text:
    John Allen LITTLE, Appellant, v. V. JIM SANTI, INC., a Florida Corporation, et al., Appellees.
    No. 75-1349.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Rehearing’ Denied July 9, 1976.

      Headley & Sudduth, Sam Daniels, Miami, for appellant.
    Knight, Peters, Hoeveler, Pickle, Nie-moeller & Flynn, Jeanne Heyward, Preddy, Haddad, Kutner & Hardy, Miami, for ap-pellees.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The prime question in this case is who was the general contractor involved in the construction of a warehouse in Dade County.

The contract in question identified the contractor as a joint venture on the first page. It was signed by V. Jim Santi, Inc., by Vincenzo Santi, President, as contractor. A purported subcontract was entered into with Superior Roof Company, which contract originated as a proposal to Santi, Neville, Carmel Industries. This proposal was accepted by V. Jim Santi, Inc., by Vincenzo Santi, President. Thereafter, an employee of Superior was injured and brought an action against V. Jim Santi, Inc. Santi defended, contending it was a general contractor; that the exclusive remedy of the plaintiff was under the workmen’s compensation statute [Ch. 440, Fla. Stat.], and that no cause of action existed against the defendant, the alleged general contractor. The matter came on for summary judgment hearing on behalf of the defendant. Attached to the motion for summary judgment was an affidavit of V. Jim Santi, wherein he set forth that the corporation was in fact the general contractor bu , for purposes of the performance bond, the individual names were added to the contract indicating that the contractor was a joint venture. As to the purported subcontract, the affidavit also explained that Santi-Neville, Inc., was an old' corporation that had gone out of existence prior to the job in question. The affidavit gave no explanation for the identification of Carmel Industries on the proposal; Carmel was, in fact, the owner.

If Superior, as a subcontractor, was dealing directly with the owners, its employee would have an action. Jones v. Florida Power Corp., Fla.1954, 72 So.2d 285; Smith v. Ussery, Fla.1972, 261 So.2d 164; Conklin v. Cohen, Fla.1973, 287 So.2d 56. Pursuant to the change in the law before this accident [see: § 440, Fla.Stat.], one subcontractor would have a cause of action against another, so that if V. Jim Santi was not the contractor it may have another subcontractor and, therefore, the plaintiff would have had a cause of action. There is also a question as to whether [in the execution of the original contract executed' by Carmel] V. Jim Santi, Inc. signed on behalf of itself or signed on behalf of the joint venture.

Therefore, all these things being considered, we feel that the granting of a summary judgment by the trial court was at least an error on the record as then presented to him, as the facts had not been sufficiently developed to enable the court to be reasonably certain that there was no genuine issue of a material fact, and that the matter could be determined as a matter of law.

Therefore, upon the authority of Kemper v. First National Bank of Dayton, Ohio, Fla.App.1973, 277 So.2d 804, we reverse the summary judgment here under review and return the matter to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded, with directions.


source: Caselaw Access Project

author: NATHAN, Judge.

license: Public Domain

text:
    Richard Douglas CRAVERO, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-1628, 75-1913.
    District Court of Appeal of Florida, Third District.
    June 16, 1976.

      Milton Grusmark, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   ON MOTION TO DISMISS

NATHAN, Judge.

This cause is before us on consideration of the motion of the appellee, State of Florida, to dismiss the two appeals of the defendant Cravero. The appeals stem from the prosecution of three defendants, Richard Douglas Cravero, appellant herein, together with Ronald Clifford Chandler and Robert Greenwood, all of whom were charged in one indictment with conspiracy to commit murder and first degree murder arising out of the same incident. In a joint jury trial, all three defendants were found guilty, and were convicted and sentenced.

Each defendant filed a separate motion for new trial from his judgment of conviction and sentence. The certificates of service and the affidavits of counsel reflect that the motions for new trial filed by the three defendants were all timely. The orders of the trial court denying the motions for new trial were filed as follows : Cravero, August 21, 1975; Chandler, September 18, 1975; Greenwood, December 8, 1975. Each defendant filed a notice of appeal from his own judgment, sentence and denial of motion for new trial as follows: Cravero, September 26, 1975; Chandler, October 16, 1975; Greenwood, December 23, 1975. The appeal by defendant Cravero from his judgment, sentence and denial of motion for new trial was dismissed by this court as being untimely. Greenwood’s and Chandler’s notices of appeal were timely. Within the period of time that Greenwood’s and Chandler’s appeals were due to be filed, defendant Cravero timely filed the two instant appeals. The first is from Chandler’s judgment of conviction and denial of motion for new trial, and the second is from Greenwood’s.

The issue with which we are confronted on the State’s motion to dismiss these appeals is whether in the conspiracy case sub judice, where the co-conspirators have filed separate motions for new trial alleging the same grounds therefor, one defendant may take an appeal from a co-defendant’s judgment of conviction and denial of motion for new trial.

Where multiple defendants are tried for the same offense in a consolidated trial where the issues and facts are identical, one appeal suffices. Lowe v. State, Fla. 1966, 184 So.2d 164, 166. Thus, a single appeal can be taken from separate but identical judgments. Applying this to the facts of the instant case, if the three defendants had filed one motion for new trial, one notice of appeal from the denial thereof would be sufficient. In fact, had they filed one motion for new trial, their judgments of conviction would not be rendered for purposes of appeal except upon denial of the motion for new trial.

State ex rel. Owens v. Pearson, Fla.1963, 156 So.2d 4, 7, although a civil case, holds that where a motion for new trial is pending, the effectiveness of a notice of appeal theretofore filed is destroyed. This is so because the trial court has complete control over the judgment, and such judgment is not final and has not been rendered for purposes of taking an appeal until the motion for new trial has been ruled upon. The time for taking an appeal, then, does not commence to run until the date of the entry of the order denying the motion for new trial. Applying the rationale of Owens, supra, and Lowe v. State, supra, to the case sub judice, the Greenwood and Chandler judgments and convictions were not rendered until the date of the entry of the order denying motions for new trial.

As a general rule, the conviction of one defendant in a conspiracy prosecution will not be upheld if all other alleged conspirators are acquitted. Filer v. State, Fla.App. 1973, 285 So.2d 669; United States v. Goodwin, 5th Cir. 1974, 492 F.2d 1141. Logically, from these decisions, it appears that if one co-conspirator’s motion for new trial is granted (on grounds which affect all of the defendants), the other defendants would be entitled to a new trial. Further, if the conviction and sentence of one co-conspirator is reversed on appeal, (again, on grounds affecting all of the defendants) the other defendants would be entitled to the same relief upon application thereof.

Therefore, we have determined that Cravero may take appeals from Chandler’s and Greenwood’s judgments of conviction and orders denying motion for new trial, and these appeals will be treated as joinders of appeals pursuant to Rule 3.11(b) of the Florida Appellate Rules. If any area of review is available to a defendant, the appellate court should not dismiss or quash the appeal. Ramey v. State, Fla.App. 1967, 199 So.2d 104, 106. Accordingly, the motion to dismiss is denied.

All appeals of Cravero, Chandler and Greenwood, Case Numbers 75-1519, 75-1628, 75-1913, 75-1914, 75-2022, 76-506, 76-507 and 76-509 are hereby consolidated for all appellate purposes.

It is so ordered.

PEARSON, T., dissents.

      . The appeal was dismissed on October 16, 1975. Cravero v. State, Fla.App.1975, 320 So.2d 518.

      . Note Welster v. State, Fla.1970, 235 So.2d 499, 501, wherein it is held that one notice of appeal is sufficient to confer jurisdiction to review two final judgments of guilt on two counts of a single information (one defendant, one trial).

      . See form for joinder in appeal, Rule 7.2, Florida Appellate Rules.

      . Rule 3.11(b), Florida Appellate Rules, is not inconsistent with Part VI of the Florida Appellate Rules, governing criminal appeals and, therefore, under Rule 6.1, Florida Appellate Rules, it is applicable to criminal appeals.


author: CHARLES CARROLL, Associate Judge.

text:
    ROYAL SERVICES, INC., a Florida Corporation, Appellant, v. Henry J. WILLIAMS and Universal Maintenance and Management Company, a corporation, Appellees.
    No. 75-1154.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Rehearing Denied July 9, 1976.

      Millar & Lally, Jacksonville, for appellant.
    Phillips & Phillips, Miami, for appellees.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

This is an appeal by the plaintiff below from an adverse judgment, in two actions which were consolidated in the trial court.

On July 12, 1974, the appellant Royal Services, Inc. filed an action against the appellee, Henry J. Williams, alleging breach by the latter of a non-compete contract and alleging loss resulting therefrom, seeking injunctive relief to enforce the contract and judgment for damages. A separate action was filed by Royal against the appellee Universal Maintenance and Management Co., seeking damages for alleged tortious interference by Universal with the Royal-Williams contract relationship.

The judgment entered in favor of the defendants, following trial of the actions before the court, set forth the facts as follows :

“The Plaintiff is engaged in the business of providing janitorial and cleaning services for various customers in Dade County, Florida.
That the Defendant, HENRY WILLIAMS, was an unskilled employee of the Plaintiff, prior to June 1,1974.
The Plaintiff was employed under a contract with the Keyes Management Company to perform cleaning and janitorial services in the Seybold Building; which services were terminated by the Keyes Management Company, on May 15, 1974.
The Seybold Building, was sold, and the management of said Building transferred to Seybold Associates, a limited partnership, on or about May 15, 1974.
The Seybold Associates did employ the services of the Plaintiff, for a period of two (2) weeks, and said services were terminated on May 31, 1974.
The Defendant, UNIVERSAL MAINTENANCE AND MANAGEMENT CO., was thereafter engaged to perform janitorial and cleaning services solely in the Seybold Building.
The Defendant, HENRY WILLIAMS, was employed by the Plaintiff on a certain written agreement dated July 9, 1971, which agreement contained no expiration date, but was for an undeter-minable period of time. Said Agreement contained certain provisions wherein the Defendant, HENRY WILLIAMS, specifically agreed not to engage in the same business as maintained by the Plaintiff for a period of eighteen (18) months after termination of his employment.
The Defendant, HENRY WILLIAMS, did on or about May 31, 1974, terminate his employment with the Plaintiff.
On or about June 1, 1974, the Defendant, HENRY WILLIAMS, was employed by the Defendant, UNIVERSAL MAINTENANCE AND MANAGEMENT CO., a Florida Corporation.
* * * * * *
The Defendant, UNIVERSAL MAINTENANCE AND MANAGEMENT CO., did not influence nor did it exercise any control in regard to the decision of the Defendant, HENRY WILLIAMS, to terminate his employment with the Plaintiff.
The Plaintiff has wholly failed to show by testimony or documentary evidence, that it has sustained any loss of monies or other damage by virtue of the termination of employment of HENRY WILLIAMS, and his subsequent employment with the Defendant, UNIVERSAL MAINTENANCE AND MANAGEMENT CO., a Florida Corporation.
íjc í¡í íjí
The Court further finds that there is no testimony by any of the witnesses, nor any documentary proof before the Court to establish any basis to reflect any loss sustained by the Plaintiff herein, * * * a

Following the above findings, the trial court held the restrictive covenants made by Williams were not reasonable in that they went “beyond the scope of protecting any interest of the employer”, and would be unduly and harsh and oppressive to Williams. Further, the court held “[T]hat the agreement between the parties herein cannot be enforced, for that such agreement amounts to an undue and an unreasonable restraint of trade and would be detrimental to the public welfare and obnoxious to public policy”.

As an exception to the law that contracts by which anyone is restrained from exercising a lawful profession, trade or business is void (§ 542.12(1), Fla.Stat., F.S.A.), it is provided by statute (§ 542.12(2), Fla.Stat., F.S.A.) that “one who is employed as an agent or employee may agree with his employer, 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 such employer continues to carry on a like business-therein.” That statutory provision has been held to be valid. Capelouto v. Orkin, Exterminating Co. of Fla., Fla.1966, 183 So.2d 532.

Without the need of further discussion, we hold the trial judge correctly entered judgment in favor of the defendant-appellee Universal Maintenance and Management Co. We hold also, that the court did not commit error in ruling that the plaintiff had not made a case for recovery of damages from the defendant-appellee Williams.

However, the trial court was in error in holding the non-compete contract was not valid and enforceable, and we reverse the judgment so holding. The period of time and the area fixed for the non-competition do not appear to be unreasonable, and the court did not find or hold that they were. The trial court was not at liberty to elect not to enforce the non-compete contract. See Storz Broadcasting Co. v. Courtney, Fla.App.1965, 178 So.2d 40, 42. Cf. Atlas Travel Service v. Morelly, Fla.App.1957, 98 So.2d 816, 818.

In Miller Mechanical, Inc. v. Ruth, Fla.1974, 300 So.2d 11, the Supreme Court said: “[T]he Court may award damages for breach of contract but the normal remedy is to grant an injunction”. Here, where the court found there were no recoverable damages, the indicated remedy was to enjoin the defendant employee from performing acts in violation of the contract, during the period of time provided in the contract, or for such portion thereof as remained unelapsed.

We are now confronted with the question of whether the non-compete contract is to he enforced following this reversal.

The difficulty that question presents at this stage of the case results from the fact that the 18-month period of time provided in the contract for non-competition, elapsed approximately six months ago. The employment of Williams by Royal ended on or about June 1, 1974. The 18-month non-competition period ended on December 1, 1975. The trial court’s judgment was entered on June 26, 1975. At that time, or earlier, the trial court could, and should have enforced the contract by injunction against Williams for the balance of the time provided in the contract. As a result of the time consumed on the appeal from the judgment, it is now two years since Williams terminated his employment by Royal.

At this time, enforcement of the contract by injunction is not moot in law, but would appear to be moot as a practical matter. The time period which the parties to the contract fixed, as being that which the employer determined was needed for his protection, and the period for which the employee was willing to agree not to compete, was 18 months from and following termination of the employment. It would be contrary to those considerations of the parties, and to the terms of the contract, to now require Williams to observe the non-compete provision of the contract in the future for 18 months or for any part thereof. The circumstances of the parties at this later date are not known. The agreed period for the non-competition expired months ago.

From the standpoint of the employer, it is unfortunate that enforcement of this valid contract was not forthcoming by a timely injunction, within the 18-month period following termination of the employment. Cases of this kind should be determined expeditiously, so as to prevent an employee’s violation of such a contract to continue well into or beyond the non-competition period thereof. Delay in enforcement can operate to deprive the employer of the benefit of the contract. To avoid that there are procedures which may be employed to advance cases in the trial court when essential to the rights of a party. If a preliminary injunction is denied, on appeal therefrom injunctive type relief could be obtained from the appellate court on a proper showing of entitlement thereto, under Rule 4.5(g) F.A.R.

Accordingly, we affirm the judgment in favor of the defendant Universal Maintenance and Management Co., and reverse the judgment to the extent that the court therein held the non-compete contract was invalid and unenforceable. However, in view of the finding of the court that Royal proved no damages against the defendant Williams, and the fact that the period of non-competition contracted for has elapsed, the cause will not be remanded for further proceedings.

Affirmed in part and reversed in part.


author: PER CURIAM.

text:
    Margo GRAVEL and David Gravel, Petitioners, v. BLUE CROSS OF FLORIDA, INC., and Blue Shield of Florida, Inc., Respondents.
    No. 76-94.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for petitioners.
    Pallot, Stern, Proby & Adkins, Miami, for respondents.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

By petition for writ of certiorari petitioners seek review of an order of the circuit court, sitting in its appellate capacity, reversing the trial court’s order granting their motion for new trial.

In July 1968 respondent-appellees, Blue Cross of Florida, Inc. and Blue Shield of Florida, Inc., issued a medical insurance policy to the petitioner-appellants, Margo and David Gravel. While in Vermont in November 1970, Margo was treated for a severe asthmatic condition by a board certified otolaryngologist specializing in allergies and medical hypnosis. Respondents refused to pay for Margo’s treatment and petitioners filed suit to recover under their policy. After discovery respondents’ motion to amend their answer was denied; however, one day prior to trial the judge permitted amendment. At trial the judge denied several of petitioners’ requested instructions and the jury foreman informed the court that after deliberation the vote was equally split. The judge ordered the jury to deliberate further and eventually the jurors found for the respondents. A final judgment was entered and petitioners filed a motion for new trial. After hearing, the judge ordered a new trial based on the following:

******
“1. The Court erred in failing to grant plaintiffs’ requested jury instruction no. 8 relating to F.S.A. 624.0402 renumbered 624.603, stating:
‘Disability insurance, also known as health insurance, is insurance of human beings against bodily injury, disablement or death by accident or accidental means, or the expense thereof, or against disablement or expense relating from sickness, and every insurance appertaining thereto . . .’
“2. The Court erred in failing to grant plaintiffs’ jury instructions nos. 11, 12 and 13 as specifically requested.
“3. The Court erred in failing to discharge the jury after it was indicated to the Court the second time that the jury was unable to reach a decision.
“4. The Court erred in failing to declare a mistrial when the jury indicated for the second time that they were deadlocked.
“5. The Court erred in allowing the defendants to amend their answer at the trial and introducing new issues which varied the grounds for denial of relief under the contract.
“6. The Court erred in failing to give a jury instruction that the defendants are governed by F.S.A. 641.01 and that said corporations
. . shall have the consent or approval of the department of insurance, shall be governed by this law and subject to regulation and supervision by the department of insurance and all provisions of the laws of Folrida applicable to health, sick or accident insurance . . .’”
******

Respondents appealed the order for new trial to the circuit court which reversed the trial court. Petitioners appeal from the order of reversal and contend the circuit court departed from the essential requirements of law in that there was no abuse of discretion on the part of the trial court in granting a new trial.

It is well established that a trial court’s discretion in granting a new trial is of such firmness that it will not be disturbed except on a clear showing of abuse; a heavy burden rests upon the party who seeks to overturn such a ruling and any abuse of discretion must be patent upon the record. Castlewood International Corporation v. LaFleur, Fla. 1975, 322 So.2d 520; Ashland Oil, Inc. v. Pickard, Fla.App. 1972, 269 So.2d 714.

In this case one of the reasons the trial court granted a new trial was because the respondents were permitted to materially amend its answer one day prior to trial and, thus, plaintiffs could not come to trial prepared to refute these newly introduced issues. We find this ground sufficient to warrant a new trial. See Peninsular Life Insurance Company v. Hanratty, Fla.App.1973, 281 So.2d 609.

In addition, there was no patent abuse of discretion in granting a new trial on the other grounds stated above for the trial judge is in a far better position than an appellate court to pass on the ultimate correctness of the jury’s verdict. Pyms v. Meranda, Fla.1957, 98 So.2d 341, 343. Furthermore, a mere disagreement from an appellate perspective is insufficient as a matter of law to overturn a trial court on the need for a new trial. Castlewovd, supra.

The circuit court having departed from the essential requirements of law, its order of reversal is quashed and the cause remanded with directions to reinstate the order granting a new trial.

Certiorari granted.


author: McNULTY, Chief Judge.

text:
    Lewis BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 75-1245.
    District Court of Appeal of Florida, Second District.
    June 23, 1976.
    Rehearing Denied July 26, 1976.
    Jack O. Johnson, Public Defender, and Dan P. Brawley, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   McNULTY, Chief Judge.

Appellant appeals a judgment and sentence for sale and possession of heroin. In instructing the jury, the trial judge erroneously stated that the maximum possible sentences for possession and for sale of heroin were five years each, but since it was a single transaction the maximum penalty imposable would be a single five years. This was a wrong charge, of course, since the maximum sentence for the sale of heroin is fifteen years.

Appellant was found guilty as charged. The court imposed a single ten year sentence. Appellant now insists that he is entitled to a new trial. We disagree.

Appellant makes no valid contention that the evidence is insufficient to support the verdicts of guilty and the judgments entered thereon. The gravamen of his complaint must necessarily be that had the jury known of the severity of the offenses with which he was charged they may well have “pardoned” him. While we might deny a jury’s right to pardon, we think the interests of justice would be best served in a case such as this if the penalty imposed is appropriate to the severity of the offense of which the jury thought him guilty. Accordingly, in the instant case, the sentence should be reduced to five years.

In view whereof the judgments are affirmed but the cause is remanded with directions that a single sentence of five years be imposed for the higher offense of sale of heroin. We ordain, too, that it will not be necessary for appellant to be present at resentencing.

GRIMES and SCHEB, JJ., concur.

      . Sections 893.13(1) (a) (1) and 775.082, F.S. 1975.

      . See Burt v. State (Fla.App. 1st, 1976), 330 So.2d 472; Stern v. State (Fla.App. 3rd, 1974), 296 So.2d 549.


text:
    Rosalie ALEXANDER, Appellant, v. FIFTIETH STREET HEIGHTS, CO., an existing Florida Corporation, Appellee.
    No. 76-122.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Rehearing Denied July 9, 1976.

      Abramson, Scremin, Mendigutia & Lib-man, Miami, for appellant.
    Henry, Stroemer & Harrington, Malcolm B. Wiseheart, Jr., Miami, for appel-lee.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was injured by a gas explosion which occurred in her apartment. She filed action for damages for personal injuries against the gas company and her lessor, and has filed this appeal from a summary judgment entered in favor of the lessor.

The plaintiff below rented an apartment from the defendant Fiftieth Street Heights, Inc., the owner and operator of the building. At that time, and for the ensuing period of two and one half months of her occupancy, there was an uncapped pipe entering the apartment. The pipe was for use in supplying gas. The apartment was equipped with electrical stove facilities, and the plaintiff had no use for gas therein. On March 23, 1974, for some reason and in some undisclosed manner, gas was made to pass through the pipe, and the explosion occurred.

In her action the plaintiff alleged negligence of the gas company and of the lessor had caused her injuries. Certain discovery was had. By deposition, the plaintiff testi-filed that prior to the day of the explosion she had not known of the existence of the gas pipe and had not smelled any gas in the apartment. Included in the deposition testimony of the plaintiff was the following:

“Q. Now, before this day of this flash fire in your Apartment 41, did you ever know that there was a gas pipe in the apartment itself? A. A gas pipe? A gas pipe? No. Q. I am presuming it is a pipe for a stove or something sticking out of the floor or sticking out of the wall. A. No, I didn’t see no gas pipe. Q. Now, from the time you moved in to the time of the day before this explosion, did you ever smell any gas in your apartment? A. No, I didn’t. Q. You are sure of that? A. I am sure of that. I am positive, sure of that. Q. When was it that you first smelled gas? The day of the explosion? A. The day of the explosion.”

After the plaintiff had so testified by deposition, the defendant lessor served on plaintiff’s attorneys of record certain requests for admissions. Thereby, the plaintiff was requested to admit (1) that she took possession of the apartment on January 7, 1974; (2) that she resided therein from that date to March 23, 1974; (3) that she had opportunity to inspect the apartment prior to taking possession, and (4) did so; (5) that she made no complaint to the lessor regarding appliances or failures prior to March 23, 1974; and (6) that prior to that date she “knew of the existence of an open-ended gas pipe” in the apartment.

The requests for admissions were not called to the attention of the plaintiff by her attorneys and went unanswered within the 30 day period allowed for answer thereto. Motions for summary judgment were filed by the defendants. That of the gas company was denied. The motion of the defendant lessor was granted, and summary judgment was entered in its favor. The trial court found the requests for admissions had been served on plaintiff’s attorneys, and not answered.

The order granting the summary judgment stated “[T]he court finds that all material facts relied upon by co-defendant, Fiftieth Street Heights, Co., in its motion for summary judgment were admitted by the plaintiff, Rosalie Alexander inter alia by failing to respond to Request for Admissions prepared by co-defendant, Fiftieth Street Heights, Co. and sent to plaintiff’s counsel * * * Further the court found the plaintiff had not shown sufficient cause to be excused from such failure to answer the Requests for Admissions. The plaintiff moved promptly for relief from the summary judgment, under Rule 1.540 RCP. The motion was denied, and plaintiff filed a timely appeal from the summary judgment and the subsequent order.

On consideration of the record, briefs and argument, we hold the denial of the plaintiff’s motion for relief from the judgment should be sustained on the ground that it presented a matter that was within the judicial discretion of the court. See Parish v. Lum’s, Inc., Fla.1972, 267 So.2d 325. However, on the appeal addressed to the summary judgment we find error, and reverse.

The “admitted” facts which resulted from failure to answer the request for admissions, presented no basis to absolve the defendant-lessor of its alleged negligence to properly inspect the premises prior to the occupancy and by failure to furnish reasonably safe premises to the lessee. Even if the admission by plaintiff that she knew of the existence of the pipe during the period of her occupancy [which earlier by deposition she had testified was not the fact], could be regarded as evidence of negligence on the part of the plaintiff, the unresolved issues as to the alleged negligence of the defendant-lessor would have precluded entry of summary judgment in the latter’s favor, because of the doctrine of comparative negligence.

On behalf of the appellee-lessor, it was argued that the doctrine of comparative negligence was inapplicable, in that the admissions of the plaintiff were sufficient to establish beyond issue that the plaintiff was guilty of assumption of risk. See Dorta v. Blackburn, Fla.App.1974, 302 So. 2d 450; Weedman v. Sunland Roller Rink, Inc., Fla.App. 1976, 323 So.2d 688.

On that feature the determinative question is whether the plaintiff, by occupying the apartment for some two and a half months with the knowledge that there was an uncapped pipe entering the apartment, with no indication of danger therefrom, could be held guilty of assumption of risk of the explosion which ultimately occurred.

In order for one to be held to be guilty of assumption of risk, it must be shown not only that he knew of the existence of the condition which constituted the peril, but that he was aware of and appreciated the danger thereof, and voluntarily exposed himself to such risk.

In Bartholf v. Baker, Fla.1954, 71 So.2d 480, 483, the Supreme Court said:

“Voluntary exposure is the bedrock upon which the doctrine of assumed risk rests. Appreciation of the danger is an essential to the defense of assumption of risk, or of contributory negligence, as is knowledge of the condition which creates the peril.”

In Byers v. Gunn, Fla.1955, 81 So.2d 723, 727, in referring to the distinction between contributory negligence and assumption of risk, the Supreme Court said: “A generally safe rule to follow is that the latter involves a choice made more or less deliberately”.

In Henry v. Britt, Fla.App.1969, 220 So.2d 917, 919, the court said:

“Turning next to the defense of assumption of the risk on behalf of the decedent, it must be kept in mind that voluntary exposure is the bedrock upon which the doctrine of assumed risk rests. Bartholf v. Baker, Fla.1954, 71 So.2d 480. There must be actual knowledge of the condition which creates the peril. Dana v. Bursey, Fla.App.1964, 169 So.2d 845, and there must be appreciation of the danger, at the time one voluntarily exposes himself to such risk.”

In Cleveland v. City of Miami, Fla. 1972, 263 So.2d 573, 577, the Supreme Court quoted a committee’s note-on-use of the standard charge on assumption of risk as follows:

“ ‘The committee recommends that the charge on assumption of risk not be given as a matter of course as a second charge on contributory negligence and that it be given only in those cases where the jury may find that claimant “more or less deliberately” and willingly exposed himself to the specific risk which resulted in his injury and damage. Byers v. Gunn, 81 So.2d 723 (Fla.1955); see also Brady v. Kane, 111 So.2d 472 (3rd D.C.A.Fla.1959); Bartholf v. Baker, 71 So.2d 480 (Fla.1954) ; City of Jacksonville Beach v. Jones, 101 Fla. 95, 96, 133 So. 562 (1931). Compare Crosier v. Joseph Abraham Ford Co., 150 So.2d 499 (3rd D.C.A.Fla.1963), cert. den. 155 So. 2d 693 [Fla.]’ ” (Emphasis their’s)

In the instant case there was no showing that during her occupancy of the apartment the plaintiff was aware of and had appreciation for a danger that an explosion might occur in her apartment, and that having such appreciation of danger she voluntarily chose to submit herself to the risk of such an occurrence. Therefore, there was inadequate basis here upon which to hold the plaintiff was guilty of assumption of risk, and otherwise the record did not justify the granting of summary judgment in favor of the defendant-lessor.

For the reasons stated, the summary judgment appealed from is reversed, and the cause is remanded for further proceedings.

      . Under Rule 1.870(a) HOP, relating to Requests for Admissions, failure to timely serve written answer or objection to a request for admissions amounts to admission of the “matter”.


author: MILLS, Judge. SMITH, Judge

text:
    Medford B. MATTHEWS, Appellant (Plaintiff), v. DELAND STATE BANK, a Florida Banking Corporation, Appellee (Defendant).
    No. X-218.
    District Court of Appeal of Florida, First District.
    June 25, 1976.

      Michael R. McDermott of Provitola & McDermott, DeLand, for appellant.
    G. Steve Stanley, DeLand, for appellee.
   MILLS, Judge.

Matthews sued the Deland State Bank for slander of his credit. The Bank counterclaimed against Matthews for money due it after repossession of his car under a retail installment contract. The jury found against Matthews on his suit, and against the Bank on its counterclaim. Matthews appeals from the judgment entered against him in his suit.

The question before us is whether the trial court erred in giving the following instructions to the jury:

“Actual malice in a libel action is more than a negligent error; the plaintiff must prove that the publication involved was deliberately falsified or published recklessly.”
and
“The Court further wishes to instruct you that unless you award compensatory damages, you cannot award punitive damages.”

In April 1966, Matthews financed a new car with the Bank. In February, March and April 1968, Matthews experienced financial difficulties and was unable to make the payments on his car. In the latter part of April 1968, the car was involved in a collision. He did not have insurance to cover the repairs.

About one week after the collision, Matthews contacted the bank and explained this situation to Morris, a bank employee. According to Matthews, Morris informed him that the Bank had insurance to repair the car, and if Matthews would return the car to the Bank he would no longer owe it any money. Matthews agreed to return the car on those terms, and told the Bank where it could pick up the car. After this conversation, Matthews received no further communications from the Bank concerning the car or money allegedly owed by him. Morris could not recall a conversation with Matthews regarding repairs or bank insurance.

In the latter part of 1971, Matthews wanted to purchase a home and made application for financing. He was refused. He contacted the Credit Bureau of Deland to determine what was on his record. The Credit Bureau had on its record that Matthews owed the bank approximately $1,700.00 on a repossession. Matthews contacted the Bank and at that time, for the first time, was informed that the Bank had lost over $500.00 on the repossession of the automobile. He requested the Bank to call the Credit Bureau and inform it that it was only some $500.00 that he owed instead of $1,700.00, but the Bank refused to do this.

In 1972, Matthews again made application for financing on a house, and again was refused. The Credit Bureau checked with the Bank both in 1971 and 1972 before sending out reports on Matthews to the mortgage company to determine whether the indicated balance was still owed to the Bank. The Bank said that it was. However, on 26 January 1973, the Bank informed the Deland Credit Bureau that the balance due from Matthews on the automobile in question should be changed from $1,674.76 to $585.00.

A disregard for the truth in reporting credit transactions, especially when coupled with the failure to correct the inaccuracies, constitutes libel per se. Vinson v. Ford Motor Credit Company, 259 So.2d 768 (Fla.App.1st, 1972). Where words are libelous per se, malice is presumed as a matter of law. Johnson v. Finance Acceptance Company of Georgia, 118 Fla. 397, 159 So. 364 (1935). Therefore, if it was the court’s intention to instruct the jury that a finding of actual malice was a prerequisite to awarding compensatory damages to Matthews, the giving of the instruction was error.

However, we do not feel that this was the court’s intention, because the instruction on actual malice was given immediately after the court gave Florida Standard Jury Instruction 6.12 which covered Matthews’ claim for punitive damages. In view of this, it is our opinion that the court instructed the jury that Matthews had to prove actual malice on the part of the Bank before it could award punitive damages.

This too was error. In order to award punitive damages in a libel action, ill will, hostility or an evil intention to defame and injure, must be present. However, the jury can find these elements either from the evidence produced at trial, or from the character of the publication itself. Montgomery v. Knox, 23 Fla. 595, 3 So. 211 (1887); Brown v. Fawcett Publications, Inc., 196 So.2d 465 (Fla.App.2d, 1967).

The instruction given by the trial court on actual malice is defective in that it does not fully inform the jury that the malice necessary for the award of punitive damages can be deduced from the publication itself.

. . where the defamation complained of is actionable per se, punitive damages may be awarded even though the amount of actual damages is neither found nor shown, for in such a case, the requirement of a showing of actual damages as a basis of an award of exemplary damages is satisfied by the presumption of injury which arises from a showing of libel or slander that is actionable per se.” Saunders Hardware Five and Ten, Inc. v. Low, 307 So.2d 893 (Fla.App.3d, 1974).

Therefore, the court erred in instructing the jury that punitive damages could not be awarded unless an award of compensatory damages was made.

The judgment rendered against Matthews is reversed and this case is remanded for a new trial on the issues raised in Matthews’ suit against the Bank.

RAWLS, Acting C. J., concurs.

SMITH, J., dissents.

SMITH, Judge

(dissenting) :

The majority have found error in the trial court’s failure to instruct the jury that it might consider the character of the publication in determining whether the publication was made with malice sufficient to justify punitive damages. The proposition itself is self-evidently true, and no jury would think itself powerless to consider such matters. The defendant’s judgment should not be reversed, however, simply ‘because the trial judge did not lard his jury charge with such an obvious truism, especially when the record indicates appellant’s only request for the instruction was withdrawn at the charge conference and appellant’s brief does not argue that there was error in the omission.

Nor can I agree, in the circumstances of this case, that it was reversible error for the trial court to have charged that the jury could not award punitive damages unless it awarded compensatory damages. Whether we should adopt for this district the rule of Saunders Hardware Five and Ten, Inc. v. Low, 307 So.2d 893 (Fla.App. 3d, 1975), is a question whose resolution I would postpone to a more appropriate case, namely, one in which “the defamation complained of is actionable per se.” 307 So.2d at 894. See Montgomery v. Knox, 23 Fla. 595, 606, 3 So. 211, 217 (1887). Appellant has referred us to no Florida holding that the false imputation of debt is libel per se, and the general rule seems to be that such a statement does not necessarily subject one to public hatred, contempt or ridicule or degrade him in society. See, generally, 20 Fla. Jur. Libel and Slander § 31 (1958); 50 Am.Jur.2d Libel and Slander § 98 (1970). See also Campbell v. Jacksonville Kennel Chib, 66 So.2d 495 (Fla.1953); Brown v. Fawcett Publications, Inc., 196 So.2d 465 (Fla.App.2d, 1967), cert. den. 201 So.2d 557 (Fla.1967).

This Court’s decision in Vinson v. Ford Motor Credit Co., 259 So.2d 768 (Fla.App. 1st, 1972), is not to the contrary. There the credit bureau’s reckless and persistent disregard for the truth was held sufficient to justify the jury’s award of both compensatory and punitive damages. This Court’s characterization of all the operative facts in Vinson as “libel per se”, 259 So.2d at 770, does not justify the majority’s application of that technical term to the publication in this case. The jury here rejected appellant’s claim that he sustained substantial damages as a result of a malicious defamation, and any error in the instruction’s correlation of compensatory and punitive damages was inconsequential. I would affirm the judgment.


author: BARKDULL, Chief Judge.

text:
    The STATE of Florida, Appellant, v. Anthony MUSCARA, Appellee.
    No. 75-1126.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.

      Richard E. Gerstein, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Angus M. Stephens, Jr., Miami, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Chief Judge.

The appellant, prosecution in the trial court, seeks review of an order of the trial court suppressing tapes of a telephone conversation with the appellee and a third party, and tapes made of conversations between police officers and the appellee. The appellee was charged with buying, receiving, and concealing stolen property.

On August 17, 1974, one Henry Isom was arrested; he gave the police certain information involving the appellee. Thereafter, on August 19, 1974 at about 4:24 P.M., Isom made a call to the appellee to set a meeting with police officers LaVoie and Cataldo to allegedly purchase stolen shoes; this conversation was taped. At approximately 6:00 P.M. on the same date, the meeting took place as arranged, at which time the officers were wired with transmitters and the conversations were recorded. Price and quantity were agreed upon, and a meeting was set for the next day to consummate the sale. The meeting took place and the conversations were again recorded. When the sale was consummated, the appellee was arrested and charged with buying, receiving, and concealing stolen property.

The cause ultimately came on for non-jury trial, at which time the appellee objected to admissibility of the tapes of the aforementioned conversations, on the ground said conversations were not recorded pursuant to a warrant and that Isom did not appear to testify as to his consent to the recording of his original telephone call; therefore, the tape of that call and subsequent tapes or evidence obtained through the initiation of that call were inadmissible. The trial court ordered suppression of all these tapes and this interlocutory appeal follows.

The appellant concedes that Isom’s failure to appear and testify as to his consent to recording of the original telephone conversation would render said recording inadmissible; however, his failure to testify does not affect the admissibility of those recorded conversations between the officers and the appellee. United States v. Chaves, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380; Washburn v. State, 19 Md. App. 187, 310 A.2d 176. Therefore, the appellant contends it was error to suppress those recordings and the evidence derived therefrom.

The appellee contends that the trial court was correct, on the ground that the recording of the initial telephone conversation was clearly inadmissible under the holding of Tollett v. State, Fla. 1973, 272 So.2d 490, and that the second and third were likewise inadmissible under the same decision. We agree that, under Tol-lett v. State, supra, the initial taped conversation was inadmissible without Isom’s testimony. But the tapes made by the police officers at the time of the second conversation were admissible, as the officers were available to testify and they never had an opportunity to secure an intercept warrant. This lack of opportunity to secure an intercept warrant distinguishes this case from that part of the Tollett v. State, supra case, wherein the court, in effect, held that four days was sufficient time to secure an intercept warrant.

A more difficult question arises as to the third taped conversation. This time the officers knew where they were to meet the appellee and others, what was to take place, etc., and they had ample time in this metropolitan area to secure an intercept warrant. Therefore, we hold that the trial judge properly suppressed this taped conversation because it amounted to an unlawful intercept. Tollett v. State, supra.

The appellee contends that the tapes of the first conversation being inadmissible, all other tapes and evidence were tainted and, therefore, inadmissible as fruits of the poisonous tree. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341. We disagree. The initial tape was not illegal; it was only inadmissible because of the failure of the State to produce Isom as a witness. It was not in the same category as the third set of tapes. Therefore, we sustain the trial court’s suppression of the first and third conversations, but reverse as to the order suppressing the second conversation, and return the matter to the trial court for purposes of trial in conformity with the above.

At such time as this matter is re-tried, the transcript of the first tape may be admitted into evidence if it is properly identified by Isom. The transcript of the second tape may be admitted into evidence upon identification by the officers present at the time of its recording. Also, the State may offer the testimony of the officers who participated in the meetings with Muscara, and they can testify as to what they heard and observed just as though no taping had occurred at the last meeting.

The order under review is affirmed in part, quashed in part, and the matter is returned to the trial court with directions.

      . Apparently, from the record, the trial court reserved ruling on the motion to suppress until the time of trial.


text:
    Henry Earl HARVEY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1363.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Phillip A. Hubbart, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant was found guilty by a jury of murder in the second degree. The court adjudicated him guilty of the crime and sentenced him to serve a term of ten years in the State Penitentiary.

The ground relied on by appellant for reversal has been considered in the light of the record and briefs, and we find no reasonable error has been made to appear. The record discloses that the case was fully and fairly tried; that the verdict is supported by the evidence and that the rulings of the trial court challenged by appellant did not, on the record, and under the law constitute harmful error. The judgment and sentence appealed are affirmed.

Affirmed.


text:
    Robert CARPENTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1655.
    District Court of Appeal of Florida, Second District.
    June 23, 1976.

      Jack O. Johnson, Public Defender, and Dan P. Brawley, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was placed on probation for two years after he pled nolo contendere to possession of a stolen vehicle. As a condition of probation he was required to serve the first eight months of the two years in county jail. Subsequently appellant was found to have violated the terms of his probation and his probation was revoked. The trial court sentenced him to five years with credit for time served immediately prior to the revocation; however, the court refused to allow credit for the time previously served as a condition of probation.

Appellant claims that the probation order was invalid under State v. Jones, Fla.1976, 327 So.2d 18, and that the court erred in denying him credit for time served as a condition of probation. We find that the special condition of probation was proper under State v. Jones, supra. However, as the state concedes, appellant was entitled to credit for the time served as a condition of probation. Ivey v. State, Fla.1976, 327 So.2d 219. We also note that pursuant to § 921.161, Fla.Stat. (1973), the credit should be for a specified period of time.

Accordingly, the revocation of probation is affirmed and the cause remanded for correction of the sentence.

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


text:
    Lillie R. McINTYRE and Cleveland McINTYRE, her husband, Appellants, v. Robert McCLOUD et al., Appellees.
    No. 75-1420.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Wolfson, Diamond, Logan & Edge and Elliott H. Lucas, Miami Beach, for appellants.
    Stuart Simon, County Atty. and Thomas F. Valerius and Thomas Goldstein, Asst. County Attys., Weissenborn, Burr & Hy-man, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

In this personal injury action, the jury found from the evidence that the plaintiff-appellant did not sustain the injuries alleged, which determination is unquestionably within the jury’s province. Even assuming arguendo, that a “wrong” (in the form of negligence) was perpetrated by the defendants on the plaintiff, it is, nonetheless, well-established in the common law that there is no valid cause of action where there is shown to exist, at the very most, a “wrong” without “damage.” See the general proposition in Scott-Steven Development Corp. v. Gables by the Sea, Inc., Fla.App.1964, 167 So.2d 763.

Affirmed.


text:
    Michael A. CAMPAGNUOLO, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION of the State of Florida, Respondent.
    No. AA-147.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Robert L. Saylor and David D. Mc-Fadyen, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This cause reaches us by petition for writ of certiorari to the respondent commission.

Exception is taken by petitioner to the order of revocation of parole for omission to make findings of fact. Upon the authority of King v. Florida Parole and Probation Commission, Fla., 306 So.2d 506 (1975), this position appears justified. The cause is, therefore, remaanded to the respondent for entry of a proper order.

RAWLS, Acting C. J., McCORD, J., and WARREN, LAMAR, Associate Judge, concur.


author: SMITH, Judge. BOYER, Chief Judge

text:
    Richard B. SHERIDAN, Appellant, v. Mary Ellen SHERIDAN, Appellee.
    No. Z-493.
    District Court of Appeal of Florida, First District.
    June 30, 1976.

      Harry Lewis Michaels, Michaels & Patterson, Tallahassee, for appellant.
    Charles Keesey, Law Offices of Kent Spriggs, Tallahassee, for appellee.
   SMITH, Judge.

The record on the difficult money issues in this marriage dissolution case reveals no error affecting the substantial rights of appellant. He contends he gained child custody rights and that his child support obligations were modified by Ms. Sheridan’s emotional outburst in court that the payments ordered were inadequate and that appellant could take the girls with him. The trial court declined to give such severe effect to Ms. Sheridan’s indiscretion and, on a record which describes the incident quite unsatisfactorily, so do we.

There is no competent evidence which induces us to overrule the trial judge’s assessment of the equities involved. It is unfortunate that he described as “punishment” his order that appellant pay the arrearages of child support appellant withheld for three months while refusing to return two of the girls to their mother, but that improper characterization of the award does not destroy its legitimacy on the alternative ground stated by the trial court. McKennon v. McKennon, 312 So.2d 804, 807 (Fla.App. 1st, 1975). Appellant had previously been ordered to make monthly child support payments, as the trial court noted, and he had agreed to pay the amounts he subsequently withheld. An attorney’s fee was properly awarded Ms. Sheridan for her lawyers’ service in the proceedings.

AFFIRMED.

HODGES, JOHN, Associate Judge, concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent. During a hearing on a petition for modification filed by ap-pellee she became angry at the trial judge because he verbally indicated that he would increase child support payments from $150 per child to only $200 per child. Appellee thereupon in the presence of the court, verbally delivered custody of the children to appellant and told him to take the children with him and that if he did not do so she would put them on the next plane to his place of residence. Being unhappy with the judge’s verbal ruling, appellee discharged her attorney and retained another. The trial judge recused himself and a second trial judge took over the case. At a subsequent hearing the second trial judge increased the child support payments to only $210 per month. He also ordered the appellant to pay to appellee $1,197.00 “as punishment for his failure to return the children to the wife prior to January 1, 1975, as requested by the wife” although two of the children were with appellant, pursuant to directions of appellee, during said period. The trial judge also ordered appellant to pay an attorney’s fee to both of appellee’s attorneys.

The record reflects no basis for inflicting punishment. However, if it did, the learned trial judge was without authority to require payment of child support as “punishment”. (McKennon v. McKennon, Fla.App. 1st 1975, 312 So.2d 804)

Further, the record clearly reveals that retention of the second attorney was unnecessary. The difference in the award obtained ($200 versus $210) is little more than a moral victory. A spiteful wife should not be permitted to punish her prior husband by unnecessarily employing successive attorneys. An award of attorney’s fees should be made only for services that are shown to have been reasonably necessary. (F.S. 61.16 and Donner v. Donner, Fla.App. 3rd 1973, 281 So.2d 399)

I would reverse.

      . As by appellant’s hearsay testimony: “[T]heir mother said if they remained in the house she’d put them on the next plane to Washington. She insisted that I take them. That’s what I was advised by one of the girls” (emphasis added).


author: BERANEK, JOHN R., Associate Judge.

text:
    John L. GLEICHAUF, Appellant, v. STATE of Florida, Appellee.
    No. 75-1379.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1976.
    Rehearing Denied July 12, 1976.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, App. Div., and Carl W. Pittman, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joel D. Rosenblatt, Asst. Atty. Gen., Miami, for appellee.
   BERANEK, JOHN R., Associate Judge.

Defendant appeals from an order revoking his probation. At the revocation hearing defendant was charged with issuing a worthless check. Defendant pleaded not guilty. This hearing for violation of probation was a critical stage of the proceeding against defendant and he was, at the least, entitled to the representation of retained counsel. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Here defendant was effectively denied his right to counsel.

The finding of guilt on the violation of probation and the court’s adjudication of guilt and sentence are reversed and the matter is remanded for further proceedings consistent with this opinion.

WALDEN, C. J., and ALDERMAN, J., concur.


text:
    Ervin PELHAM, Appellant, v. STATE of Florida, Appellee.
    No. 75-1619.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1976.
    Rehearing Denied July 12, 1976.
    Warner S. Olds, Public Defender by William W. Herring, and Stuart M. Lerner, Asst. Public Defenders, Fort Lauder-dale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee by William M. Grodnick, Asst. Atty. Gen., Miami, for appellee.
   BERANEK, JOHN R., Associate Judge.

Defendant was convicted of possession of a stolen motor vehicle and appeals. We reverse. Defendant raises four points. We find it necessary to comment only upon one point which relates to the standards set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Defendant was taken into custody and questioned regarding his possession of an automobile that police suspected of being stolen. While in the custody of and under interrogation by police defendant admitted guilt. No Miranda warning or any other warning was given until the actual arrest was made. We find that the admission into evidence of defendant’s admission of guilt was error. This was clearly a statement in response to a custodial interrogation without any warning or advice regarding applicable constitutional rights. The court should have excluded defendant’s admissions. The judgment is vacated.

WALDEN, C. J., and ALDERMAN, J., concur.


author: OWEN, Judge.

text:
    EASTERN AIRLINES EMPLOYEES FEDERAL CREDIT UNION, a corporation, Appellant, v. LAUDERDALE YACHT BASIN, INC., a Florida Corporation, and George Gonzalez, Appellees.
    No. 74-1594.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    Rehearing Denied July 12, 1976.

      Barry J. Clyman of Law Offices of Leonard Frishman, P.A., Coral Gables, for appellant.
    Frank J. Sinagra and Gary S. Gostel of Friedman, Britton & Stettin, Fort Lauder-dale, for appellee, Lauderdale Yacht Basin, Inc.
   OWEN, Judge.

This case differs from Carolina Aircraft Corp. v. Commerce Trust Company, 289 So.2d 37 (4th DCA Fla. 1974), in that here, in addition to the question of priority between a prior recorded security interest and a subsequent attaching mechanic’s lien for repairs upon personal property in the possession of the mechanic, there is also presented the question as to the subsisting life of the mechanic’s possessory lien.

At the time that George Gonzalez delivered his boat to appellee-Lauderdale Yacht Basin, Inc. for certain repair work, the boat was subject to a prior recorded security interest held by appellant. Appellee-Yacht Basin performed the requested repair work and after the work had been completed, kept the boat in its possession claiming a possessory lien by virtue of Fla. Stat. §§ 713.58 and 713.60 (1973). Approximately five months after the repair work had been completed, appellee-Yacht Basin brought this suit to foreclose its lien, naming Gonzalez and appellant as defendants. Appellant filed a counterclaim, asserting that its recorded security interest was superior in dignity to the mechanic’s lien. Appellant also filed a cross-claim against the boat owner, seeking to foreclose its security interest. The trial court held that appellee’s mechanic’s lien was superior to the appellant’s prior recorded security interest, and having determined the priority of the respective liens, the court ordered both liens to be foreclosed and the boat sold to satisfy the amounts due thereunder. The case is here, of course, because the value of the boat was insufficient to satisfy both liens.

It is now established that under Fla.Stat. § 679.31CK1973) appellee’s lien has priority over appellant’s perfected security interest. Carolina Aircraft Corp. v. Commerce Trust Company, supra; Gables Lincoln-Mercury, Inc. v. First Bank and Trust Company of Boca Raton, 219 So.2d 90 (3rd DCA Fla. 1969). Appellant, recognizing that the cited cases involved only the issue of priorities between valid and subsisting liens, contends that these cases have no application here because appellee’s mechanic’s lien had expired at the conclusion of three months following completion of the work on the boat, and therefore was no longer a viable lien when the suit was commenced. Our inquiry is thus narrowed by this issue.

In support of its position, appellant cites us to Fla.Stat. § 713.74 (1973) which reads as follows:

“As against the owner of personal property upon which a lien is claimed under part II [of this chapter], the lien shall be acquired by any person in privity with the owner by the performance of the labor or the furnishing of the materials. There shall be no lien upon personal property as against purchasers and creditors without notice unless the person claiming the lien is in possession of the property upon which the lien is claimed. The lien shall continue as long as the possession continues, not to exceed three months after performance of the labor or furnishing the material.”

This statute clearly provides that one acquiring a mechanic’s possessory lien against personal property (under a provision such as Fla.Stat. § 713.58) has a lien against the property as against subsequent purchasers and creditors without notice so long as the lienor continues in possession of the property upon which the lien is claimed. It also provides that such possession is not to exceed three months after performance of the labor or furnishing the material. This latter provision is identical to language in an earlier statute which was construed by the Supreme Court to mean that the lienor’s right to possession was not to exceed three months after performance of the labor or furnishing the material. Ocala Foundry and Machine Works v. Lester, 49 Fla. 199, 38 So. 51 (1905).

Thus, we reason as follows: Gonzalez, the owner of the boat, had the right to demand and obtain possession of the boat after the expiration of three months following completion of the repair work; he did not do so, but instead permitted appel-lee to remain in possession of the boat; appellee’s lien on the boat continued as long as appellee continued in possession thereof; since appellee was in possession of the property at the time this foreclosure suit was filed, the lien was at that time a valid and subsisting lien contrary to appellant’s contention that the lien had earlier expired.

Appellant’s other point and the appellee’s point raised on cross-assignment of error are without merit and do not require discussion. The judgment is

AFFIRMED.

DOWNEY, J., and NESBITT, JOSEPH, Associate Judge, concur.

      . Fla.Stat. § 679.310 (1973) provides:
      “679.310 Priority of certain liens arising by operation of law. — When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.”

      . The word “subsequent” is implied, since the lien could not be against prior purchasers, and the mechanic’s lien priority as against prior creditors without notice is created, not by § 713.74, but by Fla.Stat. § 679.310.


author: WALDEN, Chief Judge.

text:
    Arthur Fillmore JEFFERSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-252.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    Rehearing Denied July 12, 1976.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, A'tty. Gen., Tallahassee, C. Marie Bernard and Richard P. Zar-etsky, Asst. Attys. Gen., West Palm Beach, for appellee.
   WALDEN, Chief Judge.

We reverse and remand for a new trial on the basis of this appellate point:

Whether the trial court’s instruction on second degree murder, which omitted any reference to killing when committed in the perpetration of, or in the attempt to perpetrate, certain felonies, constitutes fundamental error?

Defendant was convicted of first degree murder and sentenced to life imprisonment. He appeals. This was a typical felony murder. Three people, including defendant, attempted to rob a business. During the course of events one of the business employees with the cash receipts was shot and killed. There was some evidence that defendant was the robber who actually fired the fatal shot. It is correct to say that the State’s case was bottomed on the felony murder concept.

The trial court properly instructed the jury as to first degree murder, third degree murder and manslaughter. The jury was erroneously charged as to second degree murder for that the charge was incomplete.

The Court charged on second degree murder:

“Murder in the second degree is the killing of a human being by the perpetration of an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any particular individual. An act is one imminently dangerous to another, and evincing a depraved mind regardless of human life, if it is an act which one, a person of ordinary judgment would know is reasonably certain to kill or to do serious bodily injury to another.
“Two, is done from willful hatred, spite or an evil intent. And third, is of such a nature, the act itself, indicates an indifference to human life.”

The Court did not charge the jury on the second degree felony murder rule, which is:

“. . . when committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, except as provided in subsection (1), it shall be murder in the second degree and shall constitute a felony of the first degree, "

Although there was adequate proof of defendant’s participation in the crime and although defendant’s counsel failed to object in the trial court to the omission (he did raise it in his motion for a new trial), we are of the opinion that the failure to fully and correctly charge the jury as to the several degrees of the offense charged constituted fundamental error necessitating a new trial. We cannot say from the record that the jury would not have found defendant guilty of second degree murder where a lesser penalty is mandated, had it been afforded an opportunity via a charge on the second degree felony murder thesis.

We reverse because of the failure of the trial court to instruct upon the degrees of the offense, F.R.Cr.P. 3.490; Parker v. State, 330 So.2d 148 (2nd DCA Fla. 1976); Herman v. State, 275 So.2d 264 (4th DCA Fla.1973); Wilson v. State, 171 So.2d 903 (2nd DCA Fla.1965). This is to be distinguished from the instance where the trial court fails to instruct upon lesser included offenses. Gilford v. State, 313 So.2d 729 (Fla.1975).

REVERSED AND REMANDED FOR A NEW TRIAL.

DOWNEY, J., and ANDREWS, JOHN, Associate Judge, concur.

      . Originally second degree murder was defined :
      “782.04 Murder —
      * * * * SÍ!
      “(2) When perpetrated by any act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, it shall be murder in the second degree, and shall constitute a felony of the first degree, punishable as provided in § 775.0S2, § 775.083, or § 775.084.”
      The statute was then amended, effective December 8, 1972:
      (This is the statute applicable to defendant’s conviction.)
      “782.04 Murder.—
      •fc V -i*
      “(2) When perpetrated by any act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, except as provided in subsection (1), it shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment in the state prison for life or for such term of years as may be determined by the court.”
      Tlie statute was again amended, effective October 1, 1975:
      “782.04 Murder.—

        t[: * * * *
      “(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
      “(3) When a person is killed in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attemping to perpe--trate such felony shall be guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.”
      The final amendment covers situations in which a policeman, for example, kills a person in an attempt to prevent a robbery. The robber could be charged with felony-murder under the amended statute.


text:
    STATE FARM AND CASUALTY COMPANY, Appellant, v. Zigmas SAURAZAS, Appellee.
    No. 75-790.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Rehearing Denied July 12, 1976.
    Martin J. Sperry, Carey, Dwyer, Austin, Cole & Selwood, P. A., Fort Lauderdale, for appellant.
    Angeline G. Weir, Hollywood, for appel-lee.
   PER CURIAM.

In this appeal State Farm and Casualty Company, appellant, alleges the trial court erred as a matter of law in entering summary judgment in favor of the appellee, Zigmas Saurazas. We agree and reverse with directions to enter summary judgment in favor of the appellant-defendant.

The record reflects the absence of any disputed facts. Appellant had issued a policy of insurance to appellee providing coverage for bodily and personal injury and property damage liability. One Snyder filed suit against appellee claiming that while on the premises of appellee he suffered bodily injuries alleged to have been inflicted by the appellee. Count One of Snyder’s complaint alleged the tort of assault and battery seeking compensatory and punitive damages and Count Two alleged negligence on the part of the appellee. The appellant, pursuant to a reservation of rights, defended appellee; a directed verdict was granted for appellee on the issue of negligence but denied on the issue of assault and battery. The latter issue went to the jury which returned a verdict against appellee and in favor of Snyder for compensatory damages but denying Snyder any punitive damages.

It is clear from a reading of the policy in question that coverage did not include intentional torts. When the issue of coverage was heard subsequent to the entry of judgment in favor of Snyder the trial court entered summary judgment in favor of the appellee concluding, in effect, that the appellee’s act (of assault and battery) was not an intentional act. It is our view that this issue was resolved by the jury in the suit between Snyder and appel-lee and that the trial court was thereafter precluded on the doctrine of collateral es-toppel from re-litigating an issue actually adjudicated in the prior litigation. Cf. Seaboard Coast L. R. Co, v. Industrial Contracting Co., 260 So.2d 860 (Fla.App. 4th 1972). The only issue before the jury in the proceedings between Snyder and appellee was Count One of Snyder’s complaint relating to assault and battery which is considered an intentional tort, McDonald v. Ford, 223 So.2d 553 (Fla. App.2d 1969), and the jury was so charged on this issue. The fact that the jury awarded Snyder compensatory damages only and did not award punitive damages does not prevent assault and battery from constituting an intentional tort. See Wrains v. Rose, 175 So.2d 75 (Fla.App.2d 1965); Holland v. Glass, 213 So.2d 320 (Fla.App.4th 1968); see also Joab, Inc. v. Thrall, 245 So.2d 291 (Fla.App.3d 1971).

Therefore, an intentional tort of assault and battery being the only issue submitted to and resolved by the jury for which appellant’s policy of insurance did not provide coverage, it was error to enter summary judgment in favor of appellee. Accordingly, the summary final judgment entered in favor of appellee is vacated and set aside and the cause remanded to the trial court with the respectful direction to enter summary judgment in favor of the appellant.

REVERSED AND REMANDED.

CROSS and MAGER, JJ., and KEOUGH, LAWRENCE E., Associate Judge, concur.


author: SANDERS, Chief Justice. TATE, J.,

text:
    STATE of Louisiana v. James T. STRANGE.
    No. 57459.
    Supreme Court of Louisiana.
    June 21, 1976.

      Robert A. Lee, Brown, Wicker & Lee, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen. J. Carl Parkerson, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, James T. Strange, with possession of amphetamines contrary to the provisions of LSA-R.S. 40:967. After his trial and conviction by a jury, the judge sentenced him to pay a fine of $300 plus costs, in default thereof to serve sixty days in jail, plus eighteen months imprisonment at hard labor, suspended. On appeal to this Court, the defendant consolidates his seven assignments of error into three arguments. We find merit in none of them, and accordingly, affirm his conviction and sentence.

ARGUMENT NO. 1

Defendant assigns as error the trial court’s refusal to sustain his motion to suppress the drugs taken from his automobile. He contends that no probable cause existed for the arrest or for the search of his automobile and that the consent he allegedly gave for the warrantless search was not knowing or intelligent.

At the hearing on the motion to suppress, the burden of proof was on the defendant to prove the grounds of his motion. LSA-C.Cr.P. Art. 703. The trial court summarized the evidence, consisting of the testimony of two police officers and a female passenger in the car searched, as follows:

“The two policemen (a state trooper and a city detective assigned to the Narcotics squad) were not in uniform and were riding in an unmarked car on Louisville Avenue when they perceived a car ahead of them being operated in an erratic manner. The car was weaving and crossing the center line.
“They did not stop the car because they were in an unmarked car, but commenced following it while they radioed for a regular police car to intercept. After proceeding a mile or so, the car turned off the thoroughfare to a side street and finally stopped in front of a house, which was its destination. The officers promptly stopped, got out, approached the other car and identified themselves.
“Except for the weaving and the observation by one of the two officers that an approaching car was forced to move out of the way, the driver safely manue-vered the vehicle.
“Upon approaching the car, the driver was requested to get out and display his driver’s license. The physical appearance of the driver — the defendant — plus the odor of alcohol convinced the officers that the defendant was under the influence of some alcoholic beverage and should be arrested. It is not clear whether he was actually placed under arrest at this point.
“One of the officers looking through the front door which had been left open by the driver when he exited the car perceived what purported to be a marijuana seed on the front seat. Using his flashlight, he also saw what purported to be a marijuana roach in the ashtray.
“He then gave the defendant the customary Miranda Warning and asked the defendant for permission to search the car telling him what he had just observed and also telling him that he could require a search warrant. The defendant replied to the effect — ‘Go ahead, I have nothing to hide.’
“The other officer who had been busy with other routine matters testified that although he did not hear the exact words quoted above, he did hear an affirmative reply to the request for permission to search.
“Thereupon the search was made resulting in the seizure of certain contraband which was listed on a report of the search. Defendant noted that this report while listing numerous other articles did not mention the marijuana seed originally found.
“Other uniformed policemen who had arrived had taken the femále passenger into the house prior to the search.
“She testified that she was not present, did not hear the remarks about the marijuana or what transpired thereafter. Her testimony consisted of a description of the evening spent with the defendant at a local tavern where they had consumed several alcoholic drinks. She saw nothing unusual about his driving from the tavern to her house.”

Citing State v. Jones, La., 308 So.2d 790 (1975), the defendant maintains that there was no probable cause to arrest him and further, that the testimony of the policemen was conflicting and incredible. We find the Jones case factually distinguishable. We found that the officers in Jones intended to stop the car from the moment they began to follow it as it proceeded away from the house that they had been keeping under surveillance for some time.

However, in the case sub judice, we uphold the trial court’s finding that the officers’ original observations of the defendant’s vehicle was pure circumstance and that what attracted their attention was the erratic driving of the car. The officers did not suspect narcotics involvement, nor was there any pre-existing decision that the automobile would be stopped. We, therefore, find that probable case existed to stop the car.

We must next resolve the issue of the voluntariness of the consent to search the automobile given by the defendant. The defendant presented no evidence that he did not understand what he was doing. Although he had been drinking, that fact alone is insufficient to render his consent involuntary. See, e, g., State v. Sears, La., 298 So.2d 814 (1974). The officer’s testimony that the defendant was told by him that he could require a search warrant and that he did not do so is uncontrovert-ed. The defendant challenges the veracity of the officers because (1) they did not have with them a written consent to search form which they admittedly usually have and request parties to sign; (2) they failed to list the marijuana seed found on the seat of the car in their formal report; and (3) of the improbability of the officer being able to see the marijuana seed on the car seat from his position outside the car. With regard to the first two, the record supports the trial court’s ruling that “such indicates carelessness on the part of the officers, but is not indicative of a desire to falsify facts.” As to the alleged improbability of seeing the marijuana seed under the circumstances described, the fact remains that both officers testified that they did see it. Buttressing their testimony is the fact that neither had been alerted to the possible presence of a controlled dangerous substance, and they had no reason to suspect that one was present.

On the basis of these findings, we are convinced that the consent was given freely and voluntarily, and the motion to suppress was properly denied.

ARGUMENT NO. 2

Shortly prior to the scheduled trial date, the defendant filed a motion for rehearing of the motion to suppress. On the day of trial, he filed a motion to have this second motion heard prior to the commencement of the trial. The court ruled that the allegations of fact in the motion, if accepted as true, were such that the earlier ruling of the court included their resolution against the defendant, and the court then overruled the motion without a hearing.

The basic factual premise underlying the new motion is the assertion that an earlier unfounded charge relating to controlled dangerous substances had been made against the defendant, but was subsequently dropped. From that premise, the defendant contended that the officers involved in the charge forming the basis for this prosecution had known his identity and had followed his car intending to stop it on the basis of preconceived suspicions of drug possession.

The trial court reasoned that if there had been án earlier charge against the defendant, he was certainly aware of that fact when the first motion to suppress was filed; accordingly, these allegations could not be considered to be “new evidence hitherto unavailable.” The other allegations were merely conclusions based upon these facts. Further, the court held that even if the facts were true, independent reasons existed for the actions of the officers and the defendant had consented to the search which yielded the evidence. Finally, the officers both testified at the hearing on the first motion that they did not know the defendant prior to stopping him on the instant charge. The ruling on the first motion to suppress embraces the second motion. The second motion had no merit and the trial judge properly disposed of it within the exercise of his discretion under Article 703 of the Louisiana Code of Criminal Procedure.

The defendant also complains of a remark made by the prosecuting attorney in rebuttal closing argument. In the defense closing argument, the defense attorney inquired as to why the female passenger in the defendant’s vehicle at the time of the arrest had not been called as a witness in the trial, inferring that she might have been a material witness that the State had deliberately excluded. In rebuttal, the prosecuting attorney commented:

“ . . . Additional statements were made by the defense counsel regarding this girl, this missing girl. What possible value could she have been to the State as a witness P What possible value could she have been to you as a witness? The fact of the matter is that she testified in a preliminary examination in this matter. Her statement was, you know, to the effect . . . she made no testimony regarding anything of importance about the case. She was called by the defendant at the preliminary examination. Why isn’t she called by the defendant to testify in the case today?”

Upon a defense objection, the judge admonished the jury that they were not to consider the attorneys’ closing arguments as evidence, since the attorneys were merely arguing their contentions.

The defendant argues that the remark violated the provisions of Article 774 of the Louisiana Code of Criminal Procedure, and further, that it warranted a mistrial, since it inferred that the defendant had failed in his responsibility to produce evidence, an incorrect inference because the State is the only party with a burden of proof to meet.

The remark is not included among the prohibitions of Article 770, the mandatory mistrial article of the Louisiana Code of Criminal Procedure. Under Article 771, the discretionary mistrial article, the judge’s admonition to the jury sufficed to cure any prejudice, if the remark was even improper.

Article 774 of the Code of Criminal Procedure confines argument to the evidence admitted and to the lack of evidence, conclusions of fact and the applicable law; it also limits the State’s rebuttal to answering the defendant’s argument. The defense comment on the State’s lack; of evidence as demonstrated by its failure to call the woman as a witness was properly answerable by the State on rebuttal, as held by the trial judge. Moreover, the defendant does not allege or show any prejudice resulting from the remark.

ARGUMENT NO. 3

The defendant assigns as error the admission of evidence of his possession of marijuana in this trial for possession of amphetamines. He contends that the evidence was immaterial and prejudicial. We reject his arguments. The evidence was relevant to the issue of guilty knowledge or intent to possess amphetamines, since the possession of both drugs was simultaneous. See State v. Thorson, La., 302 So.2d 578 (1974); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972); State v. Richard, 256 La. 551, 237 So.2d 374 (1970). Although the possession of the marijuana was criminal, it had independent relevance to scienter, an essential element of the crime charged.

For the reasons assigned, the conviction and sentence are affirmed.

TATE, J.,

concurs as to Assignment No. 3: The marijuana may have been admissible as part of the res gestae, but not to show scienter.

DIXON, J., dissents as to argument No. 1.

CALOGERO, J., dissents, believing that bills 1 and 3 have merit.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Melvin BAUDOIN and Errol Falcon.
    No. 57445.
    Supreme Court of Louisiana.
    June 22, 1976.

      James B. O’Neill, Zwolle, Gordon Hack-man, Boutte, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendants, Melvin Baudoin and Errol Falcon, by bill of information filed in March of 1975 with theft of an outboard motor in violation of LSA-R.S. 14:67. On May 22, 1975, the defendants pleaded guilty, and on September 2, 1975, the judge sentenced each of them to six years imprisonment at hard labor.

Subsequently, the defendants applied for a writ of habeas corpus to this Court, which we granted on November 14, 1975, with the following order:

“Writ granted. It is ordered that the trial court hold an evidentiary hearing to determine whether or not there was an unkept plea bargain and rule upon the case in light of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).”

La., 322 So.2d 771 (1975). The trial court held the evidentiary hearing as ordered, found that the defendants had failed to discharge their burden of proving an un-kept plea bargain, and denied relief. The trial judge did not rule on other legal questions arising from the evidence because of the limited mandate of this Court.

The defendants again applied to this Court for a writ of habeas corpus. We elected to grant supervisory writs. The case is now before us for decision.

The following facts are important in our decision in this matter. Defendants, as well as five of their relatives and their present attorney, attested to the fact that the defendants were informed by their original attorney that if they pleaded guilty, they would be sentenced to six months imprisonment, and possibly they would be released on probation after serving only two months of the sentence. They allege that they were promised also that they would be allowed to withdraw their guilty pleas if the sentences imposed were greater than anticipated. In reliance on these promises, defendants did plead guilty and answered the judge’s Boykin questions pursuant to instructions from their attorney.

The original defense attorney testified that a plea bargain had been perfected between himself and the district attorney, who he believed had spoken to the judge about the sentencing, that he informed everyone involved about the plea bargain, and that he had even written a note to the defendants about the agreement because they wanted some assurance in writing. On the morning of the sentencing, September 2, 1975, the defendants paid the Sheriff of Sabine Parish $275.00 for the cost of their transportation on a previous trial date from their residence in another parish to the courthouse. Defendants understood that the payment was necessary as part of the bargain since the District Attorney, upon entering the courtroom that morning, had said “all deals are off” unless the money was paid. Before sentence was imposed, when it became evident that the defendants were not going to receive the expected sentence, they moved to withdraw their guilty pleas. The judge denied the motion. Defense counsel then moved to withdraw from the case. This motion was likewise denied. The trial judge then sentenced both defendants to six years imprisonment. Subsequently, the original defense attorney, who was not present at the sentencing, wrote a letter to the prosecuting attorney, expressing his distress over the unkept plea bargain.

The trial judge testified that he never makes agreements about sentencing and that no attorney for either the State or the defense spoke to him about a plea bargain in this case. The District Attorney, with whom the plea bargain was allegedly made, testified that he did not recall the discussion with defense counsel. However, he did not specifically deny making a plea bargain, and he admitted that he might have gone to see the judge about one. He stated that the $275.00 covered the expenses incurred by the sheriff in executing a bench warrant against the defendants for their failure to appear in court for trial and that he had promised not to prosecute them for contempt of court if they paid the money.

Based on the evidence thus summarized, we make the following findings: (1) the evidence is inadequate to show any participation in a plea bargain by the trial judge; (2) the evidence of participation by the District Attorney is contradictory and is insufficient to prove that he actually entered into a plea bargain with the defense attorney; (3) the record does establish a discussion from which the defense attorney could have reasonably inferred an agreement with the District Attorney, and the evidence is conclusive that defense counsel reasonably believed that a plea bargain existed and that he so advised his clients both orally and in writing; (4) the defendants, relying in good faith upon their attorney’s representations, pleaded guilty.

On these findings, Santobello v. New York, supra, dealing with an unkept plea bargain, is inapplicable.

The disposition of the case is governed by Article 559 of the Louisiana Code of Criminal Procedure. That article provides in pertinent part:

“The court may permit a plea of guilty to be withdrawn at any time before sentence.”

Discretion to permit a guilty plea to be withdrawn is vested in the trial judge. State v. Barber, 262 La. 443, 263 So.2d 719 (1972); State v. Glantz, 254 La. 306, 223 So.2d 813 (1969). That discretion, however, cannot be arbitrarily exercised, and an abuse of discretion can be corrected upon appellate review. See State v. Manager, 149 La. 1083, 90 So. 412 (1922); State v. Coston, 113 La. 717, 37 So. 619 (1905).

In the present case, the defendants entered their plea of guilty based upon a specific representation as to the length of the sentence. That representation was the sole basis for their plea. Through no fault of the trial judge, the sentenée imposed had no relation to the one that had been assured. Undoubtedly, the pleas were entered in error. We conclude that the trial judge abused his discretion in denying the motion to withdraw the guilty pleas. See State v. Manager, supra; State v. Coston, supra.

For the reasons assigned, the ruling of the trial judge is reversed, the guilty pleas and sentences based thereon are set aside, and the case is remanded to the trial court for rearraignment and further proceedings, including a new trial, according to law and consistent with the views herein expressed.