text:
    CAPITAL NATIONAL BANK (PEOPLES DOWNTOWN NATIONAL BANK), a National Banking Association, Appellant, v. SOUTHERN PINE ISLE CORPORATION, Appellee.
    No. 76-1344.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 16, 1978.

      Prunty, Ross, DeLoach & Olsen and John W. Prunty, Ward, Ward & Straessley, Miami, for appellant.
    Arky, Freed, Stearns, Watson & Greer and Eugene E. Stearns and Thomas A. Gribbin, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   HENDRY, Chief Judge.

This is an appeal by appellant/defendant from an adverse judgment rendered pursuant to a jury verdict on a claim for breach of contract.

Appellee/plaintiff brought suit for damages allegedly resulting from the failure of appellant to close on a loan that it had, by written contract, agreed to make to appel-lee. The amended complaint generally alleged that appellee had performed all conditions precedent to the contract, attaching that document to the complaint.

After an unsuccessful motion to dismiss, appellant answered by generally denying all material allegations and by raising certain affirmative defenses which were based on the defense of statute of limitations. Appellant neither affirmatively nor specifically alleged that appellee had failed to comply with any conditions precedent to the enforcement of the written contract. Appellant subsequently moved for summary judgment, which was granted. Finding genuine issues of material fact, we reversed that judgment. See Southern Pine Isle Corp. v. Capital National Bank, 324 So.2d 112 (Fla.3d DCA 1975).

The cause proceeded to trial on two counts, to-wit: fraud and breach of contract. Prior to the commencement of the trial, counsel for appellant indicated that he would attempt to prove at trial that appel-lee had failed to perform certain conditions precedent. Pursuant to a pre-trial conference, the trial judge instructed counsel that the performance or failure of conditions precedent was not raised by the pleadings and was, therefore, not a triable issue.

The claim was tried before a jury on the breach of contract count, the fraud claim having been waived by counsel prior to trial. At the close of all the evidence, appellant unsuccessfully moved for a directed verdict on the ground that appellee had failed to establish its own performance of the contract sued upon. The cause was thereupon given to the jury, which returned a verdict for damages in favor of appellee. This appeal follows.

Appellant has raised three issues on appeal. The first two issues claim error on the part of the trial judge in both failing to grant appellant’s motion to dismiss the complaint for failure to state a cause of action and failing to grant appellant’s motion for directed verdict. It is our opinion, however, that no such errors were committed. Firstly, the complaint clearly stated a cause of action for breach of contract, precluding dismissal. See generally 25 FlaJur. Pleadings, § 55 (1959) and cases cited therein. Secondly, in accepting as true all evidence and reasonable inferences therefrom in favor of appellee, there was substantial competent evidence to support a verdict for appellee. Memorial Park, Inc. v. Spinelli, 342 So.2d 829 (Fla.2d DCA 1977).

Appellant lastly contends that the trial judge erred in misapplying the applicable rules of civil procedure in prohibiting it from presenting evidence and argument on the issue of nonperformance by appellee of essential conditions precedent to the contract sued upon. We must disagree. Fla.R. Civ.P. 1.120(c) states as follows:

“(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.” [Emphasis added.]

In response to appellee’s amended complaint, which generally alleged performance of all conditions precedent to the contract, appellee answered by generally denying all pertinent allegations of the complaint and by pleading certain affirmative defenses, not directed to any specific “failures” of conditions precedent. While such pleadings may not have shifted the burden from ap-pellee to present prima facie proof of the performances of said conditions precedent, it did foreclose appellant from subsequently raising the issue of failure of specific conditions precedent at trial. See United Bonding Insurance Company v. Dura-Stress, Inc., 243 So.2d 244 (Fla.2d DCA 1971); Fidelity & Casualty Company of New York v. Tiedtke, 207 So.2d 40 (Fla.4th DCA 1968), reversed on other grounds at 222 So.2d 206 (Fla.1969); W. J. Kiely & Co. v. Bituminous Casualty Corporation, 145 So.2d 762 (Fla.3d DCA 1962); Trawick’s Florida Practice and Procedure, Pleadings, § 6-20 (1977).

Accordingly, after carefully reviewing the record, all points in the briefs and arguments of counsel, it is our opinion that the final judgment must be, and is hereby, affirmed.

Affirmed.


source: Caselaw Access Project

author: HAVERFIELD, Judge.

license: Public Domain

text:
    Daniel E. BLANCO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1550.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 16, 1978.

      Alvin E. Entin, North Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt and Jose R. Rodriguez, Asst. At-tys. Gen., for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Daniel E. Blanco, defendant-appellant, seeks a new trial and reversal of his conviction for sale or delivery of a controlled substance.

Defendant for his first point on appeal contends the trial court erred in limiting his right to cross-examination by (1) not allowing defense counsel to make inquiry with regard to pending criminal charges against the prosecution’s principal witness (a paid informant), and (2) failing to allow inquiry into the present address of this same witness for impeachment purposes.

With respect to the second issue raised under the above contention, the controlling principle of law as set out in Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 966 (1968) is:

“When the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”

Nevertheless, defendant’s right to a witness’ background information is not absolute. Where there has been some real threat to the personal safety of the witness because of his willingness to testify in that proceeding, the present address of the witness may "be withheld from the defendant as long as the cross-examination is otherwise vigorous, full and effective. See U. S. v. Alston, 460 F.2d 48 (5th Cir. 1972), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972). However, prior to effectively invoking this “personal safety” exception, the prosecution must demonstrate an actual, not implied, threat to the witness or his family and must disclose to the trial judge in camera the information sought to' be withheld from the defendant who must be allowed to show any special need for the information requested. Then the trial judge must determine whether the facts must be disclosed in order not to deny effective cross-examination to the defendant and this determination is reviewable on appeal. State v. Hassberger, 350 So.2d 1, 4 (1977). In addition, our Supreme Court in Hassberger, supra, hastened to point out that this exception is exceedingly narrow and all doubts must be resolved in favor of the accused’s 6th and 14th amendment right to confront the witnesses against him.

In the case at bar the paid informant, whose address defense counsel desired to elicit on cross-examination, was the prosecution’s chief witness upon whose testimony practically the entire case against the defendant depended. Nevertheless, the record reflects that the prosecution failed to demonstrate the existence of an actual threat to the personal safety of this witness. We, therefore, find that the trial judge erred in refusing to permit defense counsel to elicit from this chief prosecution witness his address on cross-examination.

Turning now to the first issue raised above, we also conclude the trial judge committed reversible error in not permitting defense counsel to make inquiry with regard to pending charges against this same witness. The law is clear that if a prosecution witness is presently or recently under actual or threatened criminal charges or investigation leading to such charges, the person against whom the witness testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination or otherwise so that the jury will be fully apprised as to the witness’ possible motive or self-interest with respect to the testimony he (or she) gives. Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974); Stripling v. State, 349 So.2d 187, 191 (Fla. 3d DCA 1977) and cases cited therein.

The defendant’s final point concerning prejudicial remarks of the prosecutor during closing argument is without merit and no reversible error has been made to appear. See Oliva v. State, 346 So.2d 1066, 1068-69 (Fla. 3d DCA 1977).

The conviction of defendant is reversed and the cause remanded for a new trial.

Reversed and remanded.

      . So that the defendant may have the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to the test.


author: PER CURIAM.

text:
    Julius STONEY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-23.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 16, 1978.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Section 948.06, Florida Statutes. See also State v. Jones, 327 So.2d 18 (Fla.1976). Cf. Deese v. Cochran, 139 So.2d 429 (Fla.1962).


text:
    Jack MULLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1058.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 16, 1978.
    Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger and Ronald A. Dion, Asst. At-tys. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The single point presented on this appeal urges that the trial court erred in denying defendant’s motion to suppress evidence obtained through a claimed unreasonable search and seizure. The record shows that a police officer stopped the defendant and spoke to him upon observing the defendant riding a bicycle slowly through a residential area in the very early morning hours. It appears without controversy that while speaking to the defendant, the officer became cognizant of a strong odor of marijuana and saw a clear, plastic bag containing a brown substance protruding from the defendant’s shirt pocket. The officer thereupon arrested the defendant and took possession of the contraband.

Defendant claims that the stop and subsequent confiscation of the contraband was illegal, relying on the principle set forth in Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976).

We hold that no unreasonable search appears in this record and that the fact that the police officer stopped the appellant to speak to him, under the circumstances of this case, was not an infringement of defendant’s Fourth or Fourteenth Amendment rights. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966). See also Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975); and cf. U. S. v. Alien, 472 F.2d 145 (5th Cir. 1973).

Affirmed.


text:
    Byron Keith HOPKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1076.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 19, 1978.
    Robert S. Appleton, Marathon, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN; JJ.
   PER CURIAM.

Affirmed. See Clawson v. Baker, 245 So.2d 223 (Fla.1971); Schuty v. State, 281 So.2d 507 (Fla.1st DCA 1973); State v. Jones, 285 So.2d 651 (Fla.3d DCA 1973); Kelly v. State, 293 So.2d 786 (Fla.3d DCA 1974).


author: BOARDMAN, Chief Judge.

text:
    JOHNNY CREWS FORD, INC., a Florida Corporation, Appellant/Cross-Appellee, v. James E. LLEWELLYN et ux., Appellees/Cross-Appellants.
    No. 77-165.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1977.
    Rehearing Denied Jan. 20, 1978.

      J. Michael Rooney of Safron & Rooney, Punta Gorda, for appellant/cross-appellee.
    H. Wayne Floyd of Wilson, Wilson & O’Connell, Sarasota, for appellees/cross-appellants.
   BOARDMAN, Chief Judge.

Appellant/cross-appellee/plaintiff, Johnny Crews Ford, Inc., appeals the final judgment entered pursuant to a jury verdict awarding it damages but failing to award it attorney fees in an action brought against appellees/cross-appellants/defendants, James E. and Edith F. Llewellyn. Appel-lees filed and argued on appeal cross-assignments of error.

Appellant argues that the trial court erred in failing to award it attorney’s fees in accordance with Section 501.210, Florida Statutes (1975). Appellant sought to impose a lien on or to establish a constructive trust as to an automobile purchased from it by appellees. Appellant alleged in its complaint that its representative had mistakenly calculated the balance due on the automobile. Appellees answered and filed affirmative defenses and a counterclaim. The counterclaim alleged that certain action on the part of appellant constituted an unfair and deceptive act or practice under the Florida Deceptive and Unfair Trade Practices Law, Sections 501.201-.213, Florida Statutes (1975). The trial court granted appellant's motion for a directed verdict on appellees’ counterclaim.

Wc reverse and remand this cause to the trial court to enter an award of attorney’s fees for the services rendered by the attorney in appellant’s successful defense of the counterclaim. In all other respects the final judgment is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED for proceedings consistent with this opinion.

RYDER and DANAHY, JJ., concur.


text:
    Leon A. LEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1271.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon consideration of the record, the briefs and oral argument of counsel for the respective parties, we determine the only error made to appear was that the trial court improperly sentenced appellant to fifteen years on Count Two. We therefore vacate appellant’s sentence relating to Count Two and remand to the trial court for the imposition of a proper sentence pursuant to Section 787.02, Florida Statutes (1975), which was in effect at the time the offense charged was committed. Castle v. State, 305 So.2d 794 (Fla.4th DCA 1975).

Reversed and remanded.

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


text:
    Clayborne DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1850.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and Jerry L. Schwarz, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Petition for writ of habeas corpus having been granted with full appellate review, the appealed order is

AFFIRMED.

ANSTEAD and LETTS, JJ., and STEPHEN LEE DAKAN, Associate Judge, concur.


author: DAKAN, STEPHEN L., Associate Judge.

text:
    John A. FOUNTAIN, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-1980, 77-222.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAKAN, STEPHEN L., Associate Judge.

Appellant seeks to overturn his conviction and sentence for robbery and carrying a firearm in the commission of the robbery. He has raised several points on appeal, only one of which we find has merit.

The theory of the State’s case against Appellant was that he was a principal or “aider and abettor” in the crime. He requested the court to instruct the jury as to the lesser offenses of aggravated assault and assault. The trial court refused to give those requested instructions, but did instruct the jury as to the included offenses of attempted armed robbery, robbery, grand larceny and petit larceny.

There is no question that the offenses of aggravated assault and assault are lesser-included offenses of the main charge. The Appellee contends failure to give instructions as to these offenses is harmless error. In the recent case of Lomax v. State, 345 So.2d 719 (Fla.1977), the Supreme Court of Florida held that when failure to instruct on a lesser-included offense constitutes error, the harmless error doctrine cannot be invoked. This decision had not been rendered at the time of trial.

We find no legal significance in the fact that Appellant was charged as a principal. Since the failure to instruct the jury on the offenses of aggravated assault and assault was error, we reverse on the authority of Lomax v. State, supra.

Reversed for a new trial in accordance with this opinion.

ANSTEAD and LETTS, JJ., concur.


author: LETTS, Judge.

text:
    Robert Martin GIBSON, Appellant, v. Gudeborj Jonina SAMPSON f/k/a Gudeborj Jonina Gibson f/k/a Bagga Gibson, and Bernice Eugene Gibson, Appellees.
    No. 76-2140.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Nathan Loeb, Orlando, for appellant.
    No appearance for appellees.
   LETTS, Judge.

This appeal stems from a dismissal with prejudice of a fourth amended complaint seeking to set aside a sheriff’s sale of appellant’s real property, to satisfy a judgment obtained by the appellee. We reverse.

The appellant is the former husband of the appellee ex-wife. During coverture said real estate title was held as a tenancy by the entirety but, upon the marriage dissolution, became a tenancy in common, with the ex-wife and children granted possession thereof.

Apparently the husband failed to make his required alimony payments and the wife reduced the $1,439.30 arrearages to judgment together with a second judgment for her attorneys fees in the sum of $658.70.

Thereafter, the wife levied executions on both judgments and notwithstanding the fact that the property in question is located in the heart of Orlando, advertised her notice of the sheriff’s sale in a small weekly newspaper (The Apopka Chief) pursuant to Florida Statute § 56.21 (1975). Not surprisingly, neither the husband nor anyone else, was aware of, or showed up for, the sale. Thus, the wife bought it in for the smaller of the two judgments. Accordingly, for a total outstanding indebtedness of some $2,100, the husband lost his one-half interest in a $50,000 house with an equity of $31,000.

Regardless of the seeming inequity of the foregoing, we would be compelled to affirm but for one significant allegation in the perhaps inartfully drawn complaint. Specifically the husband alleges that:

. the plaintiff was informed, believed and understood that the property would be sold only when the last of the minor children attained the age of 21 years . . . . Nor was any evidence every communicated to the plaintiff that such executions would be acted upon, except that such judgments would be satisfied at any sale of the premises that the plaintiff relied upon and believed that his interest in the property would not be sold without direct notice to him, and that the lack of any proceedings or action taken on the executions for a period of approximately 16 months lulled the defendant into the belief that the information conveyed to him that no sale would be made without notice of action to him was in fact understood and followed.

Such allegations may or may not be susceptible of proof, but in our opinion they are sufficient to raise the issue of the confidential relationship existing between co-tenants and thus survive a motion to dismiss. (See 8 Fla.Jur. Cotenancy § 14 for a general discussion of the cotenancy relationship).

We are aware that a cotenant, under certain circumstances, can succeed to the rights of his other cotenant (for example, see Wooten v. Post, 97 So.2d 369 (Miss.1957) and such may be appropriate here. However, in the light of the quoted allegations of the complaint, we feel that the wife should be required to plead further.

REVERSED and REMANDED.

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


author: DOWNEY, Judge.

text:
    Lillian B. PARRY, Appellant, v. Alvin B. PARRY, Appellee.
    No. 76-2493.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.

      Benjamin Y. Saxon of Saxon & Richardson, P. A., Melbourne, for appellant.
    H. C. Poe of Harvey C. Poe, Jr., P. A., Melbourne, for appellee.
   DOWNEY, Judge.

The wife has appealed from a final judgment of dissolution of marriage in which the trial court entered an order giving the wife exclusive possession of the jointly owned marital domicile so long as the wife’s mother “uses the home for a place to reside and in which to be given care.” Additionally, the court required the wife to pay “all expenses for maintaining such residence, including, but not limited to, mortgage payments and taxes, during such exclusive possession by respondent (wife).” The judgment also denied the wife alimony in any form.

First we note that the record shows the appellee had no objection to the exclusive possession of the jointly owned home so long as his aged mother-in-law lived there. Absent his consent such an award would not have been proper.

We find no fault with the final judgment except in two respects; First, under the circumstances of this case we feel the trial court should have retained jurisdiction to allow alimony in the future if the circumstances of the parties should change substantially and warrant an award of alimony. Evans v. Evans, 337 So.2d 998 (Fla. 4th DCA 1976); Melton v. Melton, 251 So.2d 705 (Fla. 1st DCA 1971).

Secondly, we believe that upon an eventual sale of the property the wife should be entitled to contribution from her co-tenant, the ex-husband, of the amount of any increased equity he receives as a result of her principal payments on the mortgage which encumbers the property.

Accordingly, we affirm the judgment appealed from in part and reverse it in part and remand the cause with directions to modify the judgment in accordance with this opinion.

AFFIRMED IN PART AND REVERSED IN PART.

ALDERMAN, C. J., and LETTS, J., concur.


text:
    HUNT TRUCK SALES AND SERVICE, INC., Appellant, v. BONANZA CONSTRUCTION, INC., etc., et al., Appellees.
    No. 76-2544.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Francis E. Pierce, Jr., Orlando, for appellant.
    Hal H. Kantor of Loundes, Peirsol, Dros-dick & Doster, Professional Ass’n, Orlando, for appellees.
   DOWNEY, Judge.

Appellant filed a multi-count complaint in which Count VII sought to foreclose a mechanic’s lien. Count VI sought recovery upon a bond which allegedly had been furnished for the benefit of the owner, “the Plaintiff and other similarly situated subcontractors and materialmen.” A copy of the bond is attached to the complaint.

Appellees moved to dismiss Count VII on the ground, among others, that the bond referred to in Count VI of the complaint was furnished pursuant to Sec. 713.23 Florida Statutes (1975) and thus appellant was not entitled to maintain Count VII for foreclosure of a mechanic’s lien. The trial court granted the motion to dismiss Count VII and expunged the claim of lien from the public records. It is that order which we have for review.

Ordinarily the defense asserted by appellees for the dismissal of Count VII should be set up affirmatively in the answer of the appellees. However, if the defense appears on the face of the prior pleading (in this case the complaint) then the defense can be raised by motion, Fla.R. Civ.P. 1.110(d).

The complaint in the case at bar alleges that a Labor and Material-Payment Bond was furnished July 25, 1973 for the benefit of the owner, the appellant and other similarly situated subcontractors and materialmen. The bond attached to the complaint is in the amount of $122,250.00 but nowhere in the pleadings or exhibits attached thereto do we find any allegation that the bond is “in at least the amount of the original contract price.” That the bond be in at least the amount of the contract price is an essential feature of a Section 713.23 Payment Bond. General Electric Company v. Commercial Standard Insurance Company, 335 So.2d 624 (Fla. 1st DCA 1976). Suffice to say, a bond furnished pursuant to Sec. 713.23 Florida Statutes (1975) must comply with the provisions of that section in order for the benefits afforded thereby to accrue to the owner since preclusion of a claimant’s lien right is no insignificant matter.

We find that the complaint in this ease does not clearly show the existence of the appellees’ defense to a lien foreclosure. Of course, it may well be that upon remand the appellees will set up the defense afforded them by Sec. 713.23 and by proof demonstrate that there is no genuine issue of fact, which may make what we do here appear to be an exercise in futility. We do not regard it as such. If that turn of events transpires, at least we will all be sure then that the appellant was not entitled to foreclosure of its mechanic’s lien. As the pleadings now stand, we may suspect appellant has no such right but we cannot conclude that with any degree of certitude.

Accordingly, the order dated October 29, 1976 is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

ALDERMAN, C. J., and LETTS, J., concur.


text:
    SOUTHERN LIFE AND HEALTH INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Gail HARRIS, Individually, and as Administratrix of the Estate of Donald Ervin Harris, Deceased, Appellee.
    No. 76-2651.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Barbara Kane of Smalbein, Eubank, Johnson, Rosier and Bussey, P. A., Rock-ledge, for appellant.
    Hale Baugh of Driscoll, Baugh, Langston, Layton & Kane, P. A., Cocoa Beach, for appellee.
   LETTS, Judge.

The appellant here disputes an award of $7,500 in attorneys fees under Florida Statute § 627.428, pursuant to a total recovery of $15,000. We reverse and remand.

The statute in question empowers the trial judge to award “a reasonable sum as (attorneys) fees”. However, no “reasonable” guidelines were followed here, the court unequivocally stating that: “I don’t know what the recovery is. I will allow half of the recovery.”

Accordingly, this cause is remanded for a new hearing on attorneys fees. We note that appellant’s counsel claims 130 hours work in this case. If this be established by competent evidence, the court may well repeat the same award, or increase it, because the fee given, albeit on the wrong premise, would then only equal $58.00 per hour.

As to appellee’s motion for attorneys fees on appeal, the trial court is directed to consider this in conjunction with this ordered rehearing. If the new fee at the trial level, when arrived at, is substantially the same or greater than before, then reasonable fees on appeal should be awarded. On the other hand, if the new fee is substantially less, then attorneys fees on appeal should not be allowed. For the trial court’s guidance, we would point out that the written argument in appellee’s brief is but two pages long.

REVERSED and REMANDED.

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


author: CROSS, Judge.

text:
    Richard A. DETER, Appellant, v. Dinina D. DETER, Appellee.
    No. 77-1026.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.

      James K. Freeland, Orlando, for appellant.
    Richard M. Harris, Orlando, and William Murrell, Jr. of William Murrell, Jr., P. A., Orlando, for appellee.
   CROSS, Judge.

Appellant, Richard A. Deter, appeals an order of contempt entered in a dissolution of marriage proceeding. We reverse.

Appellee, Dinina D. Deter, filed a petition for dissolution of marriage and sought certain temporary relief which was granted in a temporary order issued on March 8, 1977. This temporary relief included the payment of various sums of money to appellee for specified purposes and a general injunction against either party “accosting or molesting each other.”

On April 7, 1977, appellee filed a petition for rule to show cause signed by her attorney. The court issued the rule which alleged that appellant was in arrears in his payments, and that he had violated the court’s order “by attacking and injuring" appellee. After hearing, appellant was adjudicated in contempt of court and sentenced to six months in jail with the right to purge himself from serving the last ninety days of the six months by paying arrear-ages. It is from this adjudication of contempt that this appeal arises.

The distinction between contempt proceedings which are civil and those which are criminal in nature is firmly established in Florida jurisprudence. The determination of whether contempt proceedings are civil or criminal goes to the nature of the allegedly contemptuous act and is not dependent on the nature of the cause from which the contempt citation arose. The purpose of civil contempt proceedings is to preserve and enforce rights of private litigants and to compel obedience to orders and decrees of the court made for the benefit of such parties. Criminal contempts are not delineated as such because the act involved is a crime, but rather because the primary purpose of such proceeding is to punish for disobedience to an order of the court and thereby to preserve the power and vindicate the dignity of the court. In distinguishing between these two forms of contempt, 17 C.J.S. Contempt § 6 states as follows:

“Civil contempt consists in failing to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein, and is, therefore, an offense against the party in whose behalf the violated order is made. If, however, the contempt consists in doing a forbidden act, injurious to the opposite party, the contempt may be considered criminal”

An indirect or constructive contempt occurs where acts constituting the contempt are committed out of the presence of the court.

Generally, a contempt commitment issued as the result of a party’s failure to comply with the requirements of a final judgment of dissolution of marriage is a civil contempt rather than a criminal contempt. However, despite the existence of neatly defined categories of contempt, the situation may arise where attributes of both types of contempt appear involved in the issuance of a single contempt commitment. In such a case, in view of the summary nature of contempt proceedings, any doubt as to the category in which the allegedly contemptuous act falls should be resolved in favor of the contemnor.

In the instant case, the record discloses the existence of elements of both criminal and civil contempt. The elements of an indirect criminal contempt proceeding appear related to the sentencing of the appellant for his alleged physical assault upon appellee. This characterization is supported by the fact that appellant was offered no opportunity to purge himself of serving a portion of the six-month sentence. The elements of civil contempt involved the alleged failure by the appellant to obey the court’s order with regard to the payment of monies to the appellee. In view of the fact that criminal contempt is a crime under the law of Florida, and in order to protect the due process rights of those defending criminal contempt citations, we determine under the facts of this case that appellant should have been afforded the full protections required in a criminal contempt chancellor proceeding, as outlined in Rule 3.840, Fla.R. Crim.P. Non-compliance with the provisions of Rule 3.840 constitutes fundamental error and therefore failure of the appellant to properly raise these issues before the chancellor will not bar full consideration of the record on appeal.

In proceedings for indirect or constructive criminal contempt, due process requires that the accused be given notice of the charge and reasonable opportunity to meet it by way of defense.

Rule 3.840(a)(1), Fla.R.Crim.P., provides:

“(1) Order to Show Came. The judge, of his own motion or upon affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring him to appear before the court to show cause why he should not be held in contempt of court.” (Emphasis added)

As to the order to show cause in the instant case, it is insufficient for two reasons. First, the order to show cause was not predicated on a sworn affidavit as required by Fla.R.Crim.P. 3.840 and the case law. In fact, the only basis for the issuance of the rule to show cause was the unverified petition of the appellee signed only by her attorney. Such an unsupported petition fails to meet the requirements of the law. Failure to predicate the charge in such a manner has been held in and of itself sufficient to discharge or quash the rule.

There is, however, a second reason why the conviction of criminal contempt must be overturned and the cause remanded to the chancellor. Due process of law requires that the accused be sufficiently advised of the charge so as to accord him reasonable opportunity to meet the charges by way of defense or explanation. The sufficiency of the rule in meeting the requirements of due notice is judged by the standards of the criminal law, as are other basic rights accorded defendants in criminal contempt proceedings. In the instant case, the notice of the charge served on appellant was insufficient to meet the minimum requirements of the law. The rule itself merely stated that the appellant was charged with “attacking and injuring the petitioner.” It gave no further details as to the time or date or place of the alleged violation of the court’s temporary order, such information being absolutely essential to the preparation of an adequate defense. The rule to show causé further failed to conform to the statutory requirements of Rule 3.840, Fla.R.Crim.P., in that it did not state the essential facts constituting the criminal contempt charge.

Since we are unable to sever that portion of the judgment of contempt relating to the indirect criminal contempt from that portion dealing with the indirect civil contempt, we are required to remand the entire matter to the chancellor. Along with our mandate, we send the admonition of the Supreme Court handed down in Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977), at 426:

“If the trial court is of a mind . to punish rather than coerce, then counsel for an offended party should be so advised when he makes application for an order of contempt so that proper affidavit and order to show cause can be secured to comply with the requirements of the rule [Rule 3.840, Fla.R.Crim.P.] . [B]etter practice suggests that such situations be anticipated in advance wherever possible so that the full due process safeguards . . . will be afforded.”

Accordingly, the order of contempt is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

ANSTEAD and DAUKSCH, JJ., concur.

      . In Interest of S.L.T., 180 So.2d 374 (Fla. 2d DCA 1965).

      . Ballengee v. State, 144 So.2d 68 (Fla. 2d DCA 1962); In Interest of S.L.T., id.; Demetree v. State ex rel. Marsh, 89 So.2d 498 (Fla.1956); Faircloth v. Faircloth, 321 So.2d 87 (Fla. 1st DCA 1975).

      . In Interest of S.L.T., supra note 1; Ballengee v. State, supra note 2.

      . Sharp v. Sharp, 209 So.2d 245 (Fla. 2d DCA 1968).

      . See Faircloth v. Faircloth, supra note 2.

      . See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977).

      . Pugliese v. Pugliese, id.; United Theaters of Florida, Inc. v. State ex ret Gerstein, 259 So.2d 210 (Fla. 3d DCA 1972).

      . Pugliese v. Pugliese, supra note 6.

      . Aaron v. State, 284 So.2d 873 (Fla.1973).

      . Fia.App. Rule 3.7(i).

      . Sharp v. Sharp, supra note 4.

      . Ex parte Biggers, 85 Fla. 322, 95 So. 763 (1923). But see, Ex parte Crews, 127 Fla. 381, 173 So. 275 (1937) (sworn affidavit of state’s attorney not made on personal knowledge held sufficient.)

        . State ex rel. Giblin v. Sullivan, 157 Fla. 496, 26 So.2d 509 (1946); Phillips v. State, 147 So.2d 163 (Fla. 3d DCA 1962).

      . See Aaron v. State, supra note 9; Demetree v. State ex rel. Marsh, supra note 2.

      . Pugliese v. Pugliese, supra note 6.


author: ERVIN, Judge. SMITH, Acting Chief Judge,

text:
    Bobby Wade HOLLAND, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, Appellee.
    No. DD-152.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.

      Robert Orseck of Podhurst, Orseck & Parks, Miami, Hastings & Goldman, Susan Goldman, Miami Beach, for appellant.
    Joseph P. Milton and Gary A. Bubb of Toole, Taylor, Moseley, Milton & Joyner, Jacksonville, for appellee.
   ERVIN, Judge.

Appellant Bobby Holland brought this action under the Federal Employers’ Liability Act (FELA) for grievous personal injuries suffered while an employee of the appellee Seaboard Coast Line Railroad Company. He alleged numerous acts of negligence and statutory violations that resulted in his injuries. The jury, however, found for the railroad.

Appellant was injured in a switching movement. He first contends the trial judge erred in excluding evidence that the railroad failed to remove high weeds and debris adjacent to the track and roadbed near the accident scene, and that the weeds and debris made walking there at night dangerous. As the trial court held in its order denying a new trial, the proffered evidence was not admissible under any pleaded theory of negligence. Appellant’s amended complaint, as further amended, alleged the railroad was negligent in several respects, among them in failing to furnish appellant a reasonably safe place in which to work and in negligently directing the train crew to pick up cars by a hazardous method “when there was a safer alternative method of accomplishing the same objectives.”

The proffered evidence was not admissible to prove the railroad failed to provide appellant a reasonably safe place to work, because appellant did not traverse the area said to have been overgrown with weeds and strewn with debris. Appellant’s argument for the admissibility of his proffered evidence is that by permitting an accumulation of weeds and debris, the railroad negligently foreclosed appellant’s use of that area of the track which, if used, would have permitted a safer operation than the operation actually employed. That theory may well have been a potential theory of liability, but in causative terms it was a step away from the pleaded theories. The bare mention of that theory of potential liability in the pretrial conference held a few days before trial, during counsel’s argument on the scope of proper discovery in the latter stages of preparation, did not amend the complaint so as to require expansion of the liability theories at trial.

Moreover, when viewed in the context of a lengthy and complicated trial of numerous liability issues, any error in the trial court’s refusal to permit exploration of yet another theory was harmless. Section 59.-041, Florida Statutes (1975). The jury considered and rejected appellant’s proof that the particular method used to move the train at the time and place of his injury was unreasonably dangerous. We find no miscarriage of justice after examination of the entire record.

Appellant’s second point concerns the jury instruction defining negligence. The trial judge charged: “Negligence is a legal cause of injury if it directly and in a natural and continuous sequence produces, or contributes to producing such injury so that it can reasonably be said that but for the negligence the injury would not have occurred.”

Since Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), the test in FELA actions for determining employer negligence is simply whether it played any part, even the slightest, in producing the injury for which damages are sought. The burden of the employee is met, and the obligation of the employer to pay damages arises when there is proof, though circumstantial, from which the jury may with reason make that inference. This reasoning was adopted by the Florida Supreme Court in Atlantic Coast Line Railroad Company v. Barrett, 101 So.2d 37 (Fla.1958). Therefore, the above quoted instruction is correct in saying the railroad’s negligence is a legal cause of injury if it “produces or contributes to producing” such injury. The instruction was incorrect, however, in charging the jury it must find that “but for the negligence the injury would not have occurred.”

If our appellate task ended upon determining the instruction was in part incorrect, a new trial would be mandated. However, we must also determine whether the error was of sufficient magnitude to require reversal, considering the charge as a whole. McCalley v. Seaboard Coast Line Railroad Company, 265 So.2d 11 (Fla.1972). McCalley involved an alleged violation of the Federal Safety Appliance Act, 45 U.S.C. § 2, which employs the same causal test as the FELA in determining an employer’s negligence. During trial the jury was repeatedly instructed that a verdict should be returned for the defendant if the alleged negligence was found not to be the proximate cause of plaintiff’s injuries. The Supreme Court found the concept of proximate cause plays no part in an action under the Federal Safety Appliance Act, and further, the repeated use of the term “proximate cause”, together with an erroneous instruction from a 1933 pre-Rogers decision, constituted reversible error.

We find the charge as given does not rise to the level of reversible error. The offending “but for” language was used only once during the extensive instructions to the jury. The trial judge throughout his charge informed the jury it should find for the plaintiff if any improper act on the part of the railroad “contributed in whole or in part” to the plaintiff’s injury. In order to determine if any prejudice resulted to Mr. Holland, we reviewed the argument of defense counsel and found no reference to the “but for” test for determining the negligence of the railroad. Defense counsel’s brief reference to causation in his argument is consistent with FELA law: “They have got to show that something is defective, something isn’t working, that it played some part in the accident here.”

Finally, the prejudicial effect of that portion of the offending instruction is belied by the second paragraph following it:

“Now, under the Federal Employers’ Liability Act the defendant Railroad Company is liable if the defendant, his agents, servants, or employees, acting in the scope of their agency or employment were negligent and the negligence played any part, however small, in producing the injury for which damages are sought.”

The jury, after nine days of trial, concluded the railroad was guilty of no improper act making it responsible for Mr. Holland’s injuries. We are sympathetic to his plight. But we are compelled to find a fair trial was conducted and a sufficient factual basis existed for the jury’s verdict.

We have considered the remaining points on appeal and find no error. The judgment is

AFFIRMED.

MELVIN, J., concurs.

SMITH, Acting C. J., concurs with opinion.

SMITH, Acting Chief Judge,

concurring:

I concur in the court’s decision and in all of Judge Ervin’s opinion except that part which finds error, albeit harmless error, in the trial court’s adaptation of Florida’s Standard Jury Instruction 5.1a to the FELA context. Charge 5.1a reads

Negligence is a legal cause of injury if it directly and in natural and continuous sequence produces or contributes substantially to producing such injury, so that it can reasonably be said that, but for the negligence, the injury would not have occurred. (Emphasis added.)

The trial court excised “substantially” from the charge given the jury at this trial, thus properly accommodating the charge to an FELA case. The trial judge might also have charged the jury, but was not requested to do so, with an appropriate revision of charge 5.1b on concurring cause:

In order to be regarded as a legal cause of injury, negligence need not be the only cause. Negligence may be a legal cause of injury even though it operates in combination with some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes [omitting substantially] to producing such injury.

In my view the “but for” language simply requires a causative relationship which must be demonstrated even in FELA cases. The feature that distinguishes FELA cases from others is that the causative effect of the railroad’s negligence may be “slight,” not “substantial,” and yet be actionable. Other portions of the trial court’s jury charge made that point clearly. I do not conceive that the charge was error, harmless or otherwise. See Funseth v. Great Northern Ry. Co., 399 F.2d 918 (9th Cir. 1968), cert. den., 393 U.S. 1083, 89 S.Ct. 865, 21 L.Ed.2d 755; Spinks v. Chevron Oil Co., 507 F.2d 216 (5th Cir. 1975) (discussing identical causative requirements under the Jones Act); 3 Devitt & Blackmar, Federal Jury Practice and Instructions § 94.13 (3d ed. 1977).

The charge here did not speak in terms of “proximate cause,” which the Supreme Court found offensive in Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). Rather, it further ameliorated Florida’s SJI 5.1a on “legal cause,” which itself ameliorated the more stringent requirements for proof of “proximate cause.”


text:
    Emmanuel A. MIXON, Appellant, v. STATE of Florida, Appellee.
    No. GG-11.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1977.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant, convicted below of attempting to obtain a controlled substance by fraud, contends that the State failed in its proof against him. The record reveals that Appellant presented a prescription for the controlled drug Tuinal to a Jacksonville pharmacist that the pharmacist noticed irregularities in the prescription, and that while the pharmacist was studying the prescription, Appellant made a phone call and left the drugstore before the prescription had been filled. The pharmacist testified that because Tuinal was a classified narcotic, it could only be dispensed if signed by a doctor with a proper Bureau of Narcotics and Dangerous Drugs (BNDD) number. The prescription in question included the alleged signature of a “Dr. A. Colbo” and contained a B.N.D.D. Number. However, neither party presented testimony confirming or denying the existence of such a doctor, and neither presented evidence of who the ENDD number had been assigned to. The medical records director of the hospital from which the prescription came testified that there was no record of Appellant being treated at the hospital on the day of the prescription, but could not state with certainty that there was not a Dr. Colbo on the hospital’s staff on that day. He also stated that there were non-staff doctors who wrote prescriptions at the hospital, but that they were supposed to leave their records with the hospital when they treated a patient there.

Appellant contends that because the State failed to prove that the signature on the prescription was a forgery, it did not make a prima facie case against him. We agree and reverse. In Rollins v. State, 211 So.2d 861 (Fla. 3d DCA 1968), the Court reversed a conviction of uttering a forged or false prescription where testimony established that there was a doctor with the name signed on the prescription licensed in the State although she was then a Connecticut resident. The Court noted there that since the physician was licensed, her signature should have been available from the Board of Medical Examiners and therefore proof of the authenticity or falsity of her signature should not have been difficult. Here it is clear that the State did not even prove that there was no doctor by the name of “A. Colbo” on the staff of the hospital, much less that there was no doctor by that name licensed in the State. The case is controlled by the general rule recently repeated by the Florida Supreme Court in McArthur v. State, 351 So.2d 972 (Fla.1977):

“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.”

Reversed and remanded with directions that appellant be discharged.

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


author: PEARSON, Judge. HUBBART, Judge

text:
    William Walden CHENEY and Travelers Insurance Company, Appellants, v. DADE COUNTY, Appellee.
    No. 76-1655.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PEARSON, Judge.

The controlling question presented by this appeal is whether an individual may recover from a County for the County’s negligent failure properly to maintain a traffic control device at a street intersection. The question requires the application of Section 768.28, Florida Statutes (1975), to the facts of this case. Section 768.28 is, in pertinent portion, as follows:

“768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitation; exclusions.—
. “(1) In accordance with section 13, Art. X, state constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.
“(2) As used in this act, ‘state agencies or subdivisions’ include the executive departments, the legislature, the judicial branch, and the independent establishments of the state; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities.
* * Sic * * *
“(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,-000.00, or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state arising out of the same incident or occurrence, exceeds the sum of $100,-000.00. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000.00 or $100,000.00, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the legislature, but may be paid in part or in whole only by further act of the legislature.”

The question arose in the following manner. An action was brought by Julia Ramy against the appellant for damages allegedly resulting from an intersection collision which occurred on March 14, 1975. Appellant filed a third party complaint against the appellee alleging that the County had negligently maintained a traffic light at the intersection in question, and that this negligence was the sole cause of the accident. Appellant, alleging it was only passively negligent, then sought indemnity from the appellee.

Appellee moved to dismiss the complaint on the following grounds:

1. The doctrine of sovereign immunity precludes recovery against the County under the facts alleged.

2. Appellant failed to allege legal knowledge of the malfunctioning traffic light.

3. Appellant failed to allege how sovereign immunity had been waived.

4. Appellant failed to allege that statutory notice had been perfected.

Upon that motion, the trial court dismissed the third party complaint with prejudice.

Appellant concedes that the complaint was deficient in certain respects. Appellant should properly have alleged that the statutory notice provisions had been complied with. There should also have been an allegation that the County knew or should have known of the malfunction in sufficient time to correct it and failed to do so. Moreover, presumably, there should have been allegations of the method and means by which appellee had waived sovereign immunity. Appellant urges only that it was error to dismiss the cross-complaint with prejudice because the complaint had no inherent defect that was not amendable.

Prior to the effective date of the statute quoted, the courts of this state in determining the liability of the State or a political subdivision thereof have followed the rule that in order for there to be a duty upon the political subdivision, the facts must be such that the duty alleged is something more than the duty owed to the public generally. In Modlin v. City of Miami Beach, 201 So.2d 70, 74 (Fla.1967), the Supreme Gourt of Florida laid down the rule as follows:

******
“The Hargrove holding was to the effect that henceforth municipal corporations would be liable for the torts of their officers and employees on the principle of respondeat superior. Since it does not appear that the respondent city is being charged with any negligence other than that of the building inspector, it follows that we must now inquire whether the inspector would have been liable in tort in the circumstances of this case.”
******
“It is a well recognized principle of tort law that a fundamental element of actionable negligence is the existence of a duty owed by the person charged with negligence to the person injured. 23 Fla. Jur., ‘Negligence,’ Sec. 10. However, there is also a doctrine of respectable lineage and compelling logic that holds that this duty must be something more than the duty that a public officer owes to the public generally.”
******
“We believe there are also strong arguments on grounds of public policy for adhering to the rule under discussion. After all, only public officers are typically placed in the position of owing duty of care to the public generally. Moreover, we do not perceive that the rule applied here would have disturbed any of the subsequent cases holding municipalities liable under the rule of the Hargrove decision. We do not have any difficulty in placing a duty of care on a municipality that undertakes the manual operation of a railroad crossing signal toward a motorist attempting to negotiate that crossing, Hewitt v. Venable, Fla.App. 1959,109 So.2d 185, or in placing on police officers a duty not to deprive those with whom they come in contact of their constitutional rights of privacy, integrity of person, and so forth, Thompson v. City of Jacksonville, Fla.App.1961,130 So.2d 105; Simpson v. City of Miami, Fla.App.1963, 155 So.2d 829, cert. discharged, 172 So.2d 435; Fisher v. City of Miami, Fla.App. 1964, 160 So.2d 57; City of Hialeah v. Hutchins, Fla.App.1964, 166 So.2d 607; Shipp v. City of Miami, Fla.App.1963,172 So.2d 618; Evanoff v. City of St. Petersburg, Fla.App.1966, 186 So.2d 68.”

The appellate courts have followed this rationale in holding that a governmental authority is not liable to an individual for the maintenance of traffic control devices. See City of Tampa v. Davis, 226 So.2d 450 (Fla. 2d DCA 1969); Mathews v. City of Tampa, 227 So.2d 211 (Fla. 2d DCA 1969); Clifton v. City of Ft. Pierce, 319 So.2d 195 (Fla. 4th DCA 1975); and Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975).

Appellant’s argument is that this rationale is no longer valid because of the enactment of Section 768.28, Florida Statutes (1975), quoted in part above. This court rejected that argument in Commercial Carrier Corp. v. Indian River County, 342 So.2d 1047 (Fla. 3d DCA 1977), but without full discussion.

The main thrust of appellant’s argument is that the courts of Florida, in applying this State’s waiver of immunity statute, should follow the interpretation that the federal courts have given to the Federal Tort Claims Act, 28 U.S.C. § 2674. It is urged that inasmuch as the federal courts have held that the Federal Tort Claims Act substantially does away with the traditional concepts of sovereign immunity and the Florida statute is, in some parts, phrased in the same terms as the Federal Act, therefore, we should adopt the federal decisions as governing.

We do not follow this reasoning because the Federal Act is quite different in form, purpose and application to factual situations from the language and purpose of Section 768.28, Florida Statutes (1975). We recognize the rule that when a state adopts a legislative act of a sister state, it will ordinarily be held to have adopted the judicial interpretation of that act made by the sister state prior to the second state’s adoption. See 73 Am.Jur.2d Statutes §§ 333, 334 (1974); and Gray v. Standard Dredging Co., 109 Fla. 87, 111 Fla. 149, 149 So. 733 (1933). An examination of the Federal Tort Claims Act shows that it contains numerous exceptions not a part of Section 768.28, Florida Statutes (1975). The fields of operation of the two acts are substantially different in that the sphere of activity of the federal government is essentially different from that of the government of the State of Florida. There is, of course, a tremendous overlapping of powers exercised but the fields of operation are substantially different. We think that it is proper for this court to apply and follow the precedents of this state.

The Supreme Court of Florida has held that statutes purporting to waive sovereign immunity are to be strictly construed and that such waiver should not be implied. See Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958). See also Arnold v. Shumpert, 217 So.2d 116 (Fla.1968); Seaside Properties, Inc. v. State Road Department, 121 So.2d 204 (Fla. 3d DCA 1960); and Department of Natural Resources v. Circuit Court of Twelfth Judicial Circuit, 317 So.2d 772 (Fla. 2d DCA 1975).

We adhere, therefore, to the holding in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967); and we further hold that the Florida statute with regard to Waiver of Sovereign Immunity in Tort Actions, Section 768.28, Florida Statutes (1975), does not create a liability in the State where the act complained of does not give rise to liability in the agent committing the act, because the duty claimed to be violated is a duty owed to the citizens of the state in general and is not a duty owed to a particular person or persons. The dismissal with prejudice is affirmed.

Affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would reverse the trial court’s order herein dismissing with prejudice the third party indemnity action against Dade County and remand the cause with directions to dismiss the action without prejudice to the third party plaintiff to amend his complaint.

I

The first issue presented for review is whether the third party indemnity action against Dade County herein is barred by the doctrine of sovereign immunity. This was the major thrust of Dade County's motion to dismiss the said complaint, which motion the trial court granted with prejudice.

In my view, the doctrine of sovereign immunity does not bar the instant action because the county’s tort immunity, save for certain exclusions and limitations not relevant here, has been specifically waived by statute for all tort incidents occurring after January 1, 1975. Circuit Court of Twelfth Circuit v. Department of Natural Resources, 339 So.2d 1113, 1116 (Fla.1976). Section 768.28, Florida Statutes (1975), specifically provides as follows:

“(1) In accordance with section 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liabili ty for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.
“(2) As used in this act, ‘state agencies or subdivisions’ include the executive departments, the legislature, the judicial branch, and the independent establishments of the state; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities. * *
(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment.” [Emphasis added]

Section 768.30, Florida Statutes (1975) provides as follows:

“Section 768.28 shall take effect on July 1, 1974, for the executive departments of the state and on January 1, 1975, for all other agencies and subdivisions of the state, and shall apply only to incidents occurring on or after those dates.”

Prior to the enactment of the above statutes, counties as subdivisions of the state generally enjoyed the state’s sovereign immunity as to tort liability. Kaulakis v. Boyd, 138 So.2d 505 (Fla.1962); Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 (1916). The accident in this case allegedly occurred after January 1,1975, and, accordingly, Dade County may no longer rely on the defense of sovereign immunity as to the indemnity action filed herein.

Dade County invites us to interpret the above statute to mean that the county’s sovereign immunity has been waived solely as to torts committed in the performance of its proprietary functions, but not its governmental functions such as the maintenance of a traffic control signal. I would decline the invitation. The statute under review contains no such limiting language; it clearly waives governmental tort immunity for the state, counties and municipal corporations of Florida without reference to whether the sovereign function involved in which the tort arises is governmental or proprietary. The courts are not authorized to amend or alter a statute in order to achieve a result thought desirable. That is the sole prerogative of the legislature. Fine v. Moran, 74 Fla. 417, 429-30, 77 So. 533, 536 (1917); State ex rel. Washington v. Rivkind, 350 So.2d 575, 577 (Fla. 3d DCA 1977).

The same argument to introduce the same governmental-proprietary function doctrine in interpreting similar statutory language in the Federal Tort Claims Act has been rejected by the United States Supreme Court. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). See also Rayonier, Inc. v. United States, 352 U.S. 315, 318-19, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). I see no reason for departing from this eminently sound precedent in order to resurrect a doctrine which the Supreme Court of Florida has condemned as being “anachronistic not only to our system of justice but to our traditional concepts of democratic government.” Hargrove v. Town of Cocoa Beach, 96 So.2d 130, 132 (Fla.1957). It can only burden and confuse what appears to be a clear legislative mandate to put governmental tort liability on a substantially equal footing with private tort liability free from the judicial quagmires of the past.

II

The second issue presented by this case is whether any actionable negligence can be alleged against Dade County in a third party indemnity action based on the county’s negligent failure to properly maintain a traffic control signal at a street intersection, which negligence proximately causes injuries to a person using the streets. If such negligence is actionable, the third party plaintiff’s complaint should not have been dismissed with prejudice by the trial court.

It is self-evident that to substantially abolish the defense of sovereign immunity in a tort action against the county is not to expose the county to automatic tort liability in all such suits. Section 768.28(1), Florida Statutes (1975), merely renders the county liable in tort for damages caused by the act or omission of one of its employees while acting within the scope of his office or employment “under circumstances in which (the county), if a private person, would be liable to the claimant in accordance with the general laws of this state . . . .” This clearly means that the plaintiff must still plead and prove a recognized cause of action against the county under the state’s established principles of tort law in order to recover, just as if the county were a private person. Absent such pleading or proof, the county like a private person is entitled to a judgment in its favor.

In the instant case, we deal with Dade County’s alleged negligence in maintaining one of its traffic control signals at a street intersection which, it is charged, proximately caused the plaintiff’s injuries to the exclusion of the third party plaintiff’s alleged passive negligence. Indemnity against Dade County is therefore sought by the third party plaintiff. This is a recognized indemnity action against a third party defendant for active negligence, which negligence, if committed by a private party under like circumstances, would state a cause of action. Seaboard Air Line Railroad Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932); Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla. 1st DCA 1963).

To sustain any cause of action predicated on negligence as here, the plaintiff must plead and prove the following three elements: (1) the existence of a duty on the part of the defendant to protect the plaintiff from the injury or damage of which he complains; (2) the failure of the defendant to perform that duty; and (3) an injury or damage to the plaintiff proximately caused by such failure. When these elements are brought together, they constitute actionable negligence. Absence of or failure to prove any of them, is fatal to recovery. Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976); Smiley v. Court, 243 So.2d 643 (Fla. 4th DCA 1971).

No question is raised in this case as to the existence of the second and third elements of actionable negligence. The controversy has centered around the duty, if any, owed by Dade County to a person using the streets to properly maintain its traffic control devices at street intersections. The majority herein concludes that the duty claimed to be violated in this case is a duty owed to the citizens of the state in general and is not a duty owed to a particular person or persons. With this conclusion, I must respectfully disagree.

Sound policy reasons exist for recognizing that the county has a duty to persons using the streets to properly maintain the county’s traffic control signals at street intersections. Such devices control the flow of busy automobile and pedestrian traffic which in turn protect people’s life and limb. Improper maintenance of such devices by the appropriate governmental authority can lead to very serious accidents causing untold injuries, suffering and even death. Motorists and pedestrians alike quite rightly rely on such authorities, in this case Dade County, to properly maintain these devices for their own safety. Teall v. City of Cudahy, 60 Cal.2d 431, 34 Cal.Rptr. 869, 386 P.2d 493 (1963); Johnston v. City of East Moline, 405 Ill. 460, 91 N.E.2d 401 (1950).

It is long been the established law of this state that a municipality has a duty to persons using its streets to keep those streets in a reasonably safe condition and to warn persons using the streets of known dangerous conditions. Town of Palm Beach v. Hovey, 115 Fla. 644, 155 So. 808 (1934); Trumpe v. City of Coral Springs, 326 So.2d 192 (Fla. 4th DCA 1976); City of Hialeah v. Revels, 123 So.2d 400 (Fla. 3d DCA 1960). The same policy reasons prompting recognition of such a duty apply with equal force to imposing a similar duty on the county to properly maintain its traffic control signals in the streets. There is no basis in reason or experience for making a distinction between the two duties. The observance of both duties is essential for the protection of any person who uses the streets against serious bodily harm or death. See Nobles v. City of Jacksonville, 265 So.2d 550 (Fla. 1st DCA 1972); DeLeo v. Orlando, 29 Conn. Sup. 107, 273 A.2d 725 (1971).

Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967), does not compel a contrary result. That case did not deal with the issue of governmental liability for the negligent maintenance of a traffic control device and in no sense pronounces a definitive holding on the issue now before this court. It merely holds that a municipal corporation is not liable in tort for the negligence of one of its employees in the absence of a duty of due care owed by the municipality to the plaintiff which is something more than the duty a public officer owes to the public generally. That is no more than re-stating traditional negligence law in a governmental tort liability context.

It is true that a line of District Court of Appeal decisions have misinterpreted Mod-lin to give in effect municipal corporations sovereign immunity for the negligent maintenance of their traffic control devices unless the negligent municipal employee and the injured party have a direct transaction or confrontation with one another. These cases, however, are inapplicable to the instant case, in view of the subsequent passage of the now effective waiver of sovereign immunity statute which prescribes in completely different terms the current liability of the state, counties, and municipal corporations for the torts of their employees. As such, the cases apply only to municipal corporate liability for pre-1975 torts. Section 768.30, Florida Statutes (1975). To the extent that Commercial Carrier Corp. v. Indian River County, 342 So.2d 1047 (Fla. 3d DCA 1977), reaches a different result, I would recede from that decision.

Ill

It is true, as the court concludes and the appellant concedes, that the third party plaintiff’s complaint herein contains certain technical pleading defects. The trial court, therefore, properly dismissed the complaint herein but erred in dismissing the complaint with prejudice.

Leave to amend the complaint should have been given to the third party plaintiff because there was no inherent bar to alleging actionable negligence in the indemnity action herein against Dade County. Fla.R. Civ.P. 1.190(a) provides for liberal amendments to pleadings, and Florida courts have long followed the policy of allowing such amendments absent some abuse of the privilege, especially as to a first amendment where no responsive pleading has been filed as was true in the instant case.

In my view, the third party complaint herein is not barred by the doctrine of sovereign immunity, is capable of stating a cause of action in tort against Dade County, and is properly subject to amendment to cure its admitted pleading defects. I would, accordingly, reverse the order under review and remand with directions to enter an order of dismissal without prejudice to the third party plaintiff to amend his complaint.

      . Section 768.30, Florida Statutes (1975).

      . Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957).

      . Application to the Supreme Court of Florida for conflict certiorari is pending as of the date of this decision.

      .See Indian Towing Company v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957); Somerset Seafood Co. v. United States, 193 F.2d 631 (4th Cir. 1951); and Freeman v. United States, 509 F.2d 626 (6th Cir. 1975).

      . See Sections 768.28(5), (6), (13), Florida Statutes (1975).

      . The relevant portions of the Federal Tort Claims Act are 28 U.S.C. §§ 1346(b) and 2674:
      § 1346(b). “. . . the district courts . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” [Emphasis added]
      § 2674. “The United States shall be liable . in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” [Emphasis added]

      . Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975); Clifton v. City of Ft. Pierce, 319 So.2d 195 (Fla. 4th DCA 1975); Schmauss v. Snoll, 245 So.2d 112 (Fla. 3d DCA 1971); Mathews v. City of Tampa, 227 So.2d 211 (Fla. 2d DCA 1969); City of Tampa v. Davis, 226 So.2d 450 (Fla. 2d DCA 1969).

      . Romish v. Albo, 291 So.2d 24 (Fla. 3d DCA 1974); Turner v. Trade-Mor, Inc., 252 So.2d 383 (Fla. 4th DCA 1971); Petterson v. Concrete Construction, Inc., 202 So.2d 191, 197 (Fla. 4th DCA 1967); Hunter v. Fairmount House, Inc., 191 So.2d 92 (Fla. 3d DCA 1966); Richards v. West, 110 So.2d 698 (Fla. 1st DCA 1959); Fouts v. Margules, 98 So.2d 394 (Fla. 3d DCA 1957).


text:
    Vladimir RAJCHL, etc., et al., Appellants, v. CITY OF MIAMI, a Municipal Corporation, Appellee.
    No. 76-1826.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Horton, Perse & Ginsberg and Edward A. Perse; Brumer, Moss, Cohen & Rodgers, Miami, for appellants.
    George F. Knox, Jr., City Atty. and Eugene M. Steinfeld and Sherman Bennett Mayor, Asst. City Attys., for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

On June 20,1975, suit was filed by appellant Vladimir Rajchl as the personal representative of the estate of Pilar Rajchl, alleging that the negligent failure of the City of Miami and/or Metropolitan Dade County to correct a defective twisted stop sign caused the death of the decedent. A subsequent Motion for Summary Judgment by Metropolitan Dade County was granted and was not appealed. A Motion to Dismiss by the City of Miami was granted, the appellant being given leave to amend. In his amended complaint, the appellant alleged that the City of Miami “ . . . did own, control and maintain the streets and the intersection of NW 12th Avenue and NW 75th Street, Dade County, Florida.” Appellant further alleged that the City of Miami had actual knowledge of a twisted stop sign at the intersection of N.W. 12th Avenue and 75th Street which, due to the twisted condition, gave the motorists southbound on N.W. 12th Avenue the right of way, when the contrary was the case. It is argued that the City of Miami owed a duty to the deceased to warn “ . . .of the known trap and hazardous road condition . ” The City of Miami is alleged to have breached a duty to the deceased by one or more of the following negligent acts or omissions: (a) creating a dangerous and defective condition by failing to provide a City of Miami police officer or other personnel to protect against dangerous occurrences; (b) failing to request Metropolitan Dade County to repair the stop sign; (c) failing to provide any warning to the deceased or to any member of the general public of the danger of the intersection in question until such time as the stop sign was repaired.

The City, in response to this amended complaint, moved for its dismissal and for a summary judgment. After a hearing on the matter, the trial judge entered an order denying the City’s motion for summary judgment but dismissing the amended complaint with prejudice. This appeal followed.

There is in the record an affidavit in support of the City’s motion for summary judgment, which is a certificate of the Clerk of the Board of County Commissioners for Metropolitan Dade County. The certificate is of a portion of the Dade County Code which shows that the operation of the traffic control system in Dade County has been preempted by Metropolitan Dade County. See Schonfield v. City of Coral Gables, 174 So.2d 453 (Fla. 3d DCA 1965); and Melville v. Miami Shores, 155 So.2d 739 (Fla. 3d DCA 1963). We excluded from our consideration this argument of the City’s lack of responsibility because the trial judge expressly denied the City’s motion for summary judgment and granted the City’s motion to dismiss the complaint. The order dismissing the complaint must be tested upon the well pleaded allegations of the complaint. See Hammonds v. Buckeye Cellulose Corporation, 285 So.2d 7 (Fla.1973).

The appellant urges that the charges leveled here against the City do not merely relate simply to acts of misfeasance or non-feasance by an employee acting in a governmental capacity. The brunt of the appellant’s argument is that the City is charged with a total, overall failure to exercise properly a proprietary function, i. e., the operation of a traffic control system, and with the failure to act affirmatively to correct an extremely dangerous situation when it and its agents had full knowledge of all the facts.

Appellant acknowledges the existence of the “no liability in stop sign knocked down” cases. See Commercial Carrier Corporation v. Indian River County, 342 So.2d 1047 (Fla. 3d DCA 1977), and cases cited therein. However, appellant contends that these cases are inapposite here or, in the alternative, that the rule of law for which they stand is grossly unfair and inequitable and should be changed. It is urged that this is especially true in the light of recent legislative developments in the area of governmental immunity.

It should be noted that the automobile accident, out of which plaintiff’s claim against the City arose, occurred prior to the effective date of Section 768.28, Florida Statutes (1975), which waives immunity of the State in certain tort actions.

The law of Florida is clear and concise that the failure to maintain a stop sign or traffic device is not actionable against a municipality unless the plaintiff can show privity with a municipal employee or a direct transaction or confrontation with the municipal employee. See City of Tampa v. Davis, 226 So.2d 450, 454 (Fla. 2d DCA 1969); Schmauss v. Snoll, 245 So.2d 112 (Fla. 3d DCA 1971); and Nobles v. City of Jacksonville, 316 So.2d 565, 566 (Fla. 1st DCA 1975). Cf. Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967); and Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977); opinion filed this same date.

We, therefore, respectfully decline to depart from what we believe to be the governing precedent of the decided cases in Florida and affirm the judgment of the trial court.

Affirmed.

HUBBART, Judge

(concurring)

I concur in the court’s judgment herein solely on the ground that the tort incident sued on occurred prior to the effective date of Florida’s waiver of sovereign immunity statute. Section 768.28, 768.30, Florida Statutes (1975). Had it occurred subsequent thereto, a substantially different question would be presented.


text:
    Harry MAUTNER, Personal Representative of the Estate of Lawrence L. Garbett, Deceased, Appellant, v. Janis Garbett LOMAN, Donna L. Garbett and Allen R. Garbett, Appellees.
    No. 76-1876.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Rehearing Denied Jan. 16, 1978.
    Sibley, Giblin, Levenson & Glaser and Alan M. Glaser, Miami Beach, for appellant.
    Shorenstein & Lewis, Miami Beach, Arthur Addess, Tendrich & Todd, Miami, for appellees.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Appellant, Harry Mautner, as personal representative of the Estate of Lawrence L. Garbett, deceased, appeals from an order of the Probate Division of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. Said order granted appellees/claimants’ motion for extension of time to file independent lawsuits against the estate, pursuant to Section 733.705(3), Florida Statutes.

After carefully reviewing the record, briefs and argument of counsel, it is our opinion that the presumption of correctness attached to the Probate Court’s order has not been overcome, as appellant has failed to demonstrate any abuse of the probate judge’s discretion in granting the aforementioned extension of time. See Turner v. Myers, 332 So.2d 635 (Fla. 3d DCA 1976).

Affirmed.


text:
    ALLIED LUMBER CO., INC., et al., Appellants, v. U.S. FIDELITY & GUARANTEE COMPANY and the Home Insurance Co., Appellees.
    No. 76-2171.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Rehearing Denied Jan. 19, 1978.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and R. Owen Ricker, Jr., Miami, for appellants.
    Knight, Peters, Hoeveler, Pickle, Niem-oeller & Flynn, Jeanne Heyward, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Hartford Fire Insurance Co. v. Spreen, 343 So.2d 649 (Fla.3d DCA 1977).


text:
    Michael HUDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2239.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   PER CURIAM.

Defendant, Michael Hudson, appeals his conviction for aggravated battery arising out of a barroom altercation and contends that the trial court erred in denying his motion for new trial on the ground of newly discovered evidence.

The evidence consisted of a post-trial admission of the victim, Dorothy Jackson, that several weeks prior to the subject altercation she was involved in another altercation wherein she displayed a firearm in a threatening manner. Defendant argues that this admission gave Jackson a reputation for propensity to carry and use firearms, and this reputation was known to him so as to give him a well founded belief that the use of deadly force by him was necessary to prevent imminent death or great bodily harm being inflicted by Jackson.

A motion for new trial will not be granted for newly discovered evidence unless such evidence is discovered after trial; due diligence is exercised to present it at trial; it goes to the merits of the case and not merely to impeach a witness who testified; it is not cumulative and it is such as would produce a different verdict. Harvey v. State, 87 So.2d 582 (Fla.1956); Weeks v. State, 253 So.2d 459 (Fla.3d DCA 1971).

Under these controlling principles of law, we find that no reversible error has been made to appear. First, Jackson testified at the trial; nevertheless, defense counsel did not question her with respect to the prior altercation or reputation for violence even though both defendant and his brother, Reuben, testified that she, in fact, had such a reputation. Thus, we find the required exercise of due diligence to be lacking. Second and more important, Jackson’s admission was merely cumulative. Reuben, an eye-witness, testified on behalf of his brother Michael, that he had advised Michael that Jackson carried a pistol. The defendant also testified that Jackson approached him with her hand in her pocketbook and fearing she had a weapon, that’s when he swung at her. Further, there was testimony that the defendant knew Jackson had a bad reputation.

We, therefore, find no abuse of discretion in denying the motion for new trial on the ground of newly discovered evidence. Cf. Luster v. State, 262 So.2d 910 (Fla.3d DCA 1972); Dames v. State, 314 So.2d 171 (Fla.3d DCA 1975) and see State v. Sears, 148 Fla. 89, 3 So.2d 721 (1941).

Affirmed.


text:
    Len Charlton SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 77-471.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Rehearing Denied Jan. 19, 1978.
    Philip Carlton, Jr., Miami, and Sheldon “Skip” Taylor, Surf side, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Bernhardt v. State, 288 So.2d 490 (Fla.1974).


author: DREW, E. HARRIS (Ret.),

text:
    Charles GRASSO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-667.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender,-for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., HAVERFIELD, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   DREW, E. HARRIS (Ret.),

Associate Judge.

The defendant appeals from a conviction of second degree murder. While he has raised several points on this appeal, there is only one question which requires discussion and that is whether or not there is sufficient evidence to sustain the finding of guilt.

Reviewing the record before us, we find that while there is evidence that the defendant herein had disciplined the deceased child on other occasions prior to his striking the blow which resulted in the child’s demise, there is nothing to show that these acts were of a nature so violent as to establish a basis for inferring that the defendant’s actions evidenced a depraved mind regardless of human life necessary to sustain a conviction of second degree murder. However, the record does establish the defendant’s guilt of manslaughter.

Therefore, pursuant to Section 924.34, Florida Statutes (1975), the judgment of conviction of second degree murder is reduced to manslaughter and the cause remanded to the trial court for imposition of sentence in accordance herewith.

Remanded with directions.

      . § 782.04(2), Fla.Stat. (1975).

      . § 782.07, Fla.Stat. (1975).


author: HUBBART, Judge.

text:
    STATE of Florida, Appellant, v. Abraham MIGDAHL, Appellee.
    No. 76-1335.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.

      Richard E. Gerstein, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Melvyn Kessler, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This is an appeal by the state from an order clarifying a previously imposed prison sentence by reducing the said sentence. We conclude that the trial court had no jurisdiction to so reduce this sentence and therefore reverse the order under review with directions to reinstate the original sentence.

On December 7, 1970, the defendant, Abraham Migdahl along with two co-defendants, was charged by information with breaking and entering a dwelling with intent to commit a felony, before the Circuit Court for the Eleventh Judicial Circuit of Florida. On June 20, 1972, the defendant with counsel entered a nolo contendere plea to this charge. Pursuant to plea negotiations the trial court thereupon sentenced the defendant as follows:

“IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that you be imprisoned by confinement at hard labor in the STATE PENITENTIARY for a term of Ten (10) Years, sentence to run concurrently with the sentence imposed by the U.S. District Court, Southern District of Florida in case no. 71-585-CR-WM, and credit to be given for time served in the Federal Penitentiary and the Dade County Jail prior to sentencing, to wit: Two Hundred Thirty-eight (238) days.”

The defendant thereafter was transferred to the federal penitentiary in Atlanta, Georgia, where he began serving his ten year federal prison sentence until he was paroled thereon by the federal authorities in February 1975. He was thereafter released to Florida authorities where he was removed to the Dade County jail. Florida parole authorities were not at that time willing to release the defendant on parole on the state sentence.

On February 27,1975, the defendant filed a motion to vacate his original state conviction and sentence pursuant to Fla.R.Crim.P. 3.850 on the ground that the court lacked the authority to impose a state prison sentence to run concurrently with a federal prison sentence. On April 10, 1975, the trial court heard and entered an order denying the motion. A timely notice of appeal was filed with the trial court seeking review of that order before this court. Subsequent thereto, the trial court heard and denied the defendant’s petition for reconsideration of the prior order denying post-conviction relief.

On July 24, 1975, this court entered an order in the pending appeal temporarily relinquishing jurisdiction to the trial court for a hearing on the defendant’s revised motion to vacate judgment and sentence pursuant to Fla.R.Crim.P. 3.850. Specifically, the revised motion to vacate attacked the prior nolo contendere plea as being involuntary since it was allegedly made under the mistaken belief that the defendant would be transferred to the federal prison system for all purposes including parole to serve both his federal and state sentences.

On November 14, 1975, the above motion to vacate was heard by the trial court at which time testimony was taken. At the conclusion thereof, the court, without ruling on the motion to vacate, released the defendant from any further service on his state sentence. On June 14,1976, the court incorporated this ruling in a written order as follows:

“In order to clarify the intent of this court as to the concurrent sentence imposed it is the further order of this Court that the defendant Abraham Migdahl be imprisoned in the custody of the Department of Offender Rehabilitation for nine months and nine days in the event that he be released from the Federal Penitentiary prior to the expiration date of his sentence and that he be thereafter released.”

Subsequent to the above hearing, the defendant moved to dismiss his appeal in this court, which motion this court granted. Migdahl v. State, 324 So.2d 229 (Fla.3d DCA 1975). The state now appeals from the June 14, 1976 order.

The law is clear that a trial court pursuant to Fla.R.Crim.P. 3.800(b) may reduce a legal sentence at any time within sixty days after the imposition of sentence or within sixty days after receipt by the trial court of a mandate or order of the highest state or federal court to which a timely appeal or petition for certiorari has been taken affirming the judgment of conviction and/or sentence, dismissing the appeal, or denying certiorari. A trial court lacks the jurisdiction to mitigate or modify a legal sentence previously imposed after the above sixty day time periods have elapsed.

In the instant case, the order under review reduces the ten year prison sentence originally imposed to a term of nine months and nine days in the event that the defendant is released from the federal penitentiary prior to the expiration of his state sentence. Although the order is styled a clarification of sentence, it in fact modifies the original sentence by reducing it upon the happening of a certain event. The order was entered over four years after the original sentence was imposed at a time when the trial court had clearly lost jurisdiction to reduce or modify the sentence. Accordingly, the order under review must be reversed and the original sentence re-instated.

By re-instating the original sentence, it is clear that the defendant must be given credit on his ten year state sentence for the following: (1) the 238 days he served in the county jail prior to sentencing, (2) the time he spent serving the federal sentence in the federal penitentiary in Atlanta, Georgia, and (3) the time he served in the custody of the Florida authorities upon his release from federal custody in Atlanta, Georgia until his release from state custody by the trial court on November 14,1975. The decision of the federal authorities to parole the defendant on his ten year federal sentence in no sense binds Florida authorities to parole the defendant on the ten year state sentence. That decision rests solely within the discretion of the Florida Parole Board.

In so ruling, we express no view as to whether it is lawful for a Florida court to impose a state prison sentence to run concurrently with a federal prison sentence. That issue was raised in the defendant’s prior appeal from his first motion to vacate, which appeal the defendant voluntarily dismissed. Nor do we express any view on the merits of the defendant’s second motion to vacate attacking the voluntariness of the nolo contendere plea because the motion was never ruled on by the trial court or appealed to this court. Of course, the defendant upon remand is free to seek such a ruling from the trial court on the said motion to vacate if he so desires.

Reversed.

      . State v. Sotto, 348 So.2d 1222 (Fla.3d DCA 1977); Collins v. State, 343 So.2d 680 (Fla.2d DCA 1977); Solomon v. State, 341 So.2d 537 (Fla.2d DCA 1977); Moss v. State, 330 So.2d 742 (Fla. 1st DCA 1976); State v. Rodriguez, 326 So.2d 245 (Fla.3d DCA 1976); State v. Brown, 308 So.2d 655 (Fla. 1st DCA 1975); Smith v. State, 289 So.2d 410 (Fla.4th DCA 1974); Sayer v. State, 267 So.2d 42 (Fla.4th DCA 1972); Ware v. State, 231 So.2d 872 (Fla.3d DCA 1970); Jefferson v. State, 320 So.2d 827 (Fla.4th DCA 1975); State v. Evans, 225 So.2d 548 (Fla.3d DCA 1969), cert. den. 397 U.S. 1053, 90 S.Ct. 1393, 25 L.Ed.2d 668 (1970).
      Fla.R.Crim.P. 3.800 which was in effect at the time the trial court entered the order under review also gave the trial court authority to reduce a legal sentence in the same term of court in which the sentence was imposed. That grant of authority has since been deleted from the rule effective March 3, 1977.


text:
    The STATE of Florida, Appellant, v. Larry FORBES, Appellee.
    No. 76-1716.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Richard E. Gerstein, State Atty. and George Volsky, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The State appeals an order granting defendant’s motion to suppress .evidence the State maintains was seized from the person of the defendant incident to his arrest for possession of narcotics. A police officer observed what appeared to be a sale of narcotics. He then apprehended defendant and searched his person, discovering contraband. He then arrested defendant for possession of narcotics. We reverse on authority of Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977), holding that the search was incident to the arrest even though the arrest occurred after the search. In the well-reasoned opinion of Chief Judge Boardman, the District Court of Appeal, Second District, held that a search of a defendant is not unlawful where it is pursuant to the establishment of probable cause to the arrest. We need not repeat the reasoning set forth in Dixon, nor need we cite the persuasive authorities therein. We think, however, that it is only fair to note that the opinion in Dixon had not been published at the time of the ruling of the trial court in the present case.

It is clear that the police officer in the present case had probable cause to believe that the defendant was in possession of narcotics and was actually selling them on the street corner. With such knowledge, the police officer was authorized to arrest and search the defendant as an incident to that arrest. Therefore, the order appealed is reversed and the cause remanded for further proceedings in conformance with this opinion.

Reversed and remanded.