text:
    SOUTHEASTERN BUILDERS, INC. OF ALABAMA, Appellant, v. JOE BRASHEARS STEEL, INC., Appellee.
    No. BB-86.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1976.
    Rehearing Denied Oct. 1, 1976.

      Alan C. Sheppard of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appellant.
    Donald H. Partington of Clark, Parting-ton, Hart & Hart, Pensacola, and Thomas S.Chambless of Watson, Spence, Lowe & Chambless, Albany, Ga., for appellee.
   SMITH, Judge.

The general contractor for construction of a Sears Roebuck building in Pensacola refused to pay for structural steel furnished the project. The supplier sued the contractor and the court directed a verdict for the supplier in the amount of the contract price. The jury’s verdict added the amount of certain disputed extras. The contractor asserts on appeal that the trial court erred in directing a verdict for the contract price of $41,374.41 and in refusing to permit the jury to assess, as a setoff reducing its liability to the supplier, the contractor’s damages sustained as a result of the supplier’s delays in furnishing the steel, its failure to deliver sequentially the types of steel needed for continuous construction and its furnishing of steel which was defective or did not conform to specifications.

The case reached trial without issues clearly pleaded between supplier and contractor. Notwithstanding the absence of a counterclaim, the contractor was permitted over objection to introduce evidence of the supplier’s claimed inadequacies in performance and of the contractor’s damages. While the contractor’s setoff should have been explicitly pleaded as a counterclaim, Ocean Ridge Devel. Corp. v. Quality Plastering, Inc., 247 So.2d 72 (Fla.App. 4th, 1971), we conceive that the trial court acted within its discretion, in the absence of demonstrated prejudice to the supplier, in permitting proof of the contractor’s asserted setoff against the contract price. Rules 1.170, 1.190(b), R.C.P.

After thus permitting full development of the contractor’s asserted setoff, the trial court ruled as a matter of law that the contractor’s damages resulting from delay in the delivery of steel and from the supplier’s departure from desirable delivery sequences were not recoverable. The supplier’s bid forms, which formed a part of the contract, specified that acceptance of deliveries would constitute waiver of claims for delay in delivery. The trial court did not err in giving that provision effect notwithstanding the supplier’s stated “anticipation” of meeting a more rapid delivery schedule. Nor did the trial court err in eliminating the contractor’s asserted damages arising from the absence of sequential delivery, to which the supplier did not assent in the exchange of contract documents.

The trial court erred, however, in holding that the quoted clause forecloses the contractor’s claim for damages caused by delivery of defective and nonconforming materials. Although construction delay was a result of delivering faulty steel, delay itself was not the default complained of. Delays which were subject to the disclaimer of liability were delays in delivery, acceptance of which might reasonably be regarded as waiver. But the “no damages for delay clause” cannot reasonably be held to foreclose claims resulting from delay not incurred at delivery, when the fact and extent of future delay, attending correction or replacement of materials found to be defective, might be unknown or incalculable. See Wood v. Ft. Wayne, 119 U.S. 312, 322, 7 S.Ct. 219, 224, 30 L.Ed. 416, 420 (1886).

On remand of the case, the verdict liquidating the principal amount owed the supplier need not be disturbed, but the parties by proper pleadings should establish issues to be tried on the contractor’s counterclaim for damages caused by the supplier’s delivery of defective and nonconforming materials.

REVERSED.

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

      . “Seller shall not be responsible for delays arising from causes beyond its reasonable control and shall be responsible only for failure to make reasonable effort in pursuance of its performance, provided, however, that acceptance of materials on delivery shall constitute a waiver of any claims for damages on account of delay.”


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    In re the ESTATE of George F. PECK, Deceased. Earl J. RUCKBESCHEL, Appellant. v. John VAN SWEDEN, as Executor of the Estate of George F. Peck, Deceased, Appellee.
    No. 75-1642.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 1976.

      Philip J. Padovano of Ruiz & Padovano, St. Petersburg, for appellant.
    Robert H. Willis of Skelton, Willis & Jones, St. Petersburg, for appellee.
   SCHEB, Judge.

This is an appeal from an order quashing service of process against the executor of the estate of George F. Peck, deceased. We refer to the appellant, Earl Ruckdeschel, as petitioner as he appeared in the trial court where he sought to revoke probate of the decedent’s will.

Although the petition for revocation named the appellee, John Van Sweden, as executor, the citation to appear was directed to and served upon Van Sweden as an individual. Van Sweden, who was also a beneficiary under the will, moved to abate the proceedings on grounds the petitioner failed to join an indispensable party, that is to say, himself in his representative capacity of executor. The trial court granted the motion and ordered the proceedings abated. Subsequently, a proper citation was issued and served upon Van Sweden, as executor. At that point Van Sweden, as executor, moved to quash the process contending no new petition for revocation had been filed. The trial judge apparently concluded his order to abate had the effect of dismissing the proceedings and that since no further petition had been filed, there were no proceedings before the court. On October 16, 1975, the trial judge ordered the process “. . . quashed and annulled with prejudice, and said Executor shall go hence without day.” This timely appeal by petitioner Ruckdeschel ensued. We think the court erred. We reverse.

A plea in abatement ordinarily suspends an action until the complained of defect is remedied. Trawick, Florida Practice and Procedure, § 10-3. Here, while the effect of the order to abate was to hold the matter in abeyance, there was no dismissal of the petition. Therefore, once the proper citation was issued and correctly served, it became incumbent upon Van Sweden, as executor, to respond. See DeVaney v. Rumsch, Fla.1969, 228 So.2d 904; American Baseball Cap., Inc. v. Duzinski, Fla.App.1st 1975, 308 So.2d 639, which hold that in the absence of a showing that the complaint is defective or that the defendant will be prejudiced, the plaintiff should be allowed to reserve process without refiling the complaint. No attack is made here on the sufficiency of the petition for revocation and there was no showing of prejudice to the estate.

Accordingly, the order of October 16, 1975, is reversed and the cause is remanded for further proceedings consistent with this opinion.

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


author: SMITH, Judge.

text:
    SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. P. T. WAINWRIGHT, as Administrator of the Estate of Louise Hendricks, Deceased, Appellee.
    No. CC-111.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1976.
    Rehearing Denied Oct. 4, 1976.

      Clark W. Toole, Jr. and Frank G. Kurka of Toole, Taylor, Moseley & Milton, Jacksonville, for appellant.
    Martin S. Page of Jopling, Darby, Peele, Page & Bowdoin, Lake City, for appellee.
   ON MOTION TO DISMISS

SMITH, Judge.

Appellee Wainwright, by motion to dismiss Seaboard’s appeal, asserts that the order from which the appeal was taken is an interlocutory order which is not reviewable by interlocutory appeal, Rule 4.2, F.A.R. Seaboard regards the questioned order as effectively a final judgment, from which plenary appeal may be taken.

Wainwright’s action against Seaboard in the circuit court arose from the death of Wainwright’s decedent, a passenger in an automobile which collided with Seaboard’s train at a grade crossing. The collision also killed the driver of the automobile, whose administrator, Battle, also sued Seaboard.

Seaboard’s appeal results from the trial court’s denial of Seaboard’s motion for leave to file a third party complaint against Battle in Wainwright’s case. Seaboard wished to allege that Battle is liable to Seaboard for any damages that Seaboard might be called on to pay Wainwright on account of the death of the passenger. The third party complaint was tendered more than 20 days after Seaboard’s original answer, so leave of court was necessary for its filing. Rule 1.180(a), R.C.P. Because the trial court denied Seaboard leave to file the third party complaint, no process was served on the putative third party defendant and no appearance was made in his behalf in that cause.

The trial court’s refusal to permit the filing of Seaboard’s third party complaint did not finally dispose of the issues of indemnity or contribution as between Seaboard and Battle. On the contrary, the trial court’s order was that, for reasons which do not clearly appear in this record, such claims would not be entertained in Wainwright’s action. In contrast to such cases as Hotel Roosevelt Co., Inc. v. City of Jacksonville, 192 So.2d 334 (Fla.App. 1st, 1966), therefore, the questioned order was merely an interlocutory resolution of a procedural controversy between Wainwright and Seaboard, not a final order disposing of Seaboard’s claim against Battle. Because the order to which the plenary appeal is addressed was interlocutory, not final, and no showing is made which would justify our treating the appeal as an application for common law writ of certiorari, the improvidently taken appeal must be dismissed.

Appeal dismissed.

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


author: PER CURIAM.

text:
    James KNOTTS, Appellant, v. STATE of Florida, Appellee.
    No. Y-275.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1976.
    Rehearing Denied Oct. 6, 1976.
    H. Randolph Fallin, of Miller, Fallin & Lally, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

AFFIRMED.

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


text:
    Angell ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 75-399.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1976.
    Rehearing Denied Oct. 5, 1976.

      Robert S. McCain, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Linda Collins Hertz, Asst. Atty. Gen., and Joseph F. Iracki, Legal Intern, Miami, for appellee.
   PER CURIAM.

This is an appeal from a judgment of guilty of carrying a concealed firearm in violation of Section 790.01(2), Florida Statutes (1973), entered by the circuit court.

There are two legal issues for us to resolve, since the jury has resolved all factual issues against the appellant. Because it is undisputed that the firearm in question (a pistol) was in a closed briefcase the appellant was carrying, the first question we must answer is whether a pistol in a closed briefcase carried by an individual is on or about the person of that individual so as to fall within the proscription of Section 790.01(2). Florida has not yet answered that question. Illinois, which has a statute similar to Section 790.01(2), has held that a pistol in a closed suitcase is on or about a person holding the suitcase. People v. Foster, 32 Ill.App.2d 462, 178 N.E.2d 402 (1961). New York, which has a statute that proscribes carrying weapons upon the person, held in People v. Pugach, 15 N.Y.2d 65, 255 N.Y.S.2d 833, 204 N.E.2d 176 (1964), that the defendant violated this statute by carrying a pistol in a closed briefcase. Most jurisdictions agree with the two foregoing cases. See Annot.: Concealed Weapons, 43 A.L.R.2d 492, § 12[a]. We therefore hold that one who carries a firearm in a closed briefcase can be guilty of violating Section 790.01(2).

The other question we must answer is more complex because it involves the doctrine of prior jeopardy. That question (framed below) arises from the "following events. On August 6, 1974, the state filed in the County Court for Broward County information number 74-31854 mm charging that appellant on June 6, 1974 “did unlawfully and secretly carry on or about her person a concealed weapon, to wit: a pistol . , contrary to F.S. 790.01,”. On August 15th appellant filed a paper containing a plea of not guilty, a waiver of formal arraignment, and a request for 10 days to file defensive motions. (It does not appear that appellant filed any defensive motions.) On September 10, 1974, case number 74-31854 mm came on for nonjury trial before the county court. After the state’s first witness began giving testimony, the appellant raised an objection to testimony that a pistol was .involved in the action. A lengthy colloquy among counsel for the parties and the court ensued. At the end of that colloquy the county court announced it was dismissing the case because it had no jurisdiction over the cause, and it thereafter entered the following written order: “IT IS, ORDERED THAT THIS CASE BE, AND THE SAME IS HEREBY DISMISSED. BY COURT FOR LACK OF COURTS JURISDICTION.” On September 27, 1974, the state filed in the Circuit Court for Broward County information number 74-3097-CF charging that appellant on June 6,1974 “did unlawfully, feloni-ously and secretly carry on or about her person a concealed firearm, to-wit: a .45 caliber automatic pistol, contrary to F.S. 790.01(2).” On February 11,1975, appellant filed a motion to dismiss the cause (Case No. 74r-3097) on the grounds of prior jeopardy. On March 3, 1975, Case No. 74-3097 came on for jury trial. After the jury was sworn, the parties argued the motion to dismiss, and the court denied it. The jury found appellant guilty as charged. The circuit court entered judgment pursuant to the jury’s verdict and sentenced the appellant to three years imprisonment.

The second appellate question before us is whether under the circumstances of this case, the county court’s dismissal of the first charge against the appellant constituted jeopardy. If it did, then the doctrine of prior jeopardy (which the appellant timely asserted) precluded the second prosecution in the circuit court. The answer to this question turns on the answer to another question: did the county court have jurisdiction to try the appellant upon the charge, “unlawfully and secretly carrying] on or about her person a concealed weapon to wit: a pistol, a better and more particular description of said weapon being to the State Attorney unknown, contrary to F.S. 790.01,”? The second question and its answer are crucial to this ease because the doctrine of prior jeopardy does not preclude a second prosecution upon a particular act if the first prosecution was in a court that did not have jurisdiction over the subject matter of the offense charged. See cases cited at: 9 Fla.Jur., Criminal Law § 431, 21 Am.Jur.2d Criminal Law, § 171; 22 C.J.S. Criminal Law § 244, p. 643; Annot.: Double Jeopardy — Court’s Jurisdiction, 4 A.L. R.3d 874; §§ 3-4; Annot.: Double Jeopardy — Stopping Prior Trial, 6 A.L.R.3d 905, § 3.

In Pope v. State, 268 So.2d 173 (Fla.2d DCA 1972), the court recognized that the allegations of the charging document determine whether the court in which the state files the document has jurisdiction over the cause. The Pope case is helpful here because its fact pattern is similar to that of the present case. There, the state filed in the circuit court an information alleging that the defendant: “on the fourth day of October, [1971] . . . did unlawfully possess and have in his control a certain drug, to-wit: cannabis sativa, commonly known as marijuana, a more particular description of which is to the State Attorney unknown; and contrary to Chapter 404, Florida Statutes, . . . .” 268 So.2d at 175. The defendant pleaded guilty to the charge; the circuit court entered a judgment of conviction of a felony and sentenced him to two years in the state penitentiary. The defendant appealed, contending that under the information filed against him he was “only amenable to conviction for a misdemeanor.” 268 So.2d at 175. Noting that the information did not allege that the defendant possessed a specific amount of marijuana or that the defendant was a previous drug offender, the district court of appeal held that (under the statute involved) the information' failed to show whether the defendant was charged with a misdemeanor or a felony and thereby failed to show that the circuit court (which had felony jurisdiction only) had jurisdiction over the cause. The district court thereupon reversed the judgment of conviction on the ground that it was void. The court also remanded the cause “with directions to quash the information with leave either to amend or to refile in the appropriate court depending upon the allegations upon which the state intends to rely . . .” 268 So.2d at 176. See, too, Brack v. State, 293 So.2d 108 (Fla.2d DCA 1974).

We hold that the first information the state filed was as invalid as the one in the Pope case because it too failed to show whether the appellant was charged with a misdemeanor or a felony. On the one hand the first part of the information appears to charge the appellant with carrying a concealed weapon. Under Section 790.01(1), Florida Statutes (1973), such an act is a misdemeanor. On the other hand the information also appears to charge the appellant with carrying a concealed firearm. Under Section 790.01(2), Florida Statutes (1973), such an act is a felony. The culminating deficiency of the information is its allegation that the unlawful act (whatever it may have been) violated “F.S. 790.01,”. The failure to specify a violation of either Section 790.01(1) or Section 790.01(2) caps the confusion surrounding the first information the state filed against the appellant because of its vagueness and repugnancy. That information was invalid.

Since the first information the state filed did not show that jurisdiction was in the county court (the county court has criminal jurisdiction to try only misdemeanor cases, Article V, Section 6(3), Florida Constitution; Section 34.01, Florida Statutes (1973)), that court’s dismissal of the information for lack of jurisdiction was proper. We hold that jeopardy did not attach to the first prosecution and that the second prosecution was proper.

We therefore affirm the judgment and sentence appealed from.

WALDEN and DOWNEY, JJ., and UL-MER, RAY E., Jr., Associate Judge, concur.

      . A pistol is a firearm. Davis v. State, 215 So.2d 626 (Fla.3d DCA 1968).

      . “Whoever shall carry a concealed firearm on or about his person shall be guilty of a felony of the third degree . . .

      . Compare State v. Butler, 325 So.2d 55 (Fla.3d DCA 1976), which held that an individual can be guilty of violating § 790.01(2) by having a pistol in a closed center console of an automobile.

      . See, too, 22 C.J.S. Criminal Law § 127, pp. 344-345.

      . “Whoever shall carry a concealed weapon on or about his person shall be guilty of a misdemeanor of the first degree . . .

      . See footnote 1.

      . See footnote 2.

      . As to repugnancy see generally 22 C.J.S. Criminal Law § 102;


text:
    Tyrone BAGLEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1366.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1976.
    Richard L. Jorandby, Public Defender, James R. Bean, III, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from an order of the trial court denying without an evidentiary hearing appellant’s motion to vacate his sentence, pursuant to Fla.R.Crim.P. 3.850. The facts alleged in the motion, when considered to be true, sufficiently state a basis for collateral relief. The record in this case does not conclusively refute the allegations of the motion. Therefore, an evidentiary hearing should have been afforded to appellant. Brumley v. State, 224 So.2d 447 (Fla. 4DCA 1969).

REVERSED AND REMANDED.

MAGER, C. J., and DOWNEY and ALDERMAN, JJ., concur.


author: ALDERMAN, Judge. MAGER, Chief Judge

text:
    Joseph E. BURKE, Appellant, v. Doris B. BURKE, Appellee.
    No. 75-2194.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1976.
    Marvin L. Lessne, Fort Lauderdale, for appellant.
    Allan M. Rubin of Law Offices of Hugh S.Glickstein, Hollywood, for appellee.
   ALDERMAN, Judge.

This is an appeal from an order holding appellant in contempt of court. At the final hearing of a dissolution of marriage the parties in open court entered into a separation and property settlement stipulation. In the final judgment the trial judge ratified and confirmed the stipulation and ordered the parties to comply with all of the terms of the stipulation.

Subsequently appellant failed to comply with certain provisions of the stipulation and appellee filed motions to enforce the final judgment. Ultimately the trial court found appellant to be in contempt of court. Appellant was given the opportunity to purge himself of his contempt by complying with the court’s order within five days. The specific violations are as follows:

(1) He failed to pay to her the sum of $1,956.26 as agreed.
(2) He failed and refused to execute and deliver to his former wife the joint income tax return for the calendar year of 1974 together with his check for one-half of the taxes due and owing thereon.
(3) He failed to execute and deliver to his former wife all documents necessary to release to her all of his interest in a certain note and mortgage.
(4) He failed to execute and deliver to his former wife all documents necessary to transfer to her all of his interest in certain securities.

The trial court further found and determined in his order that appellant’s failure and refusal to comply was willful and deliberate and not caused by his inability to comply.

Appellant relies on the general rule that the contempt process may not be utilized to enforce payments required under a property settlement agreement, such payments being enforceable only as ordinary claims between a creditor and a debtor. Carlin v. State, 310 So.2d 403 (Fla. 4th DCA 1975); Howell v. Howell, 207 So.2d 507 (Fla. 2d DCA 1968); State v. Phillips, 193 So.2d 26 (Fla. 2d DCA 1966); State ex rel. Cahn v. Mason, 148 Fla. 264, 4 So.2d 255 (1941).

The $1,956.26 is clearly a payment required under the terms of a property settlement agreement and cannot be enforced by contempt proceedings. This part of the trial judge’s order is reversed.

Subsequent to the filing of this appeal the trial judge entered an order which purported to relieve and discharge appellant from the order of contempt for his failure to execute and file a joint income tax return with appellee. This order was ineffectual because once a notice of appeal has been filed, the lower court is without jurisdiction to alter the order appealed from. Considering the merits of this portion of the order we conclude that it must be reversed because it also is an attempt to enforce by contempt proceedings a payment under the terms of the property settlement agreement.

A different situation is presented as to the remaining portion of the trial judge’s order. This does not involve appellant being held in contempt for failure to make an agreed payment pursuant to a property settlement agreement. We do not run afoul of the constitutional prohibition that “No person shall be imprisoned for debt . . ” Florida Constitution, Article I, Section 11. Here the defendant is charged with failure to execute certain documents. Appellant had agreed to do these things. The final judgment ordered that he comply with his agreement. The incorporation of the agreement into the final judgment, coupled with the trial court’s order of compliance, was in effect a mandatory order for the specific performance of that act. Fla.R. Civ.P. 1.570, provides in part as follows:

“. . .If any other judgment, injunction or mandatory order for the specific performance of any act or contract is not complied with, the court may hold the disobedient party for contempt . . . ”

In the present case appellant was ordered by the trial court to specifically perform certain acts which appellant in open court had previously agreed to perform. The acts required did not involve the payment of money. Appellant’s failure and refusal to comply was willful and deliberate and not caused by his inability to comply. Under these circumstances we hold that the trial court had the authority to enforce its order by holding appellant for contempt. This portion of the contempt order is affirmed.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

DOWNEY, J., concurs.

MAGER, C. J., dissents, with opinion.

MAGER, Chief Judge

(dissenting):

I must respectfully dissent from that portion of the majority opinion concluding that the payment required under the terms of the property settlement agreement cannot be enforced by contempt proceedings. Notwithstanding the authority cited in the majority opinion, the facts and circumstances of the instant case fall within the orbit of the early decision of the Supreme Court of Florida in Solomon v. Solomon, 149 Fla. 174, 5 So.2d 265 (1942). There the Supreme Court held that if the property settlement agreement is embodied in the decree and contemplates when executed that it shall become a part of the court order, the failure to comply therewith is punishable by contempt.

In the instant situation the final judgment of dissolution, the violation of which gave rise to the contempt below, contained the following express finding:

“3. The Separation and Property Settlement Stipulation entered into by the parties on the 14th day of January, 1975, and recited into the record, is hereby ratified and confirmed; and the parties are ordered to comply with all of the terms of the Stipulation”

It is clear from the foregoing language (and from the very contempt order itself) that more than a mere ratification of the property settlement agreement occurred. As the circumstances were such as to exercise the contempt power in Solomon v. Solomon, supra, so, too, the situation in the instant case justified and legally supports the trial court’s exercise of the power of contempt.

Accordingly, I would affirm the trial court in all respects.


author: ALDERMAN, Judge.

text:
    LEADERSHIP HOUSING, INC., a Delaware Corporation, Petitioner, v. DEPARTMENT OF REVENUE of the State of Florida, Respondent. Arnold KAPLAN and Sophie Kaplan, Petitioners, v. DEPARTMENT OF REVENUE of the State of Florida, Respondent.
    Nos. 76-837, 76-838.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1976.

      Samuel C. Ullman of Smathers & Thompson, Miami, for petitioners.
    Robert L. Shevin, Atty. Gen., and Patricia S. Turner, Asst. Atty. Gen., Tallahassee, for respondent.
   ALDERMAN, Judge.

Leadership Housing, Inc., in Case No. 76-837, and Arnold Kaplan and Sophie Kaplan, in Case No. 76-838, filed Petitions for Writ of Certiorari pursuant to Section 120.68, Florida Statutes (1975) and Fla.App. Rule 4.1. The two petitions have been consolidated since they involve the same issue of law and are related factually.

Petitioners seek to have reviewed certain final agency action of the Department of Revenue of the State of Florida. The facts are not in dispute. Leadership Housing, Inc. is in the business of selling improved residential real property in Broward County, Florida. During 1973 and 1974 it sold nineteen separate homes to nineteen different purchasers, including the Kaplans. At the time of the nineteen sales, each parcel was already encumbered by separate mortgages between Leadership Housing, Inc. and an institutional lender. Each mortgage allowed the lender, with certain exceptions, to accelerate the indebtedness if the property encumbered by the mortgage was sold or transferred by Leadership Housing, Inc. without lender’s prior written consent. Each mortgage further provided:

“If Lender has waived the option to accelerate . . . and if Borrower’s successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Mortgage and the Note.”

Florida documentary stamps were attached to each of the mortgages pursuant to Chapter 201, Florida Statutes, and said mortgages were recorded.

Each of the nineteen sales provided for a partial cash payment and the assumption by the purchaser of the existing mortgage, evidenced by an assumption agreement between the lender and the purchaser. Title was conveyed by a warranty deed which recited that the deed was subject to the existing mortgage which buyer assumed and agreed to pay. On each deed the documentary stamp taxes were computed and paid on the full purchase price pursuant to Section 201.02, Florida Statutes. The surtax imposed by § 201.021, however, was paid only on the amount of cash paid. Subsequent to each of the nineteen sales, a release agreement was entered into between the lender and Leadership Housing, Inc. In consideration of the assumption by purchaser of the note and mortgage, the lender would release Leadership Housing, Inc. from personal liability.

The Department of Revenue assessed documentary stamp surtax and penalties against petitioners based upon the full purchase price including the amount of the assumed mortgage. The legal issue which we must resolve is whether, based upon the facts set out above, the Department of Revenue properly included as part of the consideration upon which it based its assessment of the surtax imposed by § 201.021(1), the amounts of the various mortgages assumed by the purchasers.

Section 201.021, Florida Statutes (1975), provides as follows:

“Surtax on documents relating to land; land acquisition trust fund.—
(1) A documentary surtax, in addition to the tax levied in § 201.02, is levied on those documents taxed by § 201.02 at the rate of fifty-five cents per five hundred dollars of the consideration paid; provided, that when real estate is sold, the consideration, for purposes of this tax, shall not include amounts of existing mortgages on the real estate sold. If the full amount of the consideration is not shown on the face of the document, then the tax shall be at the rate of fifty-five cents on each five hundred dollars or fractional part thereof of the consideration.” [Emphasis Added]

It is the position of the Department of Revenue that a mortgage assumed by the purchaser when the seller is expressly released from the obligation by the mortgagee is not an “existing mortgage” as that term is used in § 201.021(1). Instead, it contends, the transaction constitutes a “mortgage assumption and release agreement”, extinguishing the original obligation between the seller and lender, and creating a new obligation between the lender and purchaser.

In support of this position respondent relies upon Department of Revenue Rule 12A-4.13(25), Florida Administrative Code, whieh provides:

“When computing the surtax under Section 201.021, F.S., on a deed of conveyance, the total consideration on which such tax is based includes a mortgage debt which the grantee assumes and agrees to pay when the original mortgagor (grantor) is released from the obligation by the mortgagee.”

Additionally respondent finds support for its position in Florida Attorney General’s Opinion 073-67 (1973). In answer to a question propounded by the Department of Revenue, the Attorney General expressed his opinion that in computing the surtax due under § 201.021(1) on a deed of conveyance, the total consideration on which such tax is based does include a mortgage which the grantee assumes and agrees to pay when the original mortgagor (grantor) is released from the obligation by the mortgagee. The rationale of the Attorney General’s Opinion was that a novation occurs when parties to a contract mutually agree to discharge a valid existing obligation (the original mortgage) and replace it with a new obligation. The Attorney General concluded that the existing obligation would be extinguished, the original mortgagor would be released from liability, and a new mortgage would be created.

The opinions of the Attorney General are entitled to great weight in construing the law of this State, but are not binding on this Court. Beverly v. Division of Beverage of the Department of Business Regulation, 282 So.2d 657 (Fla. 1st DCA 1973). Likewise Revenue Rule 12A-4.-13(25) is merely an interpretative rule setting out respondent’s position on the point at issue. It is not a substantive rule and has no legislative effect. With all due respect for the Opinion of the Attorney General and interpretation of the Department of Revenue, we have reached a contrary conclusion.

This case turns on the meaning of the following language from § 201.021(1):

“. . . that when real estate is sold, the consideration, for purposes of this tax, shall not include amounts of existing mortgages on the real estate sold.”

In our opinion this language is clear, certain and unambiguous.

Recently the Florida Supreme Court, in State v. Egan, 287 So.2d 1, 4 (Fla.1973), quoting from its earlier opinion in Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918), said:

“The Legislature must be understood to mean what it has plainly expressed, and this excludes construction. The legislative intent being plainly expressed, so that the act read by itself or in connection with other statutes pertaining to the same subject is clear, certain, and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms. Cases cannot be included or excluded merely because there is intrinsically no reason against it. Even where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity. If a legislative enactment violates no constitutional provision or principle, it must be deemed its own sufficient and conclusive evidence of the justice, propriety, and policy of its passage. Courts have then no power to set it aside or evade its operation by forced and unreasonable construction. If it has been passed improvidently the responsibility is with the Legislature and not the courts. Whether the law be expressed in general or limited terms, the Legislature should be held to mean what they have plainly expressed, and consequently no room is left for construction . . .”.

The following language, approved and adopted by Florida Supreme Court in Florida State Racing Commission v. McLaughlin, 102 So.2d 574, 575 (Fla.1958) is also applicable to this case:

“[1] ‘It is elementary that the function of the Court is to ascertain and give effect to the Legislative intent in enacting a statute.
‘In applying this principle certain rules have been adopted to guide the process of judicial thinking. The first of these is that the Legislature is conclusively presumed to have a working knowledge of the English language and when a statute has been drafted in such manner as to clearly convey a specific meaning the only proper function of the Court is to effectuate this legislative intent.’ ”

From the undisputed facts of this case we hold that in each of the nineteen sales there was an “existing mortgage on the real estate sold.” Upon the initial execution of the mortgages, a lien attached to the real property. That mortgage lien was not disturbed by the subsequent sale of the property, the assumption of the mortgage by the purchaser, or the release of the original mortgagor from personal liability. We reject respondent’s argument that the “existing mortgage” in each transaction was discharged and replaced by a new one. If such were true the lender would be in danger of losing its priority to any intervening lien filed prior to creation of the “new mortgage.”

Certainly the Legislature, if it desired to do so, could make a legislative decision to amend Chapter 201 to conform with Department of Revenue Rule 12A — 4.-13(25), Florida Administrative Code. However in this case we must consider the statute as it was enacted. We are further bound by the fundamental rule of construction that tax laws are to be construed strongly in favor of the taxpayer and against the government, and that all ambiguities or doubts are to be resolved in favor of the taxpayer. Mass Brothers, Inc. v. Dickinson, 195 So.2d 193 (Fla.1967). If there is any doubt as to the liability of a particular instrument to taxation under the statute, the construction of it must be in favor of exemption. State ex rel. Packard v. Cook, 108 Fla. 157, 146 So. 223 (1933).

The Petitions for Writ of Certiorari are granted and the final agency actions of the Department of Revenue of the State of Florida in these consolidated cases are quashed. The consolidated cases are remanded for further proceedings consistent with this opinion.

MAGER, C. J., and CROSS, J., concur.


text:
    George DAMKOHLER, Appellant, v. Heidi DAMKOHLER (Pollmann), Appellee.
    No. 76-898.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1976.
    Timothy P. McCarthy of Levy, Plisco, Perry, Reiter & Shapiro, Palm Beach, for appellant.
    No appearance for appellee.
   ALDERMAN, Judge.

This is an appeal from an order in a dissolution of marriage case entered after final judgment. Appellant was adjudged to be in contempt of court for failure to pay child support and sentenced to mandatory confinement in the county jail for thirty days.

Appellant alleges that the evidence before the trial court was not sufficient to support a finding of wilful contempt. The record on appeal does not include a transcript of the proceedings below. Where an appellant challenges the sufficiency of the evidence he has the burden of bringing before this court a complete record of the proceedings below. In the absence of such a record we must presume that there was sufficient evidence and testimony presented to the trial court to support its findings of fact. Nelson v. State, 85 So.2d 832 (Fla.1956); Hall v. Bass, 309 So.2d 250 (Fla. 4th DCA 1975).

We are therefore limited to a consideration of any fundamental error which appears on the face of the order. The relevant portion of the contempt order which is the subject of this appeal is set out below.

“The records reflect that the defendant had never paid any monies whatsoever for the support of his child and that he is delinquent in the payment of support in the sum of $11,165.00 through April 30, 1976. It is the opinion of this Court that in its sixteen years in the practice of law, including ten years on the bench, this is the most flagrant case of child neglect and non-support that the Court has ever seen. It is thereupon
ORDERED that the defendant George Damkohler is adjudged in willful and flagrant contempt of Court and he is hereby remanded to the custody of the Sheriff of Palm Beach County and sentenced to mandatory confinement in the county jail of Palm Beach County, Florida, for a period of thirty (30) days from the time of his arrest. It is further
ORDERED that the defendant shall pay a minimum of $15.00 per week toward the aforementioned arrearage and that he shall hereafter pay the regular weekly support of $35.00 promptly as each payment is due.”

Appellant first contends the order is void because it does not make an affirmative finding that appellant had a financial ability to pay the arrears. In support of his contention appellant relies upon Ratner v. Ratner, 297 So.2d 344 (Fla. 3d DCA 1974). However this court in Garo v. Garo, 327 So.2d 845 (Fla. 4th DCA 1976) rejected Rat-ner. Subsequently the Third District, in the recent case of Flynn v. Flynn, 330 So.2d 728 (Fla. 3d DCA 1976) receded from its holding in Ratner and adopted the rationale of Garo. In the present case the trial court found defendant to be in wilful and flagrant contempt of court. We hold that the failure to make an affirmative finding that appellant had a financial ability to pay the arrears does not make the order void on its face.

Appellant’s next point has merit. The mandatory thirty day sentence imposed by the court does not allow appellant the opportunity of obtaining his release by complying with the court’s order. In civil contempt proceedings the penalty is coercive rather than punitive. The mandatory sentence imposed in this case fails to recognize and carry into effect the rule established in Florida that in a case of civil contempt the contemnor “carries the key of his prison in his own pocket.” State v. Anderson, 168 So.2d 554 (Fla. 1st DCA 1964); Wallens v. Buchanan, 168 So.2d 687 (Fla. 3d DCA 1964); In Re: S. L. T., 180 So.2d 374 (Fla. 2d DCA 1965). This portion of the contempt order is invalid on its face and must be reversed. The remainder of the order is affirmed and the case is remanded to the trial court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

MAGER, C. J., and CROSS, J., concur.


author: SMITH, LARRY G., Associate Judge,

text:
    Raymond HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 76-267.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1976.

      Richard A. Belz, Fla. Legal Services, Inc., Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, by Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   SMITH, LARRY G., Associate Judge,

Appellant appeals from an order denying his motion for post conviction relief, filed pursuant to Rule 3.850, F.R.Cr.P.

In his motion defendant claims that his 1973 sentence to a term of 25 years for robbery is open to collateral attack because the length of the sentence was based, in part, upon the sentencing judge’s assumption that he had twice previously been convicted of robbery; whereas, in fact, he had only one such prior robbery conviction, and that conviction was invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

At his sentencing, defendant inquired of the trial judge why he had received a 25 year sentence, while his co-defendant had received only 5 years for the same offense. To this the judge responded, “Because he hadn’t committed two other robberies before this.” Defendant attempted by an earlier pro se motion to bring to the court’s attention the fact that he had only one such conviction, and that it was invalid as a pre-Gideon uncounseled conviction which, therefore, could not be considered by the court as a basis for a heavier sentence. The order denying that motion states in part:

“. . . defendant was convicted of robbery and does not contest the prior conviction of that offense. This, standing alone, warrants a more severe sentence. . . . ”

The present motion, filed by counsel for defendant, is supported by defendant’s affidavit in which he categorically states that at the time of his 1959 conviction for robbery in Atlanta, Georgia, he (1) was not represented by counsel; (2) did not knowingly waive his right to counsel; and (3) was indigent and unable to employ counsel. Such an uncounseled conviction is constitutionally invalid under Gideon v. Wainwright, supra.

In United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Supreme Court addressed a problem where the trial judge, in sentencing Tucker for his 1953 robbery conviction, gave explicit attention to his three previous felony convictions, two of which were later found to be constitutionally invalid under Gideon. Mr. Justice Stewart, writing for the Court, acknowledged the position of the government which relies upon the wide discretion of the sentencing judge, the broad scope of the inquiry and largely unlimited kind of information he may consider, and the facts that “a sentence imposed by a Federal Judge, if within statutory limits, is not subject to review.” “But,” Mr. Justice Stewart said, (92 S.Ct. 589, at 591):

“. . . these general propositions do not decide the case before us. For we deal here, not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude. . . .”

The opinion further cites Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, in which the court said, “this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue,” and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, in which the court said that “to permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case.” (Emphasis supplied.)

The remedy mandated by the Tucker decision, which we find applicable in the instant case, is a re-evaluation of the defendant’s sentence by the sentencing judge, without consideration of any prior convictions which are invalid under the Gideon case. This same procedure was followed in Howard v. State, 280 So.2d 705 (4DCA Fla. 1973) and Wolfe v. State, 323 So.2d 680 (2DCA Fla.1975).

The order appealed from recites that the sentences imposed were “within the limits set by statute,” that the court has “reviewed the file in this case,” and that “an evidentiary hearing is not necessary.” This court held in the Howard case, and now holds, that an evidentiary hearing is necessary, and that at such hearing it would be incumbent upon the defendant to prove by a preponderance of the evidence that (1) at the time of his prior conviction he was indigent and unable to employ an attorney and (2) he did not knowingly waive his right to counsel.

Upon remand, the trial judge should determine whether the prior conviction was invalid, and, if so, the extent to which the sentence was based upon the invalid conviction.

Appellant’s counsel suggests in his brief and in oral argument that this court should direct the trial judge to re-sentence the defendant to a “more appropriate term,” which he argues would be 5 years, since that is the sentence imposed on his co-defendant. The rule under which defendant proceeds (Rule 3.850, F.R.Cr.P.) provides that, if the court finds that the sentence was “not authorized by law or is otherwise open to collateral attack,” the judge shall “correct the sentence as may appear appropriate.” We find the language of the rule to be adequate. It is not the prerogative of this court to decide what sentence would be appropriate. Our decision is limited to the requirement that effect be given to the constitutional invalidity of defendant’s pre-Gideon conviction, if successfully established by defendant, in keeping with the intent and purpose of the controlling principles of law herein referred to.

The order appealed from is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED AND REMANDED, with directions.

MAGER, C. J., and CROSS, J., concur.


author: DOWNEY, Judge.

text:
    REFIELD CONSTRUCTION, INC., Appellant, v. John R. OGDEN and Margie L. Ogden, Appellees.
    No. 76-291.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1976.
    A. N. Spence and John P. McNutt, Miami, for appellant.
    Paul J. Culp, Boynton Beach, for appel-lees.
   DOWNEY, Judge.

This is an appeal from a final judgment entered upon a jury verdict for appellees.

Appellant sued appellees for, among other things, the reasonable rental value of premises owned by appellant and occupied by appellees. No useful purpose would be served by an extended recitation of the facts and evidence in the record. Suffice to say that our review of the record convinces us that appellant’s motion for summary judgment on the question of liability demonstrated that there was no genuine issue of material fact. Therefore, the trial court erred in not granting appellant a summary judgment on liability.

Appellees’ counter-affidavits do not contradict appellant’s affidavit that appellees had agreed to pay the reasonable rental value of the property. But more importantly appellees’ depositions demonstrate that appellees understood they were to pay some rent to appellant, but the parties never agreed on the amount. There being no genuine issue as to appellant’s claim for the reasonable rental value of the property, summary judgment on liability should have been entered and the case tried on damages only.

Accordingly, the judgment appealed from is reversed and the cause is remanded to the trial court with directions to grant appellant a summary judgment on liability and a new trial on the question of the reasonable rental value of the premises for the term during which appellees occupied them as lessees.

REVERSED AND REMANDED, with directions.

CROSS and ALDERMAN, JJ., concur.


text:
    George WENNER and Rabena Wenner, his wife, Appellants, v. Richard A. FOSTER et al., Appellees.
    No. 76-663.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1976.
    Charles A. Finkel of Long & Finkel, Hal-landale, for appellants.
    No appearance for appellees.
   PER CURIAM.

Upon consideration of the record and brief of the appellant, appellee having failed to furnish the court with a brief, we determine that the trial court erred by going outside the four corners of the complaint in determining and granting dismissal of the third party second amended complaint with prejudice in favor of Foster. Tiseo v. Arnold, 237 So.2d 21 (Fla.App.1970).

Accordingly, the order appealed is reversed and the cause remanded for further proceedings.

Reversed and remanded.

MAGER, C. J., and CROSS and ALDERMAN, JJ., concur.


author: McCORD, Judge.

text:
    E. C. BRADBERRY, Appellant, v. ATLANTIC BANK OF ST. AUGUSTINE, Appellee.
    No. AA-217.
    District Court of Appeal of Florida, First District.
    Sept. 16, 1976.

      R. G. Weinberg, Weinstein, Weinberg & Weinstein, St. Augustine, for appellant.
    Hamilton D. Upchurch, Upchurch & Up-church, St. Augustine, for appellee.
   McCORD, Judge.

This is an appeal from a final judgment for deficiency in a mortgage foreclosure suit brought by appellee, Atlantic Bank of St. Augustine, against appellant, E. C. Bradberry, and others. After sale of the property for less than the amount found to be due by the final judgment of foreclosure, the bank filed a motion for a deficiency judgment and Bradberry filed an answer denying that the bank was entitled to a deficiency judgment and demanding a jury trial. The demand for jury trial was denied and after a hearing on the motion for deficiency, the judgment for deficiency was entered.

Bradberry contends the court erred in denying his demand for a jury trial on the issues of the deficiency proceeding; that such denial violates his constitutional right of trial by jury under Article I, Section 22 of the Florida Constitution, which states that the right of trial by jury shall be secure to all and remain inviolate. Brad-berry concedes that the mortgage foreclosure itself is not subject to trial by jury, it being an action formally cognizable in equity prior to the adoption of the new Rules of Civil Procedure in 1967 which provide that there shall be one form of action to be known as a “civil action.” (Fla.R.Civ.P. 1.040)

Our sister court of the Third District correctly analyzed the import of the revised rules in relation to their effect upon chancery actions in R.C. #17 Corp. v. Korenblit, 207 So.2d 296 (Fla.3d DCA 1968), as follows:

“We are of the opinion that the consolidation of law and chancery procedure, under the revised rules, did not abolish chancery or law, and that the substantive law should be applied to the actual allegations and relief sought in a complaint or petition as was done prior to the adoption of the revised rules. Rule 1.040, Florida Rules of Civil Procedure, 1967, 30 F.S.A., simply provides that there shall be one form of action to be known as ‘civil action.’
We also find that the question of whether a jury should try the facts in an action is still to be decided by the tests of this right which have existed since the effective date of the Constitution of the State of Florida or by legislative enactment.”

Article I, § 22 of the Florida Constitution (revised in 1968) brings forward the same language as to the right of trial by jury as was contained in § 3 of the Declaration of Rights of the Florida Constitution of 1885. A deficiency decree in a foreclosure action in chancery has consistently- been tried as a continuation of the foreclosure suit under both the Constitution of 1885 and the present Constitution. The Supreme Court in Grace v. Hendricks, 103 Fla. 1158,140 So. 790 (1932), stated as follows:

“Deficiency decrees in this state are, as has been pointed out before, creatures of statutes or rules of court conferring authority on chancery courts to enter them.
******
“ . . . it is a general rule that, a court of equity, having obtained jurisdiction to foreclose a mortgage, may proceed to give a personal judgment on the indebtedness, after the foreclosure has become impossible, the property having become exhausted by a prior mortgage. It may in such case even establish legal rights and grant legal remedies. Edwards v. Meyer, 100 Fla. 235, 130 So. 57; Hayden v. Snow (C.C.[Ill.]) 14 F. 70; Drury v. Hayden, 111 U.S. 223, 4 S.Ct. 405, 28 L.Ed. 408; Beecher v. Lewis, 84 Va. 630, 6 S.E. 367; Walters v. Farmer’s Bank, 76 Va. 12; Parker v. Dee, 2 Ch.Cas. 200, 22 Eng.Rep. (Full Reprint) 910; 3 Jones on Mortgages (8th Ed.) § 2210, page 726.”

In Grace the Supreme Court also said:

“In Etter v. State Bank, [76 Fla. 203, 79 So. 724,] supra, it was pointed out by Mr. Justice Ellis, of this court, that deficiency decrees and the jurisdiction to enter them were not inherent in equity courts, merely because equity courts had jurisdiction of the foreclosure, but were authorized by statute or rule of court, in order that the complainant in the foreclosure, who might be entitled to a money judgment for the balance due him after this foreclosure, might not be compelled to have two suits for his single demand, one legal and the other equitable, in order to obtain full relief on his mortgage debt.”

While the original reason for the authorization may have been diminished to some extent by pur present Rules of Civil Procedure through the consolidation of legal and equitable actions into one form of action, we are unable to find that the change eliminated the court’s chancery jurisdiction over deficiency decrees. Our research has revealed no instance in which a defendant has been held to have a right to a jury trial on the question of a deficiency decree in a mortgage foreclosure action where the security has been sold pursuant to the chancery foreclosure judgment and a deficiency thereafter exists between the amount of the judgment and the amount realized from the sale. § 702.01, Florida Statutes (1975), provides that “[a]ll mortgages shall be foreclosed in chancery, unless otherwise provided by statute.” § 702.06, Florida Statutes (1975), provides that:

“In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency,

The above statute does not provide that the determination of the deficiency shall be within the sound discretion of a jury. It provides that it shall be within the sound judicial discretion of the court. It does give the complainant a right to sue at common law for the deficiency but does not give a corresponding right to the defendant to be sued at common law for the deficiency. We have not found that the defendant in a foreclosure action has ever been held to have a constitutional right to a jury trial in a chancery foreclosure action when a deficiency has resulted from the foreclosure sale of the property.

We have considered the other points raised by appellant and find them to be without merit.

AFFIRMED.

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


author: SCHLEGEL, LEW E., Associate Judge.

text:
    Annie Z. JONES, Appellant, v. Roger Melvin STAMPER et al., Appellees.
    No. Y-326.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1976.
    Arthur J. Gutman, Jacksonville, for appellant.
    Charles T. Boyd, Jr. of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellees.
   SCHLEGEL, LEW E., Associate Judge.

The question in this case is whether or not the trial judge erred in allowing appel-lees, the defendants below, to present testimony of their expert witness relative to a headlight and four other light bulbs and whether the introduction of those items in evidence was error.

In her complaint, appellant Jones, the plaintiff below, alleged that on the 28th day of April, 1974, while she was driving her vehicle on 80th Street at its intersection with Almeda Street in Duval County, a vehicle owned by appellee, Mainline Fleets, Inc., and operated in a careless and negligent manner by appellee Stamper, ran into her. Appellees answered, denying negligence and alleging contributory negligence. After a two day trial, the jury returned a verdict for the defendants.

During the trial the jury heard the testimony of three witnesses besides Jones and Stamper. The evidence is uncontradicted that the accident occurred at about 3:15 a. m.; that Stamper, a postal employee going to work, had the right-of-way, and that Jones entered the intersection from a stop street.

There is a conflict about whether or not Jones had her lights on at the time of the accident. Stamper testified he didn’t see any lights and Jones testified she had her lights on. There were no other witnesses to the accident, but an expert witness, Stanley Bates, Ph.D., when asked if he had an opinion whether or not the four light bulbs were burning, stated: “That they were not burning at the time of the accident.” Regarding the headlight, it was his opinion that it “ . . was not burning when the break occurred.” It is uncontradicted that Dr. Bates did not examine the Jones auto or the lights until ten months and five days after the accident.

Appellant’s argument is that because of the length of time between the accident and the time the expert examined the lights, there is no way of showing that they were in the same condition when they were examined as they were at the time of the accident and, therefore, a proper foundation had not been laid and it was improper to admit them in evidence and allow the expert to give his opinion as to whether or not they were burning when the accident occurred.

In support, appellant cites dicta from Alston v. Shiver, 105 So.2d 785 (Fla.1958):

“ . . . it is essential, in every case where demonstrative evidence is offered, that the object or thing offered for the jury to see be first shown to be the object in issue and that it is in substantially the same condition as at the pertinent time . . .’’(P.791)

In Guelli v. Kraus, 145 So.2d 900 (Fla.App.2d 1962), the court, in affirming the trial court which had allowed experts to testify over objections that the examinations, which were made five weeks after the accident, were too removed and remote to have any pertinent bearing on the condition of the brakes at the time of the accident, said:

“ . . .a consideration of the aforementioned testimony of the investigating officer and its tendency to corroborate the testimony of the driver of defendants’ vehicle concerning failure of the brakes, together with the not illogical chain of circumstances attending the examinations made by such brake experts, forces us to disagree with all such contentions. The intervening lapse of time between the accident and their respective examinations might have some bearing on the weight the jury might give to their respective testimony, but in the circumstances prevailing here does not make the same inadmissible.” (p. 902)

In Leeper v. Thornton, 344 P.2d 1101 (Okl.1959), the Oklahoma Supreme Court rejected the appellant’s argument that the testimony of an expert witness was inadmissible where the record revealed that the witness did not examine the site of the accident nor the auto in question, which was located in a junk yard and of which parts had been altered, until approximately and one-half years after the accident.

In that case, the record showed that the witness examined photos taken immediately after the accident and compared them with pertinent portions of the automobile. There was no evidence that the portions examined had been altered. Likewise, there was no evidence that the condition of the road at the site of the accident had changed materially during the one and one-half year period. The court concluded that the soundness of the expert’s deductions and his conclusions and opinions concerning conditions upon which they were based go to weight rather than admissibility and were properly submitted for determination by the jury.

From an examination of the record, in the case at bar, it is clear that prior to giving testimony on the matters in question, Dr. Bates was properly qualified as an expert. He testified that he had earned a Ph.D. in engineering with a major in metallurgy and minors in physics and mathematics. Further, he testified that over a period of five or six years he had investigated a number of automobile accidents and had been accepted in Florida Courts as an expert witness in accident reconstruction.

Regarding the four light bulbs, Dr. Bates identified the Jones’ vehicle by comparing photographs taken at the scene of the accident with photographs taken at the junk yard and testified about his own inspection of the vehicle on March 3,1975. He stated that he personally removed the bulbs from the vehicle, that they were still in the position they would normally occupy and that there was no evidence that they had previously been removed or tampered with.

Regarding the headlight, Dr. Bates testified that he found the light in question on the front seat of the Jones’ car on March 3, 1975. He further testified that pieces of gray plastic, which he identified as coming from a portion of the grill work of the Jones’ car which he identified from photographs, were still wedged between the headlight ring and the light itself.

Although there was extensive cross examination by appellant, during which the objections raised in this appeal were clearly presented for consideration by the jury, absolutely no evidence was offered which might suggest that the lights in question were not taken from the Jones’ vehicle or that they had been tampered with or altered between the time of the accident and March 3, 1975.

After the lights were admitted, Dr. Bates gave extensive testimony explaining the method used to determine whether or not lights were burning at the time of breakage or severe impact and the reasons for his conclusion that they were not.

From our examination of the record we have determined that the testimony of Dr. Bates was properly submitted to the jury for its consideration.

Appellant also asserts that the trial court erred in denying her motion for a new trial. An examination of the record shows that, except for the question concerning the position of the light switch on March 14, 1975 (which was rebutted by appellant’s affidavit of March 27, 1975), an abundance of evidence was introduced at trial on the points raised. We find no error in the court’s ruling.

AFFIRMED.

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

      . Appellant has not argued, either in her brief or oral argument, that the majority of the expert’s testimony which related to point of impact, skid marks, path of travel, speed, Newton’s laws of physics, etc., was improper.

      . It should be noted that the Alston case involved the introduction of a replica of an ax handle three feet in length when the actual handle was only two feet.

      . See Cromarty v. Ford Motor Company, 308 So.2d 159 (Fla.App.1st 1975, quashed by Supreme Court of Florida, Opinion filed July 21, 1976).


author: MILLS, Judge.

text:
    Verle Vernelle PATRICK, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. CC-396.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1976.

      Richard W. Ervin, III, Public Defender and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Patrick appeals from a judgment and sentence based on an order finding him in violation of his probation and modifying the period of probation.

Patrick contends that the trial court did not have authority, without notice and hearing to him, to find him in violation of his probation and did not have authority to modify the period. The State contends that the court had authority to extend the period and that the extension was actually a modification of the terms and conditions. We agree with Patrick and reverse.

Following a plea of guilty to the crime of carrying a concealed firearm, the court withheld adjudication of guilt, and on 8 June 1973 placed Patrick on probation for two years. On 3 June 1975, without notice or hearing, the court determined that Patrick had violated the conditions of his probation and extended the period of his probation for one year on authority of Section 948.03, Florida Statutes (1975).

On 24 May 1976, an affidavit was filed charging Patrick with violation of his probation. Patrick’s lawyer moved to dismiss the affidavit on the ground that the court lacked jurisdiction to revoke his probation because it did not have authority to enter the order of 3 June 1975 finding Patrick in violation of his probation and extending the period by one year. The court denied the motion, revoked the probation, adjudged Patrick guilty and sentenced him to prison.

Section 948.03, Florida Statutes (1975), does not authorize the extension of the period of probation. It merely sets forth eight specific terms and conditions of probation which the court may include in its order of probation, and authorizes the court to modify the terms and conditions at any time within the probation period.

Although Section 948.04, Florida Statutes (1973), authorized the court to extend the period of probation, this provision was deleted by the 1974 legislature.

Section 948.06, Florida Statutes (1975), is the only authority for extension of the period of probation. This statute provides that a period of probation may be continued but only after notice and hearing to the defendant and a finding that the defendant violated his probation.

Because the court failed to give notice or a hearing to Patrick on the State’s charge of violation of probation, the court had no authority to find that he violated the terms and conditions of his probation nor did the court have authority to extend or continue the period of probation. Section 948.06, Florida Statutes (1975). The court had no authority to enter its order of 3 June 1975, therefore, Patrick’s probation expired on 8 June 1975.

Accordingly, the judgment and sentence of 28 June 1975 are reversed and this case is remanded with instructions to vacate the judgment and sentence and discharge the defendant.

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


text:
    George W. SMITH and Wilda Smith, his wife, Appellants, v. CITY OF PINELLAS PARK, Florida, Appellee.
    No. 75-1775.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1976.
    Lawrence E. Lyman, St. Petersburg, for appellants.
    Edward D. Foreman and Jeffrey L. Myers, Foreman & Myers, and Robert P. Renfrow, St. Petersburg, for appellee.
   PER CURIAM.

Appellants appeal the dismissal with prejudice of their action seeking a declaratory judgment. We affirm.

Appellee city is governed by what is known as a “City Council-Manager” form of government and the city charter so stipulates. Under the Municipal Home Rule Powers Act, Ch. 166, F.S.1973, this form of government cannot be changed without referendum.

Additionally, the charter vests the executive authority of the city in the city manager and the legislative authority in the city council. It also expressly gives the city manager the authority to appoint, hire and fire the chiefs of the police and fire departments. Notwithstanding these charter provisions, the city council enacted a civil service ordinance under which the “chiefs of the police and fire departments shall be appointed by the city council and shall be directly responsible to the city council with respect to duties and responsibilities.” No referendum was provided either to enact the ordinance or to ratify it after passage.

Appellants, as “residents, taxpayers, freeholders and electors” of the city, instituted this action seeking a declaratory judgment attacking the validity of the ordinance in that it has the net effect of altering “the form of government” of the city without the approval of the electors in a referendum as aforesaid.

We need not decide now whether the assailed ordinance materially alters the “form of government” of the city, although it clearly does so pro tanto to the extent that it changes the distribution of powers as between the city manager and the city council in the appointment of chiefs of the police and fire departments. Because of this pro tanto change we have serious doubts as to the validity of the ordinance and its enforceability.

But we must nevertheless agree with the trial judge that in the present posture of the matter there is no justiciable controversy between appellants and the city. The law is clear that the mere possibility of injury at some indeterminate time in the future does not support standing to seek a declaratory judgment. The city manager may have a right to complain of the ordinance, his appointing powers having been impaired; or the respective chiefs of the police or fire departments may have a right to have their duties and responsibilities thereunder judicially declared. But appellants have no real, immediate legal interest in such a declaration nor a present, bona fide practical need therefor. Along with those similarly situated, they would appear to be relegated to their remedies at the polls at the next ensuing election of the incumbent city council.

In view whereof, the order appealed from dismissing appellants’ petition for declaratory judgment should be, and it is hereby, affirmed.

McNULTY, C. J., and BOARDMAN and SCHEB, JJ., concur.

      . Section 166.021(4), F.S.1973.

      . Out of fourteen administrative departments of the city, only the police and fire departments are affected by the ordinance in question.

      . Cf. Williams v. Howard (Fla.1976), 329 So.2d 277; Jack Eckerd Corp. v. Michels Island Village Pharmacy, Inc. (Fla.App.2d, 1975), 322 So.2d 57.

      . Id.


text:
    John Grey PERIOLAT, Appellant, v. Velma Joan PERIOLAT, Appellee.
    No. 75-678.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1976.

      Robert W. Morrison, Tampa, for appellant.
    Fred J. Woods, Jr. of McClain, Turbiville & Woods and Judith Petersen, Tampa, for appellee.
   PER CURIAM.

Appellant/husband contends that the trial court lacked jurisdiction to hold him in contempt and award temporary custody of the child to appellee/wife. We reverse the order of contempt and affirm the temporary order of custody.

Appellee, a resident of Hillsborough County, filed her petition for dissolution of marriage on February 4, 1975. She prayed for custody of their five year old son who was then living with her. On the same day, the court issued an order restraining the appellant from coming on the premises where the petitioner and their son resided in Tampa.

Appellant, a resident of Indiana, came to Florida on February 11, 1975, picked up the child, and took him back to Indiana. The record does not reflect that service of process was obtained on appellant.

On March 27, 1975, counsel for appellant filed a motion to dismiss for lack of personal jurisdiction over appellant, and also a motion to dissolve the temporary restraining order. Appellee then filed motions of her own which were heard on April 10, 1975. At this hearing, the court entered an order holding appellant in contempt for failure to appear with the minor child, and also awarding temporary custody of the child to appellee. This interlocutory appeal followed.

Counsel for both parties stipulated in open court that the record on appeal does not show that personal jurisdiction of the appellant was obtained. We agree and, as a consequence, the contempt order is hereby set aside. This holding is without prejudice to the appellee and she should be given the opportunity to prove, if she can, that the court had personal jurisdiction over the appellant.

However, the court did have jurisdiction to enter the order regarding custody, because the child was within the court’s jurisdiction when the complaint was filed and the complaint so alleged. Mirras v. Mirras, Fla.App.2d 1967, 202 So.2d 887; Rich v. Rich, Fla.App.4th 1968, 214 So.2d 777; Nieburger v. Nieburger, Fla.App.1st 1968, 214 So.2d 382. Therefore, the trial judge’s order in respect to temporary custody is affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

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

      . Appellee contended in her brief that appellant waived his attack on personal jurisdiction by also filing a “pleading directed to the merits.” This contention is without merit. RCP 1.140(b); Robinson v. Loyola Foundation Inc., Fla.App. 1st 1970, 236 So.2d 154; State v. Shields, Fla.1955, 83 So.2d 271.


text:
    Enes CAMPANELLA, Appellant, v. David L. SHUFORD, etc., et al., Appellees.
    No. BB-337.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1976.

      Anderson E. Hatfield, Gainesville, for appellant.
    Eugene F. Shaw of Shaw, Kopelousos & Head, Starke, for appellees.
   SMITH, Judge.

Appellant’s complaint sought a declaration of her rights in a disputed graded roadway along 410 feet on the southern boundary of her land. The trial court entered summary judgment for the defendant County Commission of Bradford County and adjoining landowners, holding that the county had maintained the road for more than the four-year prescriptive period, § 95.361, F.S.1975, to a width “set forth in the deposition of Leon Ellington,” the county road superintendent. Appellant contends that the record shows that there are disputed issues of material fact precluding summary judgment, and we agree. While the record reveals without dispute that the road in question was maintained for the prescriptive period, hence partial summary judgment on that issue would have been appropriate, Ellington’s deposition and the record as a whole are inconclusive on the question of the maximum width to which the roadway was continuously maintained. Accordingly, summary judgment was not appropriate. Rule 1.510, R.C.P. The unresolved question must be settled by trial.

REVERSED.

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


text:
    Earl L. CHILDERS et al., Appellants, v. DESIGN 2000, INC., a Florida Corporation, Appellee.
    No. 75-1630.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1976.
    Earl L. Maxwell, Jr., and Malcolm Anderson,-of Farish & Farish, West Palm Beach, for appellants.
    John D. Wessel, Boca Raton, for appellee.
   PER CURIAM.

Having considered the record, briefs, and oral arguments of counsel, and finding that no reversible error has been shown on the appeal or the cross appeal, it is ordered that the final judgment in this cause be and the same is hereby affirmed.

MAGER, C. J., CROSS, J., and SMITH, LARRY G., Associate Judge, concur.


author: HOBSON, Judge.

text:
    Robert S. WALKER, Appellant, v. Robert A. WALKER and Diane Walker, his wife, Appellees.
    No. 75-804.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1976.
    Thomas J. Hanlon, Tampa, for appellant.
    Peyton T. Jordan, Jr., Tampa, for appel-lees.
   HOBSON, Judge.

Appellant, Robert S. Walker, appeals a final summary judgment in favor of appellant’s son Robert A. Walker and his wife, plaintiffs in the court below.

Appellees filed an action against appellant and his former wife to quiet title on property formerly held by the defendants as an estate by the entireties. A default judgment was entered against appellant’s wife, Carolyn A. Walker, and she is not a party to this appeal. Both parties filed motions for summary judgment with supporting affidavits.

On September 19, 1972, appellant executed a deed to his son conveying the property held by appellant and his wife as an estate by the entireties, without the joinder of his wife. On March 13, 1973, a final judgment was entered dissolving the marriage of appellant and his then-wife, giving possession of the property to the wife with the option of selling it and dividing the proceeds with appellant or obtaining full title upon payment of certain sums to appellant.

Appellees alleged that appellant was indebted to his son in the amount of $15,000, and that appellant executed and delivered the deed in question in partial payment of the sums due. Appellant denied this allegation, and to the contrary, contended that by prior agreement his son was to hold the property as a constructive trustee. Appellant further claimed that the transfer was made in contemplation of an imminent final judgment of dissolution of marriage between him and his wife and that judgment lien enforcement actions by holders of outstanding judgments against appellant would have jeopardized the title and occupancy of the house by his wife upon the entry of the final judgment of dissolution of marriage.

No questions of the property being a “homestead” were raised either by the pleadings or appellant’s affidavit in support of his motion for summary judgment, but the question was raised for the first time in appellant’s motion for rehearing.

The lower court granted appellees’ motion for summary judgment and adjudged appellee Robert A. Walker to be the owner in fee simple of an undivided one-half interest in the subject property with the defendant Carolyn A. Walker the owner of the other one-half interest therein.

When property is held as an estate by the entireties, neither spouse can alien or forfeit any part of the estate without the assent of the other, so as to defeat the rights of the other. English v. English, 1913, 66 Fla. 427, 63 So. 822; Bailey v. Smith, 1925, 89 Fla. 303, 103 So. 833. Even though the property is occupied during the lifetime of both parties as a homestead, it may be disposed of by tenants by the entir-eties as may any other property not exclusively owned by the head of a family and occupied by him as a homestead; Denham v. Sexton, Fla.1950, 48 So.2d 416, but neither spouse can convey the estate to a third party without the joinder of the other spouse. Hunt v. Covington, 1941, 145 Fla. 706, 200 So. 76; English, supra; Anderson v. Trueman, 1930, 100 Fla. 727, 130 So. 12; Leitner v. Willaford, Fla.App.3d 1975, 306 So.2d 555.

The record reflects that appellant executed the deed in question to a third party without the joinder of his then-wife. There is nothing in the record to indicate that the wife assented to the husband’s conveyance. Cf. MacGregor v. MacGregor, Fla.App.4th 1975, 323 So.2d 35. Such a conveyance would be ineffective to defeat the rights of the wife.

It has long been the rule in this state that a court of equity will not aid one who makes a conveyance of his property to another for the purpose of defrauding his creditors. Kahn v. Wilkins, 1895, 36 Fla. 428, 18 So. 584; Tenny v. Hilton Corporation, Inc., 1939, 140 Fla. 521, 192 So. 180; Hill v. Lummus, Fla.App.3d 1960, 123 So.2d 365; Studdle v. Studdle, Fla.App.3d 1972, 267 So.2d 688. Appellant is not in a position to urge the invalidity of the deed or to force a reconveyance of the property; Hill v. Lummus, supra.

The judgment appealed is

AFFIRMED.

McNULTY, C. J., and SCHEB, J., concur.


text:
    CITY OF GAINESVILLE, a Municipal Corporation, Appellant, v. Hugh C. EDWARDS et al., Appellees.
    No. BB-11.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1976.
    Rehearing Denied Oct. 7, 1976.

      • Osee R. Fagan of Fagan, Crouch, Anderson & Folds, Gainesville, for appellant.
    William N. Long, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Lang-don & Helping, Gainesville, for appellees.
   PER CURIAM.

This interlocutory appeal, having been found to be without substantial merit, is dismissed pursuant to Florida Appellate Rulé 4.2 c.

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


author: BY THE COURT.

text:
    LIBERTY NATIONAL BANK AND TRUST COMPANY OF LOUISVILLE, a National Banking Association, Appellant (Plaintiff), v. Jerome S. FLETCHER et al., Appellees (Defendants).
    No. CC-237.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1976.
    Rehearing Denied Oct. 7, 1976.
    James S. Taylor and Douglas D. Chunn of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellant.
    Lawrence G. Mathews, Jr. and Richard H. Adams, Jr. of Gray, Harris & Robinson, Orlando, Robert C. Nichols, Goldstein & Goldstein, George D. Rotehford, James E. Cobb, Jacksonville, for appellee.
   BY THE COURT.

Upon considering the briefs, the record and oral argument, the interlocutory appeal is dismissed.

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


author: BOYER, Chief Judge.

text:
    Jimmie Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. Z-107.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1976.
    Rehearing Denied Oct. 7, 1976.

      Paul L. Martz of Martz & Parker, St. Augustine, for appellant.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellant was convicted of manslaughter and sentenced to serve six months imprisonment and nine and one-half years probation. On appeal, he argues that his conviction should be reversed because of the trial court’s error in failing to direct a verdict of acquittal and the refusal of the trial court to give a requested jury instruction.

Appellant was prosecuted for the shooting death of Jackie Green who, along with appellant and an entire cast of characters, was present at Spud’s Bar in St. Johns County on December 15, 1975. The fracas began when an inebriated Willie Webb bumped against a table in the bar and was knocked down by Joe Evans. A spirited discussion ensued, during which a pistol went off, a knife was pulled, and a shotgun was stuck in appellant’s stomach. It appeared at this point that the matter would end peacefully, as the participants began “cooling down”. It was only at this juncture that a car bearing the victim pulled into Spud’s parking lot. The victim was not involved in any fashion with the altercation which had just occurred, and appellant had no ill feelings toward him whatsoever. However, when the driver of the car which brought the deceased to the scene removed a shotgun from the trunk of his automobile, appellant went to his own truck and retrieved his shotgun, which he held pointed towards the ground while he talked to a group outside the bar. Appellant knew that the gun was loaded but claimed that he did not know whether the safety was on or off. Soon thereafter, appellant’s shotgun discharged, thereby striking Jackie Green who was taken to Putnam Memorial Hospital where he was pronounced dead upon arrival.

The witnesses had varying accounts as to how appellant’s shotgun was fired. Alvin Jones testified that appellant was swinging his shotgun when it went off. Betty New-some testified that appellant was moving the gun from his left hand to his right when the shotgun went off. Sarah Jordan stated that appellant had the shotgun in one hand and a drink in the other when the shotgun was fired. She saw Jackie Green, after being shot, limp toward appellant and say,. “Nip, you done shot me, but I know you didn’t mean it”. According to appellant, he asked one of the persons present for a drink of whiskey and as he was throwing the shotgun over his arm, it discharged.

Under the above-stated facts, we find that the trial court was correct in granting appellant’s motion for judgment of acquittal as to second degree murder, but in denying his motion as to the lesser included offense of manslaughter. The evidence was sufficient to establish a jury question as to whether appellant was culpably negligent. The cases cited by appellant, specifically Getzie v. State, Fla.App. 4th 1966, 193 So.2d 679, and Sharpe v. State, Fla.App. 2d 1960, 120 So.2d 206, are factually distinguishable. More on point is McBride v. State, Fla.App. 1st 1966, 191 So.2d 70.

The trial court also declined to instruct the jury that “a person who by reason of threats or prior difficulties has reason to fear that he may be in danger of death or of great bodily harm at the hands of another has the right to arm himself and go about his usual business of affairs.” The requested instruction was immaterial under any version of the facts of this case. Appellant was not convicted of. arming himself nor of possessing a gun, but with acting in a culpably negligent manner after he obtained the gun. The issue of whether or not it was lawful for appellant to arm himself after ample evidence of provocation and reason to apprehend harm was totally irrelevant to the charge of manslaughter. The result would have been the same even had he possessed a permit to carry a weapon. It follows that the requested instruction was properly denied.

AFFIRMED.

McCORD, J., and SCHLEGEL, LEW E., Associate Judge, concur.


author: PER CURIAM. DOWNEY, Judge

text:
    Shirley FEARNS, Appellant, v. Robert FEARNS, Appellee.
    No. 76-142.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1976.
    James A. Week, of Week & Stone, Pompano Beach, for appellant.
    Gary R. Gromet, Fort Lauderdale, for appellee.
   PER CURIAM.

MAGER, C. J., and CROSS, J., concur.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge

(concurring specially).

I am compelled to concur specially in the decision to affirm this case because the bar needs to be put on notice that this court intends to comply with the Rules of Civil Procedure as they are written, which intention constitutes a departure to some extent from tradition.

The appellant as respondent below in a dissolution of marriage proceeding failed to answer, interrogatories propounded by ap-pellee. No motion to compel was filed nor any order entered commanding appellant to answer. At trial appellee moved to strike appellant’s pleadings and prohibit her from adducing any testimony in support of her claim for alimony, special equity in property, attorney’s fees, and suit money. The trial judge granted the motion, struck appellant’s pleadings, refused to allow her to proffer testimony relative to the financial aspects of the case referred to above, and entered final .judgment granting the dissolution and denying all other relief.

Appellant contends that appellee’s motion to strike at trial was appellant’s first notice that appellee continued to rely on his right to responses to the interrogatories. In addition, appellant argues that absolutely no showing was made of any wilfulness or contumaciousness on her part.

Florida Rule of Civil Procedure 1.380(d), authorizes the trial court to do exactly what it did, viz., strike appellant’s pleadings and refuse to let her support her claims with proof.' The problem is that the courts have not been enforcing the rule unless the circumstances were gross, such as showing a wilful refusal, or disobedience of an order of the court commanding answers. Traw-ick’s Florida Practice and Procedure, § 16-13, points out that in 1972 the rule in question was changed and that simply failing to answer interrogatories or appear for the taking of an oral deposition authorizes the severe action taken here. But Trawick suggests:

“The problem is to persuade a court to take the drastic action permitted under this subdivision without a previous order that has not been complied with. Even when the subdivision contained a requisite of wilful misconduct, courts declined to invoke the harsh penalties authorized. It is doubtful if the 1972 change will make courts any more likely to invoke the sanctions without a prior order for discovery.”

Most of the cases requiring a showing of wilfulness, or requiring the trial court to give the defaulting party an opportunity to comply predate the rule change in 1972. But some courts have continued to be lenient in the enforcement of the rule. See: Eastern Airlines, Inc. v. Dixon, 310 So.2d 336 (Fla.3d DCA 1975), and Goldstein v. Goldstein, 284 So.2d 225 (Fla.3d DCA 1973).

While it appears to me the action of the trial court was extremely severe under the circumstances of this case, the rule authorizes it and it behooves counsel to take note of the rule and its current application. With that admonition, I concur in the af-firmance of the order appealed from.

Affirmed.


text:
    Johnny M. GOODMAN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1048.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1976.

      Richard L. Jorandby, Public Defender, and Arthur W. Gundling, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and J. Robert Olian, Asst. Atty. Gen., Miami, for appellee.
   ALDERMAN, Judge.

The appellant appeals his conviction for robbery. The sole issue before us is whether the trial court committed reversible error in permitting the prosecution to cross-examine the accused as to the specific nature of crimes of which he had been previously convicted. We hold that the court did err.

On direct examination the defendant was asked by his own counsel if he had ever been arrested or convicted of a crime; he answered that he had not. On cross-examination, however, he admitted that he had been arrested “a few times” and that he had been convicted twice in New York. The defense objected when the prosecutor undertook to ask about the nature of the convictions, but the court overruled the objection.

THE COURT: Overruled. I think once he has denied the conviction, now he can ask him if, in fact, he was not convicted for a specific crime in New York State.
Q: What was the conviction in New York for or the convictions?
A: Well, I pleaded guilty for a robbery.
Q: And the other?
A: I believe they was both robberies. I’m not sure.

It is well-established that when a defendant in a criminal case takes the stand to testify, the prosecution may attempt to impeach his credibility as a witness by asking him if he has previously been convicted of any crime. Mead v. State, 86 So.2d 773, 774 (Fla.1956). The principle is established not only by case law but also by statute:

“No person shall be disqualified to testify as a witness ... by reason of conviction of any crime, but his testimony shall be received in evidence under the rules, as any other testimony. Evidence of such conviction, including the fact that the prior conviction was for the crime of perjury, may be given to affect the credibility of the said witness, and such conviction may be proved by questioning the proposed witness or, if he deny it, by producing a record of his conviction.” Section 90.08, Florida Statutes (1975)

In McArthur v. Cook, 99 So.2d 565 (Fla.1957) it was made clear that the rule of impeaching the credibility of a witness because of conviction of a crime is equally applicable in criminal and civil cases. McArthur also contains the most frequently quoted statement of the proper procedure for impeaching a witness by means of prior convictions:

“ . . . [T]he proper procedural approach is simply to ask the witness the straight-forward question as to whether he had ever been convicted of a crime. The inquiry must end::at this point unless the witness denies that he has been convicted. In the event of such denial the adverse party may then in the presentation of his side of the case produce and file in evidence the record of any such conviction. If the witness admits prior conviction of a crime, the inquiry by his adversary may not be pursued to the point of naming the crime for which he was convicted.” (At 567.)

In view of the confusion which persists over the propriety of admitting into evidence the nature of a criminal defendant’s prior convictions, we take this opportunity to point out the lengthy pedigree of the prohibition against such evidence. The court in McArthur, supra, relied on Mead v. State, 86 So.2d 773 (Fla.1956), which had stated:

“It is the rule that a witness may be asked if he has been convicted of crime but the inquiry must stop there unless he denies the conviction, in which case the opposing party may produce the record of conviction. In any event the matter may not be pursued to the point of naming the crime when the defendant admits it ...” (At 774.)

The Mead court, in turn, cited Washington v. State, 86 Fla. 519, 98 So. 603 (1923), wherein the Florida Supreme Court had said:

“It was erroneous and unnecessary to press the inquiry [during cross-examination of the defendant] as to the conviction of crime to the point where the particular offense was named; because such course seemed to be for a purpose different from that on which the question is allowableas to a witness’ former conviction of crime. It is to discredit him as a witness, but to press the inquiry as to the character of the particular crime that it may be shown to be of a similar character to that for which he is being tried is to use the rule for an improper purpose . . . ” (At 604).

The reason for not permitting questioning as to the nature of previous convictions of a criminal defendant for the purpose of impeaching him as a witness is simply that any additional light on his credibility which might be produced by the information would not compensate for the possible prejudicial effect on the minds of the jurors. The jury would almost certainly make inferences which went beyond the question whether or not the witness was worthy of belief. The jurors might conclude in the case at bar, for example, that because the accused had previously been guilty of robbery, he was probably guilty of the robbery with which he was presently charged. Such inferences do not share the dignity of proofs nor of circumstantial evidence and are to be avoided.

The mere fact that a defendant has been convicted of crime is sufficient to cast doubt on his believability. We have held that he may also be asked how many times he has been convicted. Jones v. State, 305 So.2d 827 (Fla.App. 4th 1975). If he admits the number of his convictions there can be no further questioning about his convictions for impeachment purposes. If he denies a conviction, then the prosecution may impeach him by introducing a certified record of the conviction (not a police “rap' sheet”) into evidence, and such a record will of necessity reveal the nature of the crime for which the defendant was convicted. Irvin v. State, 324 So.2d 684 (Fla.App. 4th 1976). Such a record may not be introduced into evidence if the defendant‘admits the conviction, even though he may have denied it earlier.

The defendant who admits a conviction is not to be prevented from voluntarily revealing the nature of the crime for which he was convicted, but the prosecution must not invite him to volunteer. The only other gate through which additional information about a defendant’s past offenses may be allowed to enter is that of relevancy to prove or disprove a material fact in issue at the trial. At that point we are no longer dealing with the impeachment of a witness but rather with the proof of defendant’s guilt, and then a different set of rules applies. As was expressed with great clarity in Williams v. State, 110 So.2d 654 (Fla.1959), relevancy is the test of admissibility, and evidence of prior offenses by the defendant which is relevant for any purpose save that of showing bad character or propensity to commit crime is admissible.

In the present case there was no effort by the prosecution to establish that the defendant’s prior convictions were relevant to prove a- material fact at issue in the trial. The only apparent legitimate purpose of eliciting testimony as to past convictions was to impeach the credibility of the defendant as a witness. Once the defendant had admitted his convictions it was prejudicial error to permit further questions on the subject. We must therefore reverse and remand for a new trial.

Reversed and remanded.

CROSS and DOWNEY, JJ., concur.