author: SMITH, Judge. RAWLS, Acting Chief Judge

text:
    Herschell Fletcher HEMMINGWAY, Appellant, v. STATE of Florida, Appellee.
    No. Y-373.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1976.
    Rehearing Denied Jan. 25, 1977.
    James L. Harrison of Harrison & Fine-gold, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky and Richard L. Wilson, Asst.'Attys. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Hemmingway appeals convictions arising from his alleged intoxication and culpable negligence in the operation of a motor vehicle, resulting in another’s death. Hem-mingway asserts the State deprived him of due process of law by failing to reveal certain evidence to his counsel before trial and that the trial court erred in permitting the State to introduce that evidence on rebuttal.

The facts are as detailed in Judge Rawls’ dissent and may be summarized as follows: The breathalyzer machine used to test-appellant’s sobriety malfunctioned and produced a reading of. He'mmingway’fe 'blood alcohol content which was incriminating but inaccurately low. Although the malfunction was soon discovered by the operator, Trooper Stewart, he failed to reveal his knowledge • of the malfunction when deposed by Hemmingway’s counsel, and in the deposition he arguably gave false or misleading testimony endorsing the machine’s accuracy. The State made no use of the breathalyzer evidence in its case-in-ehief, relying instead upon a higher reading of the alcohol content of Hemmingway’s blood withdrawn from a vein. Defense counsel sought to cast doubt on the State’s evidence by introducing in defendant’s case the results of the breathalyzer test, which defense counsel did not know were influenced favorably to Hemmingway by the malfunction. Over objection, the State was permitted to adduce on rebuttal the explanatory testimony of Trooper Stewart.

Assuming the debatable point that Trooper Stewart knowingly gave false testimony at his deposition, there is no showing that the assistant state attorney in attendance then knew the testimony was inaccurate or that any assistant state attorney who knew the truth knew also that Trooper Stewart testified contrary to the facts. The question therefore is whether the State’s subsequent failure to reveal the breathalyzer malfunction to defense counsel, on his request for exculpatory evidence, violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

We hold that Brady standards requiring disclosure were not offended. That the breathalyzer test produced an incriminating but inaccurately low reading of Hemming-way’s blood alcohol content was not “evidence favorable to” Hemmingway. Brady, 373 U.S. at 87, 83 S.Ct. 1194. Contrast State v. Johnson, 284 So.2d 198 (Fla.1973). Nor did the State rely at the trial on evidence known by it to be false or inaccurate. The prosecutor had no obligation before trial to disclose facts tending to impeach potential testimony which the State did not plan to use and did not use in its case-in-chief. The State had no obligation to anticipate that defense counsel would unknowingly rely on the flawed evidence, itself inculpatory, to raise doubts about the aecu-racy of other inculpatory evidence adduced by the State. The prosecutor at trial had no obligation, when defense counsel’s purpose became clear, to caution defense counsel concerning the unreliability of the breathalyzer machine and the consequent vulnerability of the defense strategy. Permitting Stewart’s testimony in rebuttal of the misleading report did not deprive Hem-mingway of due process.

The other asserted errors relied on by Hemmingway do not require reversal.

AFFIRMED.

McCORD, J., concurs.

RAWLS, Acting Chief Judge, dissents.

RAWLS, Acting Chief Judge

(dissenting).

I dissent.

Appellant-defendant Hemmingway was charged in a four-count information of committing the crime of manslaughter. Count I charged that Hemmingway “did unlawfully, while intoxicated, by the use of intoxicating liquors, operate a motor vehicle in such a manner as to cause the motor vehicle to strike a motorcycle” causing the death of the driver. Count II charged that Hem-mingway was guilty of culpable negligence in the operation of his motor vehicle which caused the death of the driver of said motorcycle. Count III was framed as to Hem-mingway’s intoxication and Count IV as to his culpable negligence, each of which allegedly resulted in the death of a passenger on the motorcycle. A jury verdict of not guilty was returned as to the two culpable negligence counts (II and IV), and guilty as to the intoxication counts (I and III).

The basic question posed is whether the state, in the prosecution of a defendant for crime, may, in response to a proper inquiry or demand, produce or disclose less than all of the evidence or information within its knowledge and possession without depriving the defendant of due process of law.

On January 9, 1975, in preparation for trial, defendant’s counsel,.deposed William Alexander Stewart, a State Trooper II, traffic, homicide investigator, and a breath-olizer instructor. Stewart, testified on deposition that he became a breatholizer operator in 1969 and an instructor in 1970. Of material importance to the issue here considered are the following excerpts from Stewart’s deposition:

“Q [defendant’s counsel] All right, now, with reference to the examination which has been touched upon, that of Herschell Hemmingway, was, that on the 10th or the 11th [October, 1974]?
“A [Trooper Stewart] According to my notes, I had it as the 11th, approximately 1:19 a. m. ,:: -
“Q And, what did you do when you arrived at the jail?
“A I went in and' set up a Breatholizer machine.
“Q What did you do, then, when Mr. Hemmingway arrived?
“A Well, the first thing I did, I explained to him that I was offering to give him an approved chemical test of his breath for the purpose of determining the alcohol content in his blood. I explained to him that if he refused to take the approved chemical test that he would lose his privilege of operating a motor vehicle for a period of three, months.
“A And, then I set the machine up according to the operation procedure.
“Q Would you please describe what you did, now, in setting it up?
“A Okay, the first thing I did, I gauged an ampule, the machine—
“Q Let me just ask you this, if you will, I know you’re an instructor and I know you know these procedures, but if you will search your memory and recite what
you did with reference to that particular examination and it may be — I’m sure it is- — what you did in every one, but if-you, rather than remembering the procedure, if you will remember what you did it would be very helpful.--
“A Well, first of all, I write down on a green form, which is the checkoff list, and I wrote down the name, the model number of the machine that I was using, I wrote down the date and the only thing I did not do, I did not turn the switch on because that machine is left on, it’s like ours at our office, it’s left .on. . . .
I started the check-off list, I went through the process. I gauged the ampule, one of the standard ampules and I .put it into the left side -of the machine.
“Q What do you mean, now, when you say you gauged it?
“A There’s a gauge, a metal gauge in the machine that comes with the machine; I gauged this ampule to see that there was the proper amount of solution in this ampule.
“Q Why is it necessary to gauge it— “A This is—
“Q —to see if there is the proper amount in there?
“A —so that there will be no doubt about a high or low reading [emphasis supplied], it will give an accurate reading as long as you have the proper amount of solution in the ampule.
“A Then I inserted it in the, the unopened ampule into the machine. I took another ampule out of the box and gauged it to make sure that it had the proper amount of solution. After I had done this, I broke the top off and inserted a glass tube. . And, all this time I’m doing the check-off list because it tells me step by step, I do it automatically that way.
“Q All right, if you would go ahead now, you inserted a glass tube in the ampule?
“A This is called a bubbler tube. I took that ampule and connected it to the machine by a rubber hose.
“Q And, where did you get the hose, now?
“A It’s on the machine, it’s part of the machine itself.
“Q I see, all right, now how about the bubbler tube?
“A It comes in a sealed package with a mouth piece.
“Q And, did you take a new one out of this package?
“A Yes, sir. I tore off the top of the package, I took the bubbler tube out of it, put it into the ampule and connected it to the machine. I still have the package here with the sterile mouth piece I gave to Mr. Hemmingway to blow into the machine with.
“Q . In other words, could something in the machine itself have caused the reading of .14?
“A No, sir. Because, first of all if you go by the check-off list, which I did, then you’re going to get— you’re not going to get a high reading because you’ve gone step by step.
The only way you could get a high reading against an individual would be if you did not flush that machine out or if there wasn’t the proper amount of solution in that ampule.”

During trial, the state produced two expert witnesses who testified that defendant’s blood alcohol level was .22 percent and .23 percent. The defendant took the stand in his own defense and testified as to the breatholizer being administered by Trooper Stewart, and the breatholizer report which reflected an alcohol level of .14 was introduced into evidence as defendant’s Exhibit 8. An expert witness produced by defendant testified that it would be impossible for his blood alcohol to be .22 at 12:33 a. m. (blood alcohol test) and .14 at 1:19 a. m. (breatholizer test).

It is apparent that of major strategical importance to defendant’s case was the disparity between the blood alcohol tests and the breatholizer test which the state had conducted. After the defense rested, and over the vigorous objection by defendant, the state called Trooper Stewart as a rebuttal witness. Stewart testified that the results of the breatholizer test conducted on defendant was .14. Upon further inquiry by the state, Stewart testified that he had been asked by an assistant state attorney to check out the machine he utilized for defendant’s test for its accuracy, and that upon dismantling the machine, he found' a collection of acid which caused a “low reading”. Upon cross examination, Stewart testified that he checked the machine and discovered the alleged defect “approximately four days later” (after conducting the test on October 11, 1974).

The trial court committed reversible error in permitting witness Stewart to testify on rebuttal. As reflected above, the gist of Stewart’s testimony, as an avowed expert, at the taking of his deposition on January 9, 1975 (almost three months after he discovered the alleged defect in the breatholizer machine), was that he took all necessary precautions in checking the machine to assure that the results would be accurate and “so that there will be no doubt about a high or low reading”. However, it is inescapable that at the time Trooper Stewart was deposed, he was of the opinion that the machine had produced a low reading, an opinion which he knowingly withheld from the defendant.

State v. Johnson controls. There, in affirming this court’s decision reversing a criminal conviction for the failure of the trial court to require production of a police report essential to defendant’s theory of his defense, the Supreme Court observed:

“. . . the inquiry must be upon a crucial point and preferably upon a positive statement in such a report, which the witness at trial flatly refutes, thus placing his credibility and the point involved in vital focus so that it becomes critical to the defense.”

The instant facts are, to a great extent, analogous to those recited in Johnson. This defendant relied upon the state trooper’s breatholizer test reflecting .14 percent alcohol. The trooper discovered some four days after the test that the machine he utilized rendered a “low reading”. Nonetheless, his testimony on deposition some three months later was that the .14 percent reading was accurate. Obviously, prior to trial, the trooper advised the state that the reading was low. Only when called upon as a rebuttal witness at the close of defendant’s trial did Stewart apprise defendant of this fact which was withheld. These facts fall squarely within the dictates of Brady v. Maryland. As stated in Brady: “. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”

■ I would reverse and remand for a new trial.

      . Wolfe v. State, 190 So.2d 394 (1 Fla.App.1966). Another question posed by appellant relates to the cavalier manner in which the trial judge instructed the jury. I am of the view that the following instruction was improper: “If you have a reasonable doubt of his guilt, you should not find him guilty. But what is reasonable doubt? It doesn’t mean the wildest conjectures- where there’s a remote possibility that maybe somebody else did it, or a remote possibility — I don’t think much of it, but— there’s a possibility it happened the way the defendant said .” (emphasis supplied)

      . State v. Johnson, 284 So.2d 198 (Fla.1973). Police Reports, at 914 (1974).
      See also Miami Law Rev., Vol. 28, Discovery of

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roger GAINEY, Appellant, v. STATE of Florida, Appellee.
    No. CC-362.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1976.
    Richard W. Ervin, III, Public Defender, Theodore E. Mack, Asst. Public Defender, and Roger Gainey, in pro. per., for appellant.
    Robert L. Shevin, Atty. Gen., Patti Eng-lander and George R. Georgieff, Asst. At-tys. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

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


author: BY THE COURT.

text:
    Tommy Richard SIMONIS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. CC-422.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment and sentence appealed are affirmed.

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


text:
    J. Bruce VINING, Appellant, v. Harold C. SMITH and Maude A. Smith, Appellees.
    Nos. 76-986, 76-1201.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1977.
    Rehearing Denied Feb. 25, 1977.
    Edward C. Vining, Jr., Miami, for appellant.
    Barranco, Darlson & Daniel, Podhurst, Orseck & Parks and Michael Olin, Miami, for appellees.

      Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

These appeals arose from the same lawsuit. They were consolidated for all appellate purposes. Both appeals are brought by the defendant, J. Bruce Vining, who is a real estate broker. Vining was sued by Harold and Maude Smith, who claimed that he had breached the confidential relationship of seller and broker by practicing fraud upon them when he concealed facts within his knowledge concerning the greatly increased value of the land that he undertook to sell for them.

At a proper stage in the proceedings in the trial court, the plaintiffs Smith and defendant Vining moved for summary judgments. The Smiths received a partial summary judgment, which found no genuine issue of material fact as to Vining’s liability. The trial judge found that the following facts appeared without genuine issue:

“1. That Defendant J. BRUCE VIN-ING was acting as and representing himself as a broker for Plaintiffs, HAROLD C. SMITH and MAUDE A. SMITH, pursuant to Florida Statute 725, Real Estate License Law.
“2. That there existed between the SMITHS and VINING a confidential relationship compelling VINING to make a full and complete disclosure of his interest in the property.
“3.' That Defendant, VINING, wholly failed to inform or advise the Plaintiffs, SMITH, of material facts that would have enabled the SMITHS to exercise options to either rescind or affirm the contract.”

The defendant Vining filed a petition for rehearing directed to the partial summary judgment; the petition was denied.

It appears from Vining’s statement of facts upon the second appeal, that he subsequently filed a motion to set aside the partial summary judgment as to liability on the ground that the second depositions of the Smiths, taken after the partial summary judgment, directly contradicted their testimony in their first deposition. The second appeal is from the order denying Vining’s motion which his brief states was filed pursuant to Fla.R.Civ.P. 1.540(b).

It must first be noted that we do not have a complete record of the .proceedings upon the motions for summary judgment. See Fernandez v. Arocha, 308 So.2d 45 (Fla.3d DCA 1975).

Proceeding upon the record that we do have before us, we find that no genuine issue of material fact exists upon the essential facts found by the trial court as the basis for liability. Faced with motions for summary judgment by the plaintiffs and the defendant, the trial court properly considered all the depositions and affidavits before it upon each motion and in making the determination of which, if either, of the parties was entitled to summary judgment, could consider the evidentiary matters therein.

The law does not permit a broker to advance his own personal interest by discharging the duties of his position in such a manner as to make a secret profit for himself. Consequently, the general rule clearly applicable in this case is that a broker can neither purchase from, nor sell to, his principal unless the latter expressly assents thereto or, with full knowledge of all the facts and circumstances, acquiesces in such a course. Asher v. Gene Snyder & Company, 311 So.2d 155, 156 (Fla.3d DCA 1975); Kline v. Pyms Suchman Real Estate Company, 303 So.2d 401, 404 (Fla.3d DCA 1974); Posner v. Flink, 167 So.2d 259, 262 (Fla.3d DCA 1964).

The appeal from the order denying Vining’s motion pursuant to Fla.R. Civ.P. 1.540(b) is also without merit. The rule does not contemplate an extension of the summary judgment rule to rehash the matters which were before the court and previously decided. The motion as used here does not attempt to show fraud or deception, nor does it show “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing.”

Affirmed.


text:
    William H. CLIFTON and Katherine I. Clifton, his wife, Appellants, v. Robert B. DEHGAN, M.D., et al., Appellees.
    No. AA-106.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1977.
    Arthur T. Boone and Gordon H. Lee, Jacksonville, for appellants.
    Brown, Terrell & Williams, Bruce S. Bullock and Robert M. Sharp of Bullock, Sharp & Childs, Jacksonville, for appellees.
   PER CURIAM.

The record in this case comports with the requirements precedent to a valid summary judgment in a malpractice case as laid down in Holl v. Talcott, Sup.Ct.Fla.1966, 191 So.2d 40, and Connell v. Sledge, Fla.App. 1st 1975, 306 So.2d 194. The summary judgment in favor of the defendants, appel-lees, is therefore

AFFIRMED.

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


text:
    BELLEAIR BAZAAR, INC., a Florida Corporation, Appellant, v. Mac S. HAINES, etc., et al., Appellees. MARINE ATTRACTIONS, INC., a Florida Corporation, Appellant, v. Mac S. HAINES, etc., et al., Appellees.
    Nos. 76-1094, 76-1095.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1977.
    Howard P. Ross of Battaglia, Ross & Stolba, St. Petersburg, for appellants.
    James A. Helinger, Jr., Chief Asst. County Atty., Clearwater, for appellees.
   PER CURIAM.

Affirmed. See Korash v. Mills, 263 So.2d 579 (Fla.1972).

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


author: HENDRY, Chief Judge. BARKDULL, Judge, NATHAN, Judge

text:
    The STATE of Florida, Appellant, v. Donald OSTERGARD et al., Appellees. The STATE of Florida, Appellant, v. Art YOUNG, Appellee. The STATE of Florida, Appellant, v. Anthony ROMANO and Herman Boren, Appellees. The STATE of Florida, Appellant, v. James RAND et al., Appellees.
    Nos. 76-129, 76-312, 76-336 and 76-451.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Rehearing Denied April 13, 1977.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellant.
    Walter E. Gwinn, Miami,., Robert R. Frank, North Bay' Village, Max Kogen, Hirschhorn & Freeman, Max Lurie, Miami, Victor Africano, Live Oak, for appellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   HENDRY, Chief Judge.

Appellant, the prosecution below, brings this consolidated appeal which challenges various lower court orders dismissing four separate indictments handed down by the Statewide Grand Jury against appellees, defendants below. The indictments all charged appellees with illegal gambling activities alleged to have been committed in Dade County, Florida and were all subsequently dismissed for lack of subject-matter jurisdiction of the Statewide Grand Jury.

On November 12, 1974, the Governor of the State of Florida petitioned the Supreme Court of Florida for an “Order Empaneling a Second Statewide Grand Jury” pursuant to Sections 905.31 et seq., Florida Statutes (1973). The petition in part provided that:

“3. Petitioner has been informed by the Director of the Dade County Public Safety Department that investigations conducted by that Department, and other State, local, and Federal law enforcement agencies into violations of the criminal laws of Florida, have detected an organized and widespread criminal enterprise involving violations of the laws regarding gambling.
“4. Petitioner has been further informed by said Director and that said crimes or wrongs are of a multicounty nature and are occurring or have occurred in two or more counties as part of a related transaction and that the offenses perpetrated by the members of said criminal enterprise are or may be connected with an organized criminal conspiracy or conspiracies affecting two or more counties.
“5. Upon the basis of evidence and information acquired to date by the Dade County Public Safety Department and others, petitioner has determined that said crimes or wrongs, involving violation of the laws regarding gambling and attempts or conspiracies to commit crimes involving gambling, are of a multicounty nature, affect two or more counties, and have contacts and involve potential defendants in numerous counties and other judicial circuits of the State of Florida .” [Emphasis added.]

On December 15, 1974, the Supreme Court of Florida issued its “Order Empaneling A Second Statewide Grand Jury.” The above order in pertinent part provided:

“2. That good and sufficient reason has been shown in the petition for the empan-elment of a second statewide grand jury to investigate, return indictments, make presentments, and otherwise perform all functions of a grand jury only with regard to the commission of crimes involving gambling or conspiracies to commit violations of the laws involving gambling as set forth in the petition.
“WHEREFORE, it is, upon consideration thereof, hereby ORDERED AND ADJUDGED
“1. That a second statewide grand jury be empaneled to investigate, return indictments, make presentments, and otherwise perform all functions of a grand jury only with regard to the commission of crimes involving gambling or attempts or conspiracies to commit violations of the laws involving gambling as set forth in the petition." [Emphasis added.]

On October 17, 1975, the Second Statewide Grand Jury filed the first indictment in question. The indictment charged appel-lees Ostergard, Weedon, Andrews, Lewis and Jordan with violations of Section 849.-09, Florida Statutes (1973), including the promoting, conducting, aiding and setting up of a lottery in Dade County, Florida.

The named appellees filed a motion to dismiss the indictment, alleging as one ground that the Grand Jury was without jurisdiction to indict them for the offenses alleged. In support of their motion to dismiss, appellees relied upon Section 905.32, Florida Statutes (1973), entitled “Legislative intent.” This particular section construes the Statewide Grand Jury Act and provides that:

“It is the intent of the legislature in enacting this act to strengthen the grand jury system and enhance the ability of the state to detect and eliminate organized criminal activity by improving the evidence-gathering process in matters which transpire or have significance in more than one county.” [Emphasis added.]

By proceedings held on that motion, the lower court ruled that since the indictment failed to show on its face that the Second Statewide Grand Jury had subject matter jurisdiction, in that the offenses attributed to appellees allegedly occurred in Dade County only, dismissal for lack of subject matter jurisdiction was proper.

Thereafter, the State timely filed its notice of appeal.

Subsequent to the above, other indictments were handed down by the Second Statewide Grand Jury against the remaining appellees. The indictments charged ap-pellees with various violations of Chapter 849, Florida Statutes (1973), illegal gambling activity. On the face of said indictments were the allegations that the aforementioned violations were all committed in Dade County, Florida.

Just as the initial appellees had done, the remaining appellees filed motions to dismiss their respective indictments on the ground that the indictments failed to facially allege the multi-county nature of the crimes. The aforementioned motions were all granted on the above basis and appellant timely filed its notice of appeal from each dismissal. By order of March 30, 1976, this court granted appellant’s motion to consolidate the causes and this appeal follows.

Appellant raises many interesting and varied points on appeal to support its position — that the lower court erred in dismissing the various indictments.

The first point on appeal that we shall examine is the contention that an attack on an indictment based upon the subject matter jurisdiction of a grand jury should only be raised in a quo warranto proceeding and not a motion to dismiss. We disagree with appellant’s contention and refer to Fla.R.Crim.P. 3.190(b) which provides:

“(b) Motion to Dismiss
“Grounds. All defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense.” [Emphasis added.]

The defense asserted by the various appel-lees was lack of subject matter jurisdiction of the Second Statewide Grand Jury and we hold that because of the patent facial defect in the indictments, challenge by motion to dismiss was proper. See Carroll v. State, 251 So.2d 866 (Fla.1971), conformed to 252 So.2d 396 (Fla.3d DCA 1971).

Appellant next argues that as long as the crime charged is one which is properly under investigation, the indictment need not allege the multi-county characteristic of said offense. Thus, appellant contends that because the Second Statewide Grand Jury indicted appellees on gambling related offenses, the fact that the offenses were facially alleged to have been committed in only one county (Dade) should have no bearing on the validity of the indictments.

In response to appellant’s contention, ap-pellees quote from Section 905.34, Florida Statutes (1973), which in part provides that:

“[T]he subject matter jurisdiction of the statewide grand jury shall be limited to the offences of bribery, burglary, criminal fraud, criminal usury, extortion, gambling, kidnapping, larceny, murder, prostitution, perjury, robbery, and crimes involving narcotics and other dangerous drugs, or any attempt, solicitation, or conspiracy to commit any violation, when any such offense is occurring, or has occurred, in two or more counties as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more counties . . .” [Emphasis added.]

With the above in mind, appellees contend that the subject matter jurisdiction of statewide grand juries is not inherent, but is limited by statute. As such, appellees argue that in order for a statewide grand jury indictment to be valid, the statutory prerequisites of subject matter jurisdiction must be facially visible. ■

We agree with appellees’ contention. Because of the general secrecy and confidentiality which surrounds a grand jury proceeding [Section 905.24, Florida Statutes (1975)] in order for a proper evaluation of an indictment to be made by a defendant, it becomes necessary that proper jurisdictional allegations be made on the face of said indictment. Compare Pope v. State, 268 So.2d 173 (Fla.2d DCA 1972).

The aforementioned statutory sections quoted in the body of this opinion, along with the Petition of the Governor and Empaneling Order of the Florida Supreme Court make it clear that the jurisdiction of the Second Statewide Grand Jury was limited to multi-county offenses. We therefore hold that absent the proper jurisdictional allegations on the face of the indictments, the Second Statewide Grand Jury was without authority to properly indict appellees and dismissal was proper.

In so ruling we are not overlooking our sister court’s opinion in State v. Barnett, 339 So.2d 459 (Fla.2d DCA 1976), opinion filed December 10, 1976, wherein an opposite conclusion was reached. We, however, do not agree with the holding in that opinion and do not follow it.

Any other points raised by appellant in its brief are without merit and need no discussion.

After having considered all points in the briefs and arguments of counsel in the light of the controlling principles of law, we have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the orders dismissing the various indictments are affirmed.

Affirmed.

BARKDULL, Judge,

specially concurring.

I concur with the opinion authored by Chief Judge Hendry, and would affirm the several orders under review.

The statewide Grand Jury, as created by the Legislature, was created solely according to the very wording of the statutes themselves to investigate multi-county crimes and nothing more, The jurisdiction of the Statewide Grand Jury is limited to certain crimes which have “ * * * occurred, in two or more counties as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more counties.” Section 905.34, Fla.Stat. It has no more right to indict for a crime committed in a single county than a Grand Jury for the Eleventh Judicial Circuit in and for Dade County would have the right to indict for a crime committed in the Broward cir.cuit. The Legislature might have given the statewide Grand Jury such power, but it did not. If a statewide Grand Jury finds evidence of a local crime it should forward its evidence to the appropriate Grand Jury for that county; the same as if the Eleventh Judicial Circuit Grand Jury investigating crime in Dade County discovers evidence relating to a crime in Broward it cannot indict, but must forward the evidence to the appropriate Grand Jury of the Circuit Court in and for Broward County.

NATHAN, Judge

(dissenting).

I respectfully dissent on the authority of State v. Barnett, 339 So.2d 1159 (Fla.2d DCA 1976).


author: ERVIN, Judge. ERVIN, Judge.

text:
    ASHLAND OIL & REFINING COMPANY, a Kentucky Corporation, the successor to Jaxon Construction Company, a Florida Corporation, Appellant, v. The STATE ROAD DEPARTMENT of Florida, an agency of the State of Florida, Appellee.
    No. BB-311.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1977.
    Rehearing Denied April 1, 1977.

      Marion R. Shepard, H. P. Osborne, Jr. of Mathews, Osborne, Ehrlich, McNatt, Gobel-man & Cobb, Jacksonville, for appellant.
    Alan E. DeSerio and Larry White, Tallahassee, for appellee.
   ERVIN, Judge.

Ashland brought an action for damages against the Road Department on a roadway construction contract. The contract involved a public works'project calling for both the construction of a highway and the installation of an improved storm sewer system along 1.81 miles of roadway on Cas-sett Avenue, a street located in Jacksonville, Florida. The case was tried non-jury. At the conclusion of the trial on October 6, 1975, the court ruled that corrections were to be made in the Department’s computation of certain items. It held that the principal amount due appellant was $42,235.04, and that interest was to be computed from March 1, 1969 until the date of the verdict, October 6, 1975. Ashland was directed to draft the proposed final judgment. It did not submit the draft until January 22, 1976 and on February 20,1976, the court entered judgment for appellant in the principal sum of $42,235.04, together with interest, from March 1, 1969.

Ashland appeals assigning two errors: (1) That it is entitled to recover $2.00 per'cubic yard for the removal of certain material excavated from a pipe trench it was required to remove from the right of way job-site, and $2.50 per cubic yard for an equal volume of suitable backfill material it was required to replace in the. pipe trench. (2) That since Ashland’s uncontradicted evidence showed it was necessary for it to excavate a pipe trench with sides having an average 45 degree slope,- the trial court erred in allowing compensation to it only for the volume of material removed by assuming that such trench excavation had only vertical sides. The Department cross-appeals alleging that the trial court erred in allowing interest oil the principal sum to be computed from March 1, 1969 through January 22, 1976, which latter date was the date Ashland submitted the proposed, final judgment to the court. The Department contends that the court should not have directed the accumulation of interest beyond the date of the verdict, October 6, 1975.

The primary problem arose when the Department’s engineer determined that material excavated from the pipe trench was unsuitable and directed Ashland, to remove it from the job-site and . replace it with suitable material. No actual meásurements were made on the ground'of the excavated material. Ashland introduced evidence that it requested the engineer to make such measurements but he failed to do so! The evidence is undisputed that the sides of the trench sloped outward from the base Up to ground level. In the absence of actual measurements Ashland contends that the best estimate' of the volume of such unsuitable backfill material shodld be based upon an- estimate testified' to by its engineer which assumed that the actual volume of unsuitable backfill'material removed'from the site of the pipe trench excavation was equal to the volume of the excavation between the various construction stations where the Department’s engineer recorded that unsuitable backfill material was found during the progress of the excavation of the trench. The width of the excavation at the bottom of the trench was the outer diameter of the pipe plus two feet (one foot on each side of the outer edge of the pipe). The volume was then calculated by the average end area times the length of the cut with both sides sloping upward at a 45 degree angle. Ashland’s engineer testified that when measured in this fashion' the volume of unsuitable backfill material át the site of the pipe trench excavation removed by plaintiff was 27,561 cubic yards.

In calculating the amount of material excavated from the pipe trench, the Department used the same bottom width measurement as Ashland did, being the outside diameter of the pipe plus one foot on each side. The Department, contrary to the actual facts, assumed that the pipe trench excavation had vertical sides. This assumption was based upon Section 130.11 of the contract specifications which provides:

“When direct payment for Excavation for Structures is provided in the Proposal, such excavation will be measured in its original position by the cross-section method to determine the amount of material removed. The yardage of excavation used as a basis of payment will then be that material actually removed below the original ground line or stream bed, but not including that shown on the Plans to be paid for either as Regular Excavation, Subsoil Excavation or Lateral Ditch Excavation, or which is included in the item for Grading, and except that no payment will be made for material removed in excavating for footings or foundations outside of an area which is bounded by vertical planes one foot outside of the limits of the footings and parallel thereto. For pipe trenches the width to be used in the calculation shall be the diameter of the pipe plus two feet.” (Emphasis added.)

The Department therefore contends that it was not necessary for it to make any actual measurements of unsuitable backfill material or suitable backfill material. Appel-lee’s reasoning, however, is erroneous because Section 130.11 has no application to the contract between the two parties. The section applies only to contracts involving direct payment for excavation for structures. It is clear from the record that there was no direct payment for the excavation of the pipe trench. The lower court itself so conceded when it stated:

“There was no provision in the contract for direct payment for excavation of the pipe trench. This work was included under § 360 of the specifications which is entitled, ‘Pipe, Culverts and Storm Sewers.’ ”

While the court recognized that Section 130-11 “does not dictate the method for measuring the quantity of unsuitable back-fill material . . . that [Ashland] was required to remove . . ' . ”, nevertheless the court tacitly approved the formula set forth in the section by holding it would assume the pipe trench had vertical sides, with a width of the outer diameter of the pipe plus two feet, without deducting the volume of pipe, in determining the volume of cubic yards excavated from the pipe trench, or a total of 11,224 yards.

The fallacy with the court’s conclusion is that its determination was inconsistent with the facts since the record is clear that the pipe trench did not have vertical, but sloping sides. The Department failed, although requested by Ashland, to measure on the ground the amount of material excavated from the trench. The only evidence before us, and uncontradicted by the Department, was the opinion testimony of appellant’s engineer that the width of excavation at the bottom of the trench was the outer diameter of the pipe plus two feet with the trench slopes going upward to ground level at a 45 degree angle. Based upon such estimate, the volume of material removed from the trench was 27,561 cubic yards. The trial court allowed only 11,224 cubic yards. Ashland must be-compensated for the difference.

Ashland also urges that it is entitled to recover the unit price of $2.00 per cubic yard for removal of the excavated material from the trench. We find that the lower court was correct in allowing Ashland $2.50 per cubic yard for both the removal and replacement of the unsuitable pipe trench material. The contract provided that Ash-land would be compensated at the unit price of $2.00 per cubic yard for subsoil excavation. It was also to be compensated for backfill of excess subsoil excavation at the rate of 125 per cent of the contract unit price, or $2.50 per cubic yard. Section 130-12.2 of the contract specifications provides that when no direct payment is provided, payment shall be made at the contract unit price. Section 360-12.6 generally provides that “above prices . . . shall be full compensation for all the work specified in this section. . . . Such prices . shall also include all backfill, disposal of surplus material. . . . ”

Section -130-8.1 states that “when the available material at the site of the excavation is not considered suitable for the back-fill, the work of removing any of such material which might be Surplus at the particular location'and of bringing in material suitable for the backfill will be compensated for as provided in 9-3.4.”’ That section provides:

“9-3.4 Subsoil Excavation:
9-3.4.1 Contingent Nature of Limits shown on Plans: The limits of Subsoil Excavation, as might be indicated on the Plans are to be considered as being particularly subject to field variations, in accordance with the conditions actually encountered.
9-3.4.2 Payment for Backfilling of Excess Subsoil Excavation (Applicable where payment for the Grading work is at a Lump Sum of Road-Mile price): In addition to the payment for the Subsoil Excavation at the contract unit price (for the quantity actually ordered by the Engineer), in the event that sufficient suitable material for backfilling any subsoil excavation in excess of the quantity indicated on the original plans is not available from the roadway grading operations required by the original plans, such excess material shall be compensated for by the adjustment in the contract price for the grading, (as specified in 9-3.3), except for certain cases when the excess material is obtained from outside the roadway right of way as follows:
(1) When payment for the borrow material is specified to be made as a separate item: In this case, any such excess material not obtained from within the roadway right of way, will be measured and paid for as Borrow Excavation.
(2) When no pay item covering the borrow material is contained in the Contract (either as a separate item or included in the grading item): In this, case, for the quantity of such excess backfill material obtained outside the roadway right of way, compensation will be made as follows: A Quantity of backfill material equal to the volume of Subsoil Excavation in excess of the original plan quantity (excluding any portions which might be replaced by material from within the roadway right of way) shall be paid for under the contingent item of ‘Backfill of Excess Subsoil Excavation.’ Such quantity will. be paid fpr at the established rate of 125 per cent of the contract price for Subsoil Excavation.”

Subsection two of the above section clearly provides that the quantity of backfill material equal to the volume of subsoil excavation in excess of the original planned quantity “will be paid for at the established rate of 125 per cent of the contract price for subsoil excavation.” Ashland, however, contends this language should be read in conjunction with the sentence in 9-3.4.2, “In addition to the payment for the subsoil excavation at the contract unit price. . ” This is the basis for Ashland seeking $2.00 per cubic yard (the contract unit price), plus $2.50 for the backfill material.

Section 9-3.4.2 by its terms provides for the backfill in excess subsoil excavation. That section is only applicable to our situation because of the wording of Section 130-8.1. It is clear that in the casé of excess subsoil excavation, Ashland would be paid $2.00 for the excavation of subsoil and $2.50 for backfill when suitable material must be hauled in. However, in this situation Ashland has already been compensated for subsoil excavation at the rate of $2.00 per cubic yard and for excavation of the pipe trench under Section 360 of the specifications. To pay Ashland an additional $2.00 per cubic yard for removal of the unsuitable material from the job-site would allow payment for something that simply does not appear in the contract. Indeed, Section 360-12.6, quoted above, clearly puts the duty of disposal on the contractor. Further, Section 130-8.1 orders compensation for both the removal of unsuitable materials and the bringing in of suitable materials under subarticle 9-3.4. The pertinent provisions of the contract are sufficiently clear and unambiguous to conclude that Ashland is entitled to be paid at the rate of 125 per cent of the contract unit price, or $2.50 per cubic yard for both removal and replacement of unsuitable back-fill material from the trench site. In the absence of any ambiguities, a reasonable interpretation of the contract language must control. Florida State Turnpike Authority v. Industrial Construction Company, 133 So.2d 115 (Fla. 2nd DCA 1961); 7-Fla. Jur. Contracts Sec. 74, p. 137.

This cause is remanded to the trial court with directions that the final judgment dated February 20, 1976, and amended by order dated February 23,1976, be modified as follows: That in addition to the sum of $42,235.04 previously awarded Ashland, Ashland shall recover from the Department $40,842.50, which is computed as follows: 27,561 cubic yards for removal and replacement of unsuitable backfill material minus 11,224 cubic yards formerly allowed in the final judgment, or the difference of 16,337 cubic yards X $2.50 (125 per cent of the contract unit price).

Interest shall run on the principal amount from March 1, 1969, at six percent interest. In all other respects the judgment is affirmed.

RAWLS, Acting C. J., and McCORD, J., concur.

ORDER ON PETITION FOR REHEARING

ERVIN, Judge.

Appellant files its petition for rehearing alleging that we failed to take into consideration an error in the lower court’s judgment in which there was erroneously deducted from the amount awarded to Ashland the sum of $1,200.00 representing four days of delay time at the liquidated rate of $300.00 per day. We did not initially consider the error complained of because it was not raised by Ashland in its assignments of error, although it was a sum requested by Ashland in the conclusion to its brief. Normally this court will not consider matters not raised by assignments of error and parties will be deemed to have abandoned any alleged errors for their failure to do so pursuant to Fla.App.R. 3.7(i). Nevertheless, upon reconsideration it clearly appears that the lower court’s deduction of four days liquidated damages from the amount it awarded Ashland was a mistake. The Road Department has never suggested that it was not a mistake. Unquestionably Ashland would be entitled under Fla.R. Civ.P. 1.540(b) to move the trial court for relief from judgment on the ground of mistake. In Willis v. Ryals, 328 So.2d 475 (Fla. 1st DCA 1976), this court held that even though there was no basis for upsetting the jury’s findings upon which a final judgment was based in a boundary dispute, nevertheless it remanded the cause to the trial court solely for the purpose of correcting an erroneous property description contained in the final judgment pursuant to Fla.R.Civ.P. I.540.

Accordingly, the final two paragraphs of our opinion filed February 11, 1977 are amended as follows:

This cause is remanded to the trial court with directions that the final judgment dated February 20, 1976, and amended by order dated February 23, 1976, be modified as follows: That in addition to the sum of $42,235.04 previously awarded Ashland, Ashland shall recover from the Department $40,842.50, which is computed as follows: 27,561 cubic yards for removal and replacement of unsuitable backfill material minus II,224 cubic yards formerly allowed in the final judgment, or the difference of 16,337 cubic yards X $2.50 (125 percent of the contract unit price). Added to the above amounts is $1,200.00 representing a credit for four days delay time not eliminated by the trial court’s judgment at the liquidated rate of $300.00 per day.

Interest shall run on the principal amount from March 1, 1969, at six percent interest per annum until the judgment is satisfied. In all other respects the judgment is affirmed

RAWLS, C. J., and McCORD, J., concur.


text:
    Lewis N. YARBER, Appellant, v. STATE of Florida, Appellee.
    No. BB-467.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1977.
    Rehearing Denied March 7, 1977.
    Donald G. Nichols of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski & Patti Englander, George R. Georgieff, Asst. Attys. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

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


author: GRIMES, Acting Chief Judge.

text:
    Benito MARRERO, Appellant, v. STATE of Florida, Appellee.
    No. 75-1770.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 1977.
    As Modified On Denial of Rehearing March 16, 1977.

      Leonard J. Holton, of Hoffer & Sheffey, Zephyrhills, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

This is an appeal from a conviction for possession of narcotics paraphernalia.

The day before the trial, appellant had been tried on twelve counts of breaking and entering and twelve counts of grand larceny. The same jury venire from which the jurors were drawn for the instant case had sat through the voir dire on appellant’s case the previous day. Thus, all the jurors were aware that appellant had been charged with numerous crimes though apparently none of them were aware of the disposition of the charges.

Before the trial commenced, defense counsel objected to the jury venire because of these circumstances. The prosecutor responded that the trials were being held close together because of the appellant’s motion for speedy trial. The court overruled the objection, and the case proceeded. We believe the court erred in failing to sustain appellant’s challenge to the jury venire.

Subject to certain exceptions not applicable here, it is error for a witness to testify about the defendant’s arrest for an unrelated crime. Clark v. State, 337 So.2d 858 (Fla.2d DCA 1976). The admission of “mug shots” has been held to be error because it constitutes an impermissible reference to the defendant’s prior arrest record. Whitehead v. State, 279 So.2d 99 (Fla.2d DCA 1973). The theory of these holdings is that a jury is bound to be unfairly prejudiced against the accused by reason of the knowledge of his arrest for another crime. Allowing the jury to sit through the voir dire of appellant’s trial on totally separate charges on the preceding day clearly falls in the same category.

We find the circumstances of his case to be substantially distinguishable from a situation in which a potential juror may have read in the newspaper about the defendant’s arrest for a collateral crime.

The existence of a speedy trial problem does not eliminate the need for the state to provide the accused with a trial before a fair and impartial jury.

We also have some qualms about the propriety of the court having required the appellant to exhibit the needle marks on his arms to a policeman in the presence of the jury, but in view of our disposition of the case, we need not decide whether the peculiar facts of this case would make such evidence relevant and the procedure, therefore, permissible. See Baffuto v. State, 187 So.2d 79 (Fla.3d DCA 1966).

Reversed and remanded for a new trial.

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


author: SMITH, CULVER, Associate Judge.

text:
    Donald DEXTER, Appellant, v. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION OF HOLLYWOOD, a United States Corporation, et al., Appellees.
    Nos. 75-1330, 75-1493.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Rehearing Denied April 13, 1977.
    Donald Dexter, for appellant.
    Warren S. Schwartz, North Miami Beach, for appellees, Rosenthal, Seidler and Jacobs.
   SMITH, CULVER, Associate Judge.

■ These’ are consolidated appeals from an order and final judgment entered by the court below. The order of June 23, 1975, denied Appellant’s motion to quash constructive service of process by publication and entered a default against him. The final judgment of July 23, 1975, was one of foreclosure. Appellant appealed the entry of the order and the judgment. The appeals were consolidated.

Appellees have conceded in their brief and argument before this Court that the trial court erred in entering a default against Appellant without providing him the opportunity to plead responsively. This leaves us with the question of the correctness of the court’s order denying Appellant’s motion to quash service. This motion to quash was accompanied by Appellant’s affidavit. An affidavit- in support of constructive service was filed on behalf of Ap-pellees. This affidavit strictly conforms to the requirements of Section 49.041, Florida Statutes. Hearing was held on the Appellant’s motion to quash after due notice. The trial court’s order reflects that Appellant did not appear in person or thru counsel. Its order further states that it heard live testimony of the litigants and counsel to ascertain whether due and diligent search and inquiry had been made to determine the last known residence of the Appellant. The trial court’s findings and order reads:

1. That more than due and diligent search and inquiry was made to determine the last known residence of the said Donald Dexter and none could be found.
2. That the Crossclaiments would, not have reason to know the last known residence of the said Donald Dexter.
3. That the motion to quash constructive service of process by publication is hérein denied.
4. That a default be and is herein ordered as to the defendant, Donald Dexter.

This constitutes a finding of fact from evidence presented. Appellant was not present nor represented to present evidence in contradiction. We have reviewed the record and briefs. Appellant requested oral argument before this Court, but did not appear. The order of the trial court denying Appellant’s motion to quash constructive service of process is affirmed. The portion of its order entering a default is reversed. The final judgment of foreclosure is vacated only as it applies to the Appellant, Donald Dexter. The cause is hereby remanded for further proceedings.

Affirmed in part and reversed in part.

CROSS, J., and.MASON, ERNEST E„ Associate Judge, concur.


author: CROSS, Judge. DOWNEY, Judge,

text:
    CITY OF HOLLYWOOD, Appellant, v. Joseph E. JARKESY et al., Appellees.
    No. 75-2054.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.

      James A. Thomas, Deputy City Atty., Hollywood, for appellant.
    Brian P. Patchen of Kelly, Black, Black & Kenny, Miami, for appellees.
   CROSS, Judge.

Appellant, City of Hollywood, appeals an order entered in favor of appellees, Joseph E. Jarkesy and Lonny F. Jarkesy, his wife, granting a new trial in an eminent domain proceeding. We reverse.

Appellant, City of Hollywood, filed in the Circuit Court for Broward County a petition to take by eminent domain proceedings 2.64 acres of unimproved real property owned by appellees, Joseph and Lonny Jarkesy. At trial the city’s expert witness testified that the value of the property taken was $158,500. An expert witness on behalf of the appellees testified that the value of the property taken was $164,500 and severance damages in the amount of $35,520. No testimony was presented on behalf of the city as to severance damages. The jury returned a verdict awarding ap-pellees $158,500 for the 2.64 acres taken, and $5,950 severance damages. Appellant then filed a motion for judgment in accordance with a prior motion for directed verdict, and motions for remittitur and new trial, alleging that the jury’s award of $158,500 for the 2.64 acres taken was excessive. Appellees also moved for a new trial as to severance damages. The trial court entered an order denying all motions except appellees’ motion for new trial as to severance damages. The order incorporated ap-pellees’ contention that the jury ignored uncontroverted evidence, could not have concluded from evidence the value of the severance damages they found, and the jury disregarded the court’s instruction to find a verdict not less than the lowest value testified to by any witness nor higher than the highest value testified to by any witness, instead returning a verdict lower than any amount testified to by any witness. This appeal then followed.

The question for our determination is whether the trial court erred in granting a new trial.

A new trial may be granted to all or any of the parties and on all or a part of the issues. All orders granting a new trial shall specify the specific grounds therefor. Florida R.Civ.P. 1.530(f). Ordinarily a trial judge is given á very broad discretion in granting a new trial. Cloud v. Fallis, 110 So.2d 669 (Fla.1959). Where it is apparent from the grounds stated in granting a new trial that the trial judge is acting under an erroneous legal assumption, then it is not a question of discretion but a question of the legal sufficiency of the ground or reason given. National Western Life Insurance Co. v. Walters, 216 So.2d 485 (Fla. 3d DCA 1968).

There are a number of grounds on which a trial court may grant a new trial. However, a new trial should only be granted after an examination of the entire case and it being made to appear that there has been a misdirection of the jury, improper admission or rejection of evidence or error as to any matter of pleading or procedure, provided that the trial court concludes that the error complained of has resulted in a miscarriage of justice. See § 59.041, Florida Statutes. The principles of law relative to motions for new trial on the ground of inadequate verdict are well known. The basic test to be applied in determining the adequacy of a verdict is whether a jury of reasonable men could have returned that verdict. Griffis v. Hill, 230 So.2d 143 at 145 (Fla.1969). Specifically, in order to validly set aside a verdict for grossly inadequate damages, it must be shown that the verdict was induced by prejudice or passion, some misconception of the law or the evidence, or it must be shown that the jury did not consider all the elements of damage involved, missed a consideration of the issues submitted or failed to discharge their duty as given them by the court’s charge. Radiant Oil Company v. Herring, 146 Fla. 154, 200 So. 376 (1941); accord, Roberts v. Bushore, 182 So.2d 401 (Fla.1966).

The role of an appellate court in reviewing an order granting a motion for new trial was set forth by this court in Webster v. Harmon, 240 So.2d 69 (Fla. 4th DCA 1970). There it was stated:

“. . . Our function in reviewing the order is simply to determine whether or not the trial court’s finding has some reasonable support in the record. [Citations omitted] If the record does contain such support, the order granting the motion for new trial ought to be allowed to stand.”

Article X, Section 6(a), Florida Constitution (1975) provides:

“No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner

Full compensation includes the value of the property sought to be appropriated and when less than the entire property is sought to be appropriated, any damage to the remainder caused by the taking. Section 73.-071(3), Florida Statutes (1975).

In Behm v. Division of Administration, State Department of Transportation, 292 So.2d 437 (Fla. 4th DCA 1974), we stated with regard to special damages in condemnation suits, that although expert witness testimony is persuasive, the trier of fact may apply his knowledge and experience to other evidence in the trial when weighing the evidence. Also, in Seaboard Surety Co. v. First National Bank of Montgomery, 263 F.2d 868, at 871 (5th Cir. 1959) it was stated therein:

“The plaintiff did not produce any counter expert. The jurors were not, however, bound to accept the opinion of defendant’s expert witnesses, but had a right to use their own common sense and experience and to draw all reasonable inferences from the physical facts and occurrences.”

In the case sub judice, the order set forth three grounds for granting a new trial. If the record supports any one of these grounds, the trial court’s order granting a new trial must be affirmed. Initially the trial court based its decision to allow a new trial on the finding that the jury ignored the uncontroverted evidence and testimony offered by the defendants’ witnesses that the defendants’ remaining land suffered severance damages in the amount of $35,520.

In granting a new trial based upon this reasoning, the trial court acted under an erroneous legal assumption. The jury is not required to accept evidence presented only by witnesses with regard to severance damages. Seaboard Surety Co. v. First National Bank of Montgomery, supra.

The trial court, to further support the order granting a new trial, set forth that the jury having found the defendants’ remaining land suffered severance damages, could not have concluded from the evidence and testimony presented that these damages were $5,920 as stated in the jury’s verdict. The jurors are the triers of fact with regard to severance damages, and taking into consideration the expert testimony as well as a view of the property by the jurors, we conclude that a jury of reasonable men could have returned the verdict. Griffis v. Hill, supra.

The remaining ground set forth is that the jury disregarded the court’s instructions that the verdict shall not be less than the lowest value testified to by any witness, nor shall it be higher than the highest value testified to by any witness. Instead, the jury returned a verdict of severance damages which was lower than the amount testified to by any witness. Again, it is herein apparent that the trial court was acting under an erroneous legal assumption. Therefore, this ground, as well as the other two, is insufficient to sustain the trial court’s decision to grant a new trial.

Accordingly, the order granting a new trial is reversed and the cause remanded with directions to reinstate the verdict and for further proceedings consistent with the views herein expressed.

Reversed and remanded with directions.

ALDERMAN, J., concurs.

DOWNEY, J., specially concurs, with opinion.

DOWNEY, Judge,

concurring specially:

During the progress of this appeal appel-lees moved to dismiss the appeal on the grounds that an interlocutory appeal under Fla.App. Rule 4.2 was improper. We denied the motion to dismiss and directed the matter proceed as a Petition for Writ of Certiorari. In so ruling we were in error. An order granting a motion for new trial is appealable, Clement v. Aztec Sales Inc., 297 So.2d 1 (Fla.1974), and we have reviewed the order in question as an appeal.

Appellant’s first point for reversal has to do with the alleged error of the trial court in the manner it allowed the jury to consider the value of the street beds abutting the condemnee’s property to be considered by the jury. We fully considered that point and find no reversible error.

I agree with the conclusion of the majority opinion that the order granting respondent a new trial on severance damages must be reversed. The trial court’s reasons for granting a new trial on that issue of damages relied upon respectable authority from other appellate courts of this State. In particular, the trial court relied upon City of Jacksonville v. Yerkes, 282 So.2d 645 (Fla. 1st DCA 1973), for the proposition that the jury could not return a verdict lower than the value set by the owner’s expert witness for severance damages when the condemnor adduced no evidence as to the value of such loss. But, as the majority opinion points out, this court held in Behm v. Division of Admin., State, Dept. of Transp., 292 So.2d 437 (Fla. 4th DCA 1974), that the jury in an eminent domain case (as in any other case) is not bound by the testimony of an expert witness. And even though the opposing side offers no expert witness to give a contrary opinion as to value of the property rights involved in the condemnation litigation, the opinion evidence of the one expert witness who does testify is but a guide for the jury in arriving at their determination of value, as shown by the evidence, assisted by their view of the property and their own general knowledge and experience.

This apparent conflict has now been resolved and the Supreme Court of Florida has spoken in Behm v. Division of Admin., State Dept. of Transp., 336 So.2d 579 (Fla.1976). In approving this Court’s Behm decision, the Supreme Court laid to rest the notion that the jury is bound by the testimony of an expert in condemnation cases.

I 'think it is also important to recognize that the Supreme Court’s Behm decision also demonstrated the compatibility be-' tween the instruction that the verdict could hot be for less than the lowest estimate of value nor higher than the highest estimate of value (Florida Eminent Domain Practice and Procedure, § 8.13, Instr. No. 11 (2nd Ed. 1970) and the rule that the jury is not bound by the limits of value stated by the experts. In interpreting that instruction, the Court stated:

“The law of this state requires a condemning authority to establish what it believes to be just compensation for the land taken. The condemning authority thus admits damages in this amount, and requires the jury to find that amount as the minimum award. The property owner on the other hand may rebut that evidence and, moreover, may come forward with evidence of additional elements of damages as provided by statute. The maximum total amount of compensation presented in evidence for each element of damage by the property owner establishes the maximum amount of compensation. By the proper application of the rule adversaries admit the value of the property interest taken is neither less nor more than their respective claims.” 336 So.2d at 581.

In the case at bar the sole testimony of the value of the severance damages is the amount testified to by the owner’s expert. The jury returned a verdict awarding the owner a lesser amount. Clearly, under the rule now established by the Supreme Court in Behm v. Division of Administration, State Department of Transportation, supra, it was within the province of the jury to find the lesser value and thus the trial court erred in granting a new trial on any of the stated grounds.

I therefore concur in the decision to reverse the order appealed from.

      . That a jury is not so bound is the general rule in many jurisdictions. See -4 Nichols on Emi.-' nent Domain, § 1846.


author: DOWNEY, Judge.

text:
    Francis K. BUCKLEY, Appellant, v. Jean C. BUCKLEY, Appellee.
    No. 75-2161.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Rehearing Denied March 29, 1977.
    Francis K. Buckley, pro. per.

      J. B. Patterson, of Patterson, Maloney & Shankweiler, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

On April 25, 1975, a final judgment of dissolution and marriage was entered in which Jean Buckley was awarded alimony and child support. Francis Buckley sought review of that judgment without superseding it.

On October 20, 1975, while the plenary appeal from the final judgment was pending, Francis Buckley filed a Motion To Amend Final Judgment And For Other Relief in the trial court. The basic purpose of the motion was to obtain a reduction in the amount of alimony and child support. The trial court being of the view that it did not have jurisdiction to modify the first judgment which was on appeal declined to consider the motion. An order, dated October 29, 1975, denying the foregoing motion, is one of the orders under review.

Francis Buckley then requested this court to temporarily relinquish jurisdiction so that the trial court could consider his motion to modify the final judgment. When this court denied the motion to relinquish jurisdiction, he filed “Respondent’s Supplemental Complaint For Judgment Under F.S. 61.14” in the trial court. The relief sought in the latter pleading was virtually the same as that sought in the motion filed October 20, 1975.

Almost simultaneously, Jean Buckley filed in the trial court a Motion For Sanctions And/Or Judgment, seeking to enforce the provisions of the final judgment and to obtain the arrearages thereunder.

On November 26, 1975, the trial court: (a) by one order again denied for lack of jurisdiction appellant’s request to modify the final judgment, and (b) by separate order awarded appellee a judgment for $2040, the amount of the arrearage due at that time under the final judgment of dissolution. The notice of appeal in this ease also seeks review of the latter two orders.

We hold that the two orders in which the trial court refused for lack of jurisdiction to consider Francis Buckley’s efforts to modify the final judgment were eminently correct. As this court said in Kalmutz v. Kalmutz, 299 So.2d 30, 32 (Fla. 4th DCA 1974):

“[Modification of an order under appeal would be beyond the jurisdiction of the trial court from the very innate nature of the appellate jurisdiction and from the very practical viewpoint that there is no order to be modified until the appellate court determines what the order actually is.”

However, the final judgment has now been affirmed in Buckley v. Buckley, 336 So.2d 708 (Fla. 4th DCA 1976), and jurisdiction of the cause is now vested in the trial court. Accordingly, it is now appropriate for the trial court to entertain Francis Buckley’s Motion To Amend Final Judgment and For Other Relief, filed October 10, 1975. If the proof adduced in support of the motion demonstrates that appellant was entitled to relief at the time the motion was filed, then the order granting such relief should be retroactive to said date. See cases cited at 10A Fla.Jur., Dissolution of Marriage, etc., § 316.

If the trial court finds that appellant was entitled to relief as of October 20, 1975, it may be that appellant will be entitled to some credit against the judgment of November 26, 1975, since the amount awarded in that judgment may have included alimony or child support for the period following the filing of the motion of October 20,1975, and preceding the date of the judgment. On remand the trial court can consider that issue along with the other questions raised by the appellant’s petition to amend the final judgment in adjusting the equities between the parties.

The orders appealed from are affirmed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED AND REMANDED, with directions.

MAGER, C. J., and STEWART, JAMES R., Jr., Associate Judge, concur.


author: McCORD, Judge.

text:
    STATE of Florida, Appellant, v. Ralph Edward POWELL and Mary Powell, Appellees.
    No. BB-66.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1977.
    As Corrected March 1, 1977.

      Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Virlyn B. Willis, Jr., Asst. State Atty., for appellant.
    William Randall Slaughter, Live Oak, for appellees.
   McCORD, Judge.

Appellees were charged by information with criminal usury, loansharking, and shy-locking in violation of 687.071, Fla.Stat. 1973, and with conspiracy to commit a felony, to wit: loansharking or shylocking. They moved to dismiss the criminal charges on the ground that they are immune from prosecution under § 687.071(6), Fla.Stat. 1973. The trial court granted the motion, dismissed the charges, and discharged the defendants. The state appeals, contending that the statute does not give appellees immunity from this prosecution. We agree and reverse.

Appellees’ claim of immunity arises from their testimony taken on deposition by the defendant in a criminal prosecution for bribery against a third party. In response to the defendant’s demand for discovery in the bribery case, appellees’ names were furnished to defense counsel by the state as persons having information relative to the offense. They, along with one Alberta York, the principal state witness in the bribery case, were subpoenaed by the defense in the bribery case for their depositions. Testimony was then elicited by defense counsel from Alberta York which indicated that she had borrowed $500 from appellee Ralph Edward Powell and shortly thereafter had repaid to appellee Mary Powell the sum of $625 for the $500 loan. (The $500 sum borrowed from appellees appears to be the money allegedly used in the bribery.) Immediately following the deposition of Alberta York, defense counsel deposed appellee Ralph Powell who was not represented by counsel. He testified, in response to defense counsel’s questions, that he had loaned Alberta York $500; that the loan was repaid within one month; that he was paid $625 by Mrs. York, the addition $125 having been for interest and storage. The assistant state attorney then questioned appellee Ralph Powell after advising him of his rights and after Powell had indicated a willingness to answer the questions to be propounded by the state. Appel-lee then gave the same testimony he had given in answer to defense counsel’s questions. Thereafter, defense counsel deposed appellee Mary Powell, who likewise was not represented by counsel. She testified that she and her husband loaned Alberta York $500; that they were repaid $625; and that $125 was interest. Appellee Mary Powell was not questioned by the state, although the assistant state attorney was present.

Neither of the appellees was called as a witness on behalf of the state in the bribery trial. Ralph Powell was called and testified on behalf of the defendant, and defense counsel introduced into evidence a page from appellees’ ledger reflecting the transaction with Alberta York.

§ 687.071(6), Fla.Stat.1973, under which appellees claim immunity from prosecution in this case, provides as follows:

“(6) No person shall be excused from attending and testifying or producing any books, paper, or other document before any court upon any investigation, proceeding, or trial, for any violation of this section upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concérning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.” (Emphasis supplied.)

The foregoing statute relates only to immunity arising out of an investigation, proceeding or trial under § 687.071, Fla.Stat. 1973, the section dealing with criminal usury, loansharking, or shylocking. The depositions of appellees were taken in relation to the charge of bribery against a third person and not in relation to criminal usury, loansharking or shylocking. Thus, the foregoing statute is not applicable. In their briefs and oral argument, however, both the state and appellees have argued the applicability of § 914.04, Fla.Stat.1973, the general immunity statute. It is substantially the same as the specific immunity statute set forth in § 687.071(6). § 914.04 provides as follows:

Witness; person not excused from testifying in certain prosecutions on ground testimony might incriminate him; immunity from prosecution. — No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.”

The immunity granted by the foregoing statute is, by its terms, limited to testimony “before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state.” Defense depositions taken under Fla.R.Crim.P. 3.220(d) are not an investigation or proceeding before the court, the grand jury, or the state attorney, though the state attorney may and probably will be present as the rule requires that he be given notice of their being taken. This, however, does not render them a proceeding or investigation before the state attorney. His presence is voluntary. Thus, if a witness appears for a defense deposition in relation to a criminal ease and answers incriminating questions asked by defense counsel, he acquires no immunity therefrom just as he would acquire no immunity from criminal prosecution if he answered incriminating questions when subpoenaed to testify in a civil trial or on depositions taken for a civil trial.

In State v. Schell, 222 So.2d 757 (Fla. 2d DCA 1969), the Court of Appeal, Second District, said that the purpose of the immunity statute is to aid the state in prosecution of crimes — to allow the state to elect to immunize one offender from prosecution in order to secure the conviction of another. It was not designed to put immunization from prosecution in the hands of persons other than the state as would be the case if we adopted appellant’s argument.

Our ruling is not to be construed, however, to permit the state to elicit incriminating statements from a witness on cross-examination in a defense deposition without bringing into operation the immunity provisions of the statute. In such a situation, the state’s cross-examination would convert the taking by the defendant of the witness’ deposition into an investigation proceeding before the state attorney which is covered by the immunity statute. But in the case sub judice, the assistant state attorney only cross-examined appellee Ralph Powell and he did so only after advising him of his rights and after Powell had indicated a willingness to answer his questions. Such constituted a waiver of immunity by Powell. See State v. Newell, 102 So.2d 613 (Fla.1958), and State ex rel. Foster v. Hall, 230 So.2d 722 (Fla. 2 DCA 1970).

Reversed.

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


author: BOARDMAN, Chief Judge.

text:
    Howard F. MacNEIL, Appellant, v. Charles William RUSSELL and Sadie Brody Lowenstein, Appellees.
    No. 76-1047.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1977.
    As Amended On Denial of Rehearing March 18, 1977.
    John W. Hamilton, Ware & Hamilton, St. Petersburg, for appellant.
    Julian L. Miller, Miller & Anderson, St, Petersburg, for Charles William Russell.
   BOARDMAN, Chief Judge.

Appellant/defendant, Howard F. Mac-Neil, appeals a summary judgment rendered in favor of appellee/plaintiff, Charles William Russell, on the issue of liability and a final judgment rendered after a nonjury trial in favor of Russell on the issue of damages.

Appellee/defendant, Sadie Brody Lowen-stein, while driving an automobile owned by MacNeil was involved in a motor vehicle accident with Russell. Upon consideration of the record we find that genuine issues of material fact do exist at least with respect to whether Lowenstein pre-empted the intersection at which the accident occurred and whether either or both Lowenstein and Russell were negligent vel non. Our reading of the affidavit of Lowenstein and the deposition and affidavit of Russell leads us to the view that the issue of liability should not be disposed of on summary judgment. See, e. g., Holl v. Talcott, 191 So.2d 40 (Fla.1966).

The award of $4,500.89 entered in favor of Russell is vacated and damages will be awarded according to the rule of Hoffman v. Jones, 280 So.2d 431 (Fla.1973) following trial on the issue of liability.

REVERSED and REMANDED for a new trial on the issues of liability and damages.

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


author: HENDRY, Chief Judge.

text:
    Ralph DUEY, Appellant, v. Daisy M. DUEY, Appellee.
    No. 76-82.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Rehearing Denied April 1, 1977.
    Hal P. Dekle, Tallahassee, and Robert E. Craig, Miami, for appellant.
    Jack P. Attias, Miami, for appellee.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Chief Judge.

. Appellant,Ralph Duey, was the respondent below and appellee, Daisy M. Duey, was the petitioner. This appeal is from a final judgment entered in the lower court which (1) held that a common law marriage existed between the parties on or , about December 31, 1964, (2) dissolved-said common law marriage, (3) inter alia awarded appellee lump sum alimony in the amount of one-half the value of the “marital abode”, periodic permanent alimony, reasonable attorneys’ fees and one-half of ap-pellee’s costs and (4) awarded appellant custody of the parties’ minor child (age 14) and usé of the “marital abode” until said child reached majority, married or becomes self-supporting.

The facts of the case are as follows: Appellant and appellee were ceremonially married in Ohio on July 2,' 1960. The parties thereafter moved to Florida where they lived as husband and wife until October 29, 1964, when appellee received a decree of divorce in Dade County. The decree awarded appellee custody of the. only child born of the marriage, a daughter.

After the divorce, appellee and child moved back to Ohio, residing in the home of appellee’s parents. The stay was, however, shortlived and within several weeks, both were back in Dade County, taking up residence in a Hialeah apartment.

In the meantime, appellant’s longing for the companionship of'his daughter and former wife reached a zenith when, during one of his weekly visits to appellee’s apartment for the purpose of- paying child support, appellant invited both to move back into their former home. (Said home being awarded to appellant via quit claim deed from appellee pursuant to their divorce decree).

Appellee and daughter accepted the invitation and returned to the home of appellant. Appellant and appellee thereafter lived together until August 14, 1975, when appellee moved out and instituted the proceedings currently under review. Some three months later, on November 12, 1975, after a lengthy hearing, the learned chancellor entered the aforedescribed final judgment, dissolving the alleged common law marriage and making the various awards. This appeal follows.

Appellant raises many points on appeal, the first and foremost being the alleged error of the chancellor in holding, by way of lengthy findings of fact and conclusions of law, that subsequent to the original divorce decree, the parties entered into a common law marriage. Appellant contends that absent words of present assent, per verba de praesenti, no common law marriage could have legally been found to exist.

For the reasons that follow, we find appellant’s premier contention to be of merit, obviating the necessity of discussing his remaining points, which have been omitted for sake of conciseness.

Cases are legion which hold that in order for a valid common law marriage to exist, the following prerequisites must exist: general repute, cohabitation, capacity and present assent to become man and wife, i. e., words per verba de praesenti. Chaves v. Chaves, 79 Fla. 602, 84 So. 672 (1920); Marden v. Marden, 276 So.2d 493 (Fla. 4th DCA 1973); Phillips v. Phillips, 215 So.2d 83 (Fla. 3d DCA 1968).

While it is uncontradicted that the parties cohabitated together and held themselves out to the world as being husband and wife — bought property in their joint names, filed joint income tax returns, etc., there is noticeably lacking in the record any testimony concerning words evidencing the present intent to be married. Appellee concedes this, but argues that no words per verba de praesenti need be expressed as a prerequisite to a valid common law marriage where, as here, the facts reflect that the parties did not originally separate until one day after the original dissolution of marriage was granted and resumed courtship and cohabitation some three (3) weeks thereafter. Appellee contends that under the above circumstances, the actions of the parties in reuniting after such a short separation were a sufficient substitute for words per verba de praesenti.

In support thereof, appellee refers to two cases, both relied upon by the chancellor in making his ruling— Navarro, Inc. v. Baker, 54 So.2d 59 (Fla.1951) and In re Beacher’s Estate, 177 So.2d 838 (Fla. 3d DCA 1965). The following language from the former case is especially emphasized by appellee.

“True, no positive statements were exchanged when they agreed to resume relation of husband and wife, but the circumstances surrounding [this] meeting were more eloquent and forceful than formal language.” Navarro, Inc., supra, at 60.

While both of the above cases found the existence of a common law marriage absent the aforementioned “magic words”, the facts of those cases appear to be peculiarly distinguishable from the case sub judice in that the parties there resumed cohabitation at or about the time of the entry of their respective divorce decrees and were, in both cases, in doubt as to whether the divorce was effective as terminating their respective marriages.

Here, there is no doubt that the parties knew that they had been divorced. In addition, the “more eloquent and forceful circumstances” surrounding the reunion in Navarro, Inc., supra, which enabled that court to dispense with words per verba de praesenti, are noticeably absent sub judice. For example:

“Q (Mr. Craig): Did you ever have any conversation with him about getting married again?
“A (Appellee) Yes.
“Q What was the nature of those conversations?
“A Well, when I first went back he said that we would remarry.” [Emphasis added.]
* * * * He *
“Q Has Ralph himself ever said to you that ‘We are not married.’?
“A Yes.
“Q On many, many occasions?
“A Yes.”
* * # * * *
“Q You were aware of the divorce? “A Yes.
“Q And you knew that it was a divorce? “A Yes.
“Q And that you were divorced and you weren’t married?
“A Yes.”
* * * * * *
“Q (Mr. Attias) Did you ever introduce Mrs. Duey as your wife to anybody?” * * # * * *
“A (Appellant) Lots of people.”
“Q Why did you do that?
“A To save embarrassment for me and my daughter and her that we were just shacking up." [Emphasis added.]
* * * * * *
“Q After the divorce, you really wanted to start with her anew. You asked her to come back to you. Is that correct?
“A For the benefit of my daughter. “Q You didn’t want a divorce?
“A To start with, but I would never remarry again for nobody. [Emphasis added.]
“Q (Mr. Craig): Mr. Duey, did you feel that you were taking her back as a wife in December of 1964?
“A Not as a wife but as a still very good friend.”

The above excerpts, taken from the depositions of appellee and appellant, respectively characteristically represents the parties’ state of mind at the time of their reunion. At best, only a promise to marry in the future could be properly interpreted, and Florida has never recognized such a marriage per verba de futuro cum copula. Le Blanc v. Yawn, 99 Fla. 328, 126 So. 789 (1930).

In light of the above, the requirement of words per verba de praesenti, as evidencing the present intent of the parties to be husband and wife, was a necessary prerequisite to a finding of. a common law marriage between the parties. Williams v. Dade County, 237 So.2d 776 (Fla. 3d DCA 1970). There admittedly being no such words spoken, it was error to view the relationship of the parties as one of “marriage.” As counsel for appellant so perceptively summarizes, “The law will not supply what love could not.”

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited and discussed, the judgment appealed is reversed.

Reversed.

      . Section 741.211, Florida Statutes (1975), voided common law marriages entered into after January 1, 1968.