text:
    Louis NOVA, Appellant, v. The STATE of Florida, Appellee.
    No. 76-959.
    District Court of Appeal of Florida, Third District.
    May 17, 1977.
    Rehearing Denied June 20, 1977.
    Bernard S. Yedlin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Appellant was charged by indictment with the stabbing death of Belinda Revel. A jury found him guilty of first degree murder and he was sentenced to life imprisonment.

Appellant raises two points on appeal. The first point refers to an alleged error of the trial judge in admitting the testimony of one Juanita Bentley, a co-worker-supervisor of the deceased, concerning the contents of a telephone conversation she heard between the deceased and appellant. The second point is directed to both the sufficiency and quality of the evidence introduced at trial to sustain a conviction for first degree murder.

Juanita Bentley testified at trial that ■both she and the deceased worked at a medical clinic in Hialeah, Florida. On the morning of October 12, 1974, prior to the time the deceased reported for work, Miss Bentley had answered three telephone calls from the same caller, asking for the deceased. When the deceased arrived at work, at 10:00 A.M., the same caller spoke to her and, as observed by Miss Bentley, the deceased became upset and began to cry.

Approximately five minutes later, the same man called again and asked for the deceased. (The caller’s voice was identified as appellant’s and was never denied by him). Juanita Bentley asked the deceased if she could listen in on the conversation between her and appellant. The deceased allegedly said yes, and Miss Bentley, unknown to appellant, lifted up the extension and listened to a part of the conversation.

According to Miss Bentley’s testimony, the deceased told appellant that “she had a new man and not to bother her again.” The appellant allegedly replied that if she did not see him when “he got off from work, he was going to kill her god damn ass.” At this point Miss Bentley immediately hung up the phone, although the conversation continued for a few minutes longer. Over objection, the above testimony was admitted.

Appellant contends that Section 934.03(2)(d) Florida Statutes (1975), which prohibits the interception of oral or wire communication by a person unless “all of the parties to the communication have given prior consent to such interception” controls and that pursuant to Section 934.06, Florida Statutes (1975), no part of the contents of such communication could be received at trial.

Appellee, the State of Florida, contends that there was no interception of the contents of the conversation, within the meaning of the above statutory section. Section 934.02(3) defines “intercept” to mean the “aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” Subsection (4)(a) of the above statute excludes telephones used in the ordinary course of business from the classification of “electronic, 'mechanical, or other device.”

Appellee states that the question to be resolved by this court is whether or not the acquisition of the contents of the communication by Juanita Bentley was accomplished through telephone equipment used in the ordinary course of business. We hold that it was not and therefore, the contents of the conversation should have been excluded.

While Juanita Bentley was Belinda Revel’s supervisor, we are convinced that her “eavesdropping” was not done in her capacity as supervisor but was instead satisfying her curiosity. As Miss Bentley, herself, stated, “I just wanted to know who it was that was calling her.” Miss Bentley also testified that she found it “funny” that an older man, appellant, age 53, was continuously calling a younger woman, the deceased, age 22.

In conclusion, we are of the opinion that the telephone extension used by Miss Bentley for the above reasons was not used in the ordinary course of business; and thus, testimony concerning the contents of the intercepted communication should not have been allowed at trial, pursuant to Section 934.06, Florida Statutes (1975). See United States v. Harpel, 493 F.2d 346 (10th Cir. 1974); Horn v. State, 298 So.2d 194 (Fla. 1st DCA 1974). In addition, we believe the above testimony played such a large part in the State’s case against appellant — i. e. motive, that the admission of said testimony amounted to reversible error.

Having so ruled on appellant’s first point, we need not reach the merits of the second point.

Reversed and remanded for new trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Judith KRAMER and Roberta Miller, Appellants, v. Evelyn Patricia FREEDMAN, Appellee.
    Nos. 76-1373, 76-1374.
    District Court of Appeal of Florida, Third District.
    May 17, 1977.
    Rehearing Denied June 20, 1977.
    George J. Talianoff, Miami Beach, and Terrence S. Schwartz, Miami, for appellants.
    Horton, Perse & Ginsberg, Dunn & Johnson, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

By these consolidated appeals, appellants seek review of an order of the Circuit Court of Dade County, Probate Division, determining that the term issue, as used in the power of appointment under decedent’s Last Will and Testament, meant children and not grandchildren. The order appealed is as follows:

“The decedent, HARRY FREEDMAN, in his Last Will and Testament admitted to probate in this cause, created a trust for the benefit of his wife, VALERIE, in the sum of $50,000 and gave to his wife, VALERIE, a limited power of appointment of the said $50,000 trust in the following language:
“ ‘Upon the death of Valerie, my Trustees shall dispose of the principal of the Limited Trust then held by them, if any, to and among any one or more of the issue of Valerie and myself, and the spouses of such issue, in such proportions and upon such estates and trusts and upon such conditions and otherwise in such manner as Valerie shall have validly directed by her Last Will, by specific reference to this power.’
“VALERIE, now deceased, by her Codicil dated May 10, 1973, exercised the power of appointment given to her in the following language:
“ ‘THIRD: Hereby intending to exercise the limited power of appointment granted to me by the Last Will and Testament of my late husband, HARRY FREEDMAN, I give, devise, bequeath and appoint the property subject to such limited power of appointment to my Executors or my Trustees, as the case may be, to be held, administered, transferred and paid over by them as a part of my residuary estate in accordance with the provisions of Articles FOURTH and FIFTH of my said Last Will and Testament.’
“The effect of the attempted exercise of the power of appointment by VALERIE was to exercise the same in behalf of her grandchildren who were her residual beneficiaries.
“At the time the decedent HARRY FREEDMAN executed his Last Will and Testament creating, the $50,000 Trust aforesaid, in addition to his wife, VALERIE, his family consisted of two daughters, to wit: JUDITH KRAMER and ROBERTA MILLER, both of whom are married. The question before the Court for determination is whether the language, ‘to and among any one or more of the issue of VALERIE and myself, and the spouses of such issue,’ places a limitation on those to whom VALERIE could exercise the power of appointment to the daughters and their husbands, or whether the language quoted includes grandchildren, great-grandchildren, and indefinitely on down the line of lineal descendants.
“It is contended by those who claim a valid exercise of the power of appointment by VALERIE that the determination of the question must be had according to the law of the State of New York where the Last Will and Testament of HARRY FREEDMAN was executed. Looking to the law of New York, in the case of Drake v. Drake, (Court of Appeals of New York, Second Division); 134 N.Y. 220, 32 N.E. 114, we find the following language quoted in the majority opinion:
“ ‘The word “issue” may be a word either of purchase or limitation, and will be construed the one or the other, as may be necessary to effectuate the intent with which it appears to have been used in the instrument where it is employed. * * * And when used in a will making a devise on failure of issue, or to a person and his issue, it is treated as a work of limitation, and not of purchase; and, unless there is something to show that it is entitled to a more restricted sense, it imports descendants or an indefinite issue. * * In Palmer v. Horn, 84 N.Y. 516, the meaning of the word “issue” was clearly restricted to “children” by the terms of the will, as both terms were there used synonymously. And Judge Earl there remarked that “the word ‘issue’ is an ambiguous term. It may mean descendants generally, or merely children; and whether, in a will, it shall be held to mean the one or the other depends upon the intention of the testator as derived from the context or the entire will, or such extrinsic circumstances as can be considered.” And he added that it would be held to have the meaning of “children” “upon slight indication that such was the intention of the testator.” ’
“It is also indicated by the authorities that the use of the word ‘issue’ does not permit the appointment to be made to grandchildren so long as their parents are alive, unless the will of the testator clearly authorizes such power. No such authorization is contained in the will of Harry Freedman.
“Looking to the intent of the testator, HARRY FREEDMAN, at the time, of the execution of his will and the family situation then existing, the restriction of the power of appointment by VALERIE to ‘the issue of VALERIE and myself, and the spouses of such issue,’ would clearly indicate that the language of the will itself limits the word ‘issue’ to the two daughters of HARRY and VALERIE and the power of appointment to them and their respective spouses. Upon consideration of the foregoing, it is now, therefore:
“ORDERED AND ADJUDGED that the exercise of the power of appointment by VALERIE in her Last Will and Testament was an invalid exercise of the same and that the corpus of the limited Trust shall pass and be distributed to the beneficiaries of HARRY FREEDMAN’S estate as contained in ARTICLE SIXTH of his Last Will and Testament, to wit: ‘the issue of Valerie and myself,’ the same being JUDITH KRAMER and ROBERTA MILLER.”

We have carefully reviewed the record on appeal, the briefs and the trial court’s order. From this review, we have concluded that the trial court’s order is correct, therefore, it is affirmed.

Affirmed.


text:
    Arthur CHEATHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 76-713.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied June 20, 1977.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Arthur Cheatham, was informed against for aggravated battery, tried by jury, found guilty of aggravated assault and sentenced to five years in the state penitentiary.

Defendant first urges as reversible error the trial court’s denial of his motion for continuance of hearing on his sentencing in violation of Fla.R.Crim.P. 3.720(b).

While it is undisputed that this rule requires a court, before sentencing, to afford a defendant the opportunity to present matters in mitigation of sentence, the court is not compelled under the rules to grant defendant a continuance prior to sentencing upon his motion therefor. The general rule is that the granting or denial of a motion for continuance is within the discretion of the trial court, and the court’s action with respect thereto will be reversed only upon a showing of a palpable abuse of discretion. See Douglas v. State, 216 So.2d 82 (Fla.3d DCA 1968); Mills v. State, 280 So.2d 35 (Fla.3d DCA 1973). A review of the record reflects no such abuse of discretion. Defendant was given an opportunity to submit evidence in mitigation of sentence, and we find the trial court fully complied with the requirements of Fla.R. Crim.P. 3.720.

Defendant secondly contends that the court erred in reinstructing the jury, at its request, as to the elements of aggravated battery, aggravated assault and battery without also reinstructing the jury on reasonable doubt. We cannot agree.

It is proper for a trial judge to limit the repetition to the charges requested; however, the repeated charges should be complete on the subject involved. See Hedges v. State, 172 So.2d 824 (Fla.1965). In the case sub judice the trial judge repeated the charges requested by the jury and these repeated charges were complete on the subject involved. The charges on reasonable doubt and acquittal were not essential to a complete and full instruction on the repeated charges. Cf. Bristow v. State, 338 So.2d 553 (Fla.3d DCA 1976).

Judgment of conviction and sentence affirmed.

      . Mask v. State, 289 So.2d 385 (Fla.1973).


text:
    Seymour PREMER, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 76-757.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied June 20, 1977.
    Bolles, Goodwin, Ryskamp & Welcher, Alfred Gustingef, Jr., Miami, for appellant.
    Allen DeSario, for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant filed an action against the State Department of Transportation herein referred to as the Department, and against Dade County, for damages for personal injuries received when he fell on a sidewalk adjacent to Biscayne Boulevard in the vicinity of 110 Terrace, in an unincorporated area of Dade County. Plaintiff alleged his fall was proximately caused by a defect in the sidewalk due to improper maintenance. The defendants answered, denying negligence and pleading contributory negligence. An initial jury trial of the case ended adversely to the plaintiff, and he appealed. On that trial, which took place after the decision of Jones v. Hoffman, 272 So.2d 529 (Fla.4th DCA, 1973), relating to comparative negligence, but prior to the decision thereon by the Supreme Court in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), the trial court refused a requested jury charge on comparative negligence. Pursuant to Hoffman v. Jones, supra, 280 So.2d at 440, this court reversed and remanded for a new trial. See Premer v. State of Florida, Department of Transportation, 300 So.2d 737 (Fla.3rd DCA, 1974).

Thereafter, plaintiff filed an amended complaint realleging the facts upon which the action was based, and alleging each of the defendants was under duty to maintain the sidewalk at said location. Defendants answered, generally denying the allegations and pleading contributory negligence and assumption of risk. After certain discovery was had, a motion of the defendant Dade County for dismissal was granted. The order stated: “The County of Dade’s motion to dismiss amended complaint is hereby granted, it affirmatively appearing that the County of Dade has no legal duty, responsibility, or obligation in this cause”. The present appeal does not involve that ruling.

The action proceeded to trial against the Department, before a jury. Involved in the action, in addition to issues relating to negligence of the parties, was the question of whether the Department was under a duty to maintain the adjacent sidewalk. The question thus presented was one of law, to be determined upon consideration of several statutes, when read together. Applicable were Section 337.31 (now section 95.361, Florida Statutes 1975) under which the State had acquired “all right, title, easement, and appurtenances in and to the road [in the County]”, by reason of previously having maintained or repaired the same for a consecutive period of four years; Section 335.04(2) and (3), and (3)(a) and (b), Florida Statutes (1975), under which Biscayne Boulevard, United States Highway # 1, is a part of the State Highway System; and Section 334.03(15), Florida Statutes (1975), which defines “State Roads” as those that are part of the state highway system, “including the road bed, right-of-way, embankments, slopes, retaining walls, sidewalks, bridges, tunnels and viaducts necessary for the maintenance of travel thereon and all ferries in connection therewith” [In 1963 the Legislature, by Chapter 63-27, had amended the statutory definition to include sidewalks].

That question, which was one of law to have been decided by the court, instead was submitted to the jury for decision, without explanation, by reading to the jury Section 337.31 (now Section 95.361), Florida Statutes, and Section 334.03(15), Florida Statutes (1975), defining “State Roads”.

The jury returned a verdict for the defendant Department. The plaintiff then prosecuted the present appeal. The brief of the appellant presents two arguments, first that the court erred in refusing to rule as a matter of law on the question of the defendant Department’s duty to maintain the sidewalk, and second that the court erred in submitting such question to the jury.

An examination of the record discloses that those questions were not preserved for presentation on appeal. No objection was made on the behalf of the plaintiff to the trial court submitting such question to the jury. We have carefully examined the conference on the jury’s charges which was held preliminary to the arguments of counsel, and have examined the charges which the court gave to the jury. In the charge conference the court disclosed intention to submit the question to the jury on the basis of reading such statutes to the jury. The attorneys for the parties did not object, and in fact expressed approval thereof. After the jury was so charged there was no objection made by counsel. When the jury requested further instruction with reference to said matter, the court with the approval of the attorneys for the parties, re-read said sections of the statutes to the jury. Under those circumstances, the judgment must be affirmed. Pla.R.Civ.P. 1.470(b); High, Clarke & Feneis, Inc. v. Public Mutual Insurance Company, 238 So.2d 169 (Fla.3rd DCA 1970); Starkey v. Chew, 241 So.2d 870 (Fla.3rd DCA 1970); Frankowitz v. Beck, 257 So.2d 918 (Fla.3rd DCA 1972); Bader Brothers Transfer & Storage, Inc. v. Campbell, 299 So.2d 114 (Fla.3rd DCA 1974).

Affirmed.


author: NATHAN, Judge.

text:
    Charles E. WILTZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1075.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Rehearing Denied June 29, 1977.
    Pollack, Tunkey, Robbins & Rosenfield and Robert E. Rosenfield, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

The defendant appeals his conviction of robbery and sentence thereon following trial by jury. His sole point on appeal is that he was deprived of his constitutional right to counsel.

The record reflects that the public defender was appointed as counsel to represent defendant. At the time of trial, the defendant requested the court to appoint another lawyer to represent him alleging that counsel told him that his case could not be won. This the court denied, whereupon defendant requested a continuance so that he might represent himself. The court inquired into the education of the defendant, and then advised him of the seriousness of the offense and the penalties that could be imposed upon conviction. The court further explained that if the trial was continued, defendant could not, at the time of trial, request appointment of counsel to represent him. The following is the colloquy which took place between the court and the defendant:

THE COURT: All right. Now how far did you go in school?
THE DEFENDANT: Finished high school.
THE COURT: You sure you want to represent yourself?
THE DEFENDANT: Yes, ma’am.
THE COURT: You know the risk you are taking?
THE DEFENDANT: Yes, ma’am.
THE COURT: You realize that the penalty for the offense for which you are charged is very high?
THE DEFENDANT: Yes, ma’am.
THE COURT: You understand that, don’t you?
THE DEFENDANT: Yes, ma’am.
THE COURT: I mean, I don’t want you to misunderstand. You are charged with a very serious offense and it carries very, very serious penalties. . . . So, you have a range of sentences from life down to 15 years that you would be getting. I want you to understand the seriousness of it.
THE DEFENDANT: I understand, Your Honor.
THE COURT: And you want to represent yourself?
THE DEFENDANT: If I can have a continuance.
THE COURT: Now, let’s get our understanding very clear, Mr. Wiltz. I will give you the continuance. But, you can’t come back in here Monday morning, Tuesday morning and say, “I want the lawyer back.”
It doesn’t work that way.
THE DEFENDANT: Okay.
THE COURT: You understand that?
THE DEFENDANT: I understand.
THE COURT: I mean, you make your decision, but you are stuck with it once you make it.
THE DEFENDANT: I understand.
THE COURT: Is that very clear to you?
THE DEFENDANT: Very clear.
THE COURT: All right.
Defense request for a continuance is granted. . . . Here is a form, Mr. Wiltz, that gives you the right. You are waiving your right to counsel.
I ask that you read it. Just a second, I will read- it to you. The form says:
. “I have been fully advised by the Court that I have the right to be represented by an attorney of my own choice in this case. And that if I have no funds to retain an attorney to represent me, the Court will appoint an attorney to represent me in this case, without any cost to me.”
Which I have done and which you have said you do not want.
“I fully and completely understand what the Court has told me concerning my rights to be represented by counsel.” You do understand that, don’t you Mr. Wiltz?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you don’t want the Public Defender’s Office to represent you?
THE DEFENDANT: No, Your Honor.
THE COURT: No one has threatened you, coerced you or informed you of anything in an effort to persuade you in making your decision to represent yourself?
THE DEFENDANT: No, Your Honor.
THE COURT: And you wish to waive ■ your right to be represented by counsel of your own choice or by Court appointed counsel?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you wish to represent yourself in the case presently pending before the Court.
THE DEFENDANT: Yes, Your Honor.

The court permitted the public defender to withdraw. Later, at the time of trial, following an eleven day continuance, this exchange took place between the defendant and the court:

“THE DEFENDANT: Your Honor, at this time, I would like to disqualify myself because I have no knowledge of the law.
THE COURT: Sorry, sir, two weeks ago we went through this. I asked you all about it, the freeness and voluntariness, and you wanted to represent yourself, and you specifically said so upon full advice.' You are now representing yourself.
THE DEFENDANT: Sorry, Your Honor, I will just have to stand mute to all proceedings.”

In our opinion, there is no reason for the court to appoint a substitute counsel for the public defender merely because counsel gave defendant his appraisal of the case, assuming that counsel did so advise the defendant. Indigent defendants have no right to select counsel of their own choosing and are entitled only to the appointment of a public defender in the absence of some specific reasons based on facts pointing to the disqualification of the public defender in a particular case. Hammond v. State, 264 So.2d 463 (Fla. 4th DCA 1972).

The record clearly reflects that the defendant’s waiver of counsel was intelligently and knowingly made. Upon trial, the defendant remained mute although the court properly assisted the defendant by carefully and specifically giving him his right to challenge jurors, make an opening statement to the jury, cross-examine witnesses, call witness on his own behalf, and make a closing argument, all of which he refused to do.

A defendant has a constitutional right to waive and proceed to trial without counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Affirmed.


author: MILLS, Judge.

text:
    Clay W. KEITH, Individually and as Director, Department of Highway Safety and Motor Vehicles, Division of Driver’s Licenses, Appellant (Respondent), v. Freddie J. CORBIN, Appellee (Petitioner).
    No. DD-417.
    District Court of Appeal of Florida, First District.
    June 10, 1977.
    Rehearing Denied July 7, 1977.

      Edwin E. Strickland, Gen. Counsel, Enoch J. Whitney, Asst. Gen. Counsel, Tallahassee, for appellant (respondent).
    James A. Shook, Ocala, for appellee (petitioner).
   MILLS, Judge.

Mr. Corbin’s driver’s license was revoked by the Director, Department of Highway Safety and Motor Vehicles, Division of Driver’s Licenses, and following an administrative hearing the revocation was affirmed by letter of 25 June 1976. On 17 August 1976, 53 days later, Mr. Corbin filed a Petition for Writ of Mandamus and/or Suggestion for Writ of Prohibition with the trial court seeking writs prohibiting the Director from revoking his license and directing the Director to issue a license to him. The trial court issued both writs. The Director appeals.

The issue before us is whether the trial court had jurisdiction to enter the writs. It did not.

Section 322.31, Florida Statutes (1975), provides:

“Right of review — The final orders and rulings of the department wherein any person is denied a license, or where such license has been cancelled, suspended or revoked, shall be reviewable in the manner and within the time provided by the Florida appellate rules only by a writ of Certiorari issued by the circuit court in the county wherein such person shall reside, in the manner prescribed by the Florida appellate rules.”

Florida Appellate Rule 4.5 c. (1) provides in pertinent part:

“Application for writ of certiorari shall be by petition filed in the Court within 30 days from the rendition of the decision, order, judgment or decree sought to be reviewed. . . .”

In the case before us, Corbin not only failed to seek review by petition for writ of certiorari as required by Section 322.31, but if we should treat the petition and suggestion filed by Mr. Corbin as a petition for writ of certiorari, it was not filed within thirty days from entry of the administrative order as required by Fla.App.R. 4.5 c. (1).

The trial court lacked jurisdiction to enter the writs of prohibition and mandamus. Accordingly, they are quashed.

BOYER, C. J., and ERVIN, J., concur.


author: HUBBART, Judge.

text:
    MEDLEY HARWOODS, INC., Appellant, v. Carl NOVY, d/b/a Bel Aire Recreation, Inc., Appellee.
    No. 76-461.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.

      Kessler & Jasinski and Alan S. Kessler, South Miami, for appellant.
    Gilbert, Silverstein & Heilman and Maynard J. Heilman, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This case is an action to collect on a series of negotiable instruments known as checks. The trial court dismissed the complaint and the plaintiff appeals.

The issue on appeal is whether a complaint for collection on a dishonored corporate check states a good cause of action against the maker of the check who has signed in his individual capacity. We conclude that such a complaint states a good cause of action and reverse.

The appellant, Medley Harwoods, Inc., brought suit against the appellee, Carl Novy, for collection on six negotiable instruments known as checks which were allegedly dishonored. At the top of each check the following corporate legend appeared: “BEL AIR RECREATION, INC., 1089 East 27th Street, Hialeah, Florida 33013.” Each check was made payable to Medley Harwoods, Inc. and was signed: “Carl A. Novy.” There was no indication on any of the checks that Carl Novy was signing the checks in a representative capacity as officer, director, or shareholder of Bel Aire Recreation, Inc. The total amount allegedly due and owing on the checks was $44,451,83. The trial court dismissed the complaint and this appeal follows.

The law which governs this transaction is found in the Uniform Commercial Code since the checks involved in this case are clearly negotiable instruments within the meaning of the said Code. Sections 673.-104(1), (2)(b), Florida Statutes (1975). The liability of the maker of a negotiable instrument who purports to sign in a representative capacity is stated in the Uniform Commercial Code at Section 673.403(2), Florida Statutes (1975), as follows:

“An authorized representative who signs his own name to an instrument:
(a) Is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.” [Emphasis supplied].

In the instant case, the checks sued upon are Bel Aire Recreation, Inc. corporation checks with the name of the corporation as the person represented appearing on the face of each check. Carl Novy, however, did not sign any of the checks herein in a representative capacity for the corporation. He signed each check in his individual capacity. Under Section 673.403(2)(b), Florida Statutes (1975), Carl Novy is therefore personally obligated on the checks “except as otherwise established between the immediate parties . . .”

We accordingly hold that the complaint herein states a good cause of action against Carl Novy individually in view of the above statutory provision. In this connection, relevant parol evidence would be admissible at trial to show the intention of the parties as to whether Carl Novy signed the check in a representative capacity for Bel Aire Recreation, Inc. Speer v. Friedland, 276 So.2d 84 (Fla.2d DCA 1973).

As a final matter, we feel constrained to comment on a theory of liability which has been advanced by Medley Har-woods throughout the proceedings in this case and may continue to be urged before the trial court on remand. Medley argues that Carl Novy, as officer and shareholder of Bel Aire Recreation, Inc., is individually liable on the debts he incurred for the corporation in Florida solely because Bel Aire is a foreign corporation incorporated under the laws of the state of Michigan and is not qualified to do business in Florida. We do not understand such a theory to be the law of this state.

The Florida Supreme Court in Taylor v. A.G. Branham and Co., 35 Fla. 297, 17 So. 552 (1895) and Duke v. Taylor, 37 Fla. 64, 19 So. 172 (1896), appear to support Medley’s position, but in the later decision of Herbert H. Pape, Inc. v. Finch, 102 Fla. 425, 136 So. 496 (1931), the Court impliedly receded from these earlier cases when it stated:

“[A] majority of the court have reached the conclusion that it is unnecessary to finally decide in this case whether or not the stockholders or officers of a foreign corporation may be held individually liable as partners when they undertake to transact business in this state in the name of such foreign corporation when it is not authorized under Florida laws to transact business here. That question will accordingly be left open for future consideration and determination in some appropriate case where such question is necessarily involved and required to be definitely decided.” Id. at 501.

The Second District Court of Appeal in Mysels v. Barry, 332 So.2d 38 (Fla.2d DCA 1976), analyzed the above line of Supreme Court cases the same way and held that an officer or shareholder of a foreign corporation cannot be held personally responsible for the debts of the corporation incurred in Florida solely because the corporation has failed to qualify to do business in Florida. In the absence of a contrary statute, the court concluded that there can be no individual liability against a corporate officer or shareholder for debts incurred on behalf of the corporation unless the corporate veil is pierced on a showing that the corporation was formed or used for a fraudulent, illegal or unjust purpose. Roberts’ Fish Farm v. Spencer, 153 So.2d 718 (Fla.1963). We entirely agree.

The order dismissing the complaint is reversed and the cause is remanded for proceedings consistent with this opinion.


author: HAVERFIELD, Judge.

text:
    Vito DAVANZO et al., Appellants, v. RESOLUTE INSURANCE COMPANY et al., Appellees.
    No. 76-511.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Louis Vernell, Miami, for appellants.
    Melvyn Kessler, Miami, Yelen & Yelen, Coral Gables, Richard Touby, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   HAVERFIELD, Judge.

Defendants, trustees of a dissolved corporation as legal titleholder, appeal a final judgment foreclosing four of six mortgages encumbering the subject realty.

DaVell Investments and Properties, Inc., a dissolved corporation, in August 1972 purchased from Harry and Yetta Siegel the subject property which consists of a three-story office building located in downtown Miami. This property was encumbered by a total of six mortgages, four of which were executed by Harry and Yetta Siegel during the period of their ownership. At the time of entry of the final judgment, the east of mortgagees were as follows: Robert Bloom-berg, holder of the first mortgage; Emily Kellerman and Shirley Caruso, holders of the second and fourth mortgages; Resolute Insurance Company, holder of the third mortgage; Estate of Lionel Sanger, holder of the fifth mortgage; Yetta Siegel and Carole Miller, holders of the sixth mortgage.

On September 23, 1971 plaintiffs Emily Kellerman and Shirley Caruso filed a complaint to foreclose their fourth mortgage against Harry and Yetta Siegel, then the legal titleholders of the realty. Thereafter, plaintiffs filed an amended complaint to foreclose both their second and fourth mortgages and added as parties to the cause, Resolute and Sanger by virtue of their third and fifth mortgages. Resolute answered that its mortgage was superior to plaintiffs’ and prayed that the court dismiss the amended complaint and grant any other relief it may see fit under the circumstances. Sanger filed a cross-claim to foreclose the fifth mortgage and alleged that his mortgage is superior to the others. Sanger also prayed for a reasonable attorney’s fee. Robert Bloomberg, who just prior thereto had been assigned the first mortgage, filed a petition to intervene and join additional parties defendant. Bloomberg alleged that by assignment he was now the holder of the first mortgage which was presently in default and asked that his mortgage which was superior to all the others be foreclosed. Bloomberg also requested that DaVell Investments and Properties, Inc., the current record titleholder, be joined as a party defendant as well as all persons having an interest in the encumbered property inferi- or and subordinate to that of Bloomberg (which included Yetta Siegel and Carole Miller who held the sixth mortgage). Bloomberg’s petition was granted and he filed a complaint to foreclose against Da-Vell Investments and the other lienholders. In Resolute’s answer to this complaint, it prayed that the court determine the priority of its lien and Bloomberg’s lien and the proceeds from the sale be applied to their claims in accordance with the determination of priority. Kellerman and Caruso, the original plaintiffs, also moved to amend their complaint to add as additional party defendants, appellants Vito and Jean Da-vanzo and Louis Vernell as trustees of Da-Vell Investments in that DaVell which purchased the subject property while this suit was pending is a dissolved corporation and the above three persons were the last known board of directors. Louis Vernell as trustee for DaVell filed an answer to Bloomberg’s complaint. After several hearings and a nonjury trial, the judge entered final judgment foreclosing Bloomberg’s first mortgage along with the third, fifth and sixth mortgages. The total sums due were (1) Bloomberg $41,236.49; (2) Resolute $7,336.95; (3) Sanger $30,002.15; (4) Miller $43,100. The above mortgagees were also awarded reasonable attorneys’ fees. Appellant filed a petition for rehearing and contended that the trial court erred in determining matters never pled or otherwise raised in the cause, i. e. with the exception of Bloomberg, the remaining mortgagees did not pray for foreclosure and further did not join DaVell Investments as a party defendant. After a hearing thereon, the trial judge denied the petition and entered an order pursuant to Fla.R.Civ.P. 1.190(b) amending the pleadings to conform to the evidence introduced at the trial. This appeal ensued.

Appellants contend that where the holders of several mortgages are joined in a single foreclosure action which fails to name or otherwise include the fee titleholder as a party, a final judgment which serves to adjudicate the rights of the owner with respect to such mortgages and otherwise adjudicating issues never raised or pled is erroneous and should be reversed.

This issue with respect to Bloomberg is not applicable as his complaint added Da-Vell Investments as a party defendant and sought foreclosure of the first mortgage.

We next considered this contention with regard to the Resolute and Sanger mortgages.

One who holds legal title to mortgaged property Is an indispensable party defendant in a suit to foreclose a mortgage and a court cannot properly adjudicate the matters involved in this suit when it appears indispensable parties are not in some proper way actually or constructively before the court. Oakland Prop. Corp. v. Hogan, 96 Fla. 40, 117 So. 846 (1928). The record reflects that appellant Louis Vernell was involved in this suit from its very inception as he initially represented Harry and Yetta Siegel upon Kellerman and Caruso filing their foreclosure complaint. After Bloomberg was permitted to intervene and file his foreclosure complaint adding DaVell Investments and appellant trustees as party defendants, Vernell began to represent Da-Vell Investments and himself as trustee of DaVell. Thus, from the time of the filing of Bloomberg’s complaint DaVell Investments through the entire ensuing proceedings was actually a party before the court and was represented by counsel.

The record further reveals that Sanger in his cross-claim prayed that his mortgage be foreclosed. Resolute in its answer to Bloomberg’s complaint asked that the priorities between its and Bloomberg’s mortgages be determined and the proceeds from the foreclosure sale be applied to their claims in accordance with the priority determination. Resolute in addition asked for any other relief the court may deem appropriate. We also note that at the trial Sanger and Resolute introduced evidence relating to the foreclosure of their respective mortgages and the trial proceeded as if the foreclosure of those mortgages was at issue. No objection thereto was made by DaVell Investments. Although not imperative, the trial judge permitted the pleadings to be amended to conform to the evidence. See Fla.R.Civ.P. 1.190(b). Thus, this point is without merit as to the Resolute and Sanger mortgages. See Robbins v. Grace, 103 So.2d 658 (Fla.2d DCA 1958); Free Bond, Inc. v. Comaza International, Inc., 281 So.2d 61 (Fla.3d DCA 1973).

However, appellant’s point with respect to the Siegel/Miller mortgage is well taken. These mortgagees filed no pleadings nor did they participate in the final hearing. In fact, Siegel and Miller filed a separate mortgage foreclosure action which still remains unresolved. We, therefore, vacate that portion of the final judgment addressed to the Seigel/Miller sixth mortgage including the award of attorney’s fees.

We also considered appellant’s second contention with regards to the award of attorneys’ fees to Bloomberg, Resolute and Sanger and find no reversible error.

The final judgment is affirmed in all respects save that provision foreclosing the Siegel/Miller mortgage and awarding them a reasonable attorney’s fee.

Affirmed in part, reversed in part.

      . The actions on the Kellerman/Caruso second and fourth mortgages are still pending.


text:
    Mary Thelma MACK, Appellant, v. The STATE of Florida, Appellee.
    No. 76-829.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Mary Thelma Mack was charged by information with second degree murder; but before trial, the charge was reduced to manslaughter. Mack was tried by jury, found guilty of manslaughter, convicted and sentenced to ten years imprisonment. She raises two points on appeal.

The first point is that the court erred in denying defendant’s motion for judgment of acquittal because the evidence was insufficient to support a conviction for manslaughter in that she acted in self defense. The question of self defense is one of fact to be determined by the jury. Scholl v. State, 94 Fla. 1138, 115 So. 43 (1927); J. Y. v. State, 332 So.2d 643 (Fla.3d DCA 1976). Upon examination of the record, we find that there is substantial competent evidence to support the verdict. Crum v. State, 172 So.2d 24 (Fla.3d DCA 1965); J. Y. v. State, supra. No error is demonstrated on this point.

Defendant’s second point on appeal is that the court erred in admitting gruesome and gory photographs of the deceased. Florida courts have held that gruesome and gory photographs may be admitted if they properly depict the factual conditions relating to the crime and if they are relevant in that they aid the court and jury in finding the truth. Swan v. State, 322 So.2d 485, 487 (Fla.1975). The admissibility of photographs as evidence is a matter within the broad discretion of the trial court, and a ruling thereon will not be disturbed except when shown to be clearly abusive or patently erroneous under the circumstances shown in the record. Allen v. State, 340 So.2d 536, 537 (Fla.3d DCA 1976). No abuse of discretion having been demonstrated, the conviction and sentence is

Affirmed.


author: PER CURIAM. CHARLES CARROLL, Associate Judge

text:
    Marie L. HEREDIA, Individually, Marie L. Heredia, as the natural mother and next friend of Emil C. Heredia, a minor, and Marie L. Heredia, Individually, and as the natural mother and next friend of Emil C. Heredia, a minor, and on behalf of all other Florida residents who are similarly situated, Appellants, v. ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellee.
    No. 76-833.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.

      Milton Kelner, Miami, for appellants.
    Talburt, Kubicki & Bradley and Robert J. Dickman, Miami, for appellee.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The minor plaintiff was a pedestrian. He was injured when he was struck by a panel truck used primarily in the business of its corporate owner. A complaint was filed claiming personal injury protection benefits under the automobile insurance policy of the plaintiff’s mother, under the terms of which the minor was an additional insured. Defendant Allstate Insurance Company moved to dismiss the complaint upon the ground that the allegations clearly showed that the plaintiff was not entitled to personal injury protection benefits under the Florida Automobile Reparations Reform Act, Section 627.730 et seq., Florida Statutes (1975). The trial court granted the motion to dismiss and this appeal followed.

The controlling question is whether a panel truck which is used primarily in the business of its owner is a “motor vehicle” under the Florida Automobile Reparations Reform Act. See particularly Section 627.-732(1), Florida Statutes (1975). We hold that such a vehicle is not a “motor vehicle” under the act. See Camacho v. Allstate Insurance Company, 310 So.2d 330 (Fla.3d DCA 1975); and Saborit v. Deliford, 312 So.2d 795 (Fla.3d DCA 1975). Cf. State Farm Mut. Auto. Ins. Co. v. Butler, 340 So.2d 1185 (Fla.4th DCA 1976). But see Century Insurance Company of New York v. Fillmore, 306 So.2d 548 (Fla.3d DCA 1974).

Affirmed.

CHARLES CARROLL, Associate Judge

(concurring specially).

The question presented by this case is whether a panel truck which is used primarily in the business of its owner (not the insured) is or is not a “motor vehicle” as defined by subsection (1) of section 627.732, Florida Statutes (1975), which reads as follows:

“Motor vehicle” means a sedan, station wagon, or jeep type vehicle not used as a public livery conveyance for passengers and includes any other four-wheel motor vehicle used as a utility automobile and a pickup or panel truck which is not used primarily in the occupation, profession, or business of the insured.

In this case, in which an insured filed action against his insurer for PIP benefits, it was alleged the insured plaintiff had been struck by a panel truck owned by a corporation and used primarily in the business of its said owner. On motion of the defendant insurance company the court dismissed the complaint with prejudice. That amounted to holding that the No-Fault Insurance Law was not applicable in this instance, on the ground that because the panel truck which struck the insured plaintiff was used primarily in the business of its owner it was not a motor vehicle as defined in the statute.

The trouble in this and similar cases is that the statute used the word Insured, rather than the word owner, in the clause which specified that certain use would exclude four-wheel utility vehicles (trucks) and pickup and panel trucks, which otherwise would be “motor vehicles” thereunder.

The statute did not exclude a panel truck so used in the occupation, profession or business of the owner (or operator or lessee) thereof, but excluded those so used in the occupation, profession, or business of the insured. Applying that to this case, where the insurance policy upon which the PIP benefits are claimed is that of the plaintiff, and not that of the truck owner, it is the plaintiff who is the “insured”.

The statute should be applied as it reads. If the legislature intended to exclude those of such vehicles which were so used in the business pf the owner thereof, rather than of the insured, the resultant legislation did not so provide. Any change or amendment of the statute in that respect or in any other respect, if it were necessary or advisable to be made, would be a matter for the legislature.

In earlier cases it was held by this court that a truck, and a panel truck, which were shown to have been used primarily in the business of their owners, were not motor vehicles under the statutory definition. See Camacho v. Allstate Insurance Company, 310 So.2d 330 (Fla.3d DCA, 1975) and, following Camacho, Saborit v. Deliford, 312 So.2d 795 (Fla.3d DCA, 1975).

In Camacho, PIP benefits were denied to an insured who suffered injury and property damage in a collision, by impact from a truck (“commercial, vehicle”) which was used in business, on the theory that such use thereof operated to exclude it from the statutory definition of motor vehicle. In Saborit, involving a similar collision, it was held that the No-Fault Law was not applicable to plaintiff’s claim against the owner of a panel truck which collided with the insured plaintiff because the panel truck was used primarily in the business of its owner. The effect of those decisions which are followed here, if they are incorrect, is to deprive many persons of their entitled benefits under the No-Fault Insurance Law. That far reaching effect, coupled with the fact that as worded the statute does not exclude or exempt, as motor vehicles, such trucks when primarily used in the business of the owner thereof, would appear to present strong reason for re-examination of those decisions, as the appellant in this case has urged.

However, having been a member of the panels of this court which decided Camacho and Saborit, although I now see some justification for appellant’s argument that the language of the statute does not support the result reached in those decisions, I concur in this court’s judgment of affirmance based on the authority of Camacho and Saborit, with the decision in this case being certified as one of public interest, whereby the Supreme Court of Florida will have jurisdiction to review the decision, on cer-tiorari.


text:
    John VELOSKY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-840.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, and Arthur Joel Berger, Asst. Attys. Gen., for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Jones v. State, 273 So.2d 8 (Fla. 3d DCA 1973); Kellam v. Thomas, 287 So.2d 733 (Fla. 4th DCA 1974); Jordan v. State, 107 Fla. 333, 144 So. 669 (1932); Sykes v. State, 329 So.2d 356 (Fla. 1st DCA 1976).


text:
    Frankie L. CLEMENTS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-969.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Frankie L. Clements appeals from an order denying his motion to vacate pursuant to Rule 3.850, Fla.R.Crim.P.

Clements was charged with robbery in April of 1972. He pled guilty and was sentenced to life imprisonment. In May of 1972, Clements filed a pro se motion to vacate judgment and sentence alleging that his guilty plea was not voluntarily entered due to his mental and physical imcompe-tence inasmuch as he was severely injured and under the influence of drugs. The motion was summarily denied. A second motion to vacate was filed, and summarily denied. This appeal ensued.

The record before this court reflects that the trial judge who accepted the plea of guilty was no longer presiding at the time the motion was heard, and that the transcript of the plea proceedings is unavailable. Thus, there were no records before the trial court at the time that Clement’s motion was heard which conclusively refutes the allegations. For this reason, Clements is entitled to an evidentiary hearing. Winegard v. State, 234 So.2d 166 (Fla.2d DCA 1970).

Reversed and remanded.


text:
    Robert RANDALL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1193.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.

      Robert Randall, in pro. per.
    Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen. and Jose R. Rodriguez, Legal Intern, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The appellant was charged, by information containing a count of false imprisonment, six counts of robbery while carrying a deadly weapon, and one count of possession of a firearm while engaged in a criminal offense, to wit: robbery. He pleaded not guilty, was tried before a jury which returned a verdict of guilty on all counts. All sentences were to run concurrently with the longest sentence. This appeal ensued.

Four points are preserved for review. That the trial court erred in not having the defendant present during the charge conference. We do not find this constitutes fundamental error. There is no requirement, by statute or rule, that a defendant be present at a charge conference and no objection to the procedure was made by the defendant in the trial court. State v. Melendez, 244 So.2d 137 (Fla.1971). Error is urged in the failure of the trial judge to give instructions on lesser included offenses. The only question preserved for review by the jury was the identity of the culprit. The crimes were admitted; the defendant gave an alibi defense, and the only question to be determined by the jurors was the identity of the perpetrator of the crime. As a matter of trial strategy, the defendant could waive the charge on lesser included offenses in such a situation. See: Black v. State, 279 So.2d 909 (Fla.3rd D.C.A. 1973). There is also a contention that more than one sentence could not be imposed under the circumstances of the alleged single transaction. This is without merit in the instant case. See: Johnson v. State, 338 So.2d 556 (Fla.3rd D.C.A. 1976). Lastly, the appellant, by pro se brief, contends for the first time on appeal that the State supplied him with ineffective assistance of counsel through the Public Defender’s Office. This is not a proper subject of error on direct appeal, but should first be made in the trial court by a petition under Fla.R.Crim.P. 3.850. See: State v. Barber, 301 So.2d 7 (Fla.1974).

Therefore, for the reasons above stated, the verdict, adjudications, and sentences be and they are hereby affirmed.

Affirmed.


text:
    Leon GREEN and Gertrude Gerber, Appellants, v. Fred T. LANDRY, Appellee.
    No. 76-1263.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Ainslee R. Ferdie, Coral Gables, for appellants.
    Joseph I. Davis, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See McAllister Hotel, Inc. v. Porte, 98 So.2d 781 (Fla.1957); Zaydon v. Wilder, 305 So.2d 81 (Fla. 3d DCA 1975); Fenton v. Bancroft Hotel Associates, Inc., 265 So.2d 67 (Fla. 3d DCA 1972).


text:
    In re the ESTATE of Lula Jane PORTER, Deceased. Sterrol PORTER, Appellant, v. David NETTLES et al., Appellees.
    No. 76-1286.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rosenkrantz & Sutton and John R. Sutton, Theodore M. Trushin, Miami Beach, for appellant.
    Heimberg & Lumer and Joel V. Lumer, Coral Gables, Richard A. Marshall, Jr., Homestead, Florida Rural Legal Service, William W. Doar, Jr., Georgetown, S. C., for appellees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878); Parish Mortgage Corporation v. Davis, 251 So.2d 342 (Fla. 3d DCA 1971); Heritage Corporation of South Florida v. Rivas, 289 So.2d 432 (Fla. 3d DCA 1974).


text:
    David Joseph HINES, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-634, 76-635.
    District Court of Appeal of Florida, Second District.
    June 15, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The trial court revoked appellant’s probation. Appellant was given a general sentence of from six months to five years in prison with credit for time previously served in Case No. 75-143 (Appeal No. 76-635). This sentence was imposed for convictions of (1) breaking and entering with intent to commit a felony, (2) possession of burglary tools, and (3) contributing to the delinquency of a minor. In addition, the trial judge imposed a like sentence for breaking and entering with intent to commit a misdemeanor in Case No. 75-243 (Appeal No. 76-634). Sentences in the two cases were to run concurrently.

Finding no merit in the points raised by appellant in his appeal from revocation of probation, we affirm the convictions. The sentence imposed in Case No. 75-143 (Appeal No. 76-635) was, however, an impermissible general sentence. We, therefore, remand for resentencing Case No. 75-143 in accordance with Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975). The sentence imposed must be apportioned among the convictions, Maxwell v. State, 336 So.2d 658 (Fla.2d DCA 1976).

McNULTY, Acting C. J., and SCHEB and OTT, JJ., concur.


author: BOARDMAN, Chief Judge.

text:
    CHRYSLER AIRTEMP, a division of Chrysler Corporation, a Foreign Corporation authorized to do business in Flordia, Appellant, v. Jean Roth STEVENS and Jane L. Roth, and Crest Engineering, Inc., a Florida Corporation, Appellees.
    No. 76-659.
    District Court of Appeal of Florida, Second District.
    June 15, 1977.

      Thomas J. Roehn of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
    Edward D. Carlson of Carlson & Meiss-ner, Clearwater, for appellees Jean Roth Stevens and Jane L. Roth.
   BOARDMAN, Chief Judge.

Appellant/defendant, Chrysler Airtemp, appeals a final judgment entered upon a jury verdict in favor of appellees/plaintiffs, Jean Roth Stevens and Jane L. Roth. The jury returned a verdict against the defendants, Crest Engineering, Inc. and Chrysler Airtemp, awarding damages to appellees in the sum of “$7,000.00 to be shared equally.” After trial Chrysler filed a motion for a new trial, motion for judgment non obstan-te veredicto, motion for judgment in accordance with its motions for directed verdict, motion for remittitur, and motion for arrest of judgment. Following a hearing the trial court entered an order denying all posttrial motions. Chrysler then timely filed notice of appeal, but Crest did not join in this appeal of the final judgment.

We reverse and hold that the trial court erred in not granting Chrysler’s motion for directed verdict.

Appellees sought damages against Chrysler and Crest on four theories: breach of express written warranties, breach of implied warranty of fitness for a particular purpose, negligent manufacture of a heater and air conditioner, and negligent installation of the heating and air conditioning system. The, trial judge, however, instructed the jury on the theory of express warranty only. In light of the evidence presented at trial the instructions were fair and proper and were not objected to by any party.

Appellees entered into a written contract with Otto-Glass Enterprises, a building contractor, to build a house for them. During the course of the construction, Otto-Glass entered into a written contract with Crest to install the heating and air conditioning system in the house. Crest ordered an oil furnace and air conditioner from Chrysler. Crest designed the duct system and fixed the location of the furnace and air conditioner. The size of the duet was determined by Crest as was the size and type of equipment to be used. Appellees received two written warranties from Chrysler covering the furnace and air conditioner which both provided in pertinent part:

Airtemp Division of Chrysler Corporation, hereinafter referred to as “Airtemp” warrants its products to be free from defects in material and workmanship, under normal use and service, and will, within one year from the date of original installation, repair or replace parts F.O.B. Dayton, Ohio, which in its judgment are defective in workmanship or material and which are returned freight prepaid to its Dayton, Ohio, plant or other designated point.
. . . No claim under this warranty will be honored if the equipment covered has been misused, mis-applied [sic], neglected, damaged in transit or has been tampered with or changed in any way.
This warranty is in lieu of all other warranties expressed or implied, including but not limited to implied warranties of merchantability or fitness for a particular purpose.

It is clear from the express terms of the warranties that Chrysler warranted only the material and workmanship of its products. Aftér careful review of the record, including the exhibits and testimony, we conclude that appellees did not establish by substantial, competent evidence that a defect existed in the material or workmanship which would constitute a breach of Chrysler’s express warranty of the furnace and air conditioner. We cannot find a scintilla of evidence of such a defect and, in fact, the evidence tended to show that problems which occurred were caused by the installment of the equipment and design of the duct system.

We are cognizant of the applicable rules and decisional law of this state that a motion for directed verdict should be cautiously granted and that in considering such a motion all inferences of fact should be construed most strictly in favor of the non-moving party. 2 Fla.Jur. Appeals § 302 (1963). In the instant case, however, the evidence was legally insufficient to support a verdict for appellees against Chrysler and a directed verdict should have been granted. See, e. g., First American Farms, Inc. v. Marden Manufacturing Co., 255 So.2d 536 (Fla.1st DCA 1972).

For the above reasons, the judgment rendered against appellant is set aside and vacated, and the trial court is instructed to enter a directed verdict in favor of Chrysler.

In view of our disposition of this issue the other points raised on appeal need not be resolved.

REVERSED and REMANDED for proceedings consistent with this opinion.

HOBSON and McNULTY, JJ„ concur.


text:
    Frederick DAVISON, Appellant, v. STATE of Florida, Appellee.
    No. EE-234.
    District Court of Appeal of Florida, First District.
    June 17, 1977.
    Michael J. Minerva, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Charles F. McClamma and Michael H. Davidson, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Davison was convicted of robbery and possession of a firearm during a criminal offense. He was sentenced to 25 years on the robbery count and 10 years to be served concurrently on the firearm count. The two violations were a part of the same criminal act; therefore, the concurrent 10-year sentence imposed under the count of the information charging Davison with possession of a firearm while engaged in a criminal offense is vacated. Cone v. State, 285 So.2d 12 (Fla.1973); Nowlin v. State, 320 So.2d 468 (Fla. 4th DCA 1975); Zygadlo v. State, 341 So.2d 1053 (Fla. 1st DCA 1976), and Nowlin v. State, Supreme Court, 346 So.2d 1020, opinion filed May 26, 1977.

REVERSED.

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


author: SMITH, Judge.

text:
    William J. OBI and Rosie N. Obi, Appellants, v. Carl C. SINGLETARY and Annie L. Singletary, his wife, Appellees.
    No. CC-433.
    District Court of Appeal of Florida, First District.
    June 17, 1977.
    David M. Wiesenfeld and Raymond J. Sweeney, Jr., Dawson, Galant, Maddox, Su-lik & Nichols, Jacksonville, for appellants.
    Harry Katz, Jr., Katz & Katz, Jacksonville, for appellees.
   SMITH, Judge.

Plaintiffs Obi appeal from a Duval County circuit court judgment dismissing their contract claims against appellees Singletary for failure of the Obis’ second amended complaint to state a cause of action in counts three and five. Count three sought an injunction against the Singletarys’ violation of their agreement not to compete with the grocery business purchased by the Obis from the Singletarys. Count five sought damages for the Singletarys’ alleged failure to insure the leased grocery premises to full value.

On October 4,1974, the Singletarys leased to the Obis the land and building identified as “Jones Road Grocery” for a renewable five year term and sold the Obis “the business, goods and inventory known as Jones Road Grocery.” Subsequently, in an addendum to the sale agreement, the Singletarys agreed:

“Seller hereby covenants and agrees that he will not engage either as a proprietor, stockholder, partner or managerial employee in any other grocery business or any such business similar in nature to Jones Road Grocery within a three (3) mile radius of Jones Road Grocery located at 1023 Jones Road, Jacksonville, Duval County, Florida.”

The Obis’ claim to enforce the noncompetition agreement was dismissed because the second amended complaint did not in terms allege, and the contract by which the grocery was sold did not in terms recite, that goodwill was sold. The dismissal effectively invalidates the noncompetition agreement.

Section 542.12, Florida Statutes (1975) provides:

“(2) One who sells the good will of a business . . . may agree with the buyer ... to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area, so long as the buyer or any person deriving title to the good will from him, and so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction be enforced by injunction.” (Emphasis added.)

Although the contract documents exhibited with the pleading did not explicitly transfer the “goodwill” associated with Jones Road Grocery, we conceive they are sufficient to raise the issue and that, when evidence of the surrounding circumstances is adduced, the factfinder may properly conclude that goodwill was sold and consequently that the noncompetition agreement is enforceable. That goodwill was transferred is evidenced by the lease of the existing “Jones Road Grocery” property, by the sale of the Singletarys’ “business” as well as their “goods and inventory,” and by the noncompetition agreement itself, which was premised on the parties’ belief that there existed and had been transferred to the new owners an intangible asset consisting of customers’ satisfaction with the Single-tarys’ proprietorship of Jones Road Grocery. An expectation of continuing patronage is goodwill. See Vancil v. Anderson, 71 Idaho 95, 227 P.2d 74 (1951); Valley Mortuary v. Fairbanks, 119 Utah 204, 225 P.2d 739 (1950); Gable v. Carpenter, 136 Neb. 669, 287 N.W. 70 (1939); Handyspot Co. of Northern California v. Buegeleisen, 128 Cal.App.2d 191, 274 P.2d 938 (1954). In the absence of an express provision concerning the duration of the noncompetition contract, it will be considered terminable within a reasonable time depending on the circumstances. Sound City, Inc. v. Kessler, 316 So.2d 315 (Fla. 1st DCA 1975). Count three was not defective in its failure to anticipate and foreclose the affirmative defense of illegality by alleging the purchase and sale of goodwill. Fla.R.Civ.P. 1.110; Hough v. Menses, 95 So.2d 410 (Fla.1957); Akin v. City of Miami, 65 So.2d 54 (Fla.1953).

No error appears in the dismissal of count five, alleging the Singletarys’ failure to insure the leased premises against fire to “full value.” The contract did not specify the amount of fire insurance required.

AFFIRMED IN PART, REVERSED IN PART.

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


author: RAWLS, Judge.

text:
    Andrew ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. EE-214.
    District Court of Appeal of Florida, First District.
    June 17, 1977.
    Richard W. Ervin, III, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   RAWLS, Judge.

Andrew Allen was convicted of the crime of burglary of a dwelling and sentenced.

The issue on this appeal is whether the trial court erred in failing to grant appellant’s motion for continuance on the ground that the state had failed to respond to his demand for discovery.

Pursuant to Fla.R.Crim.P. 3.220, an assistant public defender, who had been appointed to represent Allen, timely filed a written demand upon the prosecuting attorney for all evidence discoverable under said rule. The state failed to respond. Immediately prior to trial Allen, having decided that he desired to represent himself, moved for a continuance upon the ground, inter alia: “. . .1 have not been given any kind of evidence, what type of proof they got against me. They say ‘witnesses’. He hasn’t told me whether there is one or more than one. They haven’t explained what kind of evidence.” The trial court, after observing that Allen’s motion was made “when the venire is out here, been duly qualified”, denied the motion for continuance.

This court’s opinion in Lavigne v. State, First DCA Case No. EE-365, opinion filed June 1, 1977, not yet reported requires reversal. It is undisputed that the state violated a salient Rule of Criminal Procedure. Failure on the part of a trial court to make a full inquiry under such circumstances mandates a reversal. Richardson v. State, 246 So.2d 771 (Fla.1971).

Reversed and remanded for a new trial.

BOYER, C. J., and SMITH, J., concur.

      . The trial court retained Allen’s appointed counsel as his standby attorney.


author: SCHEB, Judge.

text:
    Leo F. STONE, Appellant, v. Etta M. STONE, Appellee.
    No. 76-1705.
    District Court of Appeal of Florida, Second District.
    June 17, 1977.
    R. J. Marshall, Palmetto, for appellant.
    Clifford L. Walters and Robert E. Knowles of Knowles, Blalock, Coleman & Landers, Bradenton, for appellee.
   SCHEB, Judge.

On appeal from a final judgment of dissolution of marriage, appellant/husband contends the trial court erred in its awards of alimony and attorney’s fees. During oral argument counsel for appellant abandoned his contention that the award of $350 for attorney’s fees was improper because it was not based upon expert testimony as to the reasonableness of this sum. Counsel for appellant continued to maintain that the appellee/wife was not entitled to attorney’s fees, or in the alternative that she had abandoned her claim thereto.

In the past we have repeatedly reversed awards of attorney’s fees not predicated upon expert evidence as to reasonableness. See, e. g., Nivens v. Nivens, 312 So.2d 201 (Fla.2d DCA 1975); Lyle v. Lyle, 167 So.2d 256 (Fla.2d DCA 1964). However, in view of appellant’s abandonment of any argument as to the reasonableness of the attorney’s fees, and finding appellant’s other points on appeal to be without merit, the judgment of the trial court is affirmed.

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


text:
    D. L. CURLS, as Trustee, Appellant, v. Ernest TEW, Individually and as Trustee, Investment Enterprises, Inc., a Florida Corporation, and Ernest Tew & Associates, Inc., a Florida Corporation, Appellees.
    No. DD-273.
    District Court of Appeal of Florida, First District.
    June 20, 1977.

      Young J. Simmons of Green, Simmons, Green & Hightower, Ocala, for appellant.
    Larry G. Turner, Gainesville, for appellees.
   PER CURIAM.

Appellant, who was plaintiff in the trial court, brought suit for rescission of a contract for the sale of land, seeking return of the $20,000 binder payment made simultaneously with the execution of the contract. The case went to trial before the judge without a jury. At the conclusion of the plaintiff’s presentation of evidence appel-lees moved for an involuntary dismissal pursuant to Fla.R.Civ.P. 1.420(b) which was granted. This appeal followed.

A motion pursuant to the above-mentioned rule is in the nature of the motion formerly known as a motion for directed verdict. The same law is applicable. If substantial competent evidence has been adduced, though conflicting, which, when considered in the light most favorable to the non-moving party would sustain a judgment in favor of that party then the motion should not be granted. A trial judge may not weigh evidence when ruling on a defendant’s motion pursuant to Rule 1.420(b) following the presentation of a prima facie case by a plaintiff. (See Tillman v. Baskin, 260 So.2d 509 (Fla.1972) and Realty Marts, Inc. v. Barlow, 312 So.2d 544 (Fla. 1st DCA 1975).

Although we have grave doubts as to the correctness of the conclusions of the learned trial judge had the case been in such a posture as to have permitted final determination on the merits, we refrain from addressing the merits at this time and rest our decision instead on the narrow ground of the propriety of the order of involuntary dismissal, which we find and hold was improperly entered because the record clearly reveals substantial competent evidence in support of the claim asserted by the plaintiff.

Reversed and remanded for a trial on the merits.

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


author: RAWLS, Acting Chief Judge.

text:
    Gary B. LOGAN, a minor, by and through his natural parents and legal guardians, Theodore A. Logan, Jr., and Catherine Logan, and Theodore A. Logan, Jr., and Catherine Logan, Individually, Appellants, v. Clifton FLOOD, Sr., Appellee.
    No. GG-63.
    District Court of Appeal of Florida, First District.
    June 22, 1977.

      Y. James Facciolo, of Searcy, Smith, Fac-ciolo & Kirby, Jacksonville, for appellants.
    William R. Swain, of Webb, Swain & Watson, Jacksonville, for appellee.
   On Motion to Quash and Dismiss Appeal

RAWLS, Acting Chief Judge.

American Bankers Insurance Company of Florida’s Motion to Quash and Dismiss Appeal reflects that on March 18, 1977, the trial court entered a summary judgment as to defendant, American Bankers, which was final in nature as to this defendant. On May 16, 1977, appellants-plaintiffs filed a notice of appeal in this cause and stated that the nature of the order appealed from is the summary judgment in favor of American Bankers entered on March 18, 1977. The sole assignment of error filed in this proceeding is that the trial court erred in granting the motion for summary judgment in favor of American Bankers.

Where a final judgment is entered in a cause as to one or more defendants, the method of review available to the plaintiffs is by appeal pursuant to Florida Appellate Rule 3.2.b. Upon the expiration of 30 days, this court is without any jurisdiction to review the final judgment. Shute v. Keystone State Bank, 159 So.2d 106 (Fla. 1st DCA 1963); McMullen v. McMullen, 145 So.2d 568 (Fla. 2nd DCA 1962); and Laborers Int’l U. of No. Amer. v. Public Emp. Com’n, 336 So.2d 450 (Fla. 1st DCA 1976).

American Bankers Insurance Company of Florida’s motion is granted, and the appeal is dismissed.

McCORD and SMITH, JJ., concur.


text:
    Melvin Leroy LAYTON, Appellant, v. STATE of Florida, Appellee.
    No. AA-88.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1976.

      Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

By amended information, appellant was charged in Count I with a lewd and lascivious act in the presence of a child under the age of 14 and in Count II with a lewd and lascivious assault upon a male child under the age of 14. A jury verdict of guilty was returned upon both counts.

Although the evidence fully supports the jury’s verdict of guilty and the ensuing judgment of conviction, we are compelled to reverse, because the trial court, assisted by appellant’s appointed counsel, committed fundamental error, as revealed by the following excerpts from the transcript:

“THE COURT: All right, bring the jury in.
(Jury present)
“THE COURT: Ladies and gentleman of the jury, the State has announced that they have closed its case.
At this time we will hear from the Defense.
All right.
“MR. PIERCE [appointed defense attorney]: Your Honor, the Defendant will testify, Melvin Layton.
“THE COURT: All right, sir.
MELVIN LEROY LAYTON, the Defendant was called as a witness on his own behalf, and after first being duly sworn then testified as follows:
“THE COURT: Mr. Pierce, have you carefully explained the rights that the Defendant has, his constitutional rights not to testify unless he so desired?
“MR. PIERCE: Yes, Your Honor. I was going to put it on the record.
“THE COURT: All right. Go ahead.
DIRECT EXAMINATION
BY MR. PIERCE:
“Q. Please state your name?
“A. Melvin Layton.
“Q. Do you understand that you are the Defendant in this case?
“A. Yes, sir.
“Q. You are charged with a crime?
“A. Yes, sir.
“Q. And that you are presently on trial?
“A. Yes, sir.
“Q. Do you understand that under the United States Constitution and under the Florida Constitution you do not have to testify?
“A. (Nodding head)
“Q. It’s your right to make an election to testify or not; do you understand that?
“A. Yes, sir.
“Q. And you wish to testify?
“A. (No response)
“Q. You wish to tell the jury what happened?
“A. (Pause)
No.
“THE COURT: All right.
BY MR. PIERCE:
“Q. You would rather not testify?
“A. Yeah.
“THE COURT: You say you would rather not testify?
“A. Uh-huh (yes).
“THE COURT: Now, you understand that the jury cannot make anything of it, the fact you don’t testify, because no Defendant has to testify, do you see?
“A. Uh-huh (yes).
“THE COURT: A defendant has a constitutional right not to testify.
“A. (Nodding head)
“THE COURT: So, this is your election; not to testify, is that right?
“A. Uh-huh (yes).
“THE COURT: All right. Step down.
“MR. PIERCE: Thank you.
“THE COURT: Of course, there is no rebuttal.
“MR. TREÉCE [State’s attorney]: No rebuttal, Your Honor.
“THE COURT: Do you have any other testimony to offer?
“MR. PIERCE: No, Your Honor.”

The foregoing colloquy, initiated by the trial judge and pursued in the presence of the jury, transgressed the cardinal rule of law that the failure of a defendant to testify shall not be called to the attention of the jury. This rule of law has generally involved indirect or direct comments by the prosecuting attorney. The colloquy was doubly devastating since it was initiated by the trial judge in the jury’s presence and pursued by an attorney appointed to defend appellant.

REVERSED and remanded for a new trial.

McCORD, J, and WARREN, LAMAR, Associate Judge, concur.

      . Rowe v. State, 87 Fla. 17, 98 So. 613 (1924); Trafficante v. State, 92 So.2d 811 (Fla.1957); Sing v. State, 115 So.2d 771 (Fla.App. 1st 1959); Tolliver v. State, 133 So.2d 565 (Fla.App. 3rd 1961); Carter v. State, 199 So.2d 324 (Fla.App. 2nd 1967); and Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

      . Hamilton v. State, 109 So.2d 422 (Fla.App. 3rd 1959).


text:
    STATE of Louisiana v. Kenneth M. DAVIS.
    No. 59121.
    Supreme Court of Louisiana.
    June 8, 1977.
    Clifford E. Cardone, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plain tiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Joseph Charles RAINEY.
    No. 59187.
    Supreme Court of Louisiana.
    June 8, 1977.
    Cleveland J. Marcel, Jr., Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., John R. Walker, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. McKinley DOYLE.
    No. 59200.
    Supreme Court of Louisiana.
    June 8, 1977.
    Barry Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Leslie G. EDWARDS.
    No. 59201.
    Supreme Court of Louisiana.
    June 8, 1977.
    Bernard E. Fulghum, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. David T. SINGLETON.
    No. 59208.
    Supreme Court of Louisiana.
    June 8, 1977.
    Charles C. Garretson, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Charles M. Brandt, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    WILLIAM T. BURTON INDUSTRIES, INC. v. M. D. WELLMAN, Jr.
    No. 58394.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: M. D. Wellman, Jr., applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Vernon, 346 So.2d 718.


text:
    STATE of Louisiana v. Gregory RUGON.
    No. 60001.
    Supreme Court of Louisiana.
    June 16, 1977.
   In re: State of Louisiana applying for writs of review, certiorari, mandamus and prohibition.

Granted as to paragraph A of relief requested with stay order as to this case. The case is assigned for argument on Monday, June 27, 1977. In all other respects, the writ is denied. The petition of the relator in the above entitled and numbered case having been duly considered. It is ordered that a writ of certiorari issue herein, directing the Honorable Matthew S. Braniff, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, prior to June 27, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained. It is further ordered that the-aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 27th day of June, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

Granted as to paragraph A of relief requested with stay order as to this case. The case is assigned for argument on Monday, June 27, 1977. In all other respects, the writ is denied.


text:
    STATE of Louisiana v. Jerome ZAMP.
    No. 60074.
    Supreme Court of Louisiana.
    June 16, 1977.
   In re: Jerome Zamp applying for writs of habeas corpus, prohibition, mandamus and a stay order.

Application denied; the showing made does not warrant relief demanded.


text:
    Howard A. KIDDER v. BOB ANDERSON AND CAPITAL CITY PRESS, INC.
    No. 59988.
    Supreme Court of Louisiana.
    June 17, 1977.
   In re: BOB ANDERSON AND CAPITAL CITY PRESS, INC. applying for cer-tiorari, or review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 345 So.2d 922.


author: FORET, Judge.

text:
    Chester CORLEY and Hazel Lee Corley, Plaintiffs-Appellants, v. Eric E. WEST, Individually, and as Administrator of the Estate of his minor daughter, Lisa Bea West, Defendant-Appellee.
    No. 5970.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Provosty & Sadler by David P. Spence, Alexandria, for plaintiffs-appellants.
    William E. Skye, Alexandria, for defendant-appellee.
    Before WATSON, FORET and HEARD, JJ.
   FORET, Judge.

This is an appeal from a judgment in favor of Chester Corley and Hazel Lee Cor-ley against Eric E. West, wherein plaintiffs were awarded $750 and $1,500 respectively, as general damages and $355 as special damages. Plaintiffs filed this appeal, wherein they alleged that the trial court erred in finding that the defendant was uninsured and in awarding inadequate general damages, and in refusing to assess the fees of their physicians for the preparation of reports as expert witnesses and as costs of court. Defendant answered the appeal and also filed an appeal, alleging the trial court erred in awarding $355 as special damages.

During the afternoon of May 11,1975, on Louisiana Highway 454 in Rapides Parish, there was a collision between the 1973 Chevrolet pickup, operated by plaintiff Chester Corley and occupied by plaintiff, Hazel Lee Corley, and a 1970 Chevrolet sedan operated by Lisa Bea West, the minor daughter of defendant, Eric E. West, the owner of the vehicle. Plaintiffs were taken by ambulance to Rapides General Hospital.

Hazel Corley was hospitalized for one week and underwent medical attention from Dr. A. L. Rayburn, Pineville, Louisiana, for some five (5) to six (6) weeks. As a result of the accident, she sustained cervical muscle spasms, bruises and contusions of her left shoulder and left knee, and a sprained left wrist. Medicine for pain, the wearing of an ace bandage and a cervical collar were prescribed for her.

Chester Corley was not hospitalized, but was treated by Dr. G. L. Hovnatanian, Pineville, Louisiana, for some eight (8) weeks. His injuries, as a result of the accident, were three cracked ribs, for which pain medication and the wearing of a corset were prescribed. Upon his discharge from the medical care of his doctor, Mr. Corley suffered no residual pain.

I

GENERAL DAMAGES

The case was submitted on joint stipulations of counsel for plaintiffs and defendant. The stipulations, introduced into evidence, concern defendant’s admission of liability and payment of special damages — the value of plaintiffs’ automobile, the fee of the wrecker for removal of plaintiffs’ motor vehicle, and the radiologists’ and hospital expenses; a medical report of Dr. G. L. Hovnatanian concerning his treatment of Chester Corley; a medical report of Dr. A. L. Rayburn concerning his treatment of Hazel Corley; and a medical report from Rapides General Hospital. Nowhere in the record is there evidence touching upon whether defendant was or was not insured. Although the trial judge should not have considered that which was not within the record, he did not commit manifest error. His awards for general damages were supported by the evidence and the inferences that can be drawn therefrom. This Court is not permitted to substitute its opinion for that of the trial judge unless it finds that he has abused his discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) and cases cited therein. Accordingly, we affirm the trial court’s award for general damages.

II

EXPERT WITNESS FEES

At trial, the reports of Doctors Hov-natanian and Rayburn were introduced into evidence. Plaintiffs-appellants argue that the fees of these doctors for the making of the reports should be assessed as costs of court and taxed against defendant-appellee.

LSA-R.S. 13:3666 provides for the compensation of expert witnesses. It states that:

“A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.”

The jurisprudence of this State is to the effect that expert witness fees should be awarded in this type of case — they were awarded to a physician whose written report was by joint stipulation admitted into evidence in lieu of his deposition (Coine v. Smith, 100 So.2d 902 (La.App. 1 Cir. 1958); Theunissen v. Guidry, 151 So.2d 499 (La. App. 3 Cir. 1962)) and to an accountant whose report, but not testimony, was admitted into evidence (Duvernay v. Airey, 172 So. 815 (Orl.La.App.1937)). Accordingly, the $50.00 fee of Dr. Rayburn and the $35.00 fee of Dr. Hovnatanian shall be taxed as costs of court and assessed against defendant-appellee West.

Ill

SPECIAL DAMAGES

The expenses of plaintiffs at Rapides General Hospital amounted to $699.25, of which amount defendant West originally paid $344.00 and plaintiffs’ hospitalization insurer paid $355.25. In the judgment of the trial court, plaintiffs were awarded $355.00 as special damages.

In a case such as this — where the plaintiff receives payment from his insurer to whom he has paid premiums — the tort feasor is not entitled to credit against his liability the amount of insurance benefits so paid. Hall v. State of Louisiana, through the Dept. of Highways, 213 So.2d 169 (La.App. 3 Cir. 1968), writ refused 252 La. 959, 215 So.2d 128. Accordingly, we affirm the portion of the judgment of the trial court relative to the award of special damages.

All costs of this appeal are assessed equally against plaintiff and defendant.

AFFIRMED IN PART, REVERSED IN PART.