author: SMITH, Judge.

text:
    SUN OIL CO. (DELAWARE) and Chevron U. S. A., Inc., Appellants, v. F. M. “Bubba” FISHER et al., Appellees.
    No. JJ-427.
    District Court of Appeal of Florida, First District.
    April 24, 1979.
    Rehearing Denied May 30, 1979.
    W. Spencer Mitchem of Beggs & Lane, Pensacola, and Peter J. Winders of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Tampa, for appellants.
    Gerald L. Brown of Wells, Brown & Brady, P. A., Pensacola, for appellees Property Appraiser and Department of Revenue.
    A. L. Johnson of Johnson, Green & West-moreland, Milton, for appellee Board of Tax Adjustment.
   SMITH, Judge.

Again the task is to sort out a legislative purpose in conflicting statutes on the taxation and valuation of subsurface oil, gas, and mineral interests. The Supreme Court held earlier in this case that Section 193.-481(1) subjects “separated” oil, gas, and mineral interests — those carved out of the fee — to county ad valorem real property taxation. Now: notwithstanding that Section 211.13 forbids any increased assessment of land because “there may be oil or gas under the surface” and declares that appraisal of oil and gas in place is “impossible under known valuation methods,” shall the assessor of a subsurface oil and gas leasehold take into consideration the value of the oil and gas which is the subject of the lease? The trial court said yes, and we agree. If the value of oil and gas yet to be captured can lawfully increase the appraisal of the subsurface leasehold held by a producer, as when the appraiser capitalizes a well’s anticipated income over its projected life, should the resulting ad valorem real property tax be considered as paid or reduced by the Section 211.02 excise taxes remitted by the same producer on the value of oil and gas produced each year? The trial court said no, and again we agree.

On a record essentially without factual dispute, the circuit court decided the stated questions adversely to Sun Oil and Chevron and in favor of appellees, the property appraiser of Santa Rosa County, the Department of Revenue, and the Board of Tax Adjustment. Sun Oil and Chevron appeal from a final summary judgment denying their prayer for a reduction in their Section 193.481(1) ad valorem real property assessments or for an offsetting credit in the amount of their Section 211.02 excise taxes paid.

The Santa Rosa County property appraiser has attributed substantial value to oil and gas leaseholds, for ad valorem real property tax purposes, by reason of the value of oil and gas in production and to be produced from those leaseholds. In 1977 the appraiser assessed nonproducing subsurface oil, gas, and mineral interests at a rate of $8 per acre, but assessed producing leaseholds and other subsurface interests at a rate of $20,659 or $37,552 per acre, depending on location. In so assessing producing leaseholds, the appraiser considered their market value, as evidenced by public records of sales, the location of producing wells, their effect on surface use, their accessibility, the allowable daily production established by law, costs of production including taxes, anticipated well rework costs necessitated by sulphur in the product, the diminishing value of each lease, and its capitalized income. If the appraiser complies with Section 193.011, prescribing generally the factors to be considered in deriving just valuations of all property, the appraiser could not do otherwise than regard a producing leasehold as substantially more valuable than one whose productivity is yet undemonstrated. Any leasehold appraisal necessarily involves some estimate of the capital value of the asset which either yields or does not yield a valuable product on a continuing basis. See Escambia Chemical Corp. v. Fisher, 277 So.2d 307 (Fla. 1st DCA 1973).

The present difficulty is that by Section 211.02, the legislature levied an excise tax on oil and gas producers which is determined by the same production that now influences the ad valorem valuation; and that, first levying that excise tax in 1945, the legislature admonished property appraisers in Section 211.13 that, “when assessing the value of any land for ad valo-rem taxes,” they

shall not increase the value thereof by reason of the fact that there may be oil or gas under the surface of such land, in as much as it is impossible under known valuation methods to accurately ascertain the true value of oil and gas in place and taxation thereof is more certainly accomplished after its capture or severance from the earth or water. .

Section 211.02(2) recites that the excise tax was enacted “to compensate the county in which oil and gas is produced for the loss of ad valorem taxes by reason of” Section 211.13.

The enactment of Section 193.481 in 1963, subjecting subsurface leasehold interests to ad valorem real property taxation, necessarily implied that such interests should be appraised as buyers and sellers appraise them, and effectively repealed the inconsistent recitals in Section 211.02 and 211.13. See Cassady v. Consolidated Naval Stores Co., 119 So.2d 35 (Fla.1960), so construing former Section 193.221, Florida Statutes (1959). The excise tax levied by Section 211.02 remains in effect, undiminished by the legislature’s dissolution of its original scheme.

A producer owning a producing leasehold is not entitled to an abatement of one tax or the other, or to a pro tanto payment of one tax with his remittances of the other. Small v. Sun Oil Co., 222 So.2d 196 (Fla.1969), attempted such an accommodation after striking down, as violating constitutional requirements of uniform rates of taxation of all property justly valued, Section 211.13’s former exemption from personal property taxes of “producing oil or gas equipment or machinery” used in operating a producing well. In an effort to achieve a result consonant with the original legislative purpose of the excise tax, the court required that excise taxes paid under Section 211.02 be applied against the ad valorem personal property tax resulting from the decision. Then the legislature deleted the constitutionally offensive exemption, and with its deletion the court-fashioned consolidation of taxes disappeared. Chapter 72-360, Section 19, Laws of Florida; Louisiana Land & Exploration Co. v. Gibbs, 354 So.2d 393 (Fla. 1st DCA 1978). If there were doubt of the repealing effect of Section 193.481 when Small was decided, the legislature removed that doubt by repealing the language on which the Small dispensation depended.

We are not prepared to enact the massive consolidation of excise and ad valorem real property taxes which would be required to preserve the fiction that the legislature both intends to tax subsurface real property interests, with due weight given to the income they produce, Sections 193.011, .481, and yet supposes that “it is impossible” to evaluate the oil or gas which is the only thing of value possessed in the leasehold. The legislature now regards such a leasehold as property and, having done so, subjects it to valuation on an equal, uniform, and nonpreferential basis, even as other property. We further agree with the distinguished trial judge who held:

Had the Legislature intended to eliminate the excise tax, it would have done so by positive action, rather than relying upon a future strained judicial interpretation of the statutes to accomplish that result. . . . Legislative history of Chapter 211 and Chapter 193 and judicial interpretations thereof reflect that there is no legislative intent to terminate the excise tax nor is there a legislative intent by which this court can validly determine a setoff or credit. Any setoff or credit has the effect of a tax exemption and as such is unconstitutional since such exemption is not within the provisions of our present Constitution. See Archer v. Marshall, 355 So.2d 781 (Fla.1978).

We need not speculate in this case whether the legislature has similarly acted to subject “unseparated” oil and gas interests of the fee owner, who also produces, to both the excise tax and the ad valorem real property tax levied on the just value of both surface and subsurface rights within the fee. See Section 193.481(2), (3), Florida Statutes (1977); Cassady v. Consolidated Naval Stores Co., 119 So.2d 35 (Fla.1960). That question may and should be reserved for a case presenting it.

The judgment of the circuit court is AFFIRMED.

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

      . Straughn v. Sun Oil Co. (Del.), 345 So.2d 1062 (Fla.1977). See also Williams v. Jones, 326 So.2d 425 (Fla. 1975).

      . Section 193.481(1), Florida Statutes (1977):
      (1) Whenever the mineral, oil, gas, and other subsurface rights in or to real property in this state shall have been sold or otherwise transferred by the owner of such real property, or retained or acquired through reservation or otherwise, such subsurface rights shall be taken and treated as an interest in real property subject to taxation separate and apart from the fee or ownership of the fee or other interest in the fee. Such mineral, oil, gas, and other subsurface rights, when separated from the fee or other interest in the fee, shall be subject to separate taxation. Such taxation shall be against such subsurface interest and not against the owner or owners thereof or against separate interests or rights in or to such subsurface rights.

      .Section 211.13, Florida Statutes (1977), provides in part:
      . The several property appraisers of this state and tax assessors of the cities therein, when assessing the value of any land for ad valorem taxes, shall not increase the value thereof by reason of the fact that there may be oil or gas under the surface of such land, inasmuch as it is impossible under known valuation methods to accurately ascertain the true value of oil and gas in place and taxation thereof is more certainly accomplished after its capture or severance from the earth or water. The value of land for ad valorem tax purposes shall not be increased by reason of the location thereon of any producing oil or gas equipment or machinery used in and around any oil or gas well and actually used in the operation thereof.

      . Section 211.02, Florida Statutes (1977), provides in part:
      (1) There is hereby levied, to be collected hereafter, as provided herein, an excise tax upon every person engaging or continuing within this state in the business of producing or severing oil or gas, as defined herein, from the soil or water for sale, transport, storage, or profit or for commercial use. The amount of such tax shall be measured by the value of the oil produced and saved, and by the value of the gas produced and sold, or used, and is hereby levied and assessed at the following rates

      . Section 193.011, Florida Statutes (1977), requires that the property appraisers, in applying the constitutional standard of “just valuation,” take into consideration (1) the present cash value of the property; (2) the highest and best use to which the property can be expected to be put in the immediate future, and the present use; (3) the location; (4) the quantity or size of the property; (5) the cost and replacement value of improvements; (6) the condition of the property; (7) the income from the property, and (8) the net proceeds of any sale of the property.

      . Article IX, Section 1, Florida Constitution (1885); accord, Article VII, Sections 2 and 4, Florida Constitution (1968).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John A. DRAGSTREM et ux., Appellant, v. Willis N. BUTTS et ux., Appellee.
    No. LL-7.
    District Court of Appeal of Florida, First District.
    April 24, 1979.
    John A. Dragstrem, in pro. per.
    William H. Maness, of Maness & Kacher-gus, Jacksonville, for appellee.
   PER CURIAM.

The Dragstrems appeal the trial court’s taxation of costs in favor of Butts. Dragstrem argues the trial court erred in taxing costs because doing so was inequitable and because Butts failed to comply with the fictitious name statute. § 865.09, Fla. Stat. (1977). However, appellant did not raise this issue prior to this court’s previous opinion in Butts v. Dragstrem, 349 So.2d 1205 (Fla. 1st DCA 1977), cert. denied, 361 So.2d 831 (Fla.1978). Accordingly, the trial court did not err in disregarding this claim since it was not timely raised. See Cor-Gal Builders, Inc. v. Southard, 136 So.2d 244 (Fla.3d DCA 1962); Chaikin v. Skolnick, 201 So.2d 588 (Fla.3d DCA 1967). Finally, it appears that the prevailing party in an action at law is absolutely entitled to the taxing of costs in his favor. § 57.041, Fla. Stat. (1977). Therefore, the trial court was required to tax costs in favor of Butts, regardless of the equities involved.

McCORD, C. J., and MELVIN and LARRY G. SMITH, JJ., concur.


author: HUBBART, Judge.

text:
    Kiumars BAKSHANDEH, Appellant, v. Alam Farzad BAKSHANDEH, Appellee.
    No. 78-829.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.
    Rehearing Denied May 25, 1979.
    Koeppel, Stark & Newmark and Robert L. Koeppel, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Ray H. Pearson, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

This is a motion under Fla.R.Civ.P. 1.540 to set aside a property settlement agreement contained in a final decree of marriage dissolution and thereafter to award alimony, child support, and child custody to the wife as a de novo matter before the Circuit Court for the Eleventh Judicial Circuit of Florida. After hearing four days of extensive testimony, the trial court granted the motion to vacate, awarded custody of the minor child to the wife and reserved jurisdiction on the questions of alimony and child support. The husband appeals contending it was reversible error for the trial court (1) to set aside the prior marriage dissolution decree relating to the property settlement agreement, and (2) to award custody of the minor child to the wife. We disagree and affirm.

The central issue involved in this appeal is whether a property settlement agreement incorporated in a final decree of marriage dissolution may be set aside under Fla.R.Civ.P. 1.540 on the ground that one of the parties thereto induced the other party through coercion or duress into entering into such an agreement. Fla.R.Civ.P. 1.540(b)(3) provides that a trial court may relieve a party or his legal representative from a final judgment within one year after the entry of such judgment based on a number of grounds including “misconduct of an adverse party.” In our view, it is misconduct for a party to a property settlement agreement in a marriage dissolution action to induce the other party through coercion or duress into entering into such an agreement. Accordingly, we hold that such coercion or duress constitutes a proper ground under Fla.R.Civ.P. 1.540(b)(3) to set aside such a property settlement agreement as incorporated in a final decree of marriage dissolution. McCormick v. McCormick, 181 So.2d 220, 222 (Fla. 2d DCA 1965).

In the instant case, a timely motion to vacate under Fla.R.Civ.P. 1.540 was filed by the wife seeking to set aside a property settlement agreement incorporated in a final decree of marriage dissolution on the ground that she had been subjected to coercion and duress by her husband into entering into such agreement. There is an abundance of evidence in the record to support the ground urged in this motion. The trial court so found, and contrary to the husband’s contention, we find no basis for upsetting that finding. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976).

The husband also disputes the custody award of the minor child to the wife. We find no merit in this contention as the child herein was of tender years and there was sufficient evidence in this record, although disputed, to award custody of the minor child to the wife. Anderson v. Anderson, 309 So.2d 1 (Fla.1975); Barnhill v. Barnhill, 353 So.2d 923, 924 (Fla. 4th DCA 1978); Klavans v. Klavans, 330 So.2d 811 (Fla. 3d DCA 1976).

As a final note, we are disturbed by an undisputed fact which emerges from this record. The wife Dr. Alam Farzad Bak-shandeh is a physician licensed to practice medicine in Florida; the husband Kiumars Bakshandeh is the chief resident urological surgeon for the University of Miami. Both were originally from Iran where they received part of their medical training. The record reveals that in February, 1972, the wife took a medical examination for her sister Iran Farzad Rafael for admission to a medical training program as a foreign physician in the state of Illinois. The examination was given in Chicago wherein the wife used her sister’s name, took the examination and passed it. The sister after additional training and examination was admitted to practice medicine in Illinois. There is evidence that the husband urged the wife to take the examination for her sister and thereafter used this indiscretion to blackmail the wife into signing the property settlement agreement herein. The record does not reflect whether the appropriate medical authorities have been notified of the above facts. We trust that such notification will be accomplished in the near future.

Affirmed.


text:
    AIR AGENCY, INC., Appellant, v. BRITISH AIRWAYS, Appellee.
    No. 78-1399.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.
    Rehearing Denied May 25, 1979.
    McDonald & McDonald, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and Gill S. Freeman, Miami, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Appellant Air Agency, Inc., brought a third party complaint for indemnity against appellee British Airways. The main action was brought by a plaintiff worker who slipped and fell off a loading dock which was a part of a building in which British Airways was an occupant. The claim of the injured plaintiff was settled by appellant Air Agency, Inc. The third party indemnity action came on for trial, and after the presentation of the third party plaintiff's evidence, the trial court directed a verdict for the third party defendant, British Airways.

On this appeal, Air Agency, Inc., urges error on the ground that the evidence showed a claim either for contract indemnity or for indemnity on the basis that British Airways was the active tort-feasor and that, at best, Air Agency, Inc., was a passive tort-feasor. We affirm upon a holding that the evidence did not show a contract providing for indemnity of an active tort-feasor. Cf. University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973), and Maulé Industries, Inc. v. Central Rigging & Contracting Corporation, 323 So.2d 631 (Fla.3d DCA 1975).

It is clear from the evidence that Air Agency, Inc., as the landlord, was an active tort-feasor in its failure to maintain the area of common usage. See the principles of law in Florida Power Corporation v. Taylor, 332 So.2d 687 (Fla.2d DCA 1976).

Affirmed.

      . All pleadings refer to the third party defendant as British Airways. The briefs set forth that British Airways should actually be referred to as British Overseas Airways Corporation.


text:
    Leroy DETTMAN, Gregory Dettman, and Aetna Casualty and Surety Co., Appellants, v. Laurence Byron REID, a minor by and through his father and next friend, Charles Reid, and Charles Reid, Individually, John Rickel and Robert Rickel, Appellees.
    No. 77-1876.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Rehearing Denied May 30, 1979.
    Nancy Little Hoffman and Law Offices of Weaver & Weaver, Fort Lauderdale, for appellants.
    Robert Orseck, Miami, on the brief and Walter H. Beckham, Jr., Miami, at oral argument of Podhurst, Orseck & Parks, P. A., Miami, and Wilton L. Strickland of Ferrero, Middlebrooks & Strickland, Fort Lauderdale, and Susan Goldman, Miami, for appellees.
   PER CURIAM.

Appellant suggests several errors occurred at the trial level, the primary one being the error of granting a new trial. We affirm the trial court on that ground because the appellant has not shown a clear abuse of the trial judge’s discretion in this matter. Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977). As to the other alleged errors we decline comment which comment would only be speculative and advisory in nature and effect and serve only to unnecessarily confuse or restrict the ordered new trial. Should error be committed later we can then deal with it.

AFFIRMED.

ANSTEAD, DAUKSCH and MOORE, JJ., concur.


author: MASON, ERNEST E., Associate Judge. MELVIN, Judge, MILLS, Acting Chief Judge,

text:
    John Anderson ROBBINS, a/k/a John Anderson Robinson, Appellant, v. STATE of Florida, Appellee.
    No. JJ-171.
    District Court of Appeal of Florida, First District.
    April 26, 1979.
    Rehearing Denied May 30, 1979.

      Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Carolyn Snurkowski and Miguel A. Olivella, Jr., Asst. Attys. Gen., for appellee.
   MASON, ERNEST E., Associate Judge.

An Escambia County jury convicted appellant Robbins, a/k/a Robinson, of first degree murder and robbery while carrying a firearm. The trial court adjudicated him guilty and sentenced him to consecutive life sentences. He appeals on the grounds that he was denied a speedy trial by the State as required by Florida Rules of Criminal Procedure, Rule 3.191(a)(1), that the evidence consisting of a gun found in his motel room should have been suppressed, that a confession made by him was not voluntary and should not have been admitted into evidence, that the trial court improperly limited the voir dire examination of jurors and that the court erred in not granting a mistrial because of improper cross-examination of appellant by the prosecutor.

We find the last four points of alleged error completely without merit and that the only point worthy of discussion is the one regarding the question of his alleged denial of a speedy trial.

We affirm. The trial court’s order denying appellant’s motion to discharge on the ground of denial of a speedy trial states as follows:

“This matter is before the Court on the defendant’s motion to dismiss which the Court shall treat as a motion to discharge pursuant to Florida Rules of Criminal Procedure 3.191(d)(1). The Court finds that the motion is not well taken and should be denied. While the defendant was in custody of the Duval County Sheriff’s Office for an unrelated armed robbery case, a detainer was placed on him by the Escambia County Sheriff’s Office on July 28,1977. On September 16,1977, the defendant was sentenced in Duval County on the unrelated charge to fifteen years. On September 21, 1977, the defendant was formally taken into custody and arrested under the charge in the present indictment. The Supreme Court of Florida has held in State v. Baasham, 352 So.2d 55, that a detainer placed by one county for a prisoner held by another county is not considered custody within contemplation of the speedy trial rule so as to commence running of speedy trial time.
“In addition, the Court finds that there has been a waiver pursuant to Florida Rule of Criminal Procedure 3.191(d)(2). The Court announced in open court the trial date. The transcript of that proceeding affirmatively shows that the defendant’s attorney agreed to the date in question. Therefore, it is
“ORDERED AND ADJUDGED that the motion to discharge is hereby denied.
“DONE AND ORDERED at Milton, Santa Rosa County, Florida, this 29th day of January, 1978.”

We find that the court below did not err in denying appellant’s motion for the reasons stated by him in this order.

The operative facts which determine our decision herein are as follows:

July 23, 1977 — Defendant was arrested and placed in custody in the Duval County jail on a Duval County robbery charge.

July 28,1977 — An “Out of Town Arrest and Booking Report” was filed by the Escambia County authorities. However, the service of that report did not place defendant in Escambia County custody. He was already in the custody of the Duval County authorities under the Duval County charge.

September 16, 1977 — Defendant was sentenced in Duval County on the unrelated robbery charge.

September 20, 1977 — Defendant was indicted by Escambia County for murder and robbery.

September 21, 1977 — Defendant was formally arrested by service of a capias upon him and taken into Escambia County custody on the charges contained in the Escam-bia County indictment.

January 30, 1978 — Defendant was tried under the indictment and found guilty as charged.

It is appellant’s position that the speedy trial rule time began to run on July 28, 1977, and in support of his claim he attached to his motion for discharge a document designated an “Out of Town Arrest and Booking Report” dated July 28, 1977. This document cannot be considered as an arrest warrant for it does not meet the requirements of Florida Rule of Criminal Procedure 3.121. No copy of any arrest warrant was attached to the motion as a basis to sustain the motion. The attached exhibit is no more than a detainer or hold order requested by the Escambia County authorities. Appellant was never in Escam-bia County custody until he was arrested on September 21, 1977, by service upon him while in the Duval County jail of a capias issued under the Escambia County indictment. Thus the speedy trial rule time began to run from September 21, 1977, and since appellant was tried on January 30, 1978, he was tried well within the time limits of the rule.

The speedy trial provision which applies to the situation sub judice is Rule 3.191(a)(1) which states as follows:

“Speedy Trial Without Demand. Except as otherwise provided by this Rule, every person charged with a crime by indictment or information shall without demand be brought to trial within 90 days if the crime charged be a misdemeanor, or within 180 days if the crime charged be a felony, capital or non-capital, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion shall ascertain that such person has been continuously available for trial during such period of time for trial. The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged. A person charged with a crime is entitled to the benefits of this Rule whether or not such person has been held to answer at a preliminary hearing, or whether or not such person has waived such hearing, and whether such person is in custody awaiting trial or is at liberty on bail or recognizance. If such person is serving a sentence of imprisonment elsewhere than Florida for conviction of an unrelated crime, the operation of this section shall not be effective until such person is no longer confined. This section shall cease to apply whenever a person files a demand for speedy trial under § (a)(2).” (Emphasis supplied)

Pursuant to the above stated rule, the running of the speedy trial requirement commenced on September 21, 1977, when defendant was formally taken into custody and arrested by Escambia County officials. State v. Bassham, 352 So.2d 55 (Fla.1977). In Bassham, the Supreme Court was called upon to answer the question of whether a detainer placed by one county for a prisoner held by another county is considered custody within the contemplation of the speedy trial rule from which time speedy trial time commences to run. The court adopted the rationale of this court in Williams v. Eastmoore, 297 So.2d 572 (Fla.lst DCA 1974) and answered the question as follows:

“Rule 3.191(a)(1), Fla.R.Crim.P., provides in pertinent part:

‘The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.’

“Relator, in Eastmoore, supra, sought to prohibit his trial on three counts of armed robbery on the ground that he had been denied his right to speedy trial. Awaiting trial on charges unrelated to the armed robbery offenses, relator had been confined in the Palm Beach County jail during October, 1973. While he was confined there, officials from Putnam County, in October of 1973, placed a detainer against him on the basis of the armed robbery charges which arose in Putnam County. The District Court denied the suggestion for writ of prohibition and explained:

‘At the time the detainer was issued against relator he was not in custody as a result of the conduct or criminal episode arising in Putnam County but rather was in custody exclusively on the charges in Palm Beach County. The detainer did not place relator in custody as a result of his conduct in Putnam County. He was not placed in custody as a result of his alleged criminal episode in Putnam County until he was freed on the Palm Beach charges and formally arrested on the Putnam County charges.
‘We hold that under F.R.Cr.P. 3.191(a)(1) the 180-day period in which the state had to bring relator to trial commenced to run when he was formally arrested on the Putnam County charges . . . .’

“In O’Bryan, supra, the First District Court of Appeal reiterated the proposition that ‘[t]he detainer warrant is not equivalent for purposes of speedy trial considerations, to an arrest on indictment or information.’ This Court denied a petition for writ of certiorari seeking review of this decision. Accordingly, we hold that a detainer placed by one county for a prisoner held by another county is not considered custody within the contemplation of the speedy trial rule so as to commence the running of the speedy trial time.” (352 So.2d at pages 55, 56)

Therefore, Rule 3.191(a)(1) and Bassham are controlling in this case. Defendant was tried on January 30, 1978, well within 180-days from September 21,1977, when he was formally taken into custody and arrested for the murder and robbery charges. In my view, the trial court was correct in denying the motion for discharge. In so holding, we find no conflict with Lewis v. State, 357 So.2d 725 (Fla.1978), relied upon by appellant, for the facts of this case are completely different than those in Lewis. The defendant in Lewis was in the custody of the applicable state officials on the date he was initially arrested. His initial arrest was not merely a detainer issued to another county which county held him in its custody on an unrelated offense as are the facts in this case.

Furthermore, the colloquy between the trial judge, the State’s attorney and appellant’s attorney which took place on December 14, 1977, indicates that even if the speedy trial rule began to run on July 28, 1977, as to the Escambia County charges, appellant waived the rule for the last statement his attorney made to the court was that he would be ready for trial on January 30,1978, the date that the court set for such trial.

In summary, the record discloses (1) that the custody of the appellant prior to September 21, 1977, was that of the Duval County authorities, and (2) that appellant has waived the speedy trial rule.

The judgments and sentences of the trial court are therefore affirmed.

MELVIN J., concurs in part and dissents in part.

MILLS, Acting C. J., dissents.

MELVIN, Judge,

concurs in part and dissents in part.

The dates of the occurrences of the events considered pertinent to the disposition of this cause are set forth in the majority opinion as prepared by Judge Mason. It is my view that when, on September 16, 1977, the defendant was sentenced in the Circuit Court in and for Duval County, Florida, to serve a period of time in the state prison on the unrelated robbery charge that had occurred in Duval County, from such moment forward he was a prisoner confined in the Duval County Jail, a correctional institution within the contemplation of Fla.R.Crim.P. 3.191(b)(1). It follows therefore, in my opinion, that when the defendant was indicted by the Escambia County Grand Jury on September 20, 1977, for the crime of murder in the first degree and also for the crime of robbery, and on September 21, 1977, was formally arrested upon a capias issued by Escambia County based upon such indictment, he, being a prisoner within the contemplation of such rule, was not entitled to the benefit of the 180-day rule referred to in the majority opinion but rather that the State of Florida had a period of two years from September 21, 1977, to bring the defendant to trial.

I agree that the judgments and sentences imposed shall stand affirmed.

MILLS, Acting Chief Judge,

dissents.

I dissent.

An Escambia County jury convicted Robbins of first degree murder and robbery while carrying a firearm. The trial court adjudicated him guilty and sentenced him to consecutive life sentences. He appeals contending the State denied him a speedy trial.

On 23 July 1977, Robbins was arrested and incarcerated in Duval County for an armed robbery committed there. On 28 July, while incarcerated at the Duval County Jail, he was arrested for first degree murder and armed robbery committed in Escambia County. On 16 September, Robbins was sentenced on the armed robbery charge arising in Duval County. On 21 September, he was taken into custody by the Escambia County authorities. The Es-cambia County grand jury indicted him on 30 September.

On 8 December, Robbins was arraigned. At the arraignment the court set a tentative trial date for 30 January 1978. At this time the court asked the attorneys if this was “in line with your trial calendar.” The prosecutor responded that the State had no objection and Robbins’ attorney stated he had no conflict.

On 14 December, codefendant Parker filed a motion for severance. At the hearing on the motion, trial dates and speedy trial problems were discussed, with Robbins’ attorney pointing out that whenever the case was set he would be ready to try it. The court granted the motion for severance and set the case for trial on 30 January. Robbins’ attorney then stated:

“MR. WESLEY: Judge, just to be sure for the record, I trust the court and the State will agree that I have not waived any rights under 3.191 by any statements I have made today. Does the court agree with that statement?
“JUDGE: Well, you said you weren’t sure you could be ready by the 9th of January.
“MR. WESLEY: Judge, I’m sure that I can be ready, I’m just not sure that we can schedule everything on the court’s docket. I’ll try the case whenever it’s set.
“JUDGE: All right, it will be set for the 30th of January.”

On 27 January, Robbins filed a motion for discharge alleging that his arrest took place on 28 July 1977 and that he had been continuously available for trial either in the Duval County Jail or the Escambia County Jail since that date. Attached to the motion was a copy of an arrest report showing that he had been arrested in Duval County on 28 July for the offenses of armed robbery and first degree murder.

In its order denying the motion for discharge, the court found that while Robbins was in the custody of the Duval County Sheriff, a detainer was placed on him by the Escambia County Sheriff’s Office on 28 July; that on 16 September, Robbins was sentenced to 15 years on the Duval County robbery charge; that on 21 September, Robbins was formally taken into custody and arrested on the Escambia County charges. The court cited State v. Bassham, 352 So.2d 55 (Fla.1977), for its conclusion that a detainer placed by one county for a prisoner held by another county is not considered custody within contemplation of the speedy trial rule.

The motion for discharge alleged that Robbins was arrested and taken into custody for the offenses charged while confined in the Duval County Jail on 28 July. Attached to the motion was a copy of the booking report confirming this arrest date. There was no evidence to the contrary. On 27 January 1978,181 days had elapsed since 28 July. Florida Rule of Criminal Procedure 3.191(a)(1) requires that a defendant charged with a felony be discharged from the crime if not brought to trial within 180 days from the date taken into custody. A person arrested pursuant to a warrant is taken into custody within the meaning of the Rule. Singletary v. State, 322 So.2d 551 (Fla.1975).

The court construed Robbins’ arrest as the equivalent of a detainer, relying on State v. Bassham, supra. In Bassham the court did not define detainer but there was no contention in that case that an arrest had taken place, while here the record establishes that Robbins was arrested.

The court indicated that Robbins’ status was governed by Florida Rule of Criminal Procedure 3.191(b)(1). However, when Robbins was arrested on 28 July, he was not a prisoner because he had not been sentenced. This point was decided in Lewis v. State, 357 So.2d 725 (Fla.1978), where the Supreme Court pointed out that Rule 3.191(b)(1) does not apply to those defendants being held in jail while awaiting trial.

The other reason for denial of the motion was the court’s ruling that there had been a waiver of the speedy trial time when Robbins’ attorney agreed to the 30 January trial date. In finding that there was a waiver, the trial judge failed to consider that at the 8 December hearing, the attorneys did not agree to a definite trial date. 30 January was set as a tentative date only.

At the 14 December proceedings, Robbins’ attorney neither agreed nor disagreed with the setting of the 30 January date but instead asserted that he was not waiving any speedy trial rights. Speedy trial is not waived by failing to object to a trial date set beyond the time period in the rule. State v. Ansley, 349 So.2d 837 (Fla.lst DCA 1977). Waiver by acquiescence does not apply to the facts of this case. See Stuart v. State, 360 So.2d 406 (Fla.1978).

I would reverse the judgment appealed and discharge the defendant from the crime charged.


text:
    Sarah Belle SUTTON, Appellant, v. Virginia Sutton SALLEY, Appellee.
    No. 78-1208.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Rehearing Denied May 25, 1979.

      Hyzer, Knight & Lund and George L. Knight, Miami, for appellant.
    Sinclair, Louis, Siegel & Heath and John L. Zavertnik, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The appellant and her late husband entered into a joint Will in 1950, which provided as follows:

“IN THE NAME OF GOD. AMEN
“We, D. B. Sutton and Sarah B. Sutton, husband and wife, of Miami, Dade County, Florida, being each of sound mind and memory, and mindful of the uncertainty of human life, so hereby make, publish and declare this, our conjoint Last Will and Testament, hereby revoking all former wills or codicils and other Ike papers of similar import or intent, by either of us heretofore made and executed.
“FIRST: The said D. B. Sutton does hereby will and direct that there first be paid out of his estate his funeral expenses and the expenses of his last illness, with all his just debts and liabilities, and thereafter does hereby will, devise and bequeath to his said wife, Sarah B. Sutton (should she survive him) all the rest and residue of his estate, of whatever nature and wherever situated. The said D. B. Sutton does hereby appoint the said Sarah B. Sutton, sole executrix of this his last will and testament, and directs that no other bond or other like undertaking be required of her as such executrix.
“SECOND: Likewise, the said Sarah B. Sutton does hereby will and direct that there first be paid out of her estate, her funeral expenses, the expenses of her last illness and all her just debts and liabilities. All the rest and residue of her estate, of whatever nature and wherever situated, the said Sarah B. Sutton does hereby devise and bequeath to her said husband, D. B. Suton, (should he survive her), and does hereby appoint the said D. B. Sutton as sole executor of this her last will and testament, and directs that no bond or other like undertaking be required of him as such executor.
“THIRD: Both parties to this conjoint last will and testament hereby jointly and severally agree not to sell, encumber or otherwise hypothecate or dispose of any property or estate now held or owned by either, without the written consent of the other party, it being the mutual desire and will of both parties to this indenbture [sic] to hold all property now owned or hereafter acquired by either for the use and benefit of their natural offsprings, Martha Louise and Virginia, their children both to the union of the parties hereto.
“FOURTH: In the event of the simultaneous death of both parties hereto, resulting from any accident or otherwise, then each of them constitute and appoint their older daughter, Martha Louise Oswald as sole executrix of this our Last Will and Testament, and we do each jointly and severally direct that she be not required to give bond or other like undertaking, as such executrix.
“FIFTH: Should neither of the parties hereto survive the other, then we each do hereby give, will, devise and bequeath to our said children, share and share alike, all the residue of our estates, of whatever nature and wherever situated, after the payment of all our just debts, including the expenses during our last illness with funeral charges, as hereinabove provided for. It is the intent of this Last Will and Testament, that any and all property left by either of the parties to this instrument, at the time of their death, respectively, shall be and become the property of our said children, share and share alike.
“IN WITNESS WHEREOF, the said D. B. Sutton and the said Sarah B. Sutton, have subscribed their names hereto on this 31st day of October, 1950, in Miami, Dade County, Florida.
“/s/ D. B. Sutton (Seal)
“/s/ Sarah B. Sutton (Seal)”

After the husband’s demise, the matter was probated and the appellant was made executrix and the assets of the estate were transferred to her upon the completion of the estate proceedings. Thereafter, she commenced to manage her affairs and dispose of the various properties received by her under the will.

Subsequent to the disposition of certain property in Virginia, a title problem arose and the appellee (one of two daughters of the parties referred to in the Will) was requested, along with her sister, to execute a quit claim deed. She declined to do this, contending that her mother did not have a fee simple title to the assets but only a life estate therein. A quiet title suit was brought in the foreign State, which was determined adverse to the appellee. During the pendency of that action, the instant action was commenced in Dade County by the appellee, contending that the mother only secured a life estate in the assets received under the Will, and requesting an accounting as to the assets received and disposed of thereunder. A motion to dismiss was filed, which was denied. An interlocutory appeal was taken to this court which, under the then existing appellate rules, deferred ruling until a final determination of the matter in the trial court.

Thereafter, the cause came on for hearing before the trial judge who, in effect, rewrote the Will. He treated the third and fifth paragraphs of the Will as if they were ambiguous; he resolved the ambiguity by determining that the widow was to hold the property for the use and benefit of the two daughters of the marriage. However, not only did he give the mother a life estate in the property but he permitted her to dispose of same to maintain herself with court permission and directed that she give an accounting of all the assets received under the Will.

Subsequently, the interlocutory appeal was dismissed without prejudice to the point on the validity of the order denying the motion to dismiss being made upon any final appeal. Thereafter, the appellant took an appeal from the final judgment, which required her to account and which required her to get permission from the trial court before disposing of any of the other assets, contending that the trial judge erred in such ruling and that there was no ambiguity in the Will, and that the original order overruling the motion to dismiss should have been reversed.

We have examined the Will and find no ambiguity in the terms thereof. Paragraphs four and five are only operative in the event of a simultaneous death of the makers thereof (the parents of the two daughters); there was no simultaneous death. Therefore, these provisions never became operative. Hayes v. Jones, 122 Fla. 67, 164 So. 841 (1935); Simpson v. Ivey, 67 So.2d 687 (Fla.1953); 35 Fla.Jur., Wills, § 295; 80 Am.Jur.2d, Wills, § 1393. Paragraph three was merely an agreement during their lifetime for joint ownership and control of their property, regardless of when or how acquired or titled during the marriage. The remaining provisions of the Will having bequeathed and devised all the property to the survivor of the marriage (the appellant), the trial court was in error in the first instance in denying the motion to dismiss.

We have examined the testimony and evidence before the trial judge and find that even if the Will was ambiguous, which we do not agree as indicated above, the trial judge (under the evidence before him) erred in altering the terms of the Will because it is clear, outside the four corners of the Will, that it was the intent of the appellant and her husband that whoever survived the other upon the dissolution of their marriage by death would receive all the assets or property interest held by the deceased.

Therefore, for the reasons above stated, the final judgment under review be and the same is hereby reversed with directions to dismiss the complaint and cause of action at the cost of the original plaintiff.

Reversed and remanded, with directions.

      . Florida Appellate Rule 4.2f (1962 revision as amended 1968).


text:
    Richard H. MYERS, Appellant, v. Tobe W. MYERS, Appellee.
    No. 78-1507.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Rehearing Denied May 25, 1979.
    Moore, Kessler, Roth & Beckerman, Miami, for appellant.
    Betty Kessler, Miami, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed upon authority of Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


author: KEHOE, Judge.

text:
    STATE of Florida, Appellant, v. Leon GAMBLE, Appellee.
    Nos. 78-1541, 78-1549.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.

      Janet Reno, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, State of Florida, brings these consolidated appeals from orders entered by the trial court granting appellee’s, defendant below, motions to suppress certain evidence and statements. We reverse.

The pertinent facts in regard to these motions may be summarized as follows: In the early morning of January 23, 1978, the Dade County Department of Public Safety (P.S.D.) broadcast a call that a burglary was in progress at 6757 Southwest 88th Street. As police units responded to the call, it was changed to a robbery with screams for help. Officer Merit arrived at the scene; got out of his police car, drew his service revolver, and ordered a person who was fleeing the scene to stop. The suspect put up his hands on a car and froze; as the suspect did so, the officer heard a “clanging” sound. As the officer walked around the car to take custody of the suspect, the officer saw a twenty-two caliber rifle lying on the ground about four feet from where the suspect was standing. During this time, several other police cars arrived at the scene. Officer Merit asked the suspect, who was subsequently determined to be a juvenile, who was with him; the suspect gave the officer some names. The officer asked for a description of the persons, if they were in a car and, if so, what type. The suspect said the were in an old Cadillac, either dark black or green. (Officer Merit did not recall at the hearing on the motion whether the suspect had given him two or three names.) The suspect further stated that the men were heading toward Perrine which was south of their present location. As officer Merit got each of these items of information, he relayed them to Sgt. Greenberg who was broadcasting a be on the lookout for (BOLO) over the radio. Officer Cokl, another P.S.D. officer heading for the scene of the robbery, heard the BOLO; at this time he was approximately two to three blocks southwest of the location of the robbery. Officer Cokl testified that it was approximately two minutes after hearing the robbery call that he heard the BOLO. At this time, officer Cokl saw an old green Cadillac passing on the street in front of him; the car was occupied by two persons, including appellee Leon Gamble. Officer Cokl stopped the car, got the men out and patted them down for weapons, and then called over his radio for additional information about the description of the persons involved in the robbery. The description which he received of one person matched that of appellee's companion; however, the other description did not match either of the two men. Officer Cokl then looked into the car and saw some stereo equipment on the back seat. The officer then radioed to ask if any stereo equipment had been taken during the robbery; he was informed that there had been. The officer then advised the two men of their Miranda rights, handcuffed them, and transported them, along with the stereo equipment, to the parking lot of the apartment lot where the crime occurred. The victim identified appellee’s companion and identified the stereo equipment as belonging to him. At the hearing on appellant’s motions to suppress, Detective Harold Ross, P.S.D., testified that he was the lead investigator assigned to this case. Thereafter, at the police station, Ross read appellee his Miranda rights. Appellee read along with the detective from the constitutional warning interrogation form and then he initialed each right after it was read. Appellee then underlined the portion of the form indicating that he did not want an attorney at that time. Appellee then signed and dated the form, including the time of the day. Appel-lee then stated that he was aware the robbery was to have taken place, but that he didn’t know where or who the victim was to have been. Appellee further stated that he was told by his companions to wait at a certain location, that they would return, and that he would drive them away. These statements were given approximately four hours after the crime occurred.

Pursuant to appellee’s motions to suppress certain evidence, i. e., the stereo equipment discussed above, and to suppress his statements, the trial court entered orders suppressing both the evidence and the statements. From these orders appellant appeals.

Appellant’s contentions on appeal are basically (1) that the stop of appellee was legal, and (2) that the statements given by the appellee, pursuant to a lawful stop and the appropriate Miranda warnings, were also legal.

The trial court in its order granting ap-pellee’s motion to suppress the evidence stated that “there was not [a] sufficient reason or basis to form a well founded suspicion to give rise to the initial stop, seizure, and arrest.” Our review of the record leads us to respectfully disagree with the trial court.

Our courts have consistently held that the police may temporarily stop an automobile on less than probable cause where there is an articulable suspicion that a criminal offense has been, is being, or is about to be committed. However, to lawfully do so, in the absence of probable cause, the police are governed by the basis principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Section 901.151, Florida Statutes (1977). In effect, it is required that the police have a founded or reasonable suspicion, predicated upon some factual basis, which requires further investigation. See, e. g., State v. Price, 363 So.2d 1102 (Fla. 2d DCA 1978); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978); Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976); and State v. Othen, 300 So.2d 732 (Fla. 2d DCA 1974). It is the application of these principles to the instant case whereby we reach a different conclusion than the trial court.

In this case, the officer who stopped appellee was answering a call to the robbery scene. When he was approximately two to three blocks from the scene, he received a BOLO on his police radio from other P.S.D. officers broadcasting from the scene of the crime by relaying information received from a captured suspect. This BOLO contained information in regard to a description of the car involved in the crime, its occupants, and the direction of travel. Further, after receiving the BOLO and seeing the green Cadillac, the officer was aware of its location in regard to the crime scene and the timing of the sequence of events. Also, it was approximately 1:30 a. m. in the morning. Based upon these facts and circumstances, interpreted in the light of the officer’s knowledge, we believe that under the authorities set forth above the officer had a “founded suspicion” predicated upon a sufficient factual basis to properly justify his stop of appellee. After this lawful stop and the accompanying investigation, the officer observed in plain view in the car the stereo equipment which was suppressed in the trial court’s order. Based upon his investigation and the additional information received over the police radio in regard to the description of the perpetrators of the robbery and the items stolen, the officer handcuffed appellee and drove him to the scene of the robbery where the stolen items were identified. In our opinion, the ensuing stop of appellee, the plain sight observation of the stereo equipment, and the arrest of appellee were legally proper. See, e. g., Smith v. State, 167 So.2d 225 (Fla.1964); Brown v. State, 91 So.2d 175 (Fla.1956); Jackson v. State, 192 So.2d 78 (Fla. 3d DCA 1966); Gibson v. State, 180 So.2d 685 (Fla. 3d DCA 1965); and Gray v. State, 177 So.2d 868 (Fla. 3d DCA 1966).

After determining that the initial stop, detention, and arrest of appellee were illegal and entering an order suppressing the evidence, i. e., the stereo equipment, the trial court then found, in a separate order, that the statements made by appellee subsequent to his arrest should be excluded under the fruit of the poisonous tree doctrine. Because we have determined, as set forth above, that the stop, detention, and arrest of appellee were legal, this doctrine is inapplicable in the instant case.

Accordingly, for the reasons set forth herein, the orders appealed must be reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    Michael H. JORDAN, Appellant, v. Tom FINLAY, d/b/a Tom Finlay’s Custom Automotive, Appellee.
    No. 78-1630.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Rehearing Denied May 25, 1979.
    Rash, Katzen & Kay and H. Stephen Rash, South Miami, for appellant.
    Mills, Hodin & London and Alan J. Ho-din, Miami, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Appellant filed a counterclaim for conversion of an automobile in connection with a suit in the nature of interpleader filed by appellee. Appellant was granted summary judgment on the complaint in the nature of interpleader. Appellant’s counterclaim for conversion was set for trial. A jury was empaneled and sworn. However, the trial judge voluntarily dismissed the counterclaim, without prejudice, on the ground that it was an improper adjunct to an inter-pleader suit.

Appellant contends that the trial court erred in dismissing the counterclaim. We find merit in this contention and reverse. See Trak Microwave Corporation v. Medaris Management, Inc., 236 So.2d 189 (Fla. 4th DCA 1970).

Reversed and remanded for further proceedings upon the counterclaim.


author: PER CURIAM. LEFFLER, KENNETH M.,

text:
    Floyd Cecil ROBERTS and Canal Insurance Company, Appellants, v. TREELAND NURSERIES, INC., a Florida corporation, Appellee.
    No. 77-1868.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.

      Allan L. Hoffman, West Palm Beach, for appellants.
    Alexander Myers of Christiansen, Jacknin & Myers, Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.

LEFFLER, KENNETH M., Associate Judge, dissents with opinion.

LEFFLER, KENNETH M.,

Associate Judge, dissenting:

Following non-jury trial, judgment for $9,000 was entered for the plaintiff in this motor vehicle accident case.

The only testimony for the plaintiff regarding loss of value to equipment involved in the accident came from an equipment dealer. The machine (“Bobcat”) had a value of $5,500 just prior to the accident, and a salvage value of $1,200; the trailer totally destroyed had a value of $950.00 just before the accident (and no salvage value). Replacement cost of both items, $6,682 (including sales tax), closely approximated the $6,450 value of both items before the accident. Both this witness and the plaintiff’s president testified that the equipment destroyed was, just prior to the accident, exactly equal in value to the replacement equipment.

The applicable measure of damages is the value of the partially destroyed equipment immediately before and after the accident. McMinis v. Phillips, 351 So.2d 1141 (Fla. 1st DCA 1977); Airtech Service, Inc. v. MacDonald Constr. Co., 150 So.2d 465 (Fla. 2d DCA 1963). Since the plaintiff kept the partially destroyed Bobcat, it was entitled to a maximum recovery of $8,378.95 (or only $8,610.95 even if replacement value were used).

The trial court erred in refusing to consider the salvage value of the Bobcat. Even though the difference in damages and the amount of the judgment is small, I would reverse with directions that judgment be entered for no more than $8,398.95.


text:
    STATE of Florida, Appellant, v. Woody Lee GRAY, Appellee.
    No. JJ-165.
    District Court of Appeal of Florida, First District.
    May 4, 1979.
    Robert L. Shevin, Atty. Gen., Michael H. Davidson and Charles A. Stampelos, Asst. Attys. Gen., for appellant.
    Robert R. Kimmel of Robert R. Kimmel, P. A., Pensacola, for appellee.
   PER CURIAM.

The State seeks review of an order discharging Gray from further prosecution based upon an alleged violation of the speedy trial rule, Fla.R.Crim.P. 3.191. We reverse.

Gray, a juvenile, was taken into custody on July 18, 1977. A petition alleging delinquency was subsequently filed. On September 13, 1977, Gray filed a written waiver of “his right to a speedy trial under Fla.R.Juv.P. 8.120, on and for all counts of the petition . . .” On October 27, 1977, the juvenile court certified Gray for trial as an adult. An information for the same offense was filed November 3, 1977. On February 23, 1978, the court granted Gray’s motion for discharge.

The issue presented is: What effect does a juvenile’s waiver of his juvenile speedy trial rights have upon the 180 day speedy trial period established by Fla.R.Crim.P. 3.191(a) where the juvenile has subsequently been certified for trial as an adult for charges based on the same conduct or criminal episode as that of the delinquency petition?

State v. Benton, 337 So.2d 797 (Fla.1976) held that a juvenile who has been certified to be tried as an adult is entitled under Fla.R.Crim.P. 3.191 to be brought to trial within 180 days from the time he was initially taken into custody. Accord, State v. Hunter, 342 So.2d 81 (Fla.1977); Shaw v. State, 332 So.2d 705 (Fla. 1st DCA 1976). Under Benton, supra, the 180 day speedy trial period commenced herein on July 18, 1977, the date Gray was taken into custody. However, Benton, supra, is distinguishable from the present case since therein there was no waiver of speedy trial.

We find that Gray’s waiver of his juvenile speedy trial rights did not constitute a waiver of his right to speedy trial under Fla.R.Crim.P. 3.191. Gray’s waiver was expressly limited to the delinquency petition and waived only the right to a speedy trial as provided by the juvenile rules of procedure.

However, we find that Gray’s limited waiver filed September 13, 1977 tolled the speedy trial period from that date until October 27, 1977, when Gray was certified to be tried as an adult. Cf. Johns v. State, 340 So.2d 528 (Fla. 2d DCA 1976). Then, the speedy trial time recommenced. Thus, when the trial court granted Gray’s motion for discharge, only 176 days of the 180 days allowed had elapsed. Accordingly, we reverse the order discharging Gray from further prosecution and remand the cause for further proceedings consistent herewith.

REVERSED and REMANDED.

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


author: KLEIN, HERBERT M.,

text:
    John Bayard BRITTON, Appellant, v. HUMPHREYS MEMORIAL HOSPITAL, Appellee.
    No. JJ-457.
    District Court of Appeal of Florida, First District.
    May 4, 1979.

      Stephen P. Smith, III of Folsom & Smith, Jacksonville, for appellant.
    Granville C. Burgess of Jacobs, Burgess & Poole, Fernandina Beach, for appellee.
   KLEIN, HERBERT M.,

Associate Judge.

The appellant, a medical doctor, was denied staff and surgical privileges at the defendant hospital. Appellant sought a permanent injunction and damages against the hospital as well as seeking to have the hospital held in contempt of court for its actions, based upon appellant’s allegation that he had been denied due process of law and that appellee was in violation of prior orders of the court. The trial court, by its order dated March 30, 1978, found that appellant had been afforded due process of law, that the hospital was not in contempt and denied appellant’s prayer for injunctive relief or damages.

This case has a long history dating back to 1971 and no purpose would be served in reciting all of the pertinent facts relating to the conflict between the parties. These facts are set forth in the trial court’s order of February 9, 1978, which this court finds to be supported by substantial competent evidence and which order denied appellant’s request for temporary injunction ordering the appellee- to reinstate the appellant to the medical staff. In addition, the trial court’s order of March 30, 1978, is also amply supported by substantial competent evidence and should be affirmed.

Briefly stated, the medical staff of the appellee suspended the appellant from staff and surgical privileges and two days later the appellant, recognizing his problems, requested that he be allowed to voluntarily withdraw from the staff and further requested the State Board Of Medical Examiners to take jurisdiction of his case under the “Sick Doctor Act”. The appellant was permitted by the appellee to voluntarily withdraw with the understanding that he could return to active staff only upon showing that he was able to resume his practice.

Thereafter, numerous hearings were held by the medical staff as well as review by the board of trustees of the appellee hospital. Appellant and appellant’s counsel attended, but refused to participate in such hearings, even though appellant had specifically requested at least two of such hearings.

As stated in the case of North Broward Hospital District v. Mizell, 148 So.2d 1 (Fla. 1962), that in view of the difficulty of precise definition of professional fitness for staff membership, public as well as private hospitals:

“. . are to be allowed latitude in enforcing standards of proficiency above those required for licensing. Detailed description of prohibited conduct is conced-edly impossible, perhaps even undesirable in view of rapidly shifting standards of medical excellence and the fact that a human life may be and quite often is involved in the ultimate decision of the board.” and,
“. . . the governing body of any hospital may be authorized in general terms to suspend medical staff members for infraction of whatever rules it may make for the particular institution. The propriety of such suspensions is tested by judicial review of the reasonableness of the rule in question.”

In the instant case the appellant voluntarily withdrew and was seeking reinstatement. But even assuming, arguendo, that appellant was suspended, there was judicial review, and as stated by the trial court in its final order of March 30, 1978:

“Defendant has at all times relative to this action afforded plaintiff due process of law in all proceedings as required by the by-laws of defendant and its medical staff, and defendant has afforded plaintiff notification of all hearings, and meeting and given him a fair and reasonable opportunity to present a defense to all charges brought against him at such hearings and meetings of the defendant’s medical staff and its board of trustees

This opinion is not intended to and does not preclude appellant from making further application for medical and surgical staff privileges, and being granted such if he is capable of meeting the reasonable standards required by the citizens of this State for the care, maintenance and protection of human life.

The order appealed from is affirmed.

ROBERT P. SMITH, Jr., Acting C. J., and BOOTH, J., concur. .


author: LARRY G. SMITH, Judge.

text:
    Lloyd HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. LL-298.
    District Court of Appeal of Florida, First District.
    May 4, 1979.

      Michael Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Lee Mandell, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

Defendant appeals his conviction of the offense of aggravated battery under one Count , and battery under a second Count, of the information. The sole issue for our determination is whether the trial court committed reversible error in failing to give jury instructions on the lesser included offenses of “attempts” to commit the two crimes charged.

As to the aggravated battery count, the trial judge instructed the jury on the lesser included offenses of aggravated assault, battery, and assault. As to the battery count, the trial judge instructed on the lesser offense of assault. Our inquiry must necessarily deal with the question whether “attempts” to commit the crimes charged are offenses under the criminal law of the State; if so, whether the failure to give charges on attempts was error; and if error, whether harmless or reversible. We conclude that attempted aggravated battery and attempted battery are criminal offenses, and that the failure to give the required jury instruction under Rule 3.510, Fla.R.Cr.P., was error. However, our examination of the case law, the statutes and the rule, convinces us that the error was harmless and not reversible.

Our study of the problem facing the trial judge in determining which “lesser included offense” instruction to give, or not give, commences with Mr. Justice Thornal’s definitive opinion in Brown v. State, 206 So.2d 377 (Fla.1968), and carries us through a progression of somewhat confusing and contradictory decisions.

The Brown decision (206 So.2d 377, Fla.1968) established the now familiar “categories of offenses” approach to jury instructions on lesser included offenses. A second Brown case, Brown v. State, 245 So.2d 68 (Fla.1971), excepted homicide cases from the general rules established in the earlier Brown decision if the death of the victim is not in issue but is an incontrovertible fact. In such cases, involving homicide only, jury instructions are properly limited to the unlawful homicide offenses within the charge, together with justifiable and excusable homicide. Martin v. State, 342 So.2d 501 (Fla.1977); cf. Spigner v. State, 304 So.2d 496 (Fla. 1st DCA 1974); and see State v. Thomas, 362 So.2d 1348 (Fla.1978) footnote at page 1350.

In cases other than homicide where death is not in issue, it is clear that the trial judge must instruct on attempts and lesser included offenses in accordance with the rules laid down in the first Brown decision. In practice, because strict adherence to these rules often requires the giving of seemingly illogical and even absurd instructions in particular cases, both trial and appellate courts have frequently been persuaded to follow the dictates of common sense and reason in denying or approving the denial of required instructions. It is therefore important to note that in Lomax v. State, 345 So.2d 719 (Fla.1977), the Supreme Court rejected the notions reflected in lines of cases that: (1) It is not error to refuse instructions on lesser included offenses when the trial court is of the opinion that based on the evidence no reasonable jury could infer that the crime charged was not committed; and (2) Lesser included offense instructions can be omitted when there exists overwhelming evidence that defendant committed the crime charged.

The apparent clash between common sense and the mandates of the Brown decision can be substantially mitigated or eliminated entirely by keeping in mind two compelling reasons why these instructions must be given even in the face of evidence that would preclude any possibility that a particular lesser included offense instruction would actually fit the established facts of the case. The first of these considerations is the long established prohibition against allowing the trial judge to make evidentia-ry determinations that properly lie within the province of the jury, Hand v. State, 199 So.2d 100 (Fla.1967); and Lomax v. State, supra. The second is the “jury pardon” concept recognized by numerous decisions of the Florida appellate courts. State v. Thomas, 362 So.2d 1348 (Fla.1978), and cases therein cited.

In the case before us, if an attempt to commit the crime charged in each count would in itself be an offense, an instruction on “attempt” to commit that crime was required. Rule 3.510, Fla.R.Cr.P. In State v. White, 324 So.2d 630 (Fla.1975), attempted assault and attempted aggravated assault were held to be criminal offenses. See also Hall v. State, 354 So.2d 914 (Fla. 2nd DCA 1978). The offenses of battery and aggravated battery are so closely akin to assault and aggravated assault that we see no reason to belabor the point, and accordingly hold that attempted battery and attempted aggravated battery are criminal offenses.

Under our analysis, it was error for the court to refuse instructions on attempts to commit battery and aggravated battery. As noted, however, the trial judge did instruct on the lesser offenses of aggravated assault, battery, and assault (as to the aggravated battery charge), and on the lesser offense of assault (as to the battery charge). The crime of aggravated batteiy is a felony of the second degree, Florida Statutes 784.045. Under Section 777.04, Florida Statutes, the offense of attempted aggravated battery is a felony of the third degree. The offense of aggravated assault under Section 784.021, Florida Statutes, is also a felony of the third degree. Under Section 784.03 the crime of battery is a misdemeanor of the first degree. The crime of attempted battery, under Section 777.04 is a misdemeanor of the second degree. The offense of assault under Section 784.011 is also a misdemeanor of the second degree. As to each count, therefore, the trial judge gave the jury the option of convicting the defendant of an offense carrying the same penalty as the “attempt” offense. As a practical matter, we find very little to distinguish the crime of attempted aggravated battery from the crime of aggravated assault, or the crime of attempted battery from the crime of assault.

We think this case is controlled by the decision in DeLaine v. State, 262 So.2d 655 (Fla.1972), recently reaffirmed in State v. Abreau, 363 So.2d 1063 (Fla.1978). The court in DeLaine held that it was harmless error to refuse an instruction on assault and battery where the defendant was charged with and convicted of the crime of rape. There the court gave an instruction on the offense of assault with intent to commit rape. In adopting the so-called “two step" rule, the court reasoned as follows:

“ . . As a matter of common sense and logic, if the jury did not convict the petitioners of assault with intent to commit rape, the same jury would not convict them of assault and battery, which is two steps removed from the crime of which petitioners were convicted. Under the circumstances of this case, the failure to give the requested charge on assault and battery was harmless error.” (262 So.2d at page 658)

While we cannot say that the omitted “attempt” offenses were strictly speaking “two steps” removed from the offenses of which defendant was convicted, neither can we say the attempts should necessarily fall within the “one-step” category so that refusal of the instruction should be considered reversible error.

We hold that the “jury pardon” concept was adequately preserved in this case since the jury could have convicted the defendant under Count I of the lesser offense of aggravated assault, the elements of which are virtually identical with attempted aggravated battery, and the penalty for which is the same; and the jury could have convicted the defendant under Count II of the lesser offense of assault, the penalty for which is the same as attempted battery, and the elements of which are virtually identical. We find so little distinction, if any, in the omitted attempt offenses and the offenses covered by the instructions that we cannot say that the trial judge’s decision to instruct on one, but not the other, represents a withdrawal of critical evidentiary matter from the province of the jury.

We note that the Fourth District Court of Appeal in Garrison v. State, 340 So.2d 1171 (Fla. 4th DCA 1976), cert. den. 348 So.2d 953 (Fla.1977), indicated that the harmless error rule would be applicable if the jury was given an opportunity to convict the defendant of a lesser included offense which carries a penalty greater than or at least equal to the punishment for the attempt to commit the offense. Whether we would be inclined to follow this rule we are not prepared to say. In the case before us we find not only equality of penalty but virtually comparable elements of the attempt offenses and the lesser included offenses covered by the instructions.

Before leaving the question of harmless error it should be noted that a degree of confusion in the law has been created by conflicting pronouncements in various cases. State v. Terry, 336 So.2d 65 (Fla. 1976) called for strict compliance with Brown. Terry held that where defendant was charged with assault with intent to commit murder in the first degree, and convicted of aggravated assault, failure to instruct on the offenses of assault and assault and battery was reversible error. In Terry the court failed to make any reference whatever to the DeLaine two step rule, and expressly overruled any prior conflicting decisions.

Thus, State v. Terry led to some speculation whether the DeLaine “two step” rule had been abandoned. Then in Lomax v. State, 345 So.2d 719 (Fla.1977), the court seemed to reject entirely the “harmless error” rule as applied to the failure to instruct on lesser included offenses. In Lo-max the court reaffirmed State v. Terry and in unmistakable and explicit language stated:

“ . . . When failure to instruct on a lesser-included offense constitutes error, the harmless error doctrine will not be invoked. Any such failure constitutes prejudicial error and is per se reversible.” (345 So.2d at page 721)

However, in the later case of State v. Abreau, 363 So.2d 1063 (Fla.1978), the court made it clear that the harmless error doctrine was still applicable, under the De-Laine rule, where the omitted instruction was two steps or more removed from the offense of which defendant was actually convicted. The court said:

“Only the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible. Where the omitted instruction relates to an offense two or more steps removed, DeLaine continues to have vitality, and reviewing courts may properly find such error to be harmless.” (363 So.2d at page 1064)

Lest there be any confusion remaining, the Abreau decision emphatically stated that the court had not “receded from DeLaine and its progeny”, and further:

“Thus, to the extent that the broad language employed in Lomax intimates that the harmless error doctrine cannot be invoked whenever there has been a failure to instruct on any lesser-included offense, it is disapproved.” (363 So.2d at page 1064)

We hold that the harmless error statute, Section 924.33, is applicable, and that it has not been shown that the error injuriously affected the substantial rights of appellant.

For the foregoing reasons, the judgment of conviction be and the same is hereby affirmed.

MELVIN, Acting C. J. and BOOTH, J., concur.

      . Count I charged aggravated battery upon Keith Barnes with the use of a deadly weapon, a knife.

      . Count II charged battery upon David Enfinger by actually and intentionally striking him.


author: ERVIN, Judge.

text:
    Rufus THAMES, M. D., Petitioner, v. George F. MELVIN, Respondent.
    No. NN-126.
    District Court of Appeal of Florida, First District.
    May 4, 1979.
    Robert D. Bell of Fisher, Bell, Hahn, Winn & Ptomey, Pensacola, for petitioner.
    Robert G. Kerrigan, Pensacola, and Charles W. Ehrhardt, Tallahassee, for respondent.
   ERVIN, Judge.

This is the second appearance of the parties before this court. The present petition for common law certiorari is from an order of the judicial referee dismissing a medical mediation claim, following remand of the former case to the judicial referee for further action within the time permitted by the Florida Rules of Medical Mediation Procedure. After remand, the referee held that the former petition for common law certiorari did not stay the proceedings of the panel and, ten months having expired from the date the claim was filed, the panel’s jurisdiction automatically expired.

We agree that the filing of a petition for common law certiorari did not automatically stay the proceedings, and, upon the expiration of the ten months after the claim was filed, the panel’s jurisdiction by operation of law terminated. We think it necessary, however, to comment upon some of the language expressed in the order of dismissal. The judicial referee, relying upon our opinion in Aldana v. Holub, 354 So.2d 1272 (Fla. 1st DCA 1978), in which we held that the referee had no authority for any reason to extend the hearing beyond ten months from the date the claim was filed, concluded that even had petitioner requested the stay pending review, and had such a stay been granted, the time for proceeding with the claim would not be tolled during the pendency of the review because he had no authority to stay. This statement is incorrect. While the referee has no authority to extend the time for hearing beyond 10 months as to a claim pending before the panel when the final hearing has not been concluded within 10 months from the date the claim is filed, once review of his order is sought, he is not precluded from entering a stay which has the effect of tolling any possible remaining time of the medical mediation claim.

If a claim is dismissed by the referee and a party petitions for certiorari, it is incumbent upon that party to file a motion in the lower tribunal for a stay. Fla.R. App.P. 9.310(a). The only exceptions to this requirement are set forth in Rule 9.310(b), permitting a stay upon the posting of a bond when the judgment appealed is solely for the payment of money, or when the state or any public officer appeals. If for any reason the stay is denied by a lower tribunal, this court has jurisdiction, upon appropriate motion, to review the denial of stay. Fla.R.App.P. 9.310(f).

No stay having been entered, the 10 month jurisdictional time limit has now expired and the lower tribunal’s order terminating jurisdiction is affirmed.

MILLS, Acting C. J., and ROBERT SMITH, J., concur.

      . The former case sought certiorari review from an order of the judicial referee dismissing a medical mediation claim because hearing was not commenced within 120 days from the filing of the claim and no extension order was entered by the referee. Within the 120-day period, however, a pre-trial conference was held and an order was entered setting the date for hearing outside the 120 days. We treated the order as an extension order and remanded the case to the panel for further proceedings. Thames v. Melvin, 365 So.2d 813 (Fla. 1st DCA 1979).

      . Section 768.44(3), Florida Statutes (1977), requires that a hearing be concluded within 10 months after the claim is filed.


text:
    Milton CAMPBELL, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1097.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was charged by information with four offenses perpetrated the same day with reference to a certain person, consisting of (1) robbery, (2) involuntary sexual battery with use of a deadly weapon, a pistol, (3) unlawful display of a firearm, to-wit, a pistol, in the course of commission of the felonies of involuntary sexual battery and robbery, and (4) false imprisonment.

Upon pleading guilty thereto, adjudication and sentencing were withheld and the defendant was placed on probation for a certain period. For additional offenses committed during the period of probation, an order was entered revoking the probation and separate sentences were imposed for each of the above initially charged crimes.

This appeal therefrom by the defendant is limited to the contention that imposition of the several sentences was improper. We find no error in the imposition of the sentences, other than the separate sentence which was imposed on the third count relating to display of a firearm during the commission of the felonies of involuntary sexual battery and robbery, which sentence is hereby vacated on authority of Gonzalez v. State, 367 So.2d 1008 (Fla.1979); Cone v. State, 285 So.2d 12 (Fla.1973). The sentences imposed on the first, second and fourth counts are affirmed.

It is so ordered.


text:
    Alexander WALDEN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2257.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Alexander Walden, in pro. per.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed,


text:
    Charles Wilbert COOPER, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1265.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Bennett H. Brummer, Public Defender and Jacquelyn S. Plasner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); Randolph v. State, 292 So.2d 374 (Fla. 3d DCA 1974); and McNeely v. State, 186 So.2d 520 (Fla. 2d DCA 1966).


text:
    Dora BLOCK, f/k/a Dora Thomas, Appellant, v. H. Earl BARBER, Esq., Appellee.
    No. 78-1719.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Lionel Barnet, Miami Beach, for appellant.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The final summary judgment appealed from is affirmed for the reasons stated by the trial court in said judgment. § 95.-ll(4)(a), Fla.Stat. (1977).


text:
    Harvey L. KOENIG, Individually and as father and next friend of his minor daughter, Elisa Koenig, Appellants, v. BISCAYNE KENNEL CLUB, INC., a Florida Corporation, and Commercial Union Insurance Company, a Foreign Corporation, and Otis Elevator Company, a Foreign Corporation, Appellees.
    No. 78-1779.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Jack Weiss, Miami, and Seymour Stern, for appellants.
    Haddad & Josephs and Michael Seth Cohen, Miami, Howard E. Barwick and David L. Wills, Miami Shores, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

The summary judgment entered below is reversed and the cause remanded for trial because the defendants-movants did not, as required, affirmatively and conclusively demonstrate that there was no genuine issue of material fact or that they were entitled to a judgment in their favor as a matter of law. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966).


text:
    Ralph BARTEL and Mollie H. Bartel, his wife, etc., et al., Appellants, v. FLAGLER FEDERAL SAVINGS & LOAN ASSOCIATION, etc., Appellee.
    No. 78-1792.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.

      Becker, Poliakoff, Streitfeld and Alan S. Becker, Miami Beach, for appellants.
    Keith, Mack, Lewis & Allison and Edgar Lewis, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed on the authority of Armetta v. CleveTrust Realty Investors, 359 So.2d 540 (Fla.4th DCA 1978), cert. denied, 366 So.2d 879 (Fla.1978).


author: PER CURIAM. SCHWARTZ, Judge

text:
    The DINERS CLUB, INC., Appellant, v. Donald F. BRACHVOGEL and Gladys Brachvogel, Appellees.
    No. 79-65.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Carl L. Laks, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Carol A. Fenello, Miami, for appellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed on the authority of Shafey v. Tease, 332 So.2d 137 (Fla.3d DCA 1976).

SCHWARTZ, Judge

(especially concurring).

Mr. and Mrs. Brachvogel were both sued by the Diners Club on their credit card account. At the time, they were living together in the marital home. Mr. Brach-vogel was personally served; substituted service was, as she admits, regularly effected on Mrs. Brachvogel in accordance with Section 48.031, Florida Statutes (1975) by serving her husband at the home which was her “usual place of abode.” Neither of the Brachvogels answered and a default judgment was entered against both of them. Some months later, Mrs. Brachvogel moved to set aside the judgment as against her under Fla.R.Civ.P. 1.540(b) on the ground that her husband had never delivered the suit papers to her and that the default judgment was therefore the product of her “excusable neglect.” The trial judge granted the motion, and the plaintiff took this interlocutory appeal pursuant to Fla.R. App.P. 9.130(a)(5).

If the issue had not been previously decided in this district, I would vote to reverse the order under review on the authority of Barnett Bank of Clearwater, N.A. v. Folsom, 306 So.2d 186 (Fla.2d DCA 1975), which is persuasive, well-reasoned and directly on point. However, in Shafey v. Tease, 332 So.2d 137 (Fla.3d DCA 1976), we held directly to the contrary of the holding in Folsom. 1 am unable to reconcile Folsom and Shafey, but I am similarly unable to distinguish Shafey from the case at bar. Because I feel bound to follow a prior and controlling decision rendered by this court on the same point of law, I concur in af-firmance on the authority of Shafey v. Tease, supra.


text:
    David Paul HORAN, Jack Smith, and Tom Sawyer, and Greater Key West Chamber of Commerce, Inc., a Florida Non-Profit Corporation, Appellants, v. The GREATER KEY WEST CHAMBER OF COMMERCE, a De Facto Corporation, and Tim Miller, Larry E. Rogers and Zachary Bentley, as representatives of a class known as the Greater Key West Chamber of Commerce, an Unincorporated Association, Appellees.
    No. 79-211.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    David Paul Horan, Joseph B. Allen, III, Key West, for appellants.
    Randy Ludacer, Key West, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Executive Uniform Rental, Inc. v. Sanitary Linen Service Co. of Florida, 265 So.2d 392 (Fla. 3d DCA 1972); City Gas Company of Florida v. Ro-Mont South Green Condominium “R”, Inc., 350 So.2d 790 (Fla. 3d DCA 1977); Sadowski v. Shevin, 351 So.2d 44 (Fla. 3d DCA 1976).


text:
    Hector TORRES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-573.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Hector Torres, in pro. per.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

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

Affirmed.


text:
    David Lee EPPS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-743.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.

      David Lee Epps, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


author: KLEIN, HERBERT M., Associate Judge.

text:
    AMERICAN MOTORISTS INSURANCE COMPANY, Caretta King Perry and Harvey King, Appellants, v. James BATTISTA, Appellee.
    No. JJ-385.
    District Court of Appeal of Florida, First District.
    May 9, 1979.
    Frank Marriott, Jr. of Gosney, Cameron, Parsons & Marriott, P. A., Daytona Beach, for appellants.
    Sylvan A. Wells of Stern, LaRue & Wells, Daytona Beach, for appellee.
   KLEIN, HERBERT M., Associate Judge.

Appellants, defendants below, seek reversal of a trial court order, entered after a jury verdict in favor of the defendants, directing a verdict in favor of the plaintiff, appellee, on the issue of liability and ordering a new trial on the issue of damages.

The conflict which we are called upon to resolve arose out of an automobile accident that occurred on January 3, 1973, late at night at the intersection of Volusia Avenue and Segrave Street in Daytona Beach. At that time the plaintiff, appellee, was a passenger in an automobile operated by his father traveling east bound on Volusia Avenue when that automobile was struck by an automobile being driven by the appellant, PERRY, traveling at a right angle to it on Segrave Street. There is no question that the BATTISTA car had the right of way at that intersection; there being a flashing red light for the appellant’s vehicle. The plaintiff, his father and another passenger in the car all testified that the PERRY vehicle traveling between 40 and 60 m. p. h. entered the intersection without ever stopping for the flashing red light and struck the BATTISTA vehicle broadside. The only witness for the defendant, the driver CARETTA PERRY, testified that she, having been born and raised in the area of the accident, was quite familiar with the intersection itself, stopped for the red light and upon looking, did not see any vehicles approaching nor the lights of any vehicles approaching and proceeded across the intersection when the impact occurred. The only other physical evidence as to the nature and cause of the accident was that the BATTISTA vehicle, after being struck broadside, was caused to move 5 to 10 feet and the PERRY vehicle “bounced back”.

Based upon these facts, the jury, after receiving instructions from the court (which instructions were neither objected to by either side nor the subject of an appeal) rendered a verdict in favor of the defendants.

The appellants urge that the testimony and physical evidence as outlined above created an irreconcilable conflict as to who caused the accident which conflict was and should have been resolved by the jury. Appellee asserts that there could not have been any conflict created by the “negative” testimony of the defendant and that the trial judge correctly set aside the jury verdict on the issue of liability based upon the rule of law first enunciated by the Supreme Court in Seaboard Airline Railway Co. v. Myrick, 91 Fla. 918, 109 So. 193 (1926). The doctrine set forth in that case and later followed by this court, in the case of Seaboard Coastline Railroad Co. v. Welfare, 350 So.2d 476 (1st DCA 1977), simply stated is that negative testimony is not sufficient to create a conflict justifying submission to a jury in the face of positive, affirmative evidence establishing a given set of facts. As stated in Myrick, supra:

“A mere statement that T did not see or hear’ the train or noise made by its approach as against affirmative evidence of credible witnesses that it did approach and made sufficient noise in doing so reasonably to attract the attention of others cannot be said to create a conflict of evidence justifying a submission of the question to the jury.”

The common denominator, however, in the Welfare and Myrick cases is that none of the witnesses giving the “negative” testimony indicated that their attention was directed to the particular facts in question. In the instant case the defendant stated that she had lived in the area most of her life, was aware of the traffic control device regulating her entry onto Volusia Avenue, directed her attentions specifically to such device and actually looked for approaching vehicles, giving rise to a reasonable inference, if the jury were to believe her testimony, that the proximate cause of the accident was the BATTISTA vehicle traveling without its lights on at night. We therefore conclude that this case is more properly governed by that rule of law enunciated by the Supreme Court in Tyus v. Apalochicola Northern Railroad Co., 130 So.2d 580 (Fla.1961), when that court said at page 585:

“The gist of our rule in relation to negative testimony in the face of positive testimony to the contrary is that if a jury decides that the attention of the witness whose testimony is negative in character, is actually directed to the fact or situation, about which he later testifies, regardless of the reason therefore, said jury may consider such negative testimony and accord to it the weight it may deem proper.”

Stated more simply, the defendant did not testify that “I saw nothing”, but rather stated, in essence, that “I looked where I should have been looking and there was nothing to see”.

The order appealed from is reversed and the trial court is directed to reinstate the jury verdict.

ROBERT P. SMITH, Jr., Acting C. J., and BOOTH, J., concur.


text:
    Charles HECTOR, Appellant, v. STATE of Florida, Appellee.
    No. KK-83.
    District Court of Appeal of Florida, First District.
    May 9, 1979.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The question on this appeal is whether the trial court improperly based appellant’s two-year prison sentence for grand larceny on the fact that he had not pleaded guilty and had demanded a jury trial on the charge. Reading the trial court’s comments in their entirety, it appears that the sentence was based on appellant’s apparent untruthfulness during his trial testimony, which is a proper sentencing consideration. U. S. v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). Accordingly, we uphold the sentence. We note, however, that if the trial court had considered appellant’s failure to confess to the crime in imposing sentence, such consideration would have been error. Thomas v. U. S., 368 F.2d 941 (5th Cir. 1966); U. S. v. Rodriguez, 498 F.2d 302 (5th Cir. 1974).

AFFIRMED.

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