to the item.” (Underlining supplied)

Therefore, under Florida law and the Uniform Commercial Code, Barnett's check could not have been “paid” unless the last step in the procedure usually followed by Capital City in determining to pay an item had been taken. Russell Grosvenor, Assistant Vice-President of Capital City, gave undisputed testimony concerning Capital City’s payment procedure. It is unnecessary to outline all the steps taken in the payment procedure, since prior to final payment all checks are stamped “paid” across the face of the check. A signature check is made after the paid stamp is affixed. Barnett’s check does not have “paid” stamped across the face of the check and the back of the check is stamped "drawn against uncollected funds”. It is clear that Barnett’s check never went through the final steps in Capital City’s payment process. It therefore follows that the process of posting was never completed and thus final payment was never made.

Count II which is based on fraud and Count III which is based on conspiracy to defraud fail to state a cause of action for fraud or conspiracy to defraud. As stated in Kutner v. Kalish, 173 So.2d 763 (Fla.3d DCA 1965):

“In order that fraud be actionable the following elements must be made to appear:
(1) a misrepresentation of material fact,
(2) [a] knowledge of the representor of the misrepresentation, or, [b] representations made by the representor without knowledge as to either truth or falsity, or, [c] representations made under circumstances in which the representor ought to have known, if he did not know, of the falsity thereof,
(3)- an intention that the representation induce another to act on. it, and
(4) resulting injury to the party acting in justifiable reliance on the representation.”

Neither Count II nor Count III alleges a misrepresentation of a material fact by Capital City or any of the individual defendants. Barnett did allege that Capital City’s actions in routinely sending out for collection all items pertaining to Commonwealth, payable to Capital City or Commonwealth’s account with Capital City, after Capital City had learned of Commonwealth’s financial difficulties, constituted an affirmative misrepresentation to other banks, including Barnett. Whether the routine sending of items for collection could ever be considered to constitute a misrepresentation need not be determined by this appeal, for it is clear that even if the actions could be construed as a misrepresentation, Barnett’s injury was not a result of its reliance on such representation. Barnett’s injury resulted from Barnett’s reliance on Commonwealth’s good name and reputation. On 19 June, Barnett took the $61,-346.00 check from Commonwealth and in return reassigned to Commonwealth - a mortgage previously held by Barnett as partial security for Commonwealth’s loans. It was not until late in the afternoon of the following day that Capital City learned of Commonwealth’s financial difficulties. The fact that Capital City returned the check after being informed of Commonwealth’s problems, even the fact that the check might have been routinely paid if the information had not been received, does not in any way transform the dishonor of the check into a perpetration of fraud.

Since the record is bare of any facts from which even an inference may be drawn to establish a cause of action for fraud, and since, as discussed previously, the undisputed facts clearly show that final payment was never made on Barnett’s checks, the summary judgment entered in favor of Capital City is affirmed.

Since Count III of the corrected amended complaint did not state a cause of action for conspiracy to defraud, the order dismissing the corrected amended complaint with prejudice is also affirmed.

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


author: HAVERFIELD, Judge.

text:
    Truluck Herbert JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1194.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.

      Bennett H. Brummer, Public Defender and Irv J. Lamel, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Truluck Herbert Johnson appeals his conviction for robbery and unlawful possession of a firearm during the commission of a felony and, for one of his two points contends that he was deprived of a fair trial as a result of the prosecutor’s following inflammatory remark in his closing argument to the jury:

“It’s not fair to the rest of the people of this community to let those two robbers walk out of this door and take that escalator down to the first floor and take a bus down to 22nd Street. It’s just not fair.
“They didn’t think about the people in your community back in September.
“MR. WILSON: I’ll object to this. I would ask your Honor to instruct the jury that this be completely disregarded, the whole thing, the use of the word, ‘robbers’—
“MR. WAKSMAN: They’re charged with robbery.
“THE COURT: The jury will disregard the last statement of the prosecutor.”

First, we note that defendant was tried jointly with a co-defendant and counsel for co-defendant objected to the above remark and requested a curative instruction. Counsel for defendant having acted independently of counsel for co-defendant during the proceedings and having failed to expressly adopt the above objection, has thereby waived his objection thereto. See Wright v. State, 318 So.2d 477 (Fla. 4th DCA 1975).

Assuming arguendo that defendant’s counsel had made a timely objection, we do not believe defendant has made reversible error to appear.

It is not presumed that the jurors are led astray to wrongful verdicts by impassioned eloquence. Paramore v. State, 229 So.2d 855 (Fla.1969). A considerable degree of latitude is allowed prosecutors in closing argument to the jury. Thomas v. State, 326 So.2d 413, 415 (Fla.1975).

Considering this case on its own merits and within the circumstances existing at the time the questionable statement was made, we find that the subject remark was neither so harmful nor fundamentally tainted as to require a new trial, and the trial judge properly instructed the jury to disregard the remark. See Thomas, supra, and Frierson v. State, 339 So.2d 312 (Fla. 3d DCA 1976); Cf. Wingate v. State, 232 So.2d 44 (Fla. 3d DCA 1970).

Last, the record reflects that counsel for co-defendant upon objection asked for a curative instruction and not a new trial and, therefore, upon receiving and accepting the curative instruction, the error, if any, was waived. See Foster v. State, 266 So.2d 97, 100 (Fla. 3d DCA 1972).

For his other point on appeal defendant argues that the evidence was insufficient to establish identification of him as one of the perpetrators of the robbery.

A review of the record establishes that defendant was positively identified by Ms. Greene, one of the barmaids, and Mr. Chester, a patron in the bar at the time of the robbery. They based their identifications on his voice, physical appearance and manner of walking. Both, having previously been acquainted with the defendant, gave his first name to the police who arrived on the scene just after the robbery and positively identified him as one of the robbers during a photographic line-up. Positive identification having been made by two people who had an opportunity to observe the crime, we find there was ample evidence to support the jury’s finding that defendant was one of the perpetrators of the robbery and it was within the jury’s province to reject the alibi testimony presented in view of Ms. Greene’s and Mr. Chester’s testimony. See Martin v. State, 100 Fla. 16, 129 So. 112 (1930); Wright v. State, 182 So.2d 264 (Fla. 3d DCA 1966); Stuckey v. State, 199 So.2d 137 (Fla. 3d DCA 1967); Jenkins v. State, 208 So.2d 276 (Fla. 3d DCA 1968); Cason v. State, 211 So.2d 604 (Fla. 2d DCA 1968); Smith v. State, 221 So.2d 216 (Fla. 3d DCA 1969); Gilbert v. State, 311 So.2d 384 (Fla. 3d DCA 1975).

Affirmed.


author: PEARSON, Judge.

text:
    VIC TANNY OF FLORIDA, INC., etc., et al., Appellants, v. FRED McGILVRAY, INC., a Florida Corporation, Appellee.
    Nos. 76-1407, 76-1315.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellants.
    Horton, Perse & Ginsberg, Donald M. Coon, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PEARSON, Judge.

These appeals are from a final judgment which foreclosed a mechanic’s lien and also imposed an equitable lien against all of the appellant-defendants, and from a subsequent order assessing costs and attorney’s fees against these defendants. The parties to the appeal are as follows: Fred McGil-vray, Inc., plaintiff, who was a subcontractor under a contract with P. J. Hunt Construction Company, Inc.; Vic Tanny of Florida, Inc., defendant, lessee of the real property involved; Vic Tanny International, defendant, a foreign corporation which is listed on the lease as the “trade name” of the tenant; and Monumental Properties, Inc., defendant, fee owner of the real property involved. The facts stipulated to by the parties at a pretrial conference are as follows:

1. McGilvray is a mechanical subcontractor who performed work and provided labor and materials to Vic Tanny Health Club at Westland Mall.

2. The reasonable value of the work performed by McGilvray is $7,396.01, all of which is still due and owing McGilvray.

3. No notice of commencement was posted on the subject property or recorded in the records of Dade County, Florida, by any defendant.

4. The lease for the subject premises between Monumental and/or Florida or International was never recorded by any defendant.

5. No defendant ever requested a contractor’s affidavit, either for each progress payment or before final payment.

6. The final payment of $5,000 due the general contractor was withheld by Florida.

7. Monumental made no payment of any kind concerning the construction of the Vic Tanny Health Club at Westland Mall.

8. At all pertinent times, the address of corporate headquarters for both Florida and International was Suite 1115, 300 North State Street, Chicago, Illinois.

9.Donahue Wildman is a director and the executive vice-president of International, and a director and the president of Florida.

In addition, the record reflects the existence of the following facts:

1. The general contractor abandoned the job before completion. The sum of $5,000 which would have been due under the contract was withheld by Florida to complete the job.

2. Florida engaged McGilvray to perform other work and paid McGilvray for that work.

3. McGilvray filed a claim of lien in the amount of $7,396.01 on January 5, 1972, against the real property.

4. On May 16, 1972, Vic Tanny of Florida, Inc., as principal, and Reliance Insurance Company, as surety, filed a surety bond in the amount of $9,294.24 to fund the lien pursuant to Section 713.24, Florida Statutes (1971), “Transfer of liens to security.”

5. On May 16, 1972, the clerk of the circuit court executed and served by registered mail a Notice of Contest of Lien upon Fred McGilvray, Inc., pursuant to Section 713.22, Florida Statutes (1971).

6. On July 12, 1972, Fred McGilvray, Inc., filed a complaint to foreclose its lien against P. J. Hunt Construction Co., Inc.; Vic Tanny International; and Westland Mall, Inc. Neither Vic Tanny of Florida nor the surety on the transfer bond was party to the suit.

7. On July 21, 1972, the clerk returned the bond to Vic Tanny of Florida, Inc., because no suit had been filed on the bond within the time limited by Section 713.22, Florida Statutes (1971).

8. On February 11, 1974, the trial court granted plaintiff’s motion to amend the complaint to add Vic Tanny of Florida, Inc., as a party defendant to the suit to foreclose mechanic’s lien.

Section 713.24, Florida Statutes (1971), provides that any person having interest in real property upon which a lien is imposed may, by complying with the requirements of that section, transfer the lien from the property involved to the security bond posted. This statute provides an absolute right by which property may be freed from a mechanic’s lien thereby transferring all the rights of the lienor from the property to the security. Subsection (4) of the cited section provides:

“(4) If no proceeding to enforce a transferred lien shall be commenced within the time specified in § 713.22 or if it appears that the transferred lien has been satisfied of record, the clerk shall return said security upon request of the person depositing or filing the same, or the insurer.”

The record affirmatively shows that the lien was transferred to security bond and that no action was begun upon the bond within sixty days after service of the notice of contest of lien. Appellee urges that this court should hold that the filing of the complaint to foreclose the mechanic’s lien against other defendants not joining the party posting the bond and not joining the security company liable on the bond was sufficient to comply with the above quoted portion of the statute. We cannot agree with this reasoning. The amendment of the original complaint nineteen months after the filing of the complaint and sixteen months after the expiration of the time for action against the surety to include the party posting the bond is not sufficient compliance with the statute. Therefore, the mechanic’s lien claim against the property lapsed and the judgment foreclosing that lien must be reversed.

The trial court, apparently suspecting that the portion of the judgment foreclosing a mechanic’s lien would not withstand the scrutiny of appellate review, attempted to give relief to the lienor by imposing an equitable lien against all of the defendants. It is a general rule that in a suit to impose a mechanic’s lien, the court may not impose an equitable lien upon a finding that the mechanic’s lien is not valid. See Kimbrell v. Fink, 78 So.2d 96 (Fla. 1966); and Blanton v. Young, 80 So.2d 361 (Fla.1955). Cf. Rood Company v. Luber, 91 So.2d 629 (Fla.1966). In Crane Co. v. Fine, 221 So.2d 145 (Fla.1969), the Supreme Court of Florida noted the general rule and stated an exception to it. The exception in the circumstances noted in the Crane case simply does not appear in the present case. In the Crane case the Supreme Court pointed out that the complaint sought equitable relief in the form of an equitable lien. In the instant case, no facts are alleged in the complaint which could present a basis for an equitable lien as pointed out in Crane. The holding therein is specifically limited to special and peculiar equities.

* sjc * * * *
“We emphasize that this opinion is not to be interpreted as holding that a material-man is entitled to seek an equitable lien merely because his materials are incorporated in the improvement. We hold only that, because of the special and peculiar equities shown by the record in this particular case, the plaintiff should not be foreclosed from seeking an equitable lien merely because he was entitled to but failed to perfect his statutory material-man’s lien.”

Cf. Goldberg v. Banner Supply Co., 230 So.2d 714 (Fla.3d DCA 1970). The only basis for an equitable lien suggested by the appellees in this appeal is that because the lien was bonded by Vie Tanny of Florida, Inc., and because the business was conducted under the trade name Vic Tanny, International, that, therefore, confusion was engendered which could form a basis for an equitable lien upon the doctrine of equitable estoppel. It is urged that the application of this doctrine would allow the consideration of the original suit, which did not include Vic Tanny of Florida, Inc., as a party, in actuality to be a suit against that defendant at the time that suit was originally filed and prior to its amendment some months later. If the court found such equitable estoppel, it would not have been sufficient to establish the statutory lien as set out above and it does not come within the confines of the special circumstances set forth in the Crane case. Even if found to come within the confines of special and peculiar circumstances as set forth in Crane, it is not tenable on this record and is, therefore, insufficient. It affirmatively appears from the record that all of the lienor’s dealings were with Vic Tanny of Florida, Inc. He contracted with, and was paid by, that company. The lien was transferred from the real property involved to security posted by Vic Tanny of Florida, Inc., and the lienor was served with a notice to contest the lien in the name of Vic Tanny of Florida, Inc. Therefore, the record will not sustain a holding that because of confusion, an equitable lien can be substituted for the ineffective mechanic’s lien.

Accordingly, the judgment foreclosing the mechanic’s lien and imposing an equitable lien, as well as the order assessing attorney’s fees and costs, is reversed.

Reversed.

      . “(1) Any lien claimed under part I of this chapter may be transferred by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by either:
      “(a) Depositing in the clerk’s office a sum of money, or
      “(b) Filing in the clerk’s office a bond executed as surety by a surety insurer licensed to do business in this state, either to be in an amount equal to the amount demanded in such claim of lien plus interest thereon at six per cent per year for three years plus one hundred dollars to apply on any court costs which may be taxed in any proceeding to enforce said lien. Such deposit or bond shall be conditioned to pay any judgment or decree which may be rendered for the satisfaction of the lien for which such claim of lien was recorded and costs not to exceed one hundred dollars. Upon making such deposit or filing such bond the clerk shall make and record a certificate showing the transfer of the lien from the real property to the security and mail a copy thereof by registered or certified mail to the lienor named in the claim of lien so transferred at the address stated therein. Upon filing the certificate of transfer the real property shall thereupon be released from the lien claimed and such ..lien shall be transferred to said security. The clerk shall be entitled to a fee for making and serving the certificate in the sum of two dollars. Any number of liens may be transferred to one such security.”

      . “(2) An owner or his agent or attorney may elect to shorten the time prescribed in subsection (1) of this section, within which to commence an action to enforce any claim of lien or claim against a bond or other security under § 713.23 or § 713.24, by recording in the clerk’s office a notice in substantially the following form:
      NOTICE OF CONTEST OF LIEN
      To:_
      (Name and address of lienor)
      You are notified that the undersigned contests the claim of lien filed by you on — 19 — , and recorded in Book —, Page —, of the public records of_County, Florida, and that the time within which you may file suit to enforce your lien is limited to 60 days from the date of service of this notice. This_day of _ 19—
      Signed_
      Owner or Attorney
      The lien of any lienor upon whom such notice is served and who falls to Institute a suit to enforce his lien within sixty days after service of such notice shall be extinguished automatically, The clerk shall mail a copy of the notice of contest to the lien claimant at the address shown in the claim of lien or most recent amendment thereto and shall certify to such service on the face of such notice and record the notice. Service shall be deemed complete upon mailing."

      . “7. In the event that the Plaintiff is unable to fully satisfy its claim upon the statutory lien as against the Defendant, VIC TANNY OF FLORIDA, INC., then the Court orders the imposition of an equitable lien on the real property described in Paragraph 1 as against VIC TANNY OF FLORIDA, INC., the owner of the leasehold, in the amount of $7,396.01 plus Court costs and accrued interest.
      “8. In addition to the Plaintiff FRED McGILVRAY, INC.’s perfection of a valid statutory mechanics’ lien as against the Defendants, MONUMENTAL PROPERTIES, INC, and VIC TANNY OF FLORIDA, INC., the Court orders an imposition of an equitable lien on the real property described in Paragraph 1 as against VIC TANNY INTERNATIONAL, INC., in the amount of $7,396.01, plus court costs and accrued interest."


text:
    Miriam BLOOM, Appellant, v. Rachela WEISER, Appellee.
    Nos. 76-1414, 76-1415.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.

      Brian R. Herah and Jeffrey A. Bernstein, Miami, for appellant.
    Keith, Mack, Lewis & Allison and John R. Allison, III, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Miriam Bloom, plaintiff in the trial court, appeals a final judgment quieting title in defendant, Rachela Weiser, and also an order awarding attorney’s fees in- an action to determine the ownership of a condominium unit.

On June 12, 1972 Joseph Weinberg purchased a unit in the Marlborough House Condominium and had the title placed in his name and that of his intended bride, Rache-la Weiser, as joint tenants with rights of survivorship. Thereafter, on July 16, 1972 Weinberg executed and delivered to his son, Arthur Winter, a general power of attorney which reads in pertinent part:

“KNOW ALL MEN BY THESE PRESENTS:
“THAT I, JOSEPH WEINBERG, residing at 400 Diplomat Parkway, Hallan-dale, Florida, have made, constituted and appointed, and by these presents do make, constitute and appoint my son, ARTHUR A. WINTERS, my true and lawful attorney for me and in my place, name and stead giving and granting unto my said attorney full power and authority to do and perform all and every act and' thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as V might or could do if personally present, with full power and substitution and revocation, hereby ratifying and confirming all that my said attorney or his lawful substitute shall lawfully do or cause to be done by virtue hereof.”

Pursuant to this power, on July 18 Winters, as agent and attorney-in-fact, executed and delivered to Miriam Bloom, daughter of Joseph Weinberg, a warranty deed purporting to transfer her father's one-half interest in the condominium unit. After her father’s death, Miriam Bloom filed a complaint for declaratory judgment seeking to have the June 12,1972 deed declared void as to Weiser’s interest on the pound that this interest was obtained by undue influence. Alternatively, Bloom alleged that she had a one-half interest in the condominium by virtue of the July 18,1972 deed which terminated Weiser’s right of survivorship and on this basis requested the property be partitioned and sold. Weiser answered denying (1) any undue influence on her part, and (2) the validity of the July 18 deed for the reason that the general power of attorney given to Winters was invalid. Weiser also counterclaimed to quiet title to the unit in her name and sought damages for slander of title, including attorney’s fees. The action was tried non-jury and on July 2, 1976 a judgment was entered quieting title in Weiser based upon the following trial court findings: (1) there was no evidence of any undue influence and the June 12, 1972 warranty deed created a joint tenancy with right of survivorship for Joseph Weinberg and Rachela Weiser; (2) the general power of attorney given to Arthur Winters was insufficient to authorize the conveyance of the subject condominium unit because it lacked a description of the real property to be conveyed thereby failing to meet the requirements of the formalities of a deed of conveyance as set forth in Section 689.01, Florida Statutes (1971); and (3) the power of attorney being invalid, the July 1972 deed to Miriam Bloom is void. Thereafter, Weiser was awarded $4,000 as a reasonable attorney’s fee on her claim for damages. Miriam Bloom appeals both the order awarding attorney’s fees and the final judgment. We affirm.

The established rule is that a power of attorney must be strictly construed and the instrument will be held to grant only those powers which are specified. 3 Am.Jur.2d Agency § 29 (1962). We are of the view that for a power of attorney to authorize a conveyance of real estate, the authority of the agent to do so must be plainly stated. See 2A C.J.S. Agency § 223 (1972) and Hall v. Cosby, 258 So.2d 897 (Ala.1972). Reviewing the power of attorney granted Winters, we find the instrument contains no specific grant of power authorizing him to convey real estate. Therefore, the July 18 deed executed by Winters and purporting to convey Weinberg’s one-half interest in the subject condominium unit to Miriam Bloom is void.

It is interesting to note that the instant power of attorney, prepared and executed in New York, contains almost the identical wording of the power of attorney found to be insufficient to authorize the agent to convey or dispose of real estate in Graham v. State, Ct.Cl., 51 N.Y.S.2d 437 (1944) where the court at page 441 explained:

“A power of attorney to convey real estate is an instrument of title. Either expressly or by necessary implication it should state the authority of the agent without leaving it to be established by parol, inferred from coincidences or based on speculation. Real Property Law, § 242, is for the protection of the public. It is not merely a matter between principal and attorney. The deed and the agent’s authority are instruments of equal dignity. The language of , the so-called power of attorney herein confers no authority on Robert H. Dunnet. It lacks an operative clause. It is not a general power of attorney; he is authorized to act only ‘in and about the premises.’ It is not a special power of attorney; no premises or things to be done appear on the face of the instrument. The document states nothing to which the grant of powers cán be related. Drawn, as it would seem, on the usual blank form of special power of attorney, it omits after the words, ‘for me and in my name, place and stead,’ the usual statement of specific acts authorized.”

The July deed being void, the trial court properly entered judgment quieting title in Rachela Weiser.

Turning to the order awarding $4,000 in attorney’s fees to Weiser, it is now established that such an award in a slander of title action is proper as special damages to compensate the wrong committed. See Glusman v. Lieberman, 285 So.2d 29 (Fla. 4th DCA 1973); Susman v. Schuyler, 328 So.2d 30 (Fla. 3d DCA 1976).

Judgment and order on attorney’s fees affirmed.

      . Prepared by a New York attorney and executed by Weinberg in New York.


author: NATHAN, Judge.

text:
    Henry A. KELLER, Jr., Appellant, v. Christal C. KELLER, Appellee.
    No. 76-1509.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Levine, Reckson & Reed and Robert Geiger, Miami, for appellant.
    Koeppel, Stark & Newmark, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by the husband, Henry A. Keller, Jr., from certain provisions of a final judgment of dissolution of marriage. The prior history of this matrimonial dispute is reported in Keller v. Keller, 287 So.2d 361 (Fla. 3d DCA 1973); and in Keller v. Keller, 308 So.2d 106 (Fla.1975), wherein the cause was remanded to the circuit court to reconsider the entire case de novo including the taking of further evidence as necessary for a proper resolution.

On remand and reconsideration by the trial court, a final'judgment of dissolution of marriage was entered in which the court found both parents fit to have custody of the minor child, but ordered that custody remain with the father, with liberal visitation rights to the mother. The wife, Chris-tal C. Keller, now age 31, was awarded “lump sum alimony of $121,000.00, payable in the following installments: $25,000 forthwith, and $1,600 per month . for a total period of sixty (60) months.”' She was also awarded a new car and attorneys fees in the amount of $50,000. Costs were charged against the husband, including the fee for a court appointed certified public accountant.

The husband raises as points on appeal that the court erred in awarding lump sum alimony to the wife; in requiring the husband to pay $50,000 in attorneys fees; and in requiring him to pay the costs of the certified public accountant. The wife has filed cross-assignments of error and claims that the court erred in awarding custody of the child to the father, in failing to grant permanent alimony based on the husband’s substantial assets and income; and in awarding an insufficient amount of attorneys fees.

We first address the wife’s contention that the court erred in awarding custody of the child to the father. Although evidence was presented that both parents are fit to have custody, the record reflects ample competent, substantial evidence to support the court’s finding that, “. the minor child (based upon the custody order entered in the first trial of this cause) has lived with his father, the defendant herein, most of his life, and the Court believes it is not in the best interest of said child to change custody now.” Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975).

We next address that portion of the final judgment relating to alimony. The court made the following findings upon which it based the award of alimony:

“The Court heard extensive testimony concerning the defendant’s assets and income including the financial report prepared by the Court-appointed Certified Public Accountant. The Court concludes that the defendant, HENRY A. KELLER, JR., is well able to pay CHRISTAL KELLER lump sum alimony.
The Court further heard extensive testimony concerning CRISTAL (sic) KELLER’S financial needs, her employability, her assets and income, and the Court finds that the Plaintiff is not adequately prepared to compete in the job market to any appreciable extent at this time.”

The husband’s contentions are that the court erred in failing to designate the award of lump sum alimony as rehabilitative or permanent, and further, that if the award constitutes permanent alimony, it is error as a matter of law since it is not supported by the evidence. If the award is rehabilitative, it is excessive and based solely on the husband’s “deep pockets,” and therefore, an abuse of discretion. The wife argues that the lump sum award was rehabilitative and that she should have been granted permanent alimony.

Section 61.08, Florida Statutes (1975), the alimony provision of the Florida dissolution of marriage law, states:

“(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of a spouse and the circumstances thereof in determining whether alimony shall be awarded to such spouse and the amount of alimony, if any to be awarded to such spouse.
(2) In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.” (emphasis supplied)

The record reflects evidence of marital misconduct by the wife, which the judge had the opportunity to, and presumably did, take into consideration in making the award. In addition, there is ample evidence to support the wife’s contention that the parties shared an extravagant lifestyle during the seven year marriage, for example, two domestic servants in the marital home, numerous vacations, a generous clothing allowance, unlimited use of credit cards and a substantial checking account, in addition to furs, jewelry and expensive cars.

The trial court should have specified whether the award of lump sum alimony is permanent or rehabilitative, but this alone does not constitute reversible error. Compare Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). Apparently, from the court’s findings as to the wife’s current unemployability and the husband’s ability to pay, the award of lump sum alimony was meant by the court to be rehabilitative alimony. We, therefore, construe and hold that the award is not permanent alimony, but is rehabilitative alimony payable in a lump sum of $25,000 forthwith, and periodic payments of $1,600 per month for 60 months. This award of rehabilitative alimony, payable partially in lump sum and partially in periodic payments, is explicitly authorized by Section 61.08, Florida Statutes, supra. There is substantial, competent evidence in the record to support, the amount of the award of rehabilitative alimony. But, we are of the opinion that it would be an abuse of discretion to award $121,000 lump sum rehabilitative or permanent alimony where, regardless of the remarriage of the wife, her death or the husband’s death, the total amount is vested in the wife or her estate, and the husband or his estate is obligated to continue the payments until the full amount is satisfied. Yandell v. Yandell, 39 So.2d 554 (Fla.1949). The record does not support an award of permanent alimony in the sum of $121,000 to the wife. See Royal v. Royal, 263 So.2d 277 (Fla. 3d DCA 1972).

Therefore, the judgment is modified to the extent that the wife shall receive $25,-000 as lump sum rehabilitative alimony forthwith, and $1,600 per month for five years as periodic rehabilitative alimony.

Ample evidence appears in the record to support the award of attorneys fees and costs. No abuse of discretion has been demonstrated in this regard. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Herzog v. Herzog, 346 So.2d 56 (Fla.1977).

The final judgment of dissolution of marriage is affirmed as modified.


author: HENDRY, Chief Judge.

text:
    KLOSTERS REDERI A/S, d/b/a Norwegian Caribbean Lines, Petitioner, v. The STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. 77-230.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.

      Patton, Kanner, Segal, Zeller, LaPorte & King, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., for respondent.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   HENDRY, Chief Judge.

This is a petition for certiorari seeking review of a final order of the Department of Revenue of the State of Florida, as approved by the Governor and the State Cabinet, which upheld a use tax assessment against the petitioner.

Petitioner is a Norwegian corporation which operates three cruise vessels out of the Port of Miami. At the port, petitioner leases various passenger boarding facilities and has a holding area for the ship’s supplies. Petitioner has considered itself exempt from sales tax on items purchased from vendors and delivered to its port facilities for use as ship’s supplies during the course of cruises conducted outside of the state and in foreign commerce. It obtained a sales tax registration certificate number, and issued certificates of exemption to its vendors, who in reliance thereon, did not charge petitioner sales tax on the items delivered to the port.

In Aughst of 1975, respondent caused an audit to be made of petitioner’s vendors’ records and sales invoices for the period from August 1,1972, through July 31,1975. Determining that petitioner was not exempt from the sales tax, respondent served a notice of assessment on petitioner for the sum of $175,653.51. An amendment to the original assessment was issued by respondent adjusting the amount allegedly owed as tax to $83,767.29.

Petitioner paid a portion of the assessment and filed a petition for formal administrative proceeding, contesting the remaining portion of the assessment. Proceedings were commenced before a hearing officer on June 23, 1976. Following the conclusion of said proceedings, the hearing officer issued his recommended order which held that the items were not taxable in that “they are used and consumed outside the state of Florida,” pursuant to Section 212.-05, Florida Statutes (1975).

Respondent filed exceptions to the recommended order and prepared an alternate final order which overruled the hearing examiner’s recommended order and adjudicated petitioner liable for the assessment. Said alternate final order was approved by the Governor and the Cabinet, sitting as head of the Department of Revenue, on January 6, 1977. Petitioner thereupon sought review by filing its petition for cer-tiorari in this court.

Petitioner has raised seven points in its brief in support of petition for certiorari. After carefully reviewing the record and briefs, and having had benefit of counsels’ arguments, we find the following two points deserving of discussion.

Firstly, petitioner contends that pursuant to Section 212.05, Florida Statutes (1975), the hearing examiner correctly found that the use tax assessed against .petitioner was void in that the specific items taxed were all to be used and consumed on the cruise ship, during the course of the voyage, after the vessel had left the state and proceeded in foreign commerce. Section 212.05 provides, in pertinent part, as follows:

“Sales, storage, use tax. — It is hereby declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of selling tangible personal property at retail in this state, or who rents or furnishes any of the things or services taxable under this chapter, or who stores for use or consumption in this state any item or article of tangible personal property as defined herein and who leases or rents such property within the state. For the exercise of said privilege a tax is levied on each taxable transaction or incident and shall be due and payable, according to the brackets set forth in § 212.12(10) as follows:
U * * *
“(2) At the rate of four percent of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed or stored for use or consumption in this state.” [Emphasis added.]

Respondent, on the other hand, contends that notwithstanding the “consumption” of the items outside the territorial waters of the' state of Florida, pursuant to Section 212.02(8), Florida Statutes (1975), the tax was valid in that for purposes of taxation, a use occurred within this state. Section 2Í2.02(8) defines the word “use” as:

“ . . . the exercise of any right or power over tangible personal property incident to the ownership thereof, or interest therein, except that it shall not include the sale at retail of that property in the regular course of business.”

Respondent argues that the withdrawal from storage of the items taxed coupled with the subsequent placement of said items on board the vessels for further utilization during the course of the voyage was a sufficient exercise of a “right or power over tangible personal property” so as to enable the state of Florida to assess a use tax on the property.

Initially, we note that the particular items taxed were all characterized-by respondent’s auditor as “expendable,” and included, inter alia, kleenex, toilet paper, laundry bags and party supplies. Under the common usage of the word “use” we would have great difficulty in accepting respondent’s argument' that the mere removal from storage and subsequent placement on board ship of the above items amounted to a taxable “use.” Nevertheless, the definition of “use,” as set forth above, is broad enough to cover even the removal of property from a warehouse and loading of said property upon a vessel. Accordingly, we hold that pursuant to Section 212.05, petitioner did in fact “use” its personal property within the state of Florida. See United Air Lines v. Mahin, 410 U.S. 623, 93 S.Ct. 1186, 35 L.Ed.2d 545 (1973), wherein the Supreme Court of the United States held that, pursuant to an Illinois state statute defining the word “usé” as an “exercise ... of any right or power over tangible personal property incident to the ownership of that property,” withdrawal from storage of fuel to be consumed by an interstate carrier afforded the state the right to impose a use tax on the stored fuel without offending the commerce clause of the Federal Constitution.

In the second and final point which we shall consider, petitioner argues that notwithstanding our ruling above, pursuant to. Section 212.08(8), Florida Statutes (1975), a partial exemption from the use tax exists for vessels engaged in interstate or foreign commerce. Section 212.08(8) provides as follows:

“Sales, rental, storage, use tax; specified exemptions. — The sale at retail, the rental, the use, the consumption, the distribution and the storage to be used or consumed in this state, of the following tangible personal property, are hereby specifically exempt from the tax imposed by this chapter.
« * * *
“(8) Partial exemptions, vessels engaged in interstate or foreign commerce. —All vessels which are licensed as common carriers by the Interstate Commerce Commission and parts thereof used to transport persons or property in interstate or foreign commerce shall be subject to the taxes imposed in this chapter only to the extent provided herein. The basis of the tax shall be the ratio of intrastate mileage to interstate or foreign mileage traveled by the carrier during the previous fiscal year. The ratio would be determined at the close of the carrier’s fiscal year. This ratio shall be applied to the total purchases of such vessels and parts thereof each month to establish that portion of the total used and consumed in intrastate movement and subject to the tax at the applicable rate. Vessels which are licensed as common carriers by the Interstate Commerce Commission and parts thereof used to transport persons or property in interstate and foreign commerce are hereby determined to be susceptible to a distinct and separate classification for taxation under the provisions of this chapter.” [Emphasis added.]

Petitioner firstly contends that the items taxed are “parts” of the vessel and therefore, subject to partial exemption. This contention rests upon our interpretation of the word “parts” to mean those items placed on board a ship to facilitate the purpose of the voyage. Petitioner secondly contends that even assuming the items taxed are not “parts” of the vessel, the items taxed are nevertheless partially exempt as “total purchases of such vessels.”

In response to petitioner’s first contention, respondent urges us to accept a more restrictive definition of the word “parts” to mean only those items attached to the vessel. In support thereof, respondent quotes from Section 12A-1.64(5)(c), Florida Administrative Code which, while not defining the word “parts” does, allegedly, eliminate all of the items taxed from exemption. Said section, in part, reads as follows:

“Groceries, medicines and other items specifically exempted by other sections of the statute are also exempt when sold for use on said vessels. The sale of other tangible personal property not specifically exempted by other sections of the statute is taxable when sold for use on vessels operating in interstate or foreign commerce.” [Emphasis added.]

In addition, in response to petitioner’s contention concerning the interpretation of the phrase “total purchases of such vessels,” respondent argues that said phrase refers only to the actual purchases of various vessels, and not items purchased by the vessel for use thereon. In support of its interpretation, respondent relies upon the wording of Section 212.08(8), in its pre-1973 amendment form. Then, the pertinent phrase read “total purchases by the carriers of vessels and parts thereof.”

It is our opinion that, after reading Section 212.08(8) and the applicable regulations of the Department of Revenue, the specific items placed on board petitioner’s vessels were taxable by respondent, however, taxable only upon a pro rata basis.

The decision reached today is based neither upon a definition of the word “parts” or an interpretation of the phrase “purchases of such vessels.” Rather, the result by us stems from respondent’s own administrative rules. Admittedly, without the aid of those rules, we would be hard-pressed to reach the above conclusion, for the reasons that ambiguous tax exemption statutes are to be construed against the taxpayer. Williams v. Jones, 326 So.2d 425 (Fla.1975). However, we are authorized to accord considerable weight to administrative rules from the Department of Revenue which interpret the sales and use tax statutes. State ex rel. Szabo Food Services, Inc., of N. C. v. Dickinson, 286 So.2d 529 (Fla.1973). See also McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

Firstly, respondent relies upon Section 12A-1.64(5)(e), Florida Administrative Code, for the proposition that tangible personal property which is not specifically exempted by the statute is taxable when sold for use on vessels operating in interstate or foreign commerce. Subsection (5)(c) is set forth fully, as follows:

“All vessels which are licensed as common carriers by the Interstate Commerce Commission and parts thereof used to transport persons or property in interstate or foreign commerce shall be subject to the taxes imposed in this chapter only to the extent provided herein. The basis of the tax shall be the ratio of intrastate mileage to interstate or foreign mileage traveled by the carrier during the previous fiscal year. The ratio would be determined at the close of the carrier’s fiscal year. This ratio shall be applied to the total purchases of such vessels and parts thereof each month to establish that portion of the total used and consumed in intrastate movement and subject to the tax at the applicable rate. Common carriers who make any purchases hereunder must qualify as dealers subject to audit and extend in writing a resale certificate in lieu of tax, stating the specific reasons for exemption.
“Groceries, medicines and other items specifically exempted by other sections of the statute are also exempt when sold for use on said vessels. The sale of other tangible personal property not specifically exempted by other sections of the statute is taxable when sold for use on vessels operating in interstate or foreign commerce.”

We fully agree with the proposition espoused by respondent and hold that respondent had the right to tax petitioner’s personal property.

A further reading of Section 12A-1.64, however, reveals the following rules:

“(17) Casserole dishes and creamers, china, glass and silverware used in providing meals aboard aircraft, ships and vessels, and trains are taxable at 4% and do not qualify for proration under paragraph (5) of this rule.” [Emphasis added.]

In addition, subsection (19) of the above rule provides that:

“Materials and supplies, such as sandpaper, blasting sand, sanding discs, masking tape, rags, mineral spirits, tools, etc., used in the repair and maintenance of ships, including ships of foreign registry while they are docked in Florida, are taxable at 4%r

Read in pari materia, the above rules appear to denote a policy of the Department of Revenue to tax expendable items placed on board an interstate and/or foreign carrier only upon a pro rata basis. Respondent’s reliance upon the second paragraph of subsection (5)(c), set forth above, as authority for a full 4% tax would make meaningless the various rules of the Department of Revenue that follow and we will not construe the various subsections of Section 12A-1.64 to be in conflict and inconsistent with each other. See Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation District, 274 So.2d 522 (Fla.1973); Weitzel v. State, 306 So.2d 188 (Fla. 1st DCA 1974).

Though the rules of the Department of Revenue do not define the word “parts” or construe the phrase “purchases of vessels,” we believe that the intent of Section 212.-08(8), as interpreted through the rules of respondent, was to tax an interstate and/or foreign commerce carrier only upon the basis of presence within the territorial limits of the State of Florida. Accordingly, we hereby grant certiorari and quash the order of the Department of Revenue which taxed petitioner at the full 4% rate.

Certiorari granted.

      . Respondent concedes that should this court rule that the items taxed qualify as “parts of the vessel” pursuant to Section 212.08(8), the formula of apportionment described therein would result in only a negligible tax, as there are few, if any, miles traveled by petitioner within the state of Florida. Accordingly, for all practical purposes, the exemption would be complete and no tax would be assessed.

      . Amended by Laws of Florida, Chapter 73-240, § 1, effective June 22, 1973.


text:
    TRAVELERS INDEMNITY COMPANY, a corporation, Petitioner, v. David WOLFSON, Respondent.
    No. 77-245.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for petitioner.
    Wolf son, Urich & Associates, Miami, for respondent.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

This petition for writ of certiorari is directed to a decision of the circuit court acting in its appellate capacity. The circuit court affirmed without discussion a judgment of the county court. The petitioner and the respondent have adopted the following statement of the facts.

Petitioner was the defendant in a case before the county court, to wit, David Wolfson v. Travelers Indemnity Company. Respondent was the plaintiff in that case.

The plaintiff sued the defendant in the county court for unpaid medical benefits alleged to be due under an insurance policy issued by the defendant. It was plaintiff’s contention that he had incurred medical and other compensable personal injury protection (PIP) benefits exceeding $7,000.00 and demand was accordingly made on the defendant for payment of same pursuant to the policy in which the defendant insured two vehicles and under which it paid personal injury protection benefits of $5,000.00 and medical payment benefits of $2,000.00. Plaintiff contended that he was entitled to aggregate the personal injury protection coverages on the two vehicles insured by defendant and thus obtain a total of $10,-000.00 in personal injury protection benefits.

Final judgment was rendered in favor of the plaintiff, whereupon defendant took a timely appeal to the circuit court. It was assigned as error that the county court erred in an implicit finding that plaintiff could “stack” or aggregate personal injury protection benefits coverages under two insurance coverages to recover an amount in excess of $5,000.00 in such benefits.

The circuit court affirmed the judgment of the county court, and it is that order which plaintiff seeks to have reviewed here.

The controlling question is whether the circuit court departed from the essential requirements of law when it affirmed the county court’s holding that personal injury protection benefits on two vehicles may be “stacked” to provide more than a $5,000 recovery in a single accident. We hold that personal injury protection benefits may not be “stacked” and that the circuit court departed from the essential requirements of law when it failed to apply Section 627.-736(1) and Section 627.736(4)(e), Florida Statutes (1975).

It is true that multiple coverages are required to be aggregated on uninsured motorist coverages and medical payments. See Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1973); Government Employees Insurance Company v. Sweet, 186 So.2d 95 (Fla. 4th DCA 1966); and Dyer v. Nationwide Mutual Fire Insurance Company, 276 So.2d 6 (Fla.1973). Stacking has also been applied to underin-sured motorist coverages. See State Farm Mutual Automobile Ins. Co. v. Anderson, 332 So.2d 623 (Fla. 4th DCA 1976).

The plaintiff urges that the underlying rationale of these cases is that the insured pays a separate premium for each coverage on each vehicle and, therefore, should have the benefit of each premium paid. In addition, the plaintiff cites the opinion of this court in State Farm Mut. Auto. Ins. Co. v. Castaneda, 339 So.2d 679 (Fla. 3d DCA 1976), as indicating that in the absence of the exception in the policy, personal injury protection benefits could have been aggregated.

The distinction between medical payments and uninsured motorist coverages, on the one hand, and personal injury protection benefits, on the other, lies in the statute requiring such coverages. Medical payments coverage and uninsured motorist coverage are separate benefits which are purchased by the insured for his personal benefit. On the other hand, personal injury protection benefits are a creation of the legislature enacted to limit tort suits where two insured vehicles are involved in an accident in instances where the one claiming benefits formerly would have sought recovery from the one at fault. Cf. Government Employees Insurance Co. v. Graff, 327 So.2d 88 (Fla. 1st DCA 1976). As such, the prescribed limitation of $5,000 is applicable to a single accident. Because of the clear wording of Section 627.736(1), Florida Statutes (1975), there is no question but that the total benefits are $5,000. Cf. the wording in Section 627.736(4)(e), Florida Statutes (1975), evidencing the same intent. There being no extension of this required coverage in respondent’s policy, the language of the statute is the controlling element.

The holding in State Farm Mut. Auto. Ins. v. Castaneda, 339 So.2d 679 (Fla. 3d DCA 1976) is:

******
“Under the clear terms of the policies, the Plaintiff was not covered for PIP benefits under the separate insurance policies covering the three automobiles owned by the father in which Plaintiff was not a passenger at the time of the accident.”

Thus, that decision turned upon the language of the policies and did not decide the question of whether in the absence of an exception in the policies there could have been a multiple recovery. That decision noted that the question of multiple recovery for personal injury protection benefits had not been decided by the courts of Florida.

We, therefore, hold that the clear language of Section 627.736(1), Florida Statutes (1975), limits recovery of personal injury protection benefits to the statutory limit of $5,000 in a single accident. The writ is granted and the decision of the circuit court is quashed and remanded for further proceedings in accordance with the views herein set forth.

It is so ordered.

      . “(1) Required benefits. — Every insurance policy complying with the security requirements of § 627.733 shall provide personal injury protection providing for payment of all reasonable expenses incurred for necessary medical, surgical, x-ray, dental, and rehabilitative services, including prosthetic devices; necessary ambulance, hospital, nursing services; and funeral and disability benefits to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a motor vehicle or motorcycle, all as specifically provided in subsection (2) and (4)(d), to a limit of $5,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:”

      . “(e) If two or more insurers are liable to pay personal injury protection benefits for the same injury to any one person the maximum payable shall be as specified in subsection (1), and any insurer paying the benefits shall be entitled to recover from each of the other insurers an equitable pro rata share of the benefits paid and expenses incurred in processing the claim.”

      . Under the newly-enacted Section 627.4132, Florida Statutes (Supp.1976), which took effect October 1, 1976, and which is not applicable to the present case, personal injury protection benefits shall not be stacked.


author: PER CURIAM. SCHEB, Judge,

text:
    Charles SEABROOK, Appellant, v. STATE of Florida, Appellee.
    No. 76-1190.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1977.
    Jack O. Johnson, Public Defender, and A. J. Melkus, Sp. Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant appeals the trial court’s refusal to allow him to present, evidence as to his reputation for peacefulness and tranquility at his trial for aggravated battery in which he was ultimately found guilty of the lesser offense of aggravated assault. We hold that this refusal was error and reverse.

Appellant’s victim, Elizabeth Reed, was shot in the arm at approximately four or five o’clock on the morning of May 8, 1976. Appellant notified the police that the shooting had occurred, then took Ms. Reed to the hospital.

■ Two police officers testified at trial that appellant made a statement'to them shortly after the incident occurred. The gist of the statement was that appellant and Ms. Reed had had an argument over the lateness of her return home; that appellant, intending to shoot Ms. Reed to “show her that he meant business,” had gotten his shotgun out of his car, returned to the house and shot Ms. Reed; and that he had then hidden the shotgun under the house before taking Ms. Reed to the hospital.

Ms. Reed testified on appellant’s behalf. She stated that she knew of no reason why anyone would want to shoot her; that she and appellant had not quarreled on the night in question; and that she didn’t think appellant could see her in the room at the time the shot was fired.

Appellant took the stand in his own defense and admitted shooting Ms. Reed, but testified that the shooting was accidental. He claimed that he was entering the darkened house carrying the gun when he tripped on a rug and the gun discharged. He denied making the statement attributed to him by the officers. He also denied having any intention to shoot Ms. Reed.

Ms. Reed was recalled as a defense witness after appellant had testified, at which time defense counsel sought to elicit her testimony as to appellant’s reputation in the community for peacefulness and tranquility. Upon objection by the State, however, counsel was barred from this line of inquiry, primarily on the erroneous ground that such testimony is admissible only if self-defense is an issue.

The general rule in Florida is that a criminal defendant may introduce evidence of his good character and reputation where such evidence has reference to a trait involved in the offense with which he ,is charged. Norman v. State, 156 So.2d 186 (Fla.3d DCA 1963). Certainly one’s lack of propensity toward violence is relevant to the trait of violence inherent in the commission of an aggravated battery or aggravated assault; so the trial court’s refusal to allow testimony as to appellant’s reputation with respect to that trait was error.

Moreover, we think it was reversible error in this case because such evidence was clearly corroborative of appellant’s defense of accident and tended to negate the very heart of an essential element of the offense charged, to wit: an intentional threat of violence. Without it appellant stood naked in his swearing match with two police officers whose testimony constituted the guts of the case againsp him. , In our view, there exists sufficient doubt that appellant had a fair trial, under the circumstances of this .case, so as to warrant a new trial.

Reversed and a new trial is awarded.

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

SCHEB, J., dissents with opinion. ,

SCHEB, Judge,

dissenting.

I agree that a defendant on trial for a crime of violence may introduce evidence of his reputation for peace and tranquility.in the community. I dissent, however, from the majority on three grounds.

First, there is a serious question as to whether appellant was prevented from introducing such evidence in this case. Relevant portions of the trial transcript reveal that after defense counsel called the victim, Elizabeth Reed, the following transpired:

Q [MR. BADEN — defense counsel]: Do you know his [appellant’s] reputation in the community for peacefulness and tranquility?
MR. ROBACK [prosecutor]: Your Honor, I object. That’s got nothing to do—
THE COURT: This is not self defense question. The objection is sustained as to veracity.
Q [MR. BADEN]: Do you know his reputation for truthfulness and veracity?
A YES.
Q Would you believe him under oath? Is his reputation in the community . good or bad?
A Good.
MR. ROBACK: I object again to reputation.
Q [MR. BADEN]: Is it good or bad?
A Good.
MR. BADEN: No further questions.

My reading of the transcript does not convince me the trial judge precluded the defense counsel from inquiring further as to appellant’s reputation for peace and tranquility. Admittedly, the colloquy is subject to interpretation; however, had the defense counsel perceived that the consequences of the court’s ruling unduly restricted him from introducing evidence on this point, he should have requested a clarification of the ruling, and, if necessary, made a proffer of the testimony he expected to elicit. He did neither.

Second, even assuming arguendo that defense counsel was effectively precluded by the court from offering such evidence, the error was, in my opinion, harmless. The victim, Ms. Reed, was obviously a person who was in close relationship to appellant. Though their precise relationship is unclear, the record suggests she was to some extent dependent upon appellant for support of her children. Some references in the record even refer to her as appellant’s wife; however, whether this is true or not cannot be determined. She was permitted to testify that appellant, who denied making the statement testified to by two police officers, had a good reputation for truthfulness. The jury quite obviously rejected her testimony on that point. It is difficult to believe the jury would have placed any greater credibility on her testimony that appellant, who shot her, had a good reputation in the community for peacefulness and tranquility. Defense counsel did not attempt to present any other witness on the question of appellant’s reputation.

Third, appellant’s guilt of aggravated assault was established before the jury by competent substantial evidence. The two sheriff’s deputies who testified were both experienced law officers: Detective Hoss was a ten-year veteran of the department, and Detective Robertson a five-year veteran. Each said that he had advised appellant of his Miranda rights and that thereafter, while still at the hospital where the victim was treated, appellant had admitted shooting Ms. Reed during a domestic quarrel. Detective Robertson testified that appellant had stated:

“I didn’t want to kill her. If I had meant to kill her, she would be dead. I wasn’t but three feet from her and a good shot with a shotgun. ... I wanted her to know I meant business.”

Robertson further explained appellant admitted hiding the shotgun under the house and taking the victim to the hospital.

The law in Florida is that a judgment of conviction should not be reversed unless the error complained of injuriously affected the substantial rights of the defendant. Brantley v. State, 279 So.2d 290 (Fla.1973); Casso v. State, 182 So.2d 252 (Fla.2d DCA 1966); Section 924.33, Florida Statutes (1975). Even an error of constitutional magnitude can be rendered harmless where evidence of guilt is overwhelming. Sullivan v. State, 303 So.2d 632 (Fla.1974). If there was an error on the part of the trial judge, it was not prejudicial to appellant, and did not substantially affect his rights or result in any miscarriage of justice.

That a defendant is entitled to a fair trial but not a perfect one is frequently quoted by the courts and is a recognized principle of our criminal jurisprudence. In my opinion, appellant was accorded a fair trial and there was evidence of his guilt beyond any reasonable doubt.

Although this court has ordered a new trial, I feel it necessary to comment on some aspects of the sentence imposed. This offense was committed on May 8, 1976, and appellant was convicted of aggravated assault on June 30, 1976. He was sentenced to six years in prison; the last three years were suspended and appellant was to be placed on probation for that period. The sentence specifically provided that no credit was to be given for time served.

Aggravated assault is a third degree felony, Section 784.021(2), Florida Statutes (1975); and the maximum prison sentence which may be imposed for such a crime is five years. Section 775.082(3)(d), Florida Statutes (1975). It is no longer within the authority of the sentencing court to extend probation beyond the statutory maximum sentence. Watts v. State, 328 So.2d 223 (Fla.2d DCA 1976); Magnln v. State, 334 So.2d 638 (Fla.2d DCA 1976). The sentence imposed on appellant therefore exceeded the maximum punishment provided by statute.

The sentencing court also erred by not allowing appellant credit for time served while awaiting sentence. The allowance of such credit is mandatory. Section 921.-161(1), Florida. Statutes (1975). Credit for time served must be given even where there is a split sentence probation order, State v. Jones, 327 So.2d 18 (Fla.1976); as well as where the mandatory three-year minimum sentence is applicable. Lingo v. State, 344 So.2d 629 (Fla.2d DCA 1977). So the fact that appellant was given a mandatory three years in a split sentence probation order does not obviate his entitlement to credit for the time he served in the county jail awaiting sentence.

I would affirm the conviction, vacate the sentence, and remand for resentencing. Therefore, I respectfully dissent from the majority opinion.


author: PER CURIAM.

text:
    Norma Smith BENTON, Appellant, v. Floyd Robinson BENTON, Jr., Appellee.
    No. FF-134.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1977.
    Frederick B. Tygart, Tygart & Tygart, P. A., Jacksonville, for appellant.
    John C. Galvin, Jacksonville, for appellee.
   PER CURIAM.

This case presents the issue of whether the trial court may by contempt process enforce timely payment of periodic child support previously ordered in a dissolution proceeding, although before the contempt hearing the defaulting party pays the support previously in default. Because of the absence of a transcript of the evidentiary proceedings below, we cannot here reach that issue. The trial court’s order denying appellant relief by contempt process must therefore be affirmed. Nevertheless, if as alleged appellee has persistently and systematically failed to make timely payment of child support, although able to do so, thereby necessitating repeated contempt proceedings to induce payment of support in arrears, the trial court may on proper application and proof assess the cost of the proceedings, including attorney’s fees, against the defaulting party. Our disposition of the appeal is without prejudice to such an application for costs, including attorney’s fees for services rendered in the trial court and here. See Gottesman v. Gottesman, 220 So.2d 640 (Fla.3d DCA 1969). See also Ritter v. Ritter, 103 Cal. App. 583, 284 P. 950 (1930).

AFFIRMED.

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


text:
    PENSACOLA ELECTRIC GARAGE, Willie Smith, and Home Insurance Company, Appellants, v. Effie C. COLLEY and Luby D. Colley, Appellees.
    No. EE-310.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1977.
    Danny L. Kepner, of Shell, Fleming, Davis & Menge, Pensacola, for appellants.
    Lefferts L. Mabie, Jr., and James A. Hightower, of Levin, Warfield, Middle-brooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellees.
   DREW, E. HARRIS (Ret.), Associate Judge.

In its order granting plaintiffs’ motion for judgment, the trial court said:

“. . . Upon motion by plaintiffs for judgment in their favor for the total amount of damages found by the jury to have been sustained by them, notwithstanding the verdict of the jury which attributed to plaintiffs 35% of the negligence causing the accident, the court finds that said motion should be treated as a motion for judgment in accordance with plaintiffs’ motion for directed verdict, as in McCabe v.'Watson (3rd DCA 1969) 225 So.2d 346, and should be granted upon the grounds stated in the motion. The court specifically finds that there was no evidence nor permissible inference to support a finding that any act on the part of plaintiff Effie C. Colley would constitute negligence. Said motion is therefore granted. . . .”

The granting of the motion and the entry of the judgment for the full amount of the damages suffered by the plaintiffs, thereby setting aside that portion of the verdict finding that plaintiff’s negligence contributed substantially to her injuries, was clearly erroneous under our recent decision in Petroleum Carrier Corporation v. Gates, 330 So.2d 751 (Fla. 1st DCA 1976), where we said with reference to the comparative negligence rule adopted by the Supreme Court in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973):

“. . . [Situations in which directed verdicts will be appropriate will occur with even less frequency, particularly in cases where the plaintiff’s own negligence is in issue. We do not here express an opinion as to whether a directed verdict should ever be granted where the negligence of both parties is at issue. We do, however, believe that such cases will be extremely rare.”

No useful purpose would be served by an extended narration of the evidence. Suffice it is to say that there were, as usual in these cases, conflicts, interpretations of lawful inferences from the evidence presented, the question of the credibility of the various witnesses, and, except for plaintiff’s version of the facts surrounding the accident, no evidence as to exactly what did cause the plaintiff to fall and suffer the injuries she received. These were questions for the jury. We find, contrary to the conclusion of the trial judge, that there was evidence to support those findings. This is not the “extremely rare” case referred to in Petroleum Carrier, supra, where the granting of the motion for judgment notwithstanding the verdict and the entry of the final judgment were proper.

Reversed with directions to enter a final judgment in accordance with the jury’s verdict.

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


text:
    Helen P. AMMEAN, Petitioner, v. DEPARTMENT OF COMMERCE, UNEMPLOYMENT COMPENSATION DIVISION, Respondents.
    No. DD-204.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1977.
    Helen P. Ammean, in pro. per.
    Alex D. Littlefield, Jr., Tallahassee, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is DENIED. Luzier v. Florida Department of Commerce, Industrial Relations Commission, 307 So.2d 503 (Fla. 2nd DCA 1975) and Florida State University v. Jenkins, 323 So.2d 597 (Fla. 1st DCA 1975).

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


text:
    Freddie Lee ROLLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1099.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., and Harold Rosenfeld, Legal Intern, for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed. State v. Bruno, 107 So.2d 9 (Fla.1958); Machin v. State, 270 So.2d 464 (Fla.3d DCA 1972); Lackos v. State, 339 So.2d 217 (Fla.1976); Fla.R.Crim.P. 3.140(o).


text:
    David CERF, Appellant, v. Grace H. KLEIN et al., Appellees.
    No. 76-1326.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.

      Stephen A. Cahen, Miami, for appellant.
    Larry 0. Schatzman, Miami, for appel-lees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Appellant and counterclaimant seeks reversal of an order dismissing his counterclaim with prejudice.

The undisputed facts are as follows: Ap-pellee, Grace Klein, filed a statement of claim in the county court against the appellant, David Cerf, for money due for court reporting services rendered at his request. Cerf filed a counterclaim seeking damages in excess of $2,500 for invasion of privacy resulting in a transfer of the entire action to the circuit court. Klein moved to dismiss Cerf’s counterclaim for failure to state a cause of action. On May 17, 1976 the trial court dismissed the counterclaim and granted Cerf 10 days to file an amended counterclaim. On May 25 Cerf filed a motion for rehearing as to the May 17 order of dismissal and for extension of time within which to file an amended counterclaim. On May 27 Klein filed a motion for remand to the county court for the reason that Cerf had not filed an amended counterclaim within 10 days of the order of May 17. Cerf’s motion of May 25 and Klein’s motion of May 27 were heard by the trial judge who, at the conclusion of the hearing, announced that he was granting Klein’s motion for remand and denying Cerf’s motion for rehearing and for extension of time. On June 18 Cerf filed his voluntary notice of dismissal of his counterclaim. On June 22 the trial judge entered a written order denying Cerf’s motion for rehearing and for extension of time, remanding the cause to the county court and further dismissing Cerf’s counterclaim with prejudice. Cerf appeals that portion of the June 22 order dismissing his counterclaim with prejudice.

The principle of law established in Hibbard v. State Road Department of Florida, 225 So.2d 901 (Fla.1969) is that a claimant has a right to voluntarily dismiss an action pursuant to Fla.R.Civ.P. 1.420(a) after the court has dismissed the complaint with leave to amend if no further order has been entered by the court prior to the service of the notice of dismissal.

The record reflects that at the conclusion of the hearing of June 18 (just prior to Cerf’s filing his notice of voluntary dismissal), the trial judge announced he was granting Klein’s motion to remand the cause to the county court and denying Cerf’s motion for rehearing directed to the court’s order of May 17 and for extension of time. However, the judge made no announcement to the effect that he was dismissing Cerf’s counterclaim with prejudice. It was not until after Cerf filed his notice of voluntary dismissal that the June 22 order herein appealed was entered.

Reviewing these facts in light of the above controlling principle of law, we conclude the trial judge erred in entering that .portion of the June 22 order dismissing Cerf’s counterclaim with prejudice. We reverse that provision of the June 22 order and remand the cause to the circuit court for further proceedings.

Reversed and remanded.


author: HENDRY, Chief Judge. PEARSON, Judge

text:
    Frances O’BERRY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1398.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Bennett H. Brummer, Public Defender, and Karen Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   HENDRY, Chief Judge.

Appellant, defendant below, appeals her conviction and sentence for the crime of manslaughter.

An information was filed against appellant charging her with one count of second degree murder for the shooting death of her boyfriend, one Vincent Lyon, in violation of Section 782.04, Florida Statutes (1975). The shooting occurred at a bar where appellant worked and where the deceased had been drinking just prior to the incident. Allegedly, the deceased, in a jovial mood, gave appellant a gun and urged her to point it at him and pull the trigger. Appellant, who had allegedly believed the gun to be unloaded, took the weapon, pointed it at Lyon and pulled the trigger. The ,gun discharged, sending a fatal bullet into the forehead of the deceased.

During the course of the trial, the State offered as evidence, inter alia, a triad of bloody exhibits. First, the state offered a color photograph of the deceased, covered with blood, showing a gaping hole in his forehead where the bullet had penetrated; second, the deceased’s bloody clothing was offered; and third, a vial of the victim’s blood, taken from the scene of the shooting, was offered. The photograph was allegedly offered to identify the victim and to show the location of the fatal wound, while the vial of blood and blood-stained clothing were offered to rebut the defense theory of self-defense, i. e., only the victim’s blood was present at the scene.

Defense counsel objected to the introduction of the exhibits on the grounds of relevancy, materiality and undue prejudice. The objections were overruled and the exhibits admitted into evidence. At the conclusion of the trial, a jury returned a verdict of guilty as to the lesser included offense of manslaughter and appellant was sentenced to fifteen (15) years imprisonment. This appeal follows.

Appellant has raised two points on appeal, only one of which deserves discussion.

Appellant contends that the trial court erred in admitting the above exhibits into evidence in that the items were neither relevant nor material to any issue involved and were so overly prejudicial so as to deprive appellant of a fair and impartial trial, as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. The bases of appellant’s contention were that: (1) the color photograph was cumulative in that a prior black and white photograph of the victim had been introduced into evidence which clearly showed both the identity of the victim and the wound suffered and (2) that the vial of blood and blood-stained clothing, introduced to refute the defense of self-defense, was irrelevant to the issue as no such defense was ever raised by appellant at trial.

After carefully reviewing the record, briefs and arguments of counsel we agree with appellant that the court erred in admitting the three exhibits into evidence, however, we disagree with appellant’s conclusion that the introduction of the items deprived her of a fair trial.

Section 924.33, Florida Statutes (1975), provides that:

“No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.”

At trial, it was conclusively established that appellant shot and killed the victim. The only real questions to be answered by the jury were whether appellant believed the weapon to be loaded at the time of the shooting and, notwithstanding her belief, whether she was culpably negligent in proceeding with the aforementioned course of conduct. As such, we conclude that the errors committed were harmless in nature, as they did not injuriously affect the substantial rights of appellant. Wells v. State, 256 So.2d 580 (Fla. 3d DCA 1972); see also, Ballard v. State, 323 So.2d 297 (Fla. 3d DCA 1975).

Accordingly, appellant’s conviction and sentence are hereby affirmed.

Affirmed.

PEARSON, Judge

(concurring specially).

The defendant’s own case was, in fact, an admission of culpable negligence resulting in the death of another. See the principles of law stated in Hulst v. State, 123 Fla. 315, 166 So. 828 (1936); Walter v. State, 157 Fla. 684, 26 So.2d 821 (1946); and Murray v. State, 328 So.2d 501 (Fla. 4th DCA 1976). Therefore, there was no issue concerning the guilt of the defendant of the crime for which she was found guilty by the jury.

BARKDULL, Judge, concurs in the majority opinion authored by Judge HENDRY and the special concurring opinion authored by Judge PEARSON.