author: ALDERMAN, Judge. MAGER, Chief Judge

text:
    Edward Charles GESFORD, Jr., Appellant, v. Mary GESFORD, Appellee.
    No. 76-212.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1976.
    Rehearing Denied Oct. 26, 1976.

      S. Robert Zimmerman, Pompano Beach, for appellant.
    Evan I. Fetterman, North Palm Beach, for appellee.
   ALDERMAN, Judge.

Husband in a divorce action appeals an award of lump sum and periodic alimony to his former wife.

The trial court in its final judgment found husband and wife to be 49 and 45 years of age. They were married to each other in 1949. At the time of trial the husband had an equity of about $1,500 in an automobile and owned an airplane in which he had little or no equity. He also had an equity of about $25,000 in a business that was in the process of being dissolved. In addition, he had formed a new business corporation which had a net worth of $13,-000. Prior to trial, the parties had equally divided a joint savings account of about $30,000. The parties owned jointly their former marital home in which they had an equity of $70,000. In 1974, the wife’s income was $8,200, while the husband’s was $17,000. However husband’s income in 1975 was considerably lower because of a depressed real estate market and the fact he was terminating his former business arrangement and embarking upon a new real estate business. The wife’s income as a beautician remained the same.

The trial court found that wife had no special equity in either of husband’s businesses and that she had no special equity in the former marital home. However the court did find that the wife was entitled to lump sum and periodic alimony. She was awarded the husband’s interest in the former marital home as lump sum alimony and husband was ordered to convey all of his right, title and interest in said residence to wife. Husband was further ordered to pay to wife, commencing six (6) months from the date of the final judgment, $200.00 per month as permanent alimony. The court also provided that in the event the parties were unable to agree, they could set a hearing to determine the question of the wife’s attorney’s fees and costs.

LUMP SUM ALIMONY

It is fundamental that the marital home formerly owned by husband and wife as a tenancy by the entireties, after dissolution of the marriage, became a tenancy in common. Section 689.15, Florida Statutes (1975). The court specifically found that wife had no special equity in husband’s undivided one-half interest. Therefore before the wife can be awarded the husband’s interest as a form of lump sum alimony there must be a positive showing of necessity on the part of the wife as well as the pecuniary ability of the husband to support that necessity. Cummings v. Cummings, 330 So.2d 134 (Fla.1976); Gordon v. Gordon, 192 So.2d 514 (Fla.1st DCA 1966).

In the present case there has not been a clear showing of necessity. Wife is employed with a present income of $8,200. In addition her half interest in the marital home is worth $35,000. Se also received $15,000 as her half of the joint savings account. The fact that one spouse upon dissolution of marriage may have more money or property than the other does not, ipso facto, allow the court in the form of lump sum alimony to equalize the relative economic positions of the parties. In the absence of a clear showing of necessity on the part of the wife in this case, the portion of the final judgment awarding lump sum alimony is reversed.

PERIODIC ALIMONY

In reference to the award of periodic alimony, the trial judge in the final judgment observed:

“ . . . the most difficult aspect of this case has been the disparity between the Husband’s previous earnings and his earnings this year. This is not an anomalous situation, especially in cases involving self-employed business and professional persons, most of whom do experience fluctuations in income. In determining the Husband’s ‘ability’, should the court consider his earnings for the last week, the last month, the last year, or the last decade? It appears to the court that both the recent past and the extended past have to be considered and compared in order for a judgment to be made. This the court has attempted to do in this case.”

The award of $200.00 per month alimony beginning six months from the date of the final judgment apparently was based upon the trial court’s judgment that considering the husband’s past earning ability, within six months he would financially be able to began payments. We believe, if at the time of trial the present pecuniary ability of the husband does not justify an award of periodic alimony, the better practice would be for the trial judge to reserve jurisdiction, rather than awarding alimony to begin some time in the future. Steinhauer v. Steinhauer, 252 So.2d 825, 832 (Fla.4th DCA 1971). In six months the situation of the parties may be entirely changed. The needs of the wife and the pecuniary ability of the husband may then justify an award of more than $200.00, or perhaps none at all. We therefore reverse that portion of the final judgment allowing the wife $200.00 a month periodic alimony beginning six months after trial. However jurisdiction is reserved in the trial court, upon proper motion, to award alimony in the future should there be sufficient change in circumstances of the parties to justify such an award.

ATTORNEY’S FEES

The parties in their briefs have argued the question of whether in the case below the wife was entitled to an award for her attorney’s fees and costs. The trial court in its final judgment indicated that in the event the parties were unable to agree the court would set a hearing to determine the question of wife’s attorney’s fees and costs. From the record it appears that no such hearing was ever held. Since the trial judge has not yet ruled on the question of attorney’s fees and costs in the suit below that issue is not properly before this court.

Reversed and remanded for further proceedings consistent with this opinion.

DOWNEY, J., concurs.

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

MAGER, Chief Judge

(dissenting):

With all due respect I must respectfully dissent from that portion of the majority opinion reversing the trial court’s award of periodic alimony to the appellee-wife.

A reading of the majority opinion reflects, most respectfully, a misinterpretation and somewhat restricted view of the wording, import and intent of the trial court’s order. The majority has proceeded on the premise that the trial court’s award of periodic alimony to the wife to begin six months from the date of the final judgment was tantamount to a determination that the husband lacked the “present” ability to pay. The mere fact that the trial court in the exercise of its discretion and in an abundance of wisdom and caution sought to defer the commencement of the husband’s obligation is neither improper nor inconsistent with an ability to pay.

Undoubtedly, and properly so, the ability to pay as with the necessity to receive must initially be determined by the circumstances as they exist at the time of trial; but this determination is not made in a vacuum and the court can and should consider the past, present and future financial circumstances of the parties as reflected by the evidence before the court. For example a recognized factor to be considered is “the party’s earning ability.” See Gordon v. Gordon, 192 So.2d 514 (Fla.1st DCA 1966). See also Kalmutz v. Kalmutz, 299 So.2d 30 (Fla.4th DCA 1974). By its very nature this factor contemplates and is dependent upon future events or events that will transpire after final judgment. It is a contingent and variable factor; but nonetheless a valid consideration in the totality of circumstances. See Gordon v. Gordon, supra.

Likewise as the earning capacity or ability to earn is a proper factor in determining a spouse’s financial ability to pay so, too, is the business experience, education and potential earning ability of the wife a relevant factor to be considered in determining her needs, i. e. entitlement to alimony be it denominated as permanent or rehabilitative. See McRee v. McRee, 267 So.2d 21 (Fla.4th DCA 1972); Reisman v. Reisman, 314 So.2d 783 (Fla.3d DCA 1975). Clearly this, too, is a factor which contemplates and is dependent upon events or contingencies that will transpire in the future. Certainly it could not be validly contended that the wife’s present needs could not be determined by her future potential or lack thereof.

In addition to the foregoing my reading of the final order suggests other reasons for upholding the award of permanent alimony. The observations made by the trial judge as a preface to the adjudicatory portions of the order were nothing more than “observations” and should be treated as obiter dicta and mere surplusage. The presence or absence of the husband’s ability to pay is not determined from the trial court’s gratuitous observations but rather from the strength or weakness of the evidence presented. But, even when considering these “observations”, it is clear that the trial court did give proper consideration to the relevant factors in their totality when he specifically observed that “it appears to the court that both the recent past and extended past have to be considered and compared in order for a judgment to be made. . ' . . ’’- The trial court did not observe, as the majority opinion inferentially suggests, that the husband does not possess the present ability to pay “but will possess this ability sometime in the future."

What it appears to this writer is that the trial court was not persuaded by the fact that the husband had a bad business year for that year immediately preceding the subject proceedings, see Howard v. Howard, 118 So.2d 90 (Fla. 1st DCA 1960). Instead the trial court chose to consider the totality of the financial circumstances of the husband past, present and future and tempered such consideration with what might be described as a “measure of mercy” by deferring the commencement of the husband’s obligation to pay to a time beginning six months after the final judgment. Where then has an abuse of discretion been demonstrated and shown?

Alternatively, could not the trial judge have directed that the husband begin to pay a $1.00 a month alimony for the first six months and $200.00 per month thereafter? This device could have been utilized by the trial judge in order to preserve a finding of the husband’s “present” ability to pay. Certainly it cannot be suggested that the trial court must indulge in a form of judicial terpsichore resorting to the doing indirectly that which it is authorized to do directly.

Lastly, if any doubt exists as to whether the trial court actually found a “present” ability or not, then the matter could be remanded to the trial court for a determination instead of directing the trial court to reserve jurisdiction for a six month period at which time the then “present” ability to pay would be ripe for consideration. Upon a remand for such purpose, the trial court, based on the evidence, may well find (although I think it has already done so) that the husband has the (present) ability to pay and in such case may decide to award the wife either the same amount or a lesser amount; conversely, if the evidence so suggests (which I believe that it does not) that the husband does not have the (present) ability to pay then no alimony would be awarded to the wife.

In conclusion, it is my humble opinion that the portion of the final judgment awarding the wife periodic alimony should be affirmed. To the extent that the majority has reversed, I dissent; but in all other respects I concur with the majority opinion.

      . The court undoubtedly must have found that there existed a present ability when it proceeded to make a lump sum alimony award separate and apart from the subject periodic alimony.

      . It would seem to me that if changing circumstances are a primary concern (and, of course, they truly are in the aftermath of dissolution proceedings) then the burden of demonstrating those changes under the facts of this case should be placed upon the husband at the expiration of this “six month grace period” to demonstrate his inability to begin to meet his monthly obligation; rather than placing the burden on the wife at the end of this six month period (as suggested by the majority opinion) to come forward again demonstrating not only her needs but the husband’s ability as well. At that juncture it would merely not be a matter of a simple evidentiary showing of need and ability but rather would necessitate the showing of a substantial change in circumstances from the entry of the final decree that would justify the award of any alimony. Under the facts of this case, this burden more properly rests with the husband.


source: Caselaw Access Project

author: McNULTY, Chief Judge. GRIMES, Judge

license: Public Domain

text:
    David Wayne GREENFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 75-1731.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1976.
    Rehearing Denied Oct. 25, 1976.
    Jack 0. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and Paul J. Martin, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   McNULTY, Chief Judge.

On this direct appeal appellant Greenfield assails his conviction of sexual battery. The sole issue on appeal relates to the denial of a motion for new trial predicated on the ground that the prosecutor prejudicially commented in summation on appellant’s exercise of his right to remain silent at the giving of his Miranda rights at the time of his arrest. We affirm.

Most significantly, in this case, appellant pleaded not guilty by reason of insanity. Accordingly, there was no real dispute as to the essential objective facts herein. They are that the prosecutrix, having sunned herself on a local beach in Sarasota in the late morning or early afternoon on the day of the offense, was returning to her car because of the threat of rain. It was necessary that she pass through a wooded area bordering the beach. While in this wooded area she was accosted by appellant and dragged to a more secluded area of the beach where the sexual assault occurred. Upon her release by appellant the prosecu-trix drove immediately to the police station and reported the incident, describing appellant. A police officer promptly returned to the scene of the assault and in the vicinity thereof spotted appellant as one fitting in considerable detail the description given by the prosecutrix. He arrested appellant and read him his Miranda rights.

The officer testified that he explained these rights, that appellant thanked him for explaining them, and that appellant said he understood them and did not wish to speak to the officer until he spoke to an attorney. Shortly thereafter at the police station appellant was again interviewed by other officers, again reminded of his rights and again he reiterated that he did not wish to speak to the officers, that he wanted to speak to an attorney. In fact, he was permitted to and did call an attorney. No objection was made to the introduction of this evidence relating to the giving of the Miranda rights and to appellant’s responses thereto.

During closing arguments, however, the prosecutor made the following comments:

“But let’s go on from what she stated. Let’s go on to Officer Pilafant who took the stand, who the psychiatrists, both defense psychiatrists, never even heard about, never even talked to. He states that he saw this fellow on the beach and that he went up to him, talked to him and then arrested him for the offense. The fellow voluntarily put his arms behind his back and said he would go to the car. This is supposedly an insane person under the throes of an acute condition of schizophrenic paranoia at the time. He goes to the car and the officer reads him his Miranda rights. Does he say he doesn’t understand them? Does he say ‘What’s going on?’ No. He says ‘I understand my rights. I do not want to speak to you. I want to speak to an attorney.’ Again an occasion of a person who knows what’s going on around his surroundings, and knows the consequences of his act. Even down — as going down [in] the car as you recollect Officer Pilafant said he explained what Miranda rights meant and the guy said — and Mr. Greenfield said T appreciate that, thanks a lot for telling me that.’ And here we are to believe that this person didn’t know what he was doing at the time of the act, and then even down at the station, according to Detective Jolley — he’s down there. He says, ‘Have you been read your Miranda rights?’ ‘Yes, I have.’ ‘Do you want to talk?’ ‘No.’ ‘Do you want to talk to an attorney?’ ‘Yes.’ And after he talked to the attorney again he will not speak. Again another physical overt indication by the defendant.”

At this point, counsel for defendant strenuously objected on the basis that such comments were improper references to appellant’s insistence on his Fifth Amendment right to silence. We cannot agree.

While we do agree that, at least in the face of an objection, testimony or prose-cutorial comment relating to a defendant’s insistence on his right to remain silent generally constitutes reversible error, we are of the view that under the circumstances of this case the general rule ought not apply.

When insanity is raised by plea as a defense, and evidence thereof is forthcoming prima facie sufficient to raise a reasonable doubt, the state no longer can travel on the presumption of sanity; it must establish sanity beyond a reasonable doubt as with every element of the offense charged. Certainly, evidence of the conduct and apparent state of mind and awareness of an accused, particularly where, as here, it is connected closely in point of time to the crime charged, is relevant to this issue; and it would be manifestly unfair to permit a defendant prima facie to establish a defense and then preclude the state from meeting it by barring relevant evidence to the contrary because of the “Miranda” rationale.

Here, for example, the evidence relied upon by the state was perhaps the most competent evidence on appellant’s mental capacity at the time of the offense available, being so closely connected to the res gestae. It was neither unfair to introduce it nor improper to comment upon it in summation; and, though considered in a somewhat different context (i. e., with respect to a defendant’s right to silence during a psychiatric evaluation ordered by the court), we concur with the observations of Mr. Justice Adkins in Parkin v. State:

“When the plea of not guilty by reason of insanity was entered, it was done so with knowledge of the existing statutes and case law on the subject. There is no constitutional right to plead this defense, and if the statutes and case law permit a defendant the privilege of raising it, he must waive certain constitutional rights with respect to it, including the privilege against self-incrimination. . .

In view whereof, the judgment and sentence appealed from should be, and they are hereby, affirmed.

HOBSON, J., concurs.

GRIMES, J., dissents with opinion.

GRIMES, Judge

(dissenting).

There is considerable logic in Judge McNulty’s opinion. Yet, it is an appreciable step beyond Harris v. New York in which the U. S. Supreme Court held that when a defendant took the stand he could be cross-examined on inconsistent statements he had given to the police in violation of his Miranda rights. That decision was based upon the premise that a person should not be entitled to commit perjury and at the same time hide behind the constitutional right to remain silent.

Here, there is no question of perjury because the appellant did not take the stand, and I cannot equate interposing a defense of insanity with the giving of perjured testimony. The testimony of Officer Pilafant, had it been objected to, and the comments of the prosecutor in closing argument, which were objected to, would require reversal under Bennett v. State, supra. The fact that this evidence was probative on the sanity issue cannot deprive appellant of his constitutional protections.

Moreover, had the state been conscious of the possibility that Pilafant’s testimony might result in a violation of Miranda principles, the problem could have been avoided with a minimum of prejudice to the state’s case. The questions and answers could have been couched in such a manner as to permit the officer to convey to the jury the fact that the appellant carried on a perfectly rational conversation without specifically stating that he chose to avail himself of his right to remain silent.

In view of the present posture of the law on this subject, I must respectfully dissent.

      . Shannon v. State (Fla.1976), 335 So.2d 5 (Opinion filed June 30, 1976); Bennett v. State (Fla.1975), 316 So.2d 41; Clark v. State (Fla. App.2d, 1976) 336 So.2d 468 (Opinion filed July 28, 1976).

      . See, e. g., Farrell v. State (Fla.1958), 101 So.2d 130; Byrd v. State (Fla.App.2d, 1965), 178 So.2d 886.

      . Cf. Harris v. New York (1971), 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1.

      . No issue is made herein about the postural sequence in which the evidence came in. That is, the evidence came in during the state’s case in chief before there was any evidence from the appellant as to his insanity. But no objection was made at the time. So, by objecting to prosecutorial comments thereon during summation, the appellant is in no different position than he would have been in had such evidence been introduced in rebuttal, when it would have been, as we hold here, proper.

      . (Fla.1970), 238 So.2d 817.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Lucinda STRATTON, Appellant, v. Robert N. McQUEEN, Appellee.
    No. 76-15.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1976.
    Rehearing Denied Oct. 25, 1976.
    Gary A. Kahle, of Olmsted, Schwarz & Kahle, Port Charlotte, for appellant.
    Britt Whitaker, Tampa, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

It is apparent that the defendant-appellee in .this paternity action did not meet the burden of conclusively establishing that no genuine issue existed concerning the material issue of whether he was the father of the appellant’s child. The summary judgment entered in his favor therefore plainly cannot stand and the cause must be remanded for trial. Holl v. Talcott, Fla.1966, 191 So.2d 40; Jones v. Stoutenburgh, Fla. 1957, 91 So.2d 299; Crepaldi v. Wagner, Fla.App.lst 1961, 132 So.2d 222. Yarmark v. Strickland, Fla.App.3d 1966, 193 So.2d 212, cert. den., Fla.1967, 201 So.2d 559, which was relied upon below, and which involved the reversal of a judgment of paternity rendered after trial, on the ground that it was based on mere speculation and conjecture, is on point neither procedurally nor factually.

REVERSED and REMANDED.

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


author: SCHEB, Judge.

text:
    Brian John VOLLMER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1244.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1976.
    Rehearing Denied Oct. 25, 1976.

      Jack 0. Johnson, Public Defender, Steven H. Denman, Asst. Public Defender, and Robert S. Laing, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant was charged with resisting an officer with violence contrary to Fla.Stat. § 843.01 and two counts of possessing a controlled substance in violation of Fla.Stat. § 893.13(l)(e). He pled nolo contendere, preserving his rights on appeal, and was sentenced to two years. He contends that he could not be guilty of violating Fla.Stat. § 843.01, because the officer was acting illegally, and furthermore, that the controlled substance found on his person should have been suppressed because the search was unjustified. We agree and reverse.

The events in question occurred on March 1, 1975, at approximately 3:00 A. M. As Officer Alexander of the,Lakeland Police Department was traveling south on Florida Avenue in a marked police vehicle, he observed the appellant walking north between Edgewood and Windsor Streets on Florida. There was no evidence of any criminal activity in this area of Lakeland on that morning. The officer had no reason to believe that the appellant had committed any crime. But, as the officer drove by, he noticed the appellant watching the patrol car. He then turned his car around to further observe the appellant whereupon he stopped him and asked him for his name. When the appellant replied that his name was “Bill Hollis,” the officer inquired as to whether he had any identification. When appellant answered in the negative, the officer next asked whether appellant had a wallet. Appellant then replied “yes,” and produced a wallet. As appellant opened the wallet the officer saw a Florida driver’s license and asked to inspect it. Appellant gave it to the officer and upon inspection, the officer determined that the license bore the name “John Brian Vollmer.” When Officer Alexander read that name aloud, appellant “took off running” and the officer gave chase on foot. When the officer caught appellant a struggle ensued. Appellant was arrested for resisting an officer with violence. A subsequent search of his person at the police station revealed LSD and cocaine.

In this instance the initial stop by the officer was not justified. Without more, the fact that appellant was walking along a main public thoroughfare at 3:00 A. M. and turned to look at a police car is an insufficient basis to justify a stop under Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, or Florida’s Stop and Frisk Law, Fla.Stat. § 901.151. See Thomas v. State, Fla.App.4th 1974, 297 So.2d 850, in which our sister court held that stopping a car at 5:00 A. M. was unjustified when the only events arousing suspicion were that the driver started to pass a police car and then pulled back, and the passenger then turned to look at the police car.

We recognize that a brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Adams v. Williams, 1972, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. And, where the public safety is endangered, identification may properly be requested. Cf., Hardie v. State, Fla.1976, 333 So.2d 13. But here, there was no evidence of any danger to the public safety and there were no circumstances to justify the police to suspect the appellant of being involved in any criminal activity. Cf., Maruca v. State, Fla.App.3d 1976, 329 So.2d 427.

The identification furnished the officer by appellant was the product of the stop. Since the initial stop of the appellant by the officer was illegal, the fact that appellant produced an identification contrary to the name he had given and then fled, does not validate the policeman’s actions. The appellant here was not required to explain his presence and conduct. Cf., State v. Ecker, Fla.1975, 311 So.2d 104.

In Stanley v. State, Fla.App.2d 1976, 327 So.2d 243, we held that a baggie of marijuana was improperly seized even though it had been thrown out the window of the defendant’s car, because the evidence was the fruit of an illegal stop of the car. See Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; D’Agostino v. State, Fla.1975, 310 So.2d 12.

Since the actions of the officer were unjustified, appellant could not be charged with resisting the officer under Fla.Stat. § 843.01. See Burgess v. State, Fla.App.2d 1975, 313 So.2d 479, and cases cited therein. Similarly, the evidence found on appellant’s person must be suppressed since the search was not justified as being incident to a lawful arrest.

Reversed.

BOARDMAN, Acting C. J., and GRIMES, J., concur.

      . The events here took place prior to the effective date of the new criminal code. Therefore, we need not determine the effect of Fla.Stat. § 776.051 on the right to resist an officer in the performance of his duties.


author: GRIMES, Judge.

text:
    Leayres HAYES, as Administrator of the Estate of Bruce L. Hayes, Deceased, Appellant, v. The CRITERION CORPORATION (formerly known as Lamonte-Shimberg Corporation) et al., Appellees.
    No. 75-1573.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1976.
    Rehearing Denied Oct. 29, 1976.

      Bill Wagner of Wagner, Cunningham, Vaughan, May & Genders, Tampa, Robert Orseck of Podhurst, Orseck & Parks, and Susan Goldman, Miami, for appellant.
    John R. Bush, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee La-monte-Shimberg Corp.
    Timothy F. Prugh and Benjamin H. Hill of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee Hillsborough County.
   GRIMES, Judge.

This is an appeal from a judgment entered upon a directed verdict for the defendants in a wrongful death action.

The accident which resulted in the death of Bruce Hayes occurred in a drainage ditch adjacent to a subdivision in which Bruce lived. The defendant, Criterion Corporation, had constructed the ditch at the time of developing the subdivision and then dedicated it to the public. The defendant, Hills-borough County, had accepted the ditch for purposes of maintenance. Criterion Corporation owned land on both sides of the ditch, but the land beyond the ditch was entirely unimproved at the time the accident occurred. Criterion had erected a chain link fence between the subdivision and the ditch, but there was no fence on the opposite side of the ditch facing the open field.

The ditch was anywhere from four to seven feet deep. Due to erosion, one side of the ditch consisted of loose dirt and at certain points the side slightly overhung at the top. At the time of Bruce’s death, the ditch contained little or no water. By climbing over the fence or by going around it at the point where it intersected a street, children from the subdivision from time to time played in the open field and dug in the ditch. While there was no evidence that any of the defendants’ employees had seen children in the ditch, Criterion’s construction manager admitted that children did sometimes dig in the various drainage ditches in Criterion’s land development projects. Criterion had some portable construction trailers located within view of the ditch.

On the day of the accident, several children had been digging in the ditch. Some of the older children had dug a tunnel about five feet deep. When the tragedy occurred, Bruce, who was nine years old, and his eight year old friend, George, were the only children remaining in the ditch. According to George, Bruce was digging with a shovel in a tunnel which had already been started by some of the other children. It is not clear whether this was the five foot tunnel described by the other boys, but in any event, the tunnel in which Bruce was digging was large enough to hold three boys. George suddenly looked up and saw the dirt above Bruce collapse over him. Despite his efforts, he was unable to pull Bruce free from the dirt, and Bruce was suffocated. George said that the side of the ditch did not overhang at the point where Bruce was digging in the tunnel.

The dispositive issue on this appeal is whether the drainage ditch constituted an attractive nuisance. Our examination of the record, including the pictures of the ditch, and our study of the law leads us to the conclusion that the ditch was not an attractive nuisance.

In Cockerham v. R. E. Vaughan, Inc., Fla.1955, 82 So.2d 890, our Supreme Court adopted the following rule prescribed by Section 339 of the Restatement of Torts as applicable to the doctrine of attractive nuisance:

“A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
“(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
“(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and
“(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.”

In Edwards v. Maule Industries, Inc., Fla.App.3d 1962, 147 So.2d 5, the court held that a sand pile maintained next to the highway into which a child sank when he was walking on it did not constitute an attractive nuisance. The court said:

“Our research has not revealed, nor has there been cited to us, a case in any jurisdiction holding that a sand pile unconnected with a condition constituting an additional danger is of itself an attractive nuisance. To allege that because the sand pile was left *• * without adequate or sufficient supports * * *’ it ‘ * * * did cave in on top of said minor child’ is a nonsequitur. Human experience does not supply the necessary characteristics to an ordinary sand pile which would constitute it an attractive nuisance inasmuch as there is no hidden element of danger existing therein.”

On the other hand, our court in Ridgewood Groves, Inc. v. Dowell, Fla.App.2d 1966, 189 So.2d 188, held that a fifteen foot high pile of roots, sand, grass and palmetto fronds with perpendicular sides and overhangs which resulted from a land clearing operation could be determined by a jury to constitute an attractive nuisance. The court distinguished the ordinary sand pile in Edwards by pointing out that the peculiar nature of the pile could constitute a hidden defect to trap the unwary.

Our court further emphasized the significance of a hidden element of danger with respect to the attractive nuisance doctrine in Jackson v. Whitmire Construction Company, Fla.App.2d 1967, 202 So.2d 861, 863. There a child was hurt while he was playing on a pile of sand, rock and broken asphalt which was erected in the course of constructing a home. The injury occurred when a girl dislodged a rock of shell and tar causing it to fall on her younger brother’s finger. After reciting the four requisites for an attractive nuisance, the court said:

“. . .A condition cannot be deemed to involve an unreasonable risk of death or serious bodily harm to children unless it inherently presents a hidden and unusual element of danger in such a way as to constitute a trap for them. . The pile on which John was playing when he was injured did not contain any such element of danger. Thus, since the second of the above four elements was lacking, the pile did not constitute an attractive nuisance.”

Conceding for the sake of argument the existence of elements (a), (c) and (d) as set forth in Cockerham, we believe that, conceptually, the drainage ditch in this case more nearly resembles the ordinary sand pile in Edwards. There was no hidden danger or trap. This ditch was not markedly different from the countless number of drainage ditches all over the State of Florida. The fact that these ditches tend to break down through erosion during the passage of time cannot be disputed. There is no doubt that the soft dirt on the side of a ditch may be alluring to a child of tender years. But in order for this condition to constitute an attractive nuisance, it is necessary that it be “one of which the possessor — realizes or should realize involves an unreasonable risk of death or serious bodily harm to such children.”

We do not see how those responsible for the condition of this ditch could have been reasonably expected to anticipate the possibility that children would dig a tunnel so deep into the side of this ditch that the dirt would ultimately collapse in such a quantity as to prevent one of the children from excavating himself. Cf. Sparks v. Casselberry Gardens, Fla.App.4th, 1969, 227 So.2d 686. To hold that this drainage ditch constituted an attractive nuisance would make landowners virtual insurers of the safety of all children who happened to be playing in any drainage ditch in Florida.

Recognizing the great loss suffered by Bruce Hayes’ family, we are nevertheless compelled to follow the law as we interpret it. Accordingly, we hold that the trial judge properly entered a directed verdict at the conclusion of the plaintiff’s case.

AFFIRMED.

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

      . Over and above the requirements of the Restatement, there must be a showing that the injured child was allured to the dangerous premises before the doctrine of attractive nuisance may be applied in Florida. Concrete Const., Inc., of Lake Worth v. Petterson, Fla. 1968, 216 So.2d 221. However, for purposes of this opinion, it may be assumed that Bruce Hayes was allured to the soft dirt side of the ditch.


author: BENTLEY, E. RANDOLPH, Associate Judge.

text:
    R. R. WALDEN, as Property Appraiser of Hillsborough County, Florida, etc., Appellant, v. BERKELEY PREPARATORY SCHOOL, INC., a Florida Corporation, not for profit, etc., et al., Appellees.
    No. 75-1574.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1976.

      Brooks P. Hoyt, Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant R. R. Walden, as Property Appraiser.
    Richard N. Stein, Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellee Berkeley Preparatory School, Inc.
   BENTLEY, E. RANDOLPH, Associate Judge.

The Property Appraiser (formerly known as Tax Assessor) of Hillsborough County denied an educational tax exemption to Berkeley Preparatory School, Inc. for a residence occupied by the headmaster of the school. Berkeley filed suit in Circuit Court and was granted a summary judgment. The Property Appraiser appeals. We affirm.

Berkeley, which is a preparatory school with grades kindergarten through 12, is without dispute an educational institute within the meaning of Fla.Stat. § 196.-012(4). The property involved in this litigation is the residence of the headmaster and is located some distance from the campus. The Property Appraiser contends that the residence is not entitled to a total exemption from taxation because it was not used exclusively for educational purposes as contemplated by Fla.Stat. § 196.192(1) or Fla. Stat. § 196.198.

The property was purchased by the school for use as a headmaster’s residence, and the headmaster is required to live there. But, the property is also used for cookouts and picnics for student groups, teas for students and parents, faculty entertainment, individual counseling of students and parents, entertainment and housing of school guests, and like matters. And, while the premises are not used continually for such purposes, they are available at all times for such uses.

The record indicates a belief on the part of school authorities that such activities foster a personal relationship which is an important factor in its educational process. The educational need to use the residence for this purpose is not controverted in the record.

The trial court found that the property is regularly and frequently used for educational purposes by the headmaster, faculty and members of the student body, but that the use for instruction, training and learning was not the sole and exclusive use; however, the court considered the opinion in Walden v. University of Tampa, Inc., Fla.App.2d 1974, 304 So.2d 134, which involved the off-campus residence of the president of the University of Tampa. In that case we quoted with approval the finding of the trial court that:

“. . . the president’s residence is being used exclusively for educational purposes in its broader sense.”

The trial court concluded that the uncontro-verted facts in this case brought it within a “broader sense” doctrine as set forth in the University of Tampa case.

The Property Appraiser strenuously argues that what may be an acceptable educational use in the “broader sense” at the university level is not necessarily so at the preparatory school level. In effect he says: Where do we stop? However, the Appraiser filed no affidavits before the trial court to controvert the showing of “educational need” made by the School. In effect, there was “no genuine issue of any material fact” before the court.

We do not hold that the residence of a headmaster of a preparatory school is, in every instance, entitled to the exemption. We do hold that under the undisputed facts before the trial court in this ease that Berkeley Preparatory School is entitled to the exemption.

Affirmed.

BOARDMAN, Acting C. J., and SCHEB, J., concur.


text:
    David Alton LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 76-185.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1976.
    Rehearing Denied Oct. 25, 1976.
    Richard D. Mars, Lakeland, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Is an anonymous tip that an automobile is carrying contraband a sufficient basis for the police to stop an automobile of that description? We hold it is not and reverse the trial court which denied appellant/defendant Lewis’ motion to suppress.

On July 21, 1975, in the early afternoon, while on patrol in the south side of Lake-land, Officer Belcher overheard a report on his radio that two white males in a red Volkswagen were selling drugs on the north side of Lakeland outside of Belcher’s district. Belcher then heard a report from another officer that a car matching that description was leaving the area of the alleged sale and heading south. Belcher moved to intercept the car.. And when he saw a car and passengers fitting the description, he stopped that car and asked the driver for his license. The driver responded that it had expired. The officer then asked the appellant, who was the passenger, if he was the owner. Appellant replied in the affirmative. Officer Belcher then placed both men under arrest, the driver for driving without a license and the appellant for “allowing an unauthorized person to drive.” A subsequent search of appellant by Officer Belcher revealed five packets of heroin in his shirt pocket.

Appellant was charged with possession of a controlled substance. His motion to suppress was denied and he was convicted following a jury trial.

In order to stop an automobile and to request identification from its occupants, it is not necessary for the police to have probable cause. Rather, the police are governed in this respect by Section 901.151, Florida Statutes (1975) (the “Stop and Frisk Law”) and Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In effect, it is required that the officer have a founded or reasonable suspicion which requires further investigation. State v. Othen, 300 So.2d 732 (Fla.2d DCA 1974). We hold that the circumstances here were insufficient to reasonably indicate that the occupants of the ear had committed, were committing, or were about to commit a crime. Section 901.151, Florida Statutes (1975).

Even though Officer Belcher was acting upon a radio dispatch, we must still look to the source of that dispatch and determine its reliability. Whiteley v. Warden, 1971, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306. Here the source of the dispatch was merely an “anonymous citizen.” There is no contention that the tip was bolstered by any other reports or observations. In a very similar case, we have held that such an anonymous report from an unknown and untested informant, standing alone, is an insufficient basis to justify a stop. State v. Hendry, 309 So.2d 61, (Fla.2d DCA 1975).

In fact, the state’s position is less strong in this case than it was in Hendry. There the informant had given an officer a tag number for the vehicle, and the police were certain of stopping the car described by the informant. Here, the description was only of a red Volkswagen carrying two white males, and the car was stopped at a considerable distance from the scene of the alleged sale of drugs.

The stop being illegal, the resulting arrest and search were fruits of the illegal detention, State v. Hendry, supra, and therefore, on motion, the evidence should have been suppressed.

Reversed.

McNULTY, C. J., and GRIMES, J., concur.

      . We distinguish the principle controlling the case at bar from a police “road block” or similar system of checking drivers licenses as sanctioned in City of Miami v. Aronovitz, 114 So.2d 784 (Fla.1959). In Aronovitz, the Supreme Court noted it was not passing on the validity of a search of a vehicle which has been intercepted merely for the purpose of examining the license of the driver. Cf., Stephenson v. Department of Agriculture and Consumer Services, 329 So.2d 373 (Fla.1st DCA 1976).


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Steven BRADSHAW, Appellee.
    No. 76-29.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, Clear-water, and J. Marion Moorman, Asst. Public Defender, Dade City, for appellee.
   PER CURIAM.

Appellant, 23 years of age, was charged with possession of recently stolen property by the state attorney for the Sixth Judicial Circuit. At the arraignment appellant pled not guilty to the charge. After extensive and lengthy inquiry the trial court entered an order determining that appellant had the mentality of a 10-year old and transferring the case to the juvenile division of the circuit court.

Finding no authority, either statutory, rule or case law, to support the ruling, we hold that the trial court’s action constitutes reversible error. Under Section 39.02, Florida Statutes, and the Florida Rules of Juvenile Procedure the circuit court has jurisdiction to either treat a person under 18 years of age as a juvenile or transfer the child for criminal prosecution. The statute does not, however, authorize the court to treat a person over 18 years of age as a juvenile.

We fully recognize and appreciate precisely the deep concern of the trial court in this difficult and sensitive matter; however, to affirm this ruling would require this court to legislate which is not the function of the judiciary.

Accordingly, the order appealed is reversed with directions that appellant be tried as an adult.

REVERSED.

BOARDMAN, Acting C. J., GRIMES, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Dr. Eugene V. STILL, Appellant, v. Bernie DIXON, Individually, and Bernie Dixon, d/b/a Dixon’s Marina, Appellee.
    No. 76-287.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1976.

      P. Allen Schofield, and Harry G. Good-heart, III, Bradenton, for appellant.
    G. Craig Soria, of Dick Lee, Sarasota, for appellee.
   SCHEB, Judge.

The issue on this appeal is whether the circuit court acquired jurisdiction of plaintiff’s action for money damages in excess of $2500 for alleged breach of contract and negligence incident to a boat towage contract. The trial court held jurisdiction to be exclusively with the federal court and dismissed plaintiff’s complaint. Appellant/plaintiff appeals. We reverse.

Plaintiff alleged he contracted to have his boat towed by the defendant to a prepared mooring, but that defendant abandoned the boat in Gasparilla Bay with him aboard; that as a result his boat overturned and he was forced to cling to its keel until rescued. Plaintiff charged the defendant with negligence and breach of contract; sought damages in excess of $2500; and demanded a trial by jury.

The trial court granted the defendant’s motion to dismiss with prejudice, stating in an amended order of dismissal:

“That this action is dismissed in that this Court is without jurisdiction in actions sounding in tort, and/or negligence, and/or Breach of Contract, and/or personal injury when such actions are connected with or incidental to a maritime towage contract and that jurisdiction of such actions are exclusively within the Federal Courts.”

Article III, Section 2, of the Constitution of the United States, provides that, “the judicial Power shall extend ... to all Cases of admiralty and maritime Jurisdiction; . . ..”

Title 28, United States Code, Section 1333, provides:

“The district courts shall have original jurisdiction, exclusive of courts of the States, of: (1) any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”

The “saving to suitors in all cases” clause in Section 1333, supra, preserves to a plaintiff the right to institute common law actions in courts of this state seeking in personam judgments for damages arising from maritime torts and contracts. See Rountree v. A. P. Moller Steamship Co., 218 So.2d 771 (Fla. 1st DCA 1969), in which Chief Judge Wigginton quoted with approval Norris, Maritime Personal Injuries 209, 2d Ed., Section 84, wherein the author stated:

“The common law courts had concurrent jurisdiction with courts of admiralty prior to the adoption of the Constitution in causes of action against a shipowner in contract or in tort when he could be reached personally and money damages only were demanded. The constitutional provision gave to the admiralty courts exclusive jurisdiction wherever admiralty had such exclusive jurisdiction prior to the adoption of the Constitution; and when the jurisdiction was concurrent with the common law courts it remained so.
“The common law remedy saved to suitors is the right to proceed in person-am against the defendant wherever the common law is competent to give a remedy. Stated another way, one who holds an in personam claim enforceable by a libel in personam in admiralty, can bring suit at his election in a common law court provided that the jurisdictional requirements of the latter court is met and the remedy sought is one which the common law court had concurrent jurisdiction with admiralty at the time of the adoption of the Constitution.” (Emphasis supplied)

To be distinguished are actions in rem, i. e., against a vessel, where exclusive jurisdiction is in the federal courts. The exclusion of state courts in the in rem area is based on such proceeding not being a common law remedy. The Hine v. Trevor, 71 U.S. 555, 571, 18 L.Ed. 451 (1867).

Recognizing that distinctions are not always easy, G. Gilmore and C. Black in Law of Admiralty (1957), state the rule as:

“Where the suit is in personam, it may be brought either in admiralty or, under the saving clause, in an appropriate non-maritime court, by ordinary civil action. Where the suit is in rem, only the admiralty court has jurisdiction.” Id. at 36

But, defendant argues, the federal court has exclusive jurisdiction since the plaintiff chose to allege, “1. That this is a suit in admiralty . . .,” and irrevocably elected to submit to federal jurisdiction. Defendant attempts to support this proposition by Frankfort Elevator Coal Co. v. Prewett, 212 Ky. 457, 279 S.W. 616 (1926), wherein the court stated:

“If appellee had pursued his remedy in admiralty, the federal District Court would have exclusive jurisdiction.”

Defendant’s reliance is misplaced, however, since even in Frankfort the state court retained jurisdiction and adjudicated the plaintiff’s cause, concluding that since the plaintiff pursued a common law remedy saved to suitors by the Section 1333, supra, the state court was properly vested with jurisdiction. Although plaintiff alleged his action to be a “suit in admiralty,” this surplus allegation is not an inconsistency as plaintiff was suing on a maritime tort as well as a contract. And, it is maritime law, not state law, that is the substantive law applied in maritime torts accruing on navigable waters in this country, irrespective of whether the action is brought in a state or federal court. See Rountree, supra; Cashell v. Hart, 143 So.2d 559 (Fla. 2d DCA 1962). Moreover, plaintiff was seeking a trial by jury, not ordinarily provided in admiralty actions in the federal district courts. Gilmore and Black, supra, at p. 31; Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974).

Reversed and remanded with directions to reinstate plaintiff’s complaint.

GRIMES, Acting C. J., and FOGLE, HARRY W., Associate Judge, concur.

      . The authors point out that certain actions are restricted by statute to the federal courts, e. g., a proceeding to foreclose a preferred ship mortgage under 46 U.S.C. § 951; and that it has been held that a suit under the Death on the High Seas Act, 46 U.S.C. § 761, must be brought on the admiralty side of the federal court and may not be brought at law under the saving clause. Higa v. Transocean Airlines, 230 F.2d 780 (9th Cir. 1955). On this latter point, however, see Ledet v. United Aircraft Corp., 10 N.Y.2d 258, 219 N.Y.S.2d 245, 176 N.E.2d 820 (1961), in which the New York court held that it did have jurisdiction of a claim brought under the Death on the High Seas Act. In any event, no such exception is involved in the present case.


text:
    AETNA LIFE INSURANCE COMPANY, Petitioner, v. Debra LOWE, Respondent.
    No. 76-604.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1976.
    Michael C. Addison, of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for petitioner.
    Donald G. Doddington, of Abel H. Rigau, Tampa, for respondent.
   PER CURIAM.

The order entered by the circuit court in affirming respondent’s claim for insurance benefits does not represent a departure from the essential requirements of law. However, counsel for respondent has admitted error to the extent that the judgment awarded her 100% of her medical expenses, whereas the policy provides a benefit of only 80% of covered medical expenses in excess of $100.

Accordingly, the petition for certiorari is granted to the extent that the circuit court is directed to remand the case to the county court for the purpose of reducing the judgment to the extent of the 80% coverage less the deductible as required by the policy. Otherwise, the petition for certiorari is denied.

McNULTY, C. J., GRIMES, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    The DISTRICT SCHOOL BOARD OF PASCO COUNTY, Florida, for the use and benefit of Wiremold Co., a corporation, Appellant, v. GULF CONTRACTING, INC., a Florida Corporation and the Travelers Indemnity Company, a Surety Company, Appellees.
    No. 76-971.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1976.

      Jary C. Nixon, Tampa, for appellant.
    Daryl J. Brown, of Rosin, Abel, Band & Rosin, Sarasota, for appellees.
   SCHEB, Judge.

This interlocutory appeal concerns venue; specifically, whether a Connecticut corporation which furnishes materials for a school project in Pasco County can bring action in that county under a public improvement bond against a contractor incorporated in Florida and its surety, neither of which maintains offices within Pasco County. The trial court held such venue to be improper and transferred the cause of action to Sarasota County where the contractor maintains its offices for transaction of its customary business. We agree and affirm.

At the request of a subcontractor located in Hillsborough County, appellant Wire-mold, a Connecticut corporation, supplied materials for construction of a school building in Pasco County. The subcontractor defaulted in making payments to Wiremold. As use plaintiff, Wiremold sued the contractor and its surety on the bond furnished under Section 255.05, Florida Statutes.

The thrust of Wiremold’s contention is that as a non-Florida supplier, it should be allowed to bring suit on the bond in the county where it has furnished its materials. In this context, Wiremold’s contention is logical; however, this is a matter for legislative determination. Section 255.05, Florida Statutes, is not a venue statute. Rather, venue in respect to actions against corporations is governed by Section 47.051, Florida Statutes, which in relevant part provides:

Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.

Faced with this statute, Wiremold recognizes that to sue the contractor in Pasco County, it must establish that the cause of action accrued there, since neither the contractor nor the surety has an office in that county.

Here, there was no privity between the general contractor and the appellant supplier. Rather, the appellant’s contractual rights are based solely on the bond required under the statute. Payment was demanded by Wiremold from its offices in Connecticut. This is the place where payment was required and where the cause of action accrued. See James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487 (Fla.2d DCA 1970); Lakeport Water Association v. David B. Smith Engineers, Inc., 257 So.2d 588 (Fla. 1st DCA 1972). Wiremold is not prejudiced because even if it sued the subcontractor, ordinarily venue would have been in Hillsborough, rather than Pasco County.

Accordingly, the order of the trial court is affirmed.

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


author: BOYER, Chief Judge.

text:
    Otis WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. C-282.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1976.
    Theorphilus J. Rose, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   BOYER, Chief Judge.

After a jury trial, appellant was found guilty and sentenced to three consecutive 15-year sentences. The issue raised in this appeal from the denial of appellant’s motion to vacate and set aside judgment and sentence is whether separate sentences may be imposed for possession of a firearm by a convicted felon, on the one hand, and shooting within an occupied building and assault with intent to commit murder, on the other hand.

Appellant was tried for offenses emanating from two separate incidents occurring on August 26, 1972. Regarding the first incident, the evidence indicated that appellant shot the clerk of a Jiffy Food Store. Later that same day, appellant went to the Fellowship of Men’s Club, had an argument with and shot at Gilbert Crowell, and fired several more shots into the Men’s Club building before fleeing.

Appellant argues that his sentence for possession of a firearm by a convicted felon should be vacated since that offense constitutes a facet of the same transaction of the offenses of assault with intent to commit murder and shooting within an occupied building. Appellant relies on Panzavecchia v. State, Fla.App.3rd 1975, 311 So.2d 782. In that case, our sister court held that separate sentences could not be imposed for the offenses of second degree murder and possession of a firearm by a convicted felon where the offenses arose out of the same transaction.

We must respectfully disagree with the Third District’s holding in Panzavecchia. We have previously held that separate sentences may be imposed for the offenses of breaking and entering with intent to commit a misdemeanor and possession of a firearm by a convicted felon. (Yates v. State, Fla.App.1st 1975, 317 So.2d 462). Sub judi-ce, the offenses for which appellant was convicted involved separate and distinct elements. The crime of possession of a firearm by a convicted felon was completed when appellant, a convicted felon, came into possession of a firearm. The other two offenses for which appellant was convicted, assault with intent to commit murder and shooting within an occupied building, necessitated proof of the use of a firearm, which is something more than mere possession. (See also Copeland v. State, Fla.App.2nd 1976, 336 So.2d 653).

AFFIRMED.

RAWLS and McCORD, JJ., concur.


author: PER CURIAM. RAWLS, Acting Chief Judge

text:
    Donald Eugene PICKETT and James Doyle Rowell, Appellants, v. STATE of Florida, Appellee.
    No. AA-469.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed.

McCORD and SMITH, JJ., concur.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

In Stewart v. State, 51 So.2d 494 (Fla.1951), the Supreme Court stated:

“Under our system of jurisprudence, prosecuting officers are clothed with quasi judicial powers and it is consonant with the oath they take to conduct a fair and impartial trial. The trial of one charged with crime is the last place to parade prejudicial emotions or exhibit punitive or vindictive exhibitions of temperament.”

The foregoing excerpt is most applicable to the record in this cause, and thus I agree with appellants’ Point II on appeal that the trial court should have granted a mistrial on the grounds that the prejudicial misconduct of the prosecutor precluded the appellants from obtaining the right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments, U.S. Constitution, and Article I, Section 16, Florida Constitution.

The following examples from the transcript of the trial proceedings disclose repetitive instances relating to prosecutorial misconduct:

“THE COURT: There is an excessive amount of testimony inadvisable going on in this case as I have continually sustained objections to and had to direct the jury to disregard and if this matter continues, I will be compelled to declare a mistrial in the matter, Mr. Silberhorn [assistant state attorney]. The witnesses are experienced Officers and I must assume that they have been directed as to the inadmissibility of testimony which is hearsay in nature and which they assume, which they conclude and things that have been done by other Officers and if it continues and the State’s witnesses and the State’s case continues then I must assume that this type of testimony that I’m having to strike from the record and direct the jury to disregard will become so cumulative in nature that it will damage the defendants [appellants] as to a fair trial in this case and I am putting you on notice at this time that this is the Court’s feeling . . .
“MR. DEMPSEY [attorney for appellant Rowell]: Your Honor, at this time, I am going to ask the Court to admonish the Assistant State Attorney to refrain from making these gestures. He’s gesturing physically with his arms and hands in front of the jury and asking questions and when answers are made by the witness and this has gone on throughout the trial. At this point, I think it ought to be stopped.
“THE COURT: I think this is grounds for a mistrial if he continues doing it. “MR. SILBERHORN [assistant state attorney]: Your Honor, the State does not know how this gets on the record by mere allegations and goes on appeal when the State is not doing anything but asking questions.
“THE COURT: Mr. Silberhorn, this Court has direct knowledge of observations of this type of thing and I think that you should take that into consideration as far as the motion is concerned and I think there has been some actuation and there has been some facial expressions one way or the other that have been made towards the jury which is really improper but as far as the request of defense counsel to caution you, I will grant that motion and admonish you not to do it further.”
“THE COURT: Counsel, come in chambers with the reporter.
(Whereupon, the following further proceedings were had in the chambers of the court:)
“THE COURT: Mr. Silberhorn, you have a responsibility to try the case for the State. The Court has a responsibility to run the trial. I find that your actions through this trial as far as your grimaces on your face, your obvious disagreement with the Court in the presence of the jury and any ruling that goes against you to be offensive to the Court and borders on contempt and if it continues, this is precisely my course of action.
“Now, you are here to represent the State in a trial. You have gone into cross examination with repetitions to the point that it has become so obvious that the Court has had to caution you without objection and you’re going into an area now that is not relevant. .
“Now, you’re going to the point that if it continues, you are going to get into a situation.
“MR. SILBERHORN: I understand exactly what you’re saying, Your Honor, and if that’s been occuring, I apologize. “THE COURT: I don’t want this to happen again. Furthermore, I do not expect you to smile when you get a ruling in your favor or a grimace on your face when you get one that is not in your favor. I’m here to call the shots down the middle and to see that there is a fair trial for the State and for the defendants. I don’t want any more of this.”

The trial judge valiantly sought to preserve the integrity of this trial and to preclude conduct on the part of the assistant state attorney that is more appropriately sought by little theatre groups. Unfortunately, the trial judge failed to declare a mistrial after he was unable to prevent prosecutorial misconduct.

I would reverse in order that these appellants be afforded their state and federal constitutionally guaranteed rights to that which I do not believe they received — A FAIR TRIAL.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Eugene REDWINE.
    No. 57919.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Teddy W. Airhart, Jr., Airhart & Copen-haver, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Lennie F. Perez, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Eugene Redwine, was charged by bill of information, tried, and convicted for his participation in the armed robbery of H. Alva Brumfield on May 25, 1973. La.R.S. 14:64. The robbery resulted in Mr. Brumfield’s death; Redwine, however, was not tried for murder, but for armed robbery. Upon his conviction the trial judge sentenced Redwine to serve ninety-nine years at hard labor without eligibility for parole, probation or suspension of sentence.

Defendant appeals his conviction and sentence relying on four assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant urges that the trial court improperly admitted, over timely objection, four 5" X 7" color photographs taken at the scene of the alleged robbery depicting the dead body of the robbery victim. Defendant contends that these photographs were inflammatory and of insufficient probative value to counterbalance their prejudicial effect, and that their admission deprived him of a fair trial.

The State offered into evidence some thirty-three photographs taken at the scene of the crime. Defendant objected to the introduction of eleven of the photographs. The trial judge sustained defendant’s objections to seven of the photographs and overruled his objections to the four photographs which underlie his first assignment of error.

The undisputed and often cited test for determining whether an alleged “gruesome” photograph is admissible is whether its probative value outweighs its possible prejudicial effect upon the jury. State v. Cooper, 334 So.2d 211 (La.1976); State v. Smith, 327 So.2d 355 (La.1976); State v. Beach, 320 So.2d 142 (La.1975); State v. Curry, 292 So.2d 212 (La.1974). As the cited cases also make clear, a photograph, as any other evidence, must be relevant to a material issue before the court. See also, La.R.S. 15:435.

In State v. Scott, 337 So.2d 1087 (La.1976), No. 57,630, this Court affirmed defendant’s conviction where his claim for reversal was based on the State’s introduction of a gruesome photograph alleged to have no relevance to a material issue in the case. The opinion in that case appears to disregard the well accepted test that admissibility of gruesome photographs is contingent on their probative value outweighing their prejudicial effect in favor of a more relaxed test of “whether the photographs were so outrageous as to necessitate that a new trial be conducted without them,” but a majority of this Court, though concurring in the result reached, did not agree with the language used in the opinion. We now reaffirm the test that admissibility of allegedly gruesome photographs requires weighing their probative value as to a material issue in the case against the likelihood of prejudice which may result from their submission to the jury. As we said in State v. Smith, supra,

“ * * * We realize that making this determination involves weighing two elusive concepts * * * the prosecutor would do well to avoid flirtation with reversible error. * * * ” 327 So.2d at 362.

Redwine was prosecuted for armed robbery. To obtain a conviction for this offense, the prosecution must prove beyond a reasonable doubt that the accused committed a theft of something of value from the person of another or in another’s immediate control by use of force or intimidation, and while armed with a dangerous weapon La.R.S. 14:64. Thus, evidence tending to establish the use of force on the person of the victim or that the assailant was armed with a dangerous weapon was relevant to a material issue in the State’s case.

The photographs objected to by the defendant herein showed the robbery victim’s fully clothed body lying on the floor with his hands tied behind his back, and his feet tied together. Although they revealed traces of blood about the victim’s head and neck, on the floor, and on the pillow used by the assailant to muffle the gunshot, and although they were clearly unpleasant, as we found in State v. Smith, supra, the photographs complained of were not “ * * so gruesome as to ‘overwhelm reason’ and cause a jury to lose sight of the need for the prosecutor to establish with sufficient independent evidence the guilt of the accused. * * * >7

Defendant, at the time these photographs were admitted, and again before this Court, complained that other evidence offered by the State was sufficient to establish the requisite use of force by the defendant in the commission of the robbery so that the admission of these photographs was cumulative, and lacked sufficient probative value to outweigh their prejudicial effect upon the jury. However, we cannot say that the evidence did not supply proof essential to the State’s case. In discussing a similar issue in State v. Smith, supra, we stated:

“ * * * Inasmuch as the indictment charged defendant with the murder of one Stephen Brubaker, it was at least appropriate, and possibly necessary, for the state to establish that it was Stephen Brubaker who was the victim of this murder. It is not proper for us to conclude that the identification of Stephen Brubaker by his father was unnecessary because a police patrolman had already testified that he viewed the victim at the scene of the crime and recognized him as a young employee of the Burger King known to him as ‘Steve.’ Under any conditions, the father’s identification of the victim as his son Stephen Brubaker was ‘probative.’ Furthermore, it is inappropriate for us now to determine that the identification was or was not absolutely essential to the state’s case. In any event we find that this identification was not merely cumulative.” 327 So.2d at 361-62.

We further observe that at the time the photographs objected to by defendant were offered into evidence, and while the objection was being argued, the defendant did not offer to stipulate to the facts the State was attempting to prove by their introduction. Thus, our recent ruling in State v. Gilmore, 332 So.2d 789 (La.1976), is inapplicable in this case. In Gilmore we determined that the trial judge has discretion to exclude unpleasant photographs although their probative value outweighs their potentially inflammatory effect when the defendant offers to stipulate fully to the facts which the State ostensibly desires to prove by their introduction. This measure of discretion is distinct from and additional to that vested in the trial judge in determining whether the probative value of offered photographs outweighs their possible prejudicial effect, e. g., State v. Nix, 327 So.2d 301 (La.1976); State v. Larue, 324 So.2d 384 (La.1976), and arises only when there is an offer to stipulate by the defendant. State v. Gilmore, supra.

In comparing the value of the photographs in proving the use of force with the minimal likelihood that the jury could have been inflamed by them, we find that the probative value of the photographs outweighed their possible inflammatory effect. Consequently we find no error in the trial judge’s ruling admitting these photographs. Defendant’s first assignment of error therefore lacks merit.

ASSIGNMENT OF ERROR NO. 2

Error is alleged in the trial court’s ruling allowing Dr. Carl Tucker, a pathologist, to testify to his findings upon examination of the body of the victim. Defendant urges that because this testimony dealt solely with the medical reasons for the death of the victim, it was irrelevant to the armed robbery prosecution, and highly prejudicial to him.

The doctor’s testimony tended to prove that force was used upon the person of the victim, and La.R.S. 14:64 undoubtedly makes the use of force a material issue in an armed robbery prosecution. Once evidence is determined to be relevant, however, the question of its admissibility is not finally resolved. As Professor McCormick observed,

“ * * * There may remain the question, is its value worth what it costs? There are several counterbalancing factors which may move the court to exclude relevant evidence if they outweigh its probative value. In order of their importance, they are these. First, the danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility or sympathy. Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues. Third, the likelihood that the evidence offered and the counter proof will consume an undue amount of time. Fourth, the danger of unfair surprise to the opponent when, having no reasonable ground to anticipate this development of the proof, he would be unprepared to meet it. Often, of course, several of these dangers such as distraction and time consumption, or prejudice and surprise, emerge from a particular offer of evidence. This balancing of intangibles — probative values against probative dangers — is so much a matter where wise judges in particular situations may differ that a leeway of discretion is generally recognized. * * * ” McCormick on Evidence, 438-40, § 185 (Cleary ed. 1972) (footnotes omitted).

In accordance with this view, we have held that the trial judge must not only determine that evidence is relevant to a material issue, but also that it is not unduly prejudicial. State v. Foss, 310 So.2d 573 (La.1975); State v. Bradford, 298 So.2d 781 (La.1974); State v. Moore, 278 So.2d 781 (La.1973).

The State argues that Dr. Tuckers testimony was “a totally dispassionate and scientific description of the victim’s wounds.” We agree. The doctor’s testimony tended to establish the use of force on the victim of the alleged robbery, but it does not appear to be of such character as would unduly inflame or arouse the jury.

Defendant further objects to the trial court’s admission of this testimony because “[mjany witnesses testified that force was used * * * to rob the victim.” The State concedes that Dr. Tucker’s testimony was corroborative of other evidence of force. The mere fact that evidence may be cumulative does not make it inadmissible.

We do not find in this case that the doctor’s testimony was so inflammatory as to be unduly prejudicial, that it distracted the jury from the main issues in the trial, that it consumed an inordinate amount of time, or that it created unfair surprise to the defendant interfering with his ability to make a defense. See McCormick on Evidence, 438-40, § 185 (Cleary ed. 1972); Trautman, Logical or Legal Relevancy — A Conflict in Theory, 5 Vand.L.Rev. 385, 392-98 (1952).

We thus find no merit in defendant’s second assignment of error.

ASSIGNMENT OF ERROR NO. 3

In its case in chief, the State, in order to prove defendant’s participation in the crime charged, relied primarily on the testimony of Dale Bourland and Connie Dotson, two accomplices in the alleged crime. Each had been promised some degree of leniency in exchange for their cooperation, and thus their testimony was subject to attack. According to their testimony, Redwine, Bour-land, Dotson, Bela Andrasi and Tom Jones were in the process of burglarizing Mr. Brumfield’s house when he returned unexpectedly and was robbed and shot to death by Redwine.

Joseph Siegel, called by the defense, testified that he, Bourland, Dotson, Andrasi and an individual alternatively referred to as Tom Jones and “Mr. X” were all of the participants in the crime. He said Redwine was not in any way involved in the robbery and murder. He specifically denied Red-wine’s presence among the accomplices before, during, and after the offense; he testified Bourland accompanied him several days before the robbery to the Brumfield residence to determine if it had a burglar alarm; he testified that he and Bourland entered the residence on the night of the offense, while lookout was kept by Jones outside of the house, and Dotson and An-drasi in an automobile parked nearby; he testified that while he and Bourland were in the house, Mr. Brumfield arrived, and that they handcuffed Mr. Brumfield and beat him; he testified that he mistakenly called out Bourland’s name in Mr. Brum-field’s presence, and that as a result Mr. Brumfield had to be killed; he testified that Bourland shot Mr. Brumfield.

In essence, Siegel related a story of the crime which coincided with that of the State’s witnesses except that in Siegel’s version he was present but Redwine was not and the victim was shot by Bourland, instead of Redwine.

Siegel also testified that on another occasion at Siegel’s apartment Bourland told him “Redwine stabbed him [Bourland] in the arm” and that Bourland “was going to get even with Redwine and he mentioned that he would kill Redwine.”

In the course of his direct examination Siegel was asked by defense whether he had “ever made any statement concerning this offense.” Siegel admitted that he had and explained the circumstances under which the taped statement was made. Defense counsel then asked,

“Now, the statement that you gave previously, is it similar or is it different to the statement, the testimony here today?”

Siegel replied, “It’s entirely different.”

Almost immediately upon beginning its cross-examination of Siegel, the State moved to play in its entirety a tape recorded statement previously made by Siegel to the police. The trial judge removed the jury and proceeded to determine whether Siegel’s prior inconsistent statement would be admitted. During the course of the State’s cross-examination out of the presence of the jury, Siegel either evasively answered the State’s questions or denied having made the statements attributed to him by the examiner. Siegel denied that he identified Redwine as a participant in the robbery; he denied that he identified Red-wine and Bourland as the persons entering the Brumfield residence on the night of the robbery; he testified that he never said Redwine bragged about having shot Mr. Brumfield; he denied that he said it was Redwine who carried the murder weapon to the Brumfield residence on the night of the robbery; and he denied having told the police that Bourland inadvertently called out Redwine’s name, and for that reason Redwine had to kill Mr. Brumfield.

After these specific denials and other evasive and non-responsive answers to the State’s questions, the State renewed its request to play Siegel’s prior statement to the jury. The trial judge, before ruling on the State’s request, ordered that he hear the tape in its entirety. The tape was played in accordance with the judge’s order. It disclosed the following:

Siegel denied his own participation in the crime. He stated Redwine was with the participants in the offense on the night of the crime; he identified the participants by name, including Bourland, Dotson, Andrasi, Jones, and Redwine; he claimed that he and Redwine, not Bourland, had gone to the Brumfield residence several days before the crime in order to see if it was equipped with a burglar alarm system; he told the police that he had heard that Redwine bragged about shooting Mr. Brumfield; he related that Bourland had inadvertently called out Redwine’s name; and that Redwine shot Brumfield because he feared the victim could have identified him. The taped statement was, with regard to virtually every detail of the burglary-robbery-murder episode, contradictory to Siegel’s testimony at trial. The tape also contained a segment relating to an incident in which Bourland threatened to kill a French poodle and was in turn threatened with death by Redwine if he did so. In another portion of the tape Siegel said that Redwine had once stabbed Bourland.

After hearing the tape, the trial judge ruled that it could be played in its entirety to the jury. Counsel for the defendant objected to this ruling on the ground that the statement was hearsay, that proper foundation for its admission had not been laid, and that its introduction was foreclosed by Siegel’s acknowledgment that he had made a prior statement contradictory to his trial testimony. Nevertheless, the tape was played to the jury. The trial judge then instructed the jury that they should consider the tape in assessing the credibility of the witness but not in deciding the issue of Redwine’s guilt or innocence.

The threshold question is whether Sie-gel’s admission, in response to defense counsel’s questions on direct examination, that he had made a prior statement that was “entirely different” from the testimony given by him at trial bars the State from impeaching his testimony and his credibility-

La.R.S. 15:486 provides:

“Each side has the right to impeach the testimony and the credibility of every witness sworn on behalf of the other side.”

La.R.S. 15:493 provides:

“Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.”

Reading these provisions together, it is clear that the State is entitled to impeach the testimony and the credibility of a defense witness by the use of his prior inconsistent statement. The prior statement, however, is not itself admissible unless a proper foundation is laid, and the witness may prevent its introduction into evidence by distinctly admitting, in response to questions propounded by the impeaching party in accordance with La.R.S. 15:493, that he did in fact make such a statement. State v. Rudolph, 332 So.2d 806 (La.1976); State v. Evans, 317 So.2d 168 (La.1975); State v. Smith, 301 So.2d 594 (La.1974).

We have been unable to discover, however, any authority for the proposition that a party may protect his own witness from impeachment by eliciting from the witness during direct examination the mere admission that he had given a prior statement “entirely different” from his trial testimony. The right of each party to impeach the testimony and the credibility of his adversary’s witnesses has been clearly established. La.R.S. 15:486. Perhaps by drawing a rather broad inference from La.R.S. 15:493 we could reach the conclusion that defense counsel’s maneuver had erected a barrier to the State’s devastating impeachment of Siegel. But to do so would overlook the origin and purpose of the statute. According to Dean Wigmore, the rule may be said to have had its birth in The Queen’s Case, 2 Brod. & B. 284, 313 (1820) (s.c., 3 Queen Caroline’s Trial 259 (Linn’s ed.)), and the reason for it is to obviate unfair surprise by warning the witness a self-contradictory statement will be offered against him, allowing him to deny, explain or admit it. 3A Wigmore on Evidence, § 1025 (Chadbourn rev. 1970). The court in The Queen’s Case declared that “[i]f the witness admits the words or declarations imputed to him, the proof on the other side becomes unnecessary * * *.” Id. at 1021. We find nothing in our jurisprudence or in the wording of La.R.S. 15:493 to indicate that the legislature, by its enactment, sought to do more than adopt the rule of The Queen’s Case. Therefore, we think that the statute should be construed narrowly and applied only in instances in which a party attempts to impeach an adverse witness or makes a genuine and proper effort to impeach his own witness.

Defense counsel’s questioning of Siegel could hardly be termed a genuine or proper attempt at. impeachment. There was no indication counsel had been surprised or dealt with hostilely by Siegel during direct examination. Therefore, he was not entitled to impeach his own witness. La.R.S. 15:487. Counsel’s broad general inquiry whether Siegel’s prior statement had been “different” or “similar” to his testimony did not question him on any assertion of fact but allowed him to answer unspecifi-cally that it was “entirely different.” This response amounted to little more than an opinion and did not constitute an admission of having made a prior inconsistent statement regarding any particular one of the many facts to which he had testified at trial; it told the trier of fact nothing of the nature or extent of his prior self-contradiction. Furthermore, under the circumstances of the instant case, Siegel’s admission that he had once made an “entirely different” statement to the police, coming after he had confessed on the stand that he, Bourland, and others had committed the offense, probably enhanced rather than detracted from his credibility with the jury. Before the State introduced his prior statement the jury quite possibly could have drawn the inference that Siegel’s “entirely different” statement amounted to nothing more than a complete denial of knowledge of any facts surrounding the crime. We are convinced that the jury was in a better position to assess Siegel’s credibility by having access to his prior self-contradictory statement, that it was introduced after a proper predicate had been laid in which Siegel was given an opportunity to admit, deny or explain the facts therein, and that, if the trial court had allowed the defendant to insulate Siegel from proper impeachment by the State with such a broad, unspecific admission of self-contradiction, a serious miscarriage of justice could have resulted.

The remaining question presented by defendant’s third assigned error is whether the trial court erred in admitting the entire tape recorded statement rather than selected portions of it, for which a proper foundation had been laid by the State. The tape, as we have observed, contained statements by Siegel to the effect that “bad blood” existed between Redwine and Bourland, that Redwine once stabbed Bourland, and that there was a dispute over a French poodle in which Redwine threatened to shoot Bourland.

Defendant complains that the judge erred in playing the entire tape recorded statement to the jury, because Siegel was not questioned about the portion of the taped statement relating to the “bad blood” between Redwine and Bourland. Thus he was not given an opportunity to admit, deny or explain it before the tape was played to the jury.

We do not find that the portion of the taped statement for which proper foundation was not laid is significantly contradictory to Siegel’s trial testimony. That portion of the tape was not therefore a prior inconsistent statement and the foundation rules of La.R.S. 15:493 do not apply. At most the trial judge’s admission of that portion of the tape amounted to admission of excludable hearsay evidence, and because the content of the taped statement did not differ significantly from Siegel’s direct trial testimony, and because Siegel was available to be examined by the defendant through counsel on redirect examination, we cannot conclude that its admission constituted reversible error. La.C.Cr.P. art. 921.

For the reasons assigned, we find no merit in defendant’s third assignment of error.

ASSIGNMENT OF ERROR NO. 4

Defendant submitted four special requested charges which the trial judge declined to include in his jury instructions. Defendant assigns error to the trial judge’s ruling.

The following requested charge is illustrative of the character of them all:

“I instruct you that in weighing the evidence of any witness, you may consider the motive of that witness for testifying, including his motive in protecting himself from the consequences of his involvement in this crime. You have heard Dale Bourland testify that he has made an agreement with the Prosecutor to permit him to go on trial for Murder. I instruct you that if Dale Bourland is convicted of Murder or pleads ‘guilty’ to the Murder of H. Alva Brumfield, Jr., then the minimum time that he would be required to serve would be ten years and six months from the date of his arrest. In contrast, if he were to go on trial or plead ‘Guilty’ to Armed Robbery, he could be required to spend far longer in the State Penitentiary then ten and one-half years.
“If you consider that Dale Bourland has been promised that he would serve any penitentiary term outside of the State of Louisiana, I instruct you that is not the law of Louisiana and there is at this time no legal way that this could be done in the case of Dale Bourland if he were convicted of or pleaded ‘guilty’ to the Murder of H. Alva Brumfield, Jr.” (Emphasis supplied.)

The italicized portions of this charge are objectionable. They call for the trial judge to comment on Dale Bourland’s testimony and inaccurately to contrast the supposed “minimum time” of incarceration for a murder conviction with the “far longer” sentence for armed robbery. The effect of this undoubtedly would be to mislead the jury because the significance of the ten year and six month “minimum time” of incarceration said to apply to a murder conviction is not explained in the proposed instruction. In sum, defendant’s requested charges are inaccurate, misleading, and contain judicial comment on the evidence prohibited by La.C.Cr.P. art. 806.

Furthermore, a requested special charge need not be given if it is included in the general charge or in another special charge to be given. La.C.Cr.P. art. 807. The trial judge’s general instructions in this case sufficiently covered the question of witness credibility. The jury heard Ms. Dotson and Mr. Bourland admit to having entered into plea bargains with the State. The jury was told expressly that it could consider a witness’s motive in giving testimony, and his possible relationship to either side of the case.

The trial judge did not err in refusing to give defendant’s special requested instructions; there is no merit in defendant’s fourth assignment of error.

For the foregoing reasons we affirm defendant’s conviction and sentence.