author: BOARDMAN, Chief Judge.

text:
    In re the ESTATE of Flossie L. NUNNELLEY, Deceased. Frank V. NUNNELLEY, Appellant, v. Floyd L. SLOAN et al., Appellees.
    No. 76-1070.
    District Court of Appeal of Florida, Second District.
    March 4, 1977.
    Rehearing Denied April 4, 1977.
    Pat Whitaker, Tampa, for appellant.
    F. Linton Sloan, Jr., James R. Meyer, Bartow, and David Luther Woodward, Tampa, for appellees.
    Tim Moran, Webster & Caltagirone, P.A., Tampa, for appellee Tim Moran as personal representative.
   BOARDMAN, Chief Judge.

Appellant, Frank V. Nunnelley, shot and killed his wife, Flossie L. Nunnelley, on August 23, 1974. He was indicted for first-degree murder, and he entered a plea of guilty to manslaughter. Adjudication was withheld and a term of probation imposed. The decedent died intestate without any lineal descendants. She was survived by appellant and by collateral heirs which included her brothers, sisters, nieces and nephews. At the time of her death she owned a parcel of real property, an insurance policy and certain personal property. The realty was held by appellant and the decedent as tenants by the entirety. It was located in Hillsborough County, Florida, legally described as:

Tract Q The east 130.0 ft. of the West 910.00 ft. of the South Vz of the North lh of the SE Vi of the NE xk of Section 19, Township 29 South, Range 21 East, Hills-borough County, Florida, less the North 50.0 ft. thereof as recorded in OR Book 1343 on Page 662, public records of Hills-borough County, Florida. TOGETHER with all the furniture, furnishings, fixtures and appliances located in the home on said property. ...

Floyd L. Sloan, one of the decedent’s brothers, filed a petition for letters of administration naming the collateral heirs as the surviving heirs at law. The court appointed Sloan as administrator of the decedent’s estate. Appellant then filed a petition for an order that he be declared the sole surviving heir at law and for the removal of Sloan as administrator. After hearing the court entered an order declaring appellant to be the sole surviving heir at law and appointing Tim Moran as successor personal representative. Moran subsequently filed a petition for approval of a plan of distribution and discharge proposing that all of the assets of the estate of the deceased be distributed to appellant as sole surviving heir. The collateral heirs filed a response to the petition and a petition for approval of a plan of distribution and discharge asserting that they were entitled to the whole of the real property at issue here. In the alternative they proposed that a one-half interest in the property pass to the collateral heirs because appellant had terminated his right to acquire his wife’s interest in the property through survivorship because he had wrongfully' killed her. The court entered an order finding that appellant was the owner of a one-half interest in the realty and that an undivided one-half interest in the property passed to the collat-erals in equal shares. The only issue raised on appeal is whether appellant is entitled to the one-half interest awarded to the collateral heirs. We agree with the trial court that he is not.

The Florida Probate Code provides that the convicted murderer of a decedent shall not inherit from the decedent. Section 732.802, Florida Statutes. The statute is not applicable in this case because property held as an estate by the entirety is not an asset of a deceased tenant’s estate and because appellant was not convicted of murder. Fenn & Koren, The 1974 Florida Probate Code—A Marriage of Convenience, 27 U.Fla.L.Rev. 1, 41-42 (1974). Consequently neither appellant’s right to inherit from the estate nor his right as a surviving tenant is defeated by the statute. Ashwood v. Patterson, 49 So.2d 848 (Fla.1951). Therefore the applicability of the statute is not determinative of this case. We subscribe to the fundamental principle of equity that “ ‘no one shall be permitted to profit by his own fraud, or take advantage of his own wrong, or found any claim upon his own iniquity, or profit by his own crime . .’ ” Ashwood, supra, at 850. See also Carter v. Carter, 88 So.2d 153 (Fla.1956). Applying this principle to the survivor’s right to the whole interest of property held by the entirety, the Supreme Court of Florida has held that the estate is severed by the willful, felonious act of one spouse which results in the death of the other. Ashwood, supra; Hogan v. Martin, 52 So.2d 806 (Fla.1951). In that circumstance the deceased spouse’s one-half interest in the property is to be treated as if it had been held by the spouses as tenants in common. The property would be distributed to the heirs of the decedent according to the order of succession established by the probate code as if the wrongdoer had divorced the decedent. See Ashwood, supra.

AFFIRMED.

HOBSON and GRIMES, JJ., concur.

      . There are cases in other jurisdictions which suggest in similar situations that the whole interest in the property should go to the wrongdoer, others that the wrongdoer should get nothing, and others that the wrongdoer has a one-half interest. Several jurisdictions hold that title to the whole passes to the wrongdoer, but treat him as a constructive trustee of the property for the heirs of the decedent except for him. Annot., 42 A.L.R.3d 1116 (1972, Supp. 1976). The Florida supreme court has considered and not adopted the constructive trust theory. The constructive trust theory and the severance of the estate theory are mutually exclusive since the trust rationale requires that the property pass to the survivor as if the interest had not been severed. The supreme court indicated in Ashwood v. Patterson, 49 So.2d 848 (Fla.1951) and Hogan v. Martin, 52 So.2d 806 (Fla.1951), that it favored the severance rationale.

      . We need not decide whether the one-half interest must necessarily pass through the estate, which would be consistent with the trial court’s ruling that appellees’ one-half interest is subject to costs of administration, since the appel-lees have not cross-assigned this point as error. Nor do we decide whether the nieces and nephews would stand in the same position as the brothers and sisters.


source: Caselaw Access Project

author: NATHAN, Judge.

license: Public Domain

text:
    Teala RITTER et al., Appellants, v. Victor JIMENEZ et al., Appellees.
    Nos. 75-1462, 75-1493.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied April 1, 1977.

      Virgin, Whittle & Popper, Susan Goldman, Podhurst, Orseck & Parks, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Wicker, Smith, Davant, McMath, Tutan & O’Hara and Richard A.' Sherman, Miami, for appellees.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

In these consolidated appeals, plaintiffs Teala Ritter and Lloyd Ritter, her husband, seek a review of a final judgment rendered' in their favor following a jury verdict in an automobile accident case in which liability was admitted by the defendants, appellees.

The record reflects that on September 19, 1973, Teala Ritter was seriously injured when the school bus she was driving was involved in a collision with another vehicle near Tavernier, Florida. The only issue was damages. A jury verdict was rendered for Teala in the amount of $35,000.00 and for Lloyd in the amount of $5,000.00.

First, the Ritters contend that they were denied a fair trial because the trial court, without authority and over the objections of counsel, called Nurse Renee Steele, a rehabilitative specialist employed by Mrs. Ritter’s employer’s workmen’s compensation carrier, to aid Mrs. Ritter with rehabilitation after the accident, to testify as the court's own witness.

The practice of calling a witness as the court’s own witness has long been recognized in Florida criminal proceedings. In fact, the authority of a trial judge in a criminal prosecution to call a witness as the court’s own witness on its own motion or at the request of one of the parties, “has been recognized in all jurisdictions in which the question has been considered.” The question of whether it is a proper practice in civil proceedings has not yet been reached in Florida.

Rule 614 of the Federal Rules of Evidence, 28 U.S.C.A., provides that the court,

“. . .on its own motion or at the suggestion of a party, (may) call witnesses, and all parties are entitled to crcss-ex-amine witnesses thus called.”

In the Advisory Committee’s notes to Rule 614, it is stated that,

“While exercised more frequently in criminal than in civil cases, the authority of the judge to call witnesses is well established.”

In resolving the question presented by this case, we look to the new Florida Evidence Code, Sections 90.01, et seq., Florida Statutes, 1976 Supp., to become effective July 1, 1977. Section 90.615 thereof, entitled “Calling witnesses by the court,” provides:

“(1) The court may call witnesses whom all parties may cross-examine.
(2) When required by the interests of justice, the court may interrogate witnesses, whether called by the court or by a party.”

We recognize that Section 90.615 was neither in effect at the time of the trial in this ease, nor during the pendency of this appeal. Nevertheless, as a matter of policy, we find it to be highly persuasive, and we apply it to this case. Moreover, there is no Florida case or statutory authority prohibiting the court’s calling witnesses in civil cases. Therefore, we hold that the court has discretion to call and examine witnesses in the interest of justice and in the ascertainment of truth. Plaintiff-appellants have failed to show any abuse of discretion by the trial judge.

The assertion that Nurse Steele gave professional expert opinion without a predicate being laid is not supported by the record. She testified that she had been a rehabilitative expert for approximately three and one-half years and a registered nurse for about twenty years.

The question of expertise should initially be determined by the court, and the weight to be given such testimony as a matter for the jury. As it appears that the court found Nurse Steele’s background to be sufficient, from that point it was within the province of the jury to draw such conclusions from her testimony as it chose, and as were warranted by the evidence.

The crux of the case was whether, or to what extent, the plaintiff had recov-' ered from her injuries. Nurse Steele testified that the plaintiff had gone back to work and was capable and medically fit to perform her job. It is the duty of the trial court to determine the qualification of an expert witness on the subject matter on which the witness testifies, and the court’s judgment will not be disturbed on appeal unless a clear abuse of discretion is made to appear. Vitale Fireworks Manufacturing Co., Inc. v. Marini, 314 So.2d 176, 180 (Fla.1st DCA 1975). No such abuse of discretion has been shown.

Appellants’ next contention is that the court erred in asking all of the questions on voir dire of the jury, and denying counsel’s request to conduct the examination. Rule 1.431(b) of the Florida Rules of Civil Procedure provides as follows:

“The parties have the right to examine jurors orally on their voir dire. .
The court may ask such questions of the jurors as it deems necessary, but the right of the parties to conduct a reasonable examination of each juror orally shall be preserved.”

The record reflects that at a conference just before .trial, the judge told all counsel:

I said that I had 32 stock questions that I will propound. After that you will be invited to the Bench and indicate to the Court if you have any further questions, and not on matters covered by the ones propounded by the Court. If you have, you will indicate to which juror or what general question you would propound, and then the Court will rule on it. That is all I said.
I am not going to close you off from having some contact, or as it is said, the opportunity to press the flesh of the jurors. I am not going to close you off on that.
I am going to diminish the attorneys’ role, but I am going to be fair to both sides. I am going to propound the stock questions, federal questions, and then you gentlemen, if you have further questions, can approach the Bench.”

Further, during the trial, the court, after conducting its voir dire examination of the jury, said to the attorneys,

“You may proceed. You may proceed to ask them questions.
* * # * * *

Do you have any further questions?” None of the attorneys had any questions.

We are in full accord with the holding of Florida courts that in the trial of every cause before a jury in this state, the law grants to the respective parties the right, either personally or through their attorneys, to orally examine jurors on voir dire. Mizell v. New Kingsley Beach, Inc., 122 So.2d 225 (Fla.1st DCA 1960). Trial attorneys should be accorded ample opportunity to elicit pertinent information from prospective jurors on voir dire examination. It is from information so obtained that trial attorneys can call upon their own skill to determine whether to challenge for cause or exercise a peremptory challenge. The primary purpose of voir dire is. to determine whether the juror is qualified and will be fair and impartial, free from all bias, prejudice or interest in the cause being tried. Barker v. Randolph, 239 So.2d 110 (Fla.1st DCA 1970).

While we emphasize the importance of voir dire examination by the attorneys in jury trial proceedings, under the facts presented in this case, we do not hold that the trial judge committed reversible error as it appears from the record that counsel were given the opportunity to question the jurors.

Finally, plaintiffs contend that the trial court improperly limited them to four “before and after witnesses.” The record fails to demonstrate any prejudice or harmful error stemming from this exercise of judicial discretion in limiting the number of witnesses. The limiting of a number of witnesses for a given side has long been recognized as appropriate. Stager v. Florida East Coast Railway Company, 163 So.2d 15 (Fla.3d DCA 1964). Also see Gallub v. Del Vecchio, 301 So.2d 785 (Fla.3d DCA 1974).

The remaining points on appeal are without merit and will not be discussed.

Affirmed.

      . See, for example, Brown v. State, 91 Fla. 682, 108 So. 842 (1926); Sutton v. State, 239 So.2d 644 (Fla. 1st DCA 1970); Chapman v. State, 302 So.2d 136 (Fla. 2d DCA 1974).

      . 81 Am.Jur.2d, Witnesses § 3, “Calling of witnesses by the court,” and cases cited therein.


author: PER CURIAM.

text:
    PFE ENTERPRISES, INC., Appellant, v. Leon G. NICHOLS, Individually and as Trustee et al., Appellees.
    No. 75-1776.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Pettigrew, Arky, Freed, Stearns, Watson & Greer, Miami, for appellant.
    Leon G. Nichols, Miami, for appellees.
    Before HENDRY, C. J., NATHAN, J, and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.

NATHAN, Judge, concurring in part and dissenting in part.

I concur with the majority in the dismissal with prejudice of Count II of appellant’s complaint, but respectfully dissent as to Count I thereof.

The appellant’s complaint arose out of an alleged breach by appellees (purchasers) of a contract for the purchase of real property from appellant (seller). Count I alleged fraud by the appellees. The trial court dismissed Count I, reasoning that appellant was limited by the contract to the agreed upon liquidated damages. I am of the opinion that Count I sets forth all the necessary elements of fraud to constitute an independent cause of action.


text:
    Mr. Andrew PERKINS et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    Nos. 76-225, 76-271.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Clifford B. Wentworth, Fort Lauderdale, for Perkins.
    , „ . , „ _ , McCormick, McCormick, Bedford & Back- ,, „ meyer, Miami, Papy, Levy, Carruthers & Poole, Coral Gables, for Browns.
    Adams, George, Wood, Lee & Schulte and David L. Willing, Spencer & Taylor, Miami, ■Pam A 11 cjÍ"íi
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Buchwald v. Hartford Accident and Indemnity Company, 319 So.2d 164 (Fla. 3d DCA 1975). See also Kraus v. Allstate Insurance Company, 379 F.2d 443 (3d Cir. 1967), and compare Hartford Fire Insurance Co. v. Spreen, 343 So.2d 649 (Fla. 3d DCA 1977).


text:
    Lillie Mae MORRIS, Appellant, v. KEYSTONE SECURITY, INC., a Florida Corporation, Appellee.
    No. 76-296.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied April 1, 1977.
    Ralph F. Miles, Hialeah, for appellant.
    West, Friesner, Goldman & Major and Thomas Schwartz, Miami, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiff seeks reversal of an adverse summary final judgment in this action for damages.

On June 6, 1973 plaintiff, Lillie Mae Morris, as purchaser, and The Morgan Company, as seller, entered into a deposit receipt agreement for the purchase of a single family residence. The agreement provided for a closing date within 45 days of the execution thereof. With the permission of The Morgan Company, Mrs. Morris and her daughter moved into the house prior to the closing. As a result of some disagreement between Mrs. Morris and The Morgan Company, the closing did not take place within the 45 days. On October 12 Morgan had the electricity turned off and hired the defendant Keystone Security, Inc. to take possession of the property, change the locks and keep all persons off the premises. Upon returning to the house on the evening of October 13, 1973, Mrs. Morris and her daughter discovered the locks had been changed after unsuccessfully attempting to unlock the door. At that point, an employee of Keystone inside the house came to the door and with a drawn pistol ordered Mrs. Morris and her daughter off the premises after informing them that they were trespassers. Thereupon, Mrs. Morris obtained a circuit court order directing that possession of the premises be restored to her and the electricity be turned back on. Thereafter, Mrs. Morris filed the instant complaint for damages against Keystone Security. Keystone answered and after pretrial discovery filed a motion for summary judgment. The trial court granted the motion based on its findings that (1) record title to the property was in The Morgan Company at the time of the complained of incident; (2) the electricity had been turned off at the bequest of Morgan and this fact was known to Mrs. Morris; (3) Morgan had hired Keystone to take possession of the property and to keep all persons off and out of the premises.

Viewing the record in a light most favorable to Mrs. Morris, we find genuine issues of material facts which warrant reversal. See 2 FlaJur. Appeals § 307 (1963) and cases cited therein. In particular issues exist as to the nature of the agency relationship between defendant Keystone Security and The Morgan Company; the extent of the alleged force and threats used on Mrs. Morris upon her return to the premises; the right of Mrs. Morris to reside on the premises and the extent of her interest, if any, therein. We also note that there was no showing that the purchase contract had been declared void by reason of default on the part of appellant, Mrs. Morris.

Reversed.


text:
    Irving ALPERT, Administrator of the Estate of Jack Paul, Deceased, Appellant, v. The CONCORD FLORIDA, INC., a Florida Corporation, d/b/a Concord Cafeteria, et al., Appellees.
    No. 76-467.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied April 1, 1977.
    Gershon S. Miller, Miami Beach, for appellant.
    Corlett, Merritt, Killian & Sikes, Greene & Cooper, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

This is an appeal from an order of dismissal with prejudice against appellant Irving Alpert, administrator of the Estate of Jack Paul, deceased, for failure to file a motion for substitution within 90 days from the filing of a suggestion of death as prescribed by Fla.R.Civ.P. 1.260(a)(1), and from an order denying appellant’s notice to vacate the order of dismissal on the grounds of alleged excusable neglect.

We have carefully considered the record on appeal, briefs and arguments of counsel and have concluded that no reversible error has been made to appear. King v. Tyree’s of Tampa, Inc., 315 So.2d 538 (Fla. 2d DCA 1975).

Affirmed.


text:
    Amidi ZUBERI, Appellant, v. The STATE of Florida, Appellee.
    No. 76-596.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied April 1, 1977.

      Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender and Michael Zelman, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Amidi Zuberi was indicted for first degree murder, tried by jury, found guilty, convicted and sentenced to life imprisonment. This appeal follows.

The first point here presented is that the trial court erred in denying Zuberi’s motion for judgment of acquittal where the State solely relied upon the felony murder rule for conviction, and where the State failed to adduce any evidence that Zuberi was perpetrating or attempting to perpetrate, a robbery at the time of the victim’s death.

The test to be applied on review of denial of a motion for judgment of acquittal is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt, but rather whether the jury must reasonably so conclude. Hernandez v. State, 305 So.2d 211 (Fla. 3d DCA 1974). Although we chose not to repeat the sordid details of the crime in this opinion, suffice it to say, there was substantial competent evidence before the trial court from which the jury as a trier of fact could reasonably conclude that Zuberi participated in the commission of the robbery, either as an aider or abettor, or as a principal at the time of the victim’s death. The record reflects that Zuberi’s version of the events, as revealed by his statements to the police and his trial testimony, is contradictory and inconsistent. The credibility and probative force of such conflicting evidence is properly a question of fact for the jury. It is clear that the jury could reasonably conclude that Zuberi participated in the robbery as an aider or abettor or as a principal.

Section 782.04(l)(a), of the Florida Statutes provides for felony murder where a death has occurred in connection with the crime of robbery or burglary. Numerous first degree murder convictions have been sustained under the felony murder rule in Florida. See, for example, Leiby v. State, 50 So.2d 529 (Fla.1951); Swan v. State, 322 So.2d 485 (Fla.1975); Thompson v. State, 328 So.2d 1 (Fla.1976). We find that no error has been demonstrated on this point.

Zuberi’s second point is that the trial court erred in failing to charge the jury on the essential elements of robbery, the supporting felony in this felony murder conviction; and in failing to grant his requested instruction as to the necessary sequence of. events to support a felony murder conviction.

In our opinion, the jury instructions on the felony murder charge were sufficient to enable the jury to reach a verdict based on the law. Moreover, it appears from the record that defense counsel failed to object when the judge presented the charge to the jury. In order to preserve the issue for appellate review, a party must object to the failure to give an instruction before the jury retires to consider its verdict. Febre v. State, 158 Fla. 853, 30 So.2d 367 (1947); Blatch v. State, 216 So.2d 261 (Fla. 3d DCA 1968); Rule 3.390(d), Florida Rules of Criminal Procedure.

As to the defendant’s contention that the court improperly denied his requested instruction on the time sequence for the commission of the robbery and the homicide under the felony murder rule, we find that he is precluded from raising this issue on appeal because no objection was made at trial. Further, a judgment will not be reversed for failure to give a particular charge where, as here, on the whole, the charges as given are clear, comprehensive and correct. Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971).

No reversible error having been made to appear, the judgment of conviction and sentence herein appealed are affirmed.


author: PEARSON, Judge.

text:
    Walter B. LEBOWITZ, Appellant, v. The STATE of Florida, Appellee.
    No. 74-863.
    District Court of Appeal of Florida, Third District.
    March 10, 1977.
    Robert A. Shupack, North Miami Beach, for appellant.

      Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PEARSON, Judge.

The appellant was convicted in a jury trial of the crime of buying, receiving or concealing stolen property, to wit: a purse, in violation of Section 811.16, Florida Statutes (1973). He appealed from the judgment, and this court entered an affirmance on the judgment in an opinion filed May 27, 1975 (Fla.App., 313 So.2d 473). The Supreme Court of Florida, thereafter, denied certiorari, finding that it was without jurisdiction (Fla., 330 So.2d 19). Subsequently, the cause came to be heard before the Supreme Court of the United States (October term, 1976) upon a petition for writ of certiorari to this court. The petition resulted in a mandate of the Supreme Court of the United States, entered October 4, 1976 (429 U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 68) vacating the judgment of this court and remanding the cause for consideration by us in light of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

The facts of this case, which are set out in our prior opinion (see 313 So.2d 473), culminated in the issuing of a search warrant, resulting in the police going to the home of the appellant at 8:00, Saturday morning, December 8, 1973. At that time, the police searched the appellant’s home and found the purse in question.

When the appellant took the stand and was cross-examined by the State, the prosecutor asked the appellant a series of questions about his silence with regard to the location of the purse during the search of his home by the police officers. In this regard, appellant takes the position that he was denied his right to remain silent and free from self-incrimination under the Fifth Amendment, and also denied his right to a fair trial, where the prosecutor inquired on cross-examination concerning his failure to explain to the police his possession of recently stolen property.

The question now before us, upon the mandate of the Supreme Court of the United States remanding the case to us, is to consider whether the recent case of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), changes the result in the present case. We hold that it does not.

Upon consideration of this case in light of Doyle, we find two critical distinctions between the two cases. First of all, the Doyle case is “post-arrest” oriented. Secondly, the Doyle case involved repeated objections to the questions asked on cross-examination. In the present case, the cross-examination did not refer to “post-arrest” silence but rather to silence that took place at the time of the search of the appellant’s home. Also, unlike Doyle, the present case involved no objections to the cross-examination question.

To quote from Mr. Justice Powell, delivering the opinion of the court in the Doyle case, “The question in these consolidated cases is whether a state prosecutor may seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. We conclude that the use of the defendant’s post-arrest silence in this manner violates due process, and therefore reverse the conviction of both petitioners.” [Emphasis added] A reading of Mr. Justice Powell’s opinion leaves no doubt that the thrust of the case was “post-arrest” oriented.

Further, we note Mr. Justice Powell’s recognition of the fact that “ . . . unless prosecutors are allowed wide leeway in the scope of impeachment cross-examination some defendants would be able to frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge.”

Additionally, we are buttressed here by the fact that in Doyle objections were made to the cross-examination questions, whereas in the present case, objections were not made. See Cali v. State, 111 So.2d 703 (Fla. 2d DCA 1959); and cf. Tafero v. State, 223 So.2d 564 (Fla. 3d DCA 1969).

We, therefore, conclude that the Doyle case is not controlling in the present instance and, accordingly, we hereby reaffirm our prior decision in this case.

Affirmed.

HENDRY, C. J., dissents.

      . Doyle v. Ohio 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 at 97 (1976), footnote 7.


text:
    Ralph B. McKAY, for himself and for the use and benefit of Shelby Mutual Insurance Company, Appellant, v. Dean Allen MOTLEY, a minor, by and through his father, guardian and next friend, George E. Motley and George E. Motley, Individually, Appellees.
    No. 76-1533.
    District Court of Appeal of Florida, Second District.
    March 11, 1977.
    John M. Elias, of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Peters-burg, for appellant.
    John A. Lloyd, Jr., of Lloyd & Henni-ger, St. Petersburg, for appellees.
   PER CURIAM.

Appellant/plaintiff/counterdefendant, Ralph B. McKay, appeals a partial summary judgment on the issue of liability entered in favor of appellees/defendants/counter-plaintiffs, Dean A. Motley, a minor and his father, George E. Motley.

The complaint alleged that Dean Motley’s negligence in the operation of a motorcycle caused it to collide with appellant’s automobile and that the negligence of Dean Motley is imputed to George Motley. Appellant was seeking recovery for damages to his automobile resulting from the collision. Appellees answered and filed affirmative defenses and counterclaims. Dean Motley counterclaimed seeking compensatory and punitive damages alleging that appellant’s negligence in the operation of his automobile caused personal injury to Dean Motley and that appellant’s negligence constituted willful and wanton disregard for the safety of others. George Motley counterclaimed for costs of Dean Motley’s medical treatment and for damages for loss of companionship. Appellees moved for summary judgment on the issue of liability. The trial court granted the motion and entered a partial summary judgment finding that appellant’s negligence was the proximate cause of the damages resulting from the accident.

Since the decision of the Florida supreme court in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), which adopted the doctrine of comparative negligence, it is less probable that a summary judgment on the issue of liability would be appropriate. The depositions of the four persons involved in the accident, the affidavit of a witness to the accident, and other evidence presented to the trial court fails to show conclusively that no genuine issue of material fact existed as to the negligence of Dean Motley. See Holl v. Talcott, 191 So.2d 40 (Fla.1966). Accordingly the partial summary judgment is reversed.

REVERSED and REMANDED for proceedings consistent with this opinion.

BOARDMAN, C. J., and McNULTY and OTT, JJ., concur.


text:
    TRAVELERS INDEMNITY COMPANY, Appellant, v. Odell DAVIS, Appellee.
    No. DD-98.
    District Court of Appeal of Florida, First District.
    March 15, 1977.
    Rehearing Denied April 4, 1977.
    Janis M. Halker of Gurney, Gurney & Handley, Orlando, for appellant.
    Paul R. Stern of Stern & LaRue, Daytona Beach, for appellee.
   PER CURIAM.

This case was scheduled for oral argument on March 23, 1977 by prior order of this court. Since the case was scheduled for argument, this court has resolved the single point presented on this appeal by its opinion in Comeau v. Safeco Insurance Company of America, 342 So.2d 1085 (Fla. 1st DCA 1977), Opinion filed March 3, 1977. In Comeau, this court said:

“By this appeal, we are called upon to construe a part of the Florida Automobile Reparations Act, subsection (4) of Section 627.736, Florida Statutes (1975), which provides that personal injury protection benefits shall be primary, ‘except that benefits received under any workmen’s compensation law shall be credited against the benefits provided by subsection (1)’. Subsection (1) limits the benefits to $5,000.00.
“Comeau contends that subsection (4) requires a personal injury protection insurer to supplement workmen’s compensation benefits until the insurer has paid its limits of $5,000.00. Safeco contends that the subsection requires an insurer to supplement workmen’s compensation benefits until the insured has been paid, both from workmen’s compensation benefits and from the insurer, $5,000.00.”
“. . . The legislature clearly and plainly stated in subsection (4) that workmen’s compensation benefits are credited against the statutory $5,000.00 limitation. It is obvious that the legislature intended that when workmen’s compensation benefits are received for the same items of loss and expense under any workmen’s compensation law, the total aggregate limit of personal injury protection benefits available with respect to such bodily injury shall be reduced by the amount of workmen’s compensation benefits received.”

In the case sub judice, the learned trial judge, who was without the benefit of our opinion in the Comeau case, held contra.

Accordingly, pursuant to the authority vested in us by Fia.App. Rule 3.10e., oral argument in this case is dispensed with and the case is reversed and remanded for further proceedings consistent herewith.

REVERSED.

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


text:
    Enondrus Eugene JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 76-138.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943); Cole v. State, 262 So.2d 902 (Fla. 3d DCA 1972); O’Donnell v. State, 326 So.2d 4 (Fla.1975).


text:
    Rene ZUARZO, Appellant, v. BANKERS FIRE AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 76-178.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    West, Friesner & Goldman, Miami, for appellant.
    Preddy, Haddad, Kutner, Hardy & Josephs and Howard K. Chema, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Newbern Distributing Co., v. Canal Insurance Company, 124 So.2d 721 (Fla.2d DCA 1960); Tapscott v. State Farm Mutual Automobile Ins. Co., 330 So.2d 475 (Fla.1st DCA 1976); Allstate Insurance Company v. Stevens, 445 F.2d 845 (9th Cir. 1971).


text:
    Vincent SHERBA, Appellant, v. The STATE of Florida, Appellee.
    No. 76-532.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and William Grodnick, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., BARKDULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Long v. State, 44 Fla. 134, 32 So. 870 (1902); Parrish v. State, 97 So.2d 356 (Fla. 1st D.C.A. 1957); Harper v. State, 141 So.2d 606 (Fla. 2nd D.C.A. 1962); Rumph v. State, 248 So.2d 526 (Fla. 1st D.C.A. 1971); Martin v. State, 323 So.2d 666 (Fla. 3rd D.C.A. 1975).


text:
    HUNT TRUCK SALES & SERVICE, INC., a Florida Corporation, d/b/a Thermo King of South Florida, Appellant, v. JODY’S LEASING CO., a Florida Corporation, Appellee.
    No. 76-924.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Booher & McGrotty, Fort Lauderdale, for appellant.
    Alfred J. Anton, Miami, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Lyden v. DePiera, 147 So.2d 573 (Fla. 3d DCA 1962); Althouse v. State Farm Fire & Casualty Company, 183 So.2d 859 (Fla. 3d DCA 1966); First National Bank of Eureka v. Davis, 226 So.2d 857 (Fla. 4th DCA 1969); Fernandez v. Arocha, 308 So.2d 45 (Fla. 3d DCA 1975).


text:
    Mary Jane ROTONDO, Appellant, v. Dr. Leon N. GREENE et al., Appellees.
    No. 76-1994.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Hunter, Atkinson & Golden and Stephen F. Bacen, Hollywood, for appellant.
    Magill & Sevier and Victor H. Womack, Miami, for appellees.
    Before HENDRY, C. J., BARKDULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal presents the question of whether, on a motion for costs filed by a defendant who has been voluntarily dismissed from an action for damages for personal injuries, it is proper for the court to include, in the costs allowed, the dismissed defendants’ attorney’s fee as was done in this case. The ruling of the trial court charging the plaintiff with said defendants’ attorney’s fee as costs is hereby reversed on the authority of Campbell v. Maze, 339 So.2d 202 (Fla.1976), recently decided by the Supreme Court of Florida. It is so ordered.


text:
    Sylvester HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 75-335.
    District Court of Appeal of Florida, Second District.
    March 16, 1977.
    Jack 0. Johnson, Public Defender, and Paul J. Martin, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged with aggravated assault while on probation for a prior criminal offense. A probation revocation hearing was held to determine whether the alleged assault constituted a violation of appellant’s probation. During the hearing, appellant’s counsel moved that a hearing be held to determine appellant’s mental competence to stand trial. The court granted the motion for a hearing as to the pending substantive charge, but denied it as to the probation revocation proceedings. Appellant’s probation was revoked, and he was sentenced to five years in prison. Appellant appeals the order revoking his probation. We reverse.

It appears from the record that the trial judge was under the impression that there was no authority for him to conduct a competency hearing in a probation revocation proceeding. The common-law rule which has long been recognized in Florida is that “if at any time while criminal proceedings are pending against a person accused of crime, whether before or during or after the trial, the trial court . has facts brought to its attention which raise a doubt of the sanity of the Defendant, the question should be settled before further steps are taken.” Brown v. State, 245 So.2d 68, 70 (Fla.1971) (emphasis added). Fla.R.Crim.P. 3.210(a) provides for a hearing to determine a defendant’s competency at the time of trial if there are reasonable grounds to believe the defendant is insane. The purpose of the common-law rule and the rule of procedure is to insure that all persons who must defend themselves in the criminal arena are mentally capable of assisting in the conduct of that defense. See Deeb v. State, 118 Fla. 88,158 So. 880 (1935). A probation revocation hearing is, therefore, a criminal proceeding within the purview of the rules, since the defendant’s liberty is at stake and his ability to assist in his own defense may be determinative of the outcome of the revocation hearing.

The order revoking appellant’s probation is vacated. The case is remanded for a hearing to determine appellant’s present competence and for further proceedings consistent with this opinion.

BOARDMAN, C. J., and McNULTY and OTT, JJ., concur.


author: PER CURIAM. McNULTY, Judge,

text:
    John L. GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 76-629.
    District Court of Appeal of Florida, Second District.
    March 16, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, Greg A. Johnson, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed.

BOARDMAN, C. J., and OTT, J., concur.

McNULTY, J., concurs in part; dissents in part with opinion.

McNULTY, Judge,

dissenting in part.

I would agree to an affirmance of the judgments and sentences on two of the three charges under which appellant was convicted, i. e., the breaking and entering with intent to commit involuntary sexual battery charge and the cruelty to animals charge; but I would reverse the grand larceny charge and direct that judgment and an appropriate sentence be imposed for pet-it larceny for the reason that the evidence, as a matter of law, is insufficient to support a finding that the value of the property stolen equaled $100 or more.

The property taken from the home of the victim consisted of new toys, purchased a month before the theft for $65, and a clock radio purchased three months before for $69.95, all of which were intended to be used for Christmas gifts. A three year old pocket calculator, having originally cost $129, and a small alarm clock (no value testified to) were also taken. No effort was made to establish the current market value (the essential test) of any of the items as of the time of taking.

The state’s sole argument is that even if the pocket calculator and small alarm clock are discounted, the intended Christmas gifts were purchased just a few months before for a total of $134.95, they were still new and, since it was so near Christmas at the time of taking (December 12), the jury would be entitled to infer that they could be returned to the place of purchase for a full cash refund. I cannot accept that argument. It can only be supported by an impermissible proliferation of inferences.


text:
    Alice H. SAHARUNI, Individually, and as Executrix of the Estate of Sooren Saharuni, Deceased, Appellant, v. Seda Nercession SAHARUNI, Appellee.
    No. 76-1811.
    District Court of Appeal of Florida, Second District.
    March 16, 1977.
    Richard B. Lansdale, Naples, for appellant.
    Thomas R. Brown of Vega, Brown & Nichols, Naples, for appellee.
   PER CURIAM.

The question herein is whether appellee-wife’s motion for relief from a judgment of dissolution of marriage, filed pursuant to Fla.R.Civ.P. 1.540(b) and alleging a perjured affidavit for constructive service in commencement of the action, may be heard when filed more than one year after judgment. The trial judge answered in the affirmative and we agree.

Rule 1.540(b), supra, provides that a motion filed thereunder and predicated on fraud must be made “not more than one year after the judgment,” while such a motion predicated on grounds that the “judgment ... is void” may be made “within a reasonable time.” True it is that a “perjured” affidavit for constructive process is a fraud — certainly upon the court; but if, as here, it also operates allegedly to deny the defendant due process “notice,” no jurisdiction over the person of the defendant ever vested in the court and its judgment as to such defendant is void. This principle is particularly appropriate in a marriage dissolution proceeding.

We are of the view, therefore, that the motion filed herein is properly before the court and that the interlocutory order denying appellant’s motion to dismiss it should be affirmed.

AFFIRMED.

HOBSON, A. C. J., and McNULTY and OTT, JJ., concur.

      . The affidavit alleged that the plaintiff-hus- . band could not find the whereabouts of the wife notwithstanding due diligence. The allegations in the motion herein not only deny this, but set forth underlying facts which, if true, affirmatively put the lie to it.

      . See Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla.4th DCA 1970); Craven v. J. M. Fields, Inc., 226 So.2d 407 (Fla.4th DCA 1969).


author: SMITH, Judge.

text:
    John S. STORY, Appellant, v. J. M. FIELDS, INC., Appellee.
    No. CC-359.
    District Court of Appeal of Florida, First District.
    March 18, 1977.

      James F. McKenzie, Pensacola, for appellant.
    William Fisher, III, of Fisher, Bell & White, Pensacola, for appellee.
   SMITH, Judge.

Story appeals from an adverse judgment entered on a directed verdict for appellee Fields at the‘close of Story’s evidence in a jury trial. Story’s claim is that Fields, in an effort to collect a consumer debt of Story’s, engaged in' practices prohibited by Section 559.72 and made actionable by Section 559.77, Florida Statutes (1975). The question is whether Story’s evidence made a case for the jury.

The trial court correctly eliminated from the jury’s consideration, for lack of evidence, Story’s assertions that Fields unlawfully simulated judicial process, that Fields disclosed information affecting Story’s reputation to persons whom Fields should have known had no legitimate business need for the information, and that Fields’ representative used “willfully abusive language in communicating with the debtor or his family.” Section 559.72(5), (8), (10). We believe the trial court erred in holding the evidence insufficient on Story’s claim that Fields willfully communicated with him and his family with such frequency as to constitute harassment under Section 559.72(7):

“In collecting consumer claims, . no person shall:
“(7) Willfully communicate with the debtor or any member of his family with such frequency as can reasonably be expected to harass the debtor or his family

Story considered himself aggrieved by Fields’ failure to repair a Fields brand air conditioner bought 15 months earlier. Story therefore advised Fields’ credit manager, Allen, that he intended not to make payments on other merchandise Story had purchased on credit until the air conditioner was repaired. Story’s evidence, which Allen substantially contradicted, tended to prove that Allen then telephoned Story at his home, at the residences of other members of his family, and at his business places to demand payment of Story’s debt. According to Story’s evidence, which we must accept in determining the propriety of a directed verdict, the telephone calls came almost daily, sometimes two or three times daily, and amounted to at least 100 calls over a period of five months. Story testified that he returned some but by no means all of Allen’s calls, spoke with him at least once a week, and finally told Allen to stop bothering him and to take the matter to court, for he did not intend to pay.

We do not underestimate the difficulties presented by the deceptively simple language of Section 559.72(7). How frequent must communication be to constitute harassment? Suggestions of a wholly quantified standard seem artificial, because the effect of repeated telephone calls is colored by their tone and purpose. See Annot., 56 A.L.R.3d 457, 469-73 (1974). The proposers of legislation similar to Section 559.72(7) suggest that such an “admittedly imprecise” provision invokes the “role of the courts ... to reflect contemporary standards of fair conduct . . . . ” Scott and Strickland, Abusive Debt Collection—A Model .Statute for Virginia, 15 Wm. & Mary L.Rev. 567, 585 (1974). If that is so, and we have little doubt of it, we know it is ordinarily the business of juries, not of judges, to reflect such standards. For good or ill, this legislation largely commits to juries the double role of defining appropriate standards and applying them on a case by case basis, after considering not only the frequency of the calls but also the legitimacy of the creditor’s claim, the plausibility of the debtor’s excuse, the sensitivity or abrasiveness of the personalities and all other circumstances that color the transaction.

Section 559.72(7) is not entirely without semblance of objective, predictable standards. It requires willfulness, and thus recognizes that:

“Unless some latitude is given the creditor to invade, to a reasonable extent, the debtor’s right of privacy, without incurring liability, we may well end up with the result that the creditor will find it preferable to proceed immediately with legal action when a debt becomes in default, without any warning to the debtor, rather than run the risk of being answerable to a supersensitive debtor . . . . ” Household Finance Corp. v. Bridge, 252 Md. 531, 543, 250 A.2d 878, 885-86, 56 A.L.R.3d 446, 455 (1969).

Our Supreme Court has differentiated between conduct which subjects a creditor to liability for actual or statutory damages and conduct which subjects him additionally to conventional punitive damages: the former remedy is appropriate when willfulness is shown but “the legal standard of malice is not met” and the latter sanction is applied when “malicious intent” is proved. Harris v. Beneficial Finance Co. of Jacksonville, 338 So.2d 196, 200 (Fla.1976). Thus willfulness is as defined by the Court in Chandler v. Kendrick, 108 Fla. 450, 452, 146 So. 551, 552 (1933), characterizing language in the usury statute:

“A thing is willfully done when it proceeds from a conscious motion of the will, intending the result which actually comes to pass. It must be designed or intentional, and may be malicious, though not necessarily so.”

See also Dezell v. King, 91 So.2d 624, 626 (Fla.1956). Malice, on the other hand, imports a wrongful act done to inflict injury or without a reasonable cause or excuse. Wilson v. O'Neal, 118 So.2d 101 (Fla.lst DCA 1960).

The standard that emerges from Section 559.72(7) therefore concerns the purpose as well as the frequency of the creditor’s calls. Proof of numerous calls does not make a jury issue on liability if all must agree the creditor called only to inform or remind the debtor of the debt, to determine his reasons for nonpayment, to negotiate differences or to persuade the debtor to pay without litigation. The trier of fact may consider such communications harassing in their frequency, however, when they continue after all such information has been communicated and reasonable efforts at persuasion and negotiation have failed. Beyond that point communication “can reasonably be expected to harass the debtor or his family,” because it tends only to exhaust the resisting debtor’s will. If the creditor intends that likely effect, further communication is willful and actionable. If his communications evidence a purpose to inflict insult and injury, or are wholly without excuse, punitive damages may be awarded.

The jury here could properly have considered that appellee Fields willfully communicated with Story and members of his family with such frequency as could reasonably be expected to harass them. Proof of almost daily calls amounting to more than 100 in a five month period, continuing after Story told Fields’ representative to quit calling and go to court, was sufficient to present a case for the jury on the issue of actual or statutory damages. Even under Story’s evidence, however, Fields’ calls were without invective; they were made during normal business hours; and Fields’ demand for payment did not lack cause. The calls were not malicious, and the issue on punitive damages was properly withdrawn from the jury. Wilson v. O’Neal, supra; contrast Azrikan v. O’Brien, 173 So.2d 711 (Fla.Bd DCA 1965). The case will be remanded for a new trial on the issues of liability and actual or statutory damages.

REVERSED.

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


text:
    EQUIBANK, N. A., a National Banking Association, Appellant, v. S. Perry PENLAND et ux., Appellees.
    No. CC-405.
    District Court of Appeal of Florida, First District.
    March 18, 1977.
    Louis N. Scholnik, of Graham, Hodge, Swan & Larson, P.A., Fort Lauderdale, for appellant.
    Charles Thomas Shad, Jacksonville, for appellees.
   PER CURIAM.

Appellant seeks reversal of an order of the trial judge dismissing its complaint with prejudice. Appellant concedes that Reese v. Damato, 44 Fla. 692, 33 So. 462 (1902) is contrary to its contentions but urges that the antiquity of that case in the light of modern pleading practices requires that we recede from its holding. Although we are of the view that even were it not for the holding of Reese v. Damato, supra, the learned trial judge would have nevertheless been correct in dismissing appellant’s complaint under the circumstances of this particular case, we agree that the teachings of Reese v. Damato, permits no other result and even should we be of the view that those teachings are anachronistic or incorrect it is not our prerogative to “recede” from an opinion of our Supreme Court. (Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

AFFIRMED.

BOYER, C. J., and MILLS AND ERVIN, JJ., concur.


text:
    SEARS, ROEBUCK & COMPANY, Petitioner, v. Marguerite A. RICHARDSON, Respondent.
    No. DD-288.
    District Court of Appeal of Florida, First District.
    March 18, 1977.

      S. Thompson Tygart, Jr., of Tygart & Tygart, Jacksonville, for petitioner.
    Hal S. Castillo, of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for respondent.
   DREW, E. HARRIS, (Retired) Associate Judge.

During the progress of the trial of this cause, the court entered an order declaring a mistrial because of the improper conduct of the plaintiff in attempting to discuss the testimony of a witness with one of the members of the jury. After the entry of the order declaring the mistrial, the defendant moved the court for an order taxing costs against plaintiff occasioned by her misconduct and moved that she be adjudged in contempt. Both motions were denied. We are asked to review such orders.

The statute governing the assessment of costs provides “The clerk or the judge shall tax the costs accruing in each action when it is determined . . . (Emphasis added). It is well established that costs are not awarded except where authorized by statute or agreement of the parties and that such costs are taxable only pursuant to statute or rule. In the light of the plain language of the statute, the trial court correctly denied the motion to tax costs at that stage of the trial. We find no merit to Petitioner’s contention concerning the denial of the motion to hold the plaintiff in contempt.

The trial court retains full jurisdiction and authority under the statute to determine all questions of costs when the litigation has been finally determined. In the taxation of costs after final determination of the cause, he may take into consideration events arising out of both the proceedings prior to the declaration of a mistrial and those which occur thereafter. In the event of a judgment favoring the plaintiff, we see no reason why, if the trial court should so determine, the amount of costs occurring because of the conduct of the plaintiff, causing the mistrial, should not be deducted from the amount awarded in said judgment.

Certiorari Denied.

McCORD, Acting C. J., and MASON, ERNEST E., (Retired) Associate Judge, concur.

      . § 57.021, Fla.Stat. (1975).

      . American Service Mutual Insurance Co. v. Wilson, 323 So.2d 645 (Fla. 4th DCA 1975), and Lake Region Paradise Island, Inc. v. Graviss, 323 So.2d 610 (Fla.2d DCA 1975).

      . Chatlos v. City of Hallandale, 220 So.2d 353 (Fla.1968), concerning procedures for reviewing cost judgments.


text:
    Eugene Hiram COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 76-579.
    District Court of Appeal of Florida, Second District.
    March 16, 1977.
    Jack O. Johnson, Public Defender, Bar-tow, Brian Donerly, Public Defender Intern and A. Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Eugene Collins appeals the revocation of his probation and the imposition of a prison sentence. We reverse.

Appellant was originally sentenced to one year in the county jail on March 9, 1973. On August 24 of the same year the balance of his sentence was suspended, and he was placed on probation. During the probationary period a violation occurred and the probation was revoked.

Fla.R.Crim.P. 3.800(b) provides that the trial court “may reduce a legal sentence imposed by it at the same term of court at which it had been imposed, or if such term ends less than sixty days after the imposition of the sentence, then within sixty days after such imposition.” The term of court at which the appellant was originally sentenced ended on April 3, 1973. Section 26.34, Florida Statutes (1973), Therefore, the trial court lost jurisdiction over the appellant sixty days after sentencing, or after May 8, 1973. This being the case, the mitigation of sentence on August 24 was a nullity. Moss v. State, 330 So.2d 742 (Fla. 1st DCA 1976); Sayer v. State, 267 So.2d 42 (Fla. 4th DCA 1972).

Reversed and remanded to the trial court with directions to reinstate the original sentence of March 9, 1973, and to give credit thereon for time served.

BOARDMAN, C. J., and McNULTY and OTT, JJ., concur.