text:
    STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. Federico Sainz de la MAZA and Carmen de la Maza, his wife, Appellees.
    No. 75-585.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Feb. 10, 1975.
    Rehearing Denied April 1, 1976.
    Jeanne Heyward, Talburt, Kubicki & Bradley, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by State Farm Fire and Casualty Company, defendant in the trial court, from a final judgment based on a jury verdict in favor of the plaintiffs, Federico Sainz de la Maza and Carmen de la Maza, his wife, in an action to determine matters of insurance coverage and bad faith.

This action stems from an incident which occurred in 1968. The evidence shows that Federico Sainz de la Maza was accidently shot by one Senen Brito Alfonso on the latter’s premises. In 1969, the de la Mazas filed an action for damages against Brito and against State Farm Fire and Casualty Company, with which Brito was insured under a homeowner’s policy providing $25,-000 coverage. State Farm defended the action on the basis that there was no coverage. The coverage issue was severed and a trial was held on the issue of damages only. The de la Mazas recovered judgment against the defendants in the amount of $55,000 which is $30,000 in excess of Brito’s policy limits.

In 1972, the de la Mazas instituted an action against State Farm alleging bad faith in failing to settle the prior action within the policy limits. State Farm’s defense was based mainly on lack of cooperation on the part of Brito, its insured, who failed to appear for either trial. The issues of bad faith and coverage were tried together in this action. The jury was given special interrogatories as to both matters, and it returned a verdict in favor of the plaintiffs on the issue of negligence and bad faith and on the issue of alleged lack of cooperation. The court then entered judgment on the jury verdict in favor of the plaintiffs.

On appeal from the judgment, State Farm raises several points as error. The thrust of the appeal is that the trial court improperly excluded evidence as to the issues of coverage and bad faith in that it refused to admit testimony as to telephone calls made by the attorney for State Farm and his secretary to persons in New Jersey who may have known Brito’s whereabouts. These potential witnesses were not called to testify on behalf of the defense. Therefore, the trial court permitted the attorney and his secretary to testify as to what they themselves said, but excluded testimony as to what the potential witnesses said on the phone, as hearsay. State Farm contends that there are matters which would reflect that its efforts to get Brito to appear at the trial were diligent albeit futile. Our review of the record shows that the evidence was properly excluded and that there is substantial competent evidence that Brito did cooperate with State Farm. Accordingly, we find no reversible error on this point.

Another point on which State Farm relies heavily is that the manner in which it proceeded with the case and its failure to settle within the policy limits was based upon its attorney’s legal opinion of no liability. It appears from the record, however, that State Farm’s reliance on advice of counsel was not applicable in that counsel failed to revise his legal opinion when the law relating to the duty owed to a social guest was changed in the decision in the case of Billen v. Hix, Fla.App. 1972, 269 So.2d 284, although we realize the decision was filed only ten days prior to the date of trial in the original action.

We have reviewed the remaining points on appeal and find them to be without merit. Therefore, the judgment herein appealed is affirmed on the authority of Campbell v. Government Employees Insurance Company, Fla.1974, 306 So.2d 525. Also see Rova Farms Resort, Inc. v. Investors Insurance Company of America, 65 N.J. 474, 323 A.2d 495 (1974).

Affirmed.


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    Vincent FARESE, a/k/a Vincent Somma, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. X-71.
    District Court of Appeal of Florida, First District.
    March 23, 1976.

      James L. Harrison of Harrison & Fine-gold, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Defendant was charged with aggravated assault and convicted by a jury as charged. He appeals from the judgment of conviction and sentence to the state prison.

The issue which is determinative here is whether the trial court erred in refusing to declare a mistrial where the State adduced testimony that after defendant was arrested and given his constitutional rights, he remained silent.

During the State’s direct examination of the arresting officer, the following occurred :

“Q. Did you place him under arrest and advise him of his constitutional rights ?
A. Yes.
Q. Did Mr. Farese, after you had done this — did he ever make any statement to you ?
A. No, he did not.
Q. Nothing in the way of explanation or anything?
A. No, Sir.”

The defendant moved for a mistrial. It was denied. However, the trial court did strike the testimony and admonished the jury to disregard the testimony.

This was fundamental error. Comment on a defendant’s right to remain silent is a constitutional defect which requires reversal without regard to the doctrine of harmless error. Bennett v. State, 316 So.2d 41 (Fla.1975).

In fairness to the trial court, we point out that Bennett v. State had not been rendered at the time of its ruling, and that Bennett reversed this Court’s decision in Wright v. State, 251 So.2d 890, which applied the harmless error doctrine.

In addition, we would like to commend the Assistant Attorney General, who handled this case on appeal for the State, for his candor, sense of fair play and helpfulness to the Court.

Reversed and remanded for a new trial.

McCORD, Acting C, J., and SMITH, J., concur.


author: OWEN, Judge. KAPNER, LEWIS, Associate Judge

text:
    David S. ALCOTT and A. J. Richter & Company, a Florida Corporation, Appellants, v. WAGNER & BECKER, INC., a Florida Corporation, et al., Appellees.
    No. 74-1166.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.

      Charles A. Goff, of Law Offices of Carl W. Turner, Fort Lauderdale, for appellants.
    Peter A. Portley and William F. Sullivan, of Zimmerman, Haywood & Portley, Pompano Beach, for appellees.
   OWEN, Judge.

Appellants, real estate broker and salesman, brought this suit to recover a commission from the sellers of certain business property. Upon non jury trial, plaintiffs/appellants suffered an involuntary dismissal at the close of their case, precipitating this appeal.

Count III of the plaintiffs’ second amended complaint alleged a breach of an exclusive listing agreement executed by the parties. The plaintiffs’ evidence in support of this count, when viewing all reasonable inferences therefrom most favorably to the plaintiffs, established the following: (1) plaintiffs were to be compensated in a fixed amount if they secured a purchaser for defendants’ business property; (2) plaintiffs’ advertisement of the property brought an inquiry from one Joseph Gubman; (3) Gubman, upon learning that the property belonged to the defendants with whom he was personally acquainted, thereafter contacted and dealt directly with them; (4) at all times Gub-man was acting as the agent of the ultimate purchaser, one Navel, Inc.; and (5) the sale was consummated as a result of continuous negotiations between Gubman and defendants, from which negotiations the plaintiffs were purposely excluded.

This made out a prima facie case, for as we said in First Realty Corporation of Boca Raton v. Standard Steel Treating Company, 268 So.2d 410, at 413 (Fla.App. 4th 1972):

“When the broker has brought the prospective parties together, they cannot complain that the broker did not participate in negotiations when they have purposely excluded the broker from these negotiations by dealing with one another directly and in secret. National Airlines, Inc. v. Oscar E. Dooly Associates, Inc., Fla.App.1964, 160 So.2d 53; Moylan v. Estes, Fla.App.1958, 102 So.2d 855; Mead Corporation v. Mason, Fla.App. 1966, 191 So.2d 592.”

It may well be that had the same evidence been presented to the trial judge as the trier of fact, he might have, in weighing the evidence, found for the defendants. However, it is not the privilege of the trial court to weigh the evidence when ruling on a defendant’s motion for involuntary dismissal at the close of the plaintiff’s case. Tillman v. Baskin, 260 So.2d 509, 55 A.L.R.3d 267 (Fla.1972).

The judgment is reversed and this cause remanded for a new trial.

REVERSED and REMANDED.

WALDEN, C. J., concurs.

KAPNER, LEWIS, Associate Judge, concurs in part, dissents in part, with opinion.

KAPNER, LEWIS, Associate Judge

(concurring in part, dissenting in part) :

Although I agree that the law in Florida precludes a judge in a nonjury trial from granting a motion for a directed verdict if the plaintiff makes out a prima facie case and I, therefore, concur that this case should be reversed, I respectfully dissent from that portion of the majority opinion remanding the case for an entire new trial. I believe that the remedy should be to remand this case to the trial judge for further proceedings not inconsistent with this order.

Whether a judge sitting in a non-jury case can weigh the evidence upon a defendant’s motion for directed verdict made after plaintiff’s case is a matter of diverse opinion throughout the nation, but the matter has been recently laid to rest in the case of Tillman v. Baskin (Sup.Ct., 1972) 260 So.2d 509, which held that a trial judge may not do this. Numerous cases decided subsequent to Tillman have confirmed this view. See cases cited in She-perds’ Florida Citations, December, 1975, page 132.

Although this view is therefore now well-established in Florida, it is not uncommon for attorneys in such cases to move for a directed verdict at . the close of the plaintiff’s case, assuming that the trial judge will determine not only that a prima facie case has not been made, but will also weigh the evidence. It is also not uncommon for judges to make this same error.

In the case sub judice, while the attorneys directed their arguments to whether a prima facie case was made out, it is not clear whether the attorneys and the judge were perfectly clear on the rule established in the Tillman case. At the close of the plaintiff’s case, the attorneys argued both the law and the facts, but no where did the plaintiff’s attorney inform the court that he needed only to prove a prima facie case to justify a denial of defendant’s motion, nor did he inform the judge that it is incumbent upon him (the judge) to view all reasonable inferences in favor of the plaintiff. He simply argued that under the evidence presented, the judge should deny the defendant’s motion for directed verdict. (T 73-77). In fact, even in plaintiff’s petition for rehearing (R-33), the only procedural objection raised by the plaintiff was that he was not given the opportunity to rebut defendant’s evidence which was offered out of turn.

With respect to the evidence itself, plaintiff used such terms as: “Judgment is not supported by the evidence or the greater weight of the evidence,” “a. It was fully proven and undisputed . . . etc. (Emphasis added.) (R-33). It was not until his assignments of error did he even suggest that the judge’s error was in weighing the evidence, and, then, only very generally: “ . . . and further was contrary to the law of Florida.” (R-37).

The technical issue then upon which we now reverse this case is brought up for the first time before this court rather than the trial court.

It is not surprising that there is some confusion regarding the applicability of this rule. The rule itself contains language to support the proposition that the judge may weigh the evidence after the plaintiff’s case:

Rule 1.420(b): “. . . after a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of his evidence, any other party may move for dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief . . . ” (Emphasis added.)

The editorial note following this rule cites “New Florida Common-Law Rules," John T. Wiggenton, 3 University of Florida Law Review 1, 8 (1950), as follows:

“The test for reviewing the propriety of an order granting an involuntary dismissal at the conclusion of the case of the party seeking affirmative relief differs in a non-jury trial from the test for determining the correctness of a trial court’s order granting a motion for directed verdict at the close of the case of a party seeking affirmative relief. Where appellate review is sought of an order granting a motion for a directed verdict, the proper test of correctness of the order is
‘ . . . when the evidence, when considered in its entirety, and the reasonable inferences which may be drawn therefrom, fail to prove the plaintiff’s case under the issues made by the pleadings . .

Florida Statutes Annotated, Vol. 30, 31, 32, 33, at page 307.

Florida Statutes Annotated, supra, under section 1, cites several cases supporting Wiggenton’s view: Tampa Wholesale Co. v. Foodtown, U.S.A., Inc., (Fla.App.2nd 1966) 166 So.2d 711; Lorber v. Aetna Life Insurance Co. (Fla.App.3rd 1968) 207 So. 2d 305; and several others. The annotation does not cite Tillman, supra, until section 6, and this section also cites cases contrary to this view, all of which were decided prior to the Tillman case, but which could easily be misleading to attorneys unless they actually read the Tillman case. Although several cases have been decided subsequent to the Tillman case supporting this view, none of these latter cases are contained in the annotation.

In other words, until 1972, the rule apparently was that the judge could weigh the evidence after the plaintiff’s case in ruling on a motion for a directed verdict under rule 1.420(b). As previously stated, in this case plaintiff presented his evidence which we have determined to have established a prima facie case. At the close of his case, defendant moved for a directed verdict, the attorneys argued the facts and the law, and the judge granted the motion. The judge erred, and the issue now is the remedy.

In the case sub judice, while we do not know what was inside the judge’s mind when he made this ruling, at least three possibilities arise: 1. He may have believed the plaintiff’s evidence but was in error as to its legal sufficiency; 2. With respect to defendant’s evidence offered out of turn, the court may or may not have given it any weight; or if he did give it weight, he may have felt that plaintiff had ample opportunity to rebut said evidence in his case in chief if he so desired; 3. He may have been fully aware of the applicable law, aware that plaintiff presented a prima facie case, but did not believe the plaintiff’s evidence and, therefore, did not believe plaintiff made out a sufficient case. In any event, I see no reason to require a completely new trial.

If the first situation occurred, this case should be remanded to the trial judge so that the defendant may have an opportunity to present his evidence. With respect to the second situation, the case should be remanded to the trial judge to give the plaintiff an opportunity to present rebuttal testimony, if the judge in fact gave weight to the defendant’s evidence. If the third situation occurred, the case should be remanded to the trial judge with instructions to proceed with the case in a manner consistent with our ruling. If he simply found plaintiff’s evidence insufficient as a matter of fact, I can see no earthly reason why the judge should be prohibited from announcing his conclusion, permitting the defendant to rest, and finding in favor of defendant so that the case could be concluded without further burden to the court, attorneys, parties, witnesses, etc. A plaintiff simply has no right to require a defendant to assist him in proving his claim which he (the plaintiff) has failed to do in his own case in chief.

It goes without saying that every man is entitled to his day in court, but he is not entitled to two days in court, unless the error at the trial level is such that a new trial is the only or best remedy. In the words of Justice Thomas, Lake v. Lake (Sup.Ct., 1958) 103 So.2d 639, 642:

, “The quality of justice may not be gauged by treatment accorded one litigant without regard to his adversary. Justice should be done, but not overdone.” (Emphasis added.)

This is a matter of the greatest concern because with the greatest respect to my brethren, decisions such as this contribute substantially to congestion in the courts and a feeling of unfairness in litigants who find themselves embroiled in lawsuits. The trial judge perhaps made a simple technical error in granting defendant’s dismissal, which now calls for reversal, but, if the trial judge would have required the defendant to present his evidence and the trial judge then made the same ruling, we would now affirm. The question then occurs to the ordinary non-legal, non-technical observer: Why is the plaintiff appealing since the judge probably would rule against the plaintiff anyway? The answer is simple: With the granting of a new trial, the plaintiff now has an additional opportunity to go out and re-prepare his case and present evidence not presented originally: Thus, he is given an additional and unwarranted day in court at the expense of the defendant. Or, he may now move for trial by jury which probably would be granted, rather than trial before the court: Again a second day in court at the defendants expense.

This unnecessary burden on an overcrowded court system, this needless encouragement to attorneys to appeal for technical rather than substantial grounds, and this unfairness to this defendant, who in all probability would have won his case if the defendant used the magic phrase, “I rest my case and ask that the defendant be found not guilty” rather than the phrase, “I ask for a directed verdict,” will be avoided by a policy either of affirming such cases on the grounds that the trial judge is presumed to have ruled properly or, at most of remanding these cases for further consideration in light of the appellate court’s ruling rather than requiring an entire new trial.

These considerations are especially appropriate in this case. It appears that the first time the complaint about the judge’s action in dismissing the case rather than requiring the defendant to present his case is made here at the appellate level. Lawyers should be encouraged to bring matters such as this to the attention of the trial court prior to bringing them up at the appellate level for the first time. If they do this, the trial judge will have an opportunity to correct such technical defects, thus saving time and trouble for everyone concerned. Laxity by this court in this regard is bound to stimulate endless appeals upon minor technical grounds with which this court should not be burdened.

I concur in the court’s decision to reverse the case, but I would remand for further proceedings not inconsistent with this order. To be specific, the case should be referred back to the same trial judge. If his decision was the result of a mistake of a legal evaluation of plaintiff’s evidence, he should permit defendant to present his case. If, further, he considered defendant’s evidence in evaluating the case, he should give plaintiff an opportunity to rebut that evidence, unless he concluded that plaintiff had ample opportunity to present rebuttal of that evidence prior to his (plaintiff’s) closing. If, on the other hand, the judge was aware of the applicable law but was unconvinced by plaintiff’s evidence he should be permitted to announce his conclusion, perhaps even permitting plaintiff to produce additional evidence, if in the judge’s discretion justice so requires, and render his verdict accordingly. Therefore, I would reverse and remand for proceedings not inconsistent with this ruling.

       Since this matter was raised in the plaintiff’s petition for rehearing and the judge denied this petition, it is a fair assumption that the judge gave no weight to that testimony or that the judge felt the plaintiff had ample opportunity to present rebuttal evidence in his case in chief. In any event, either the trial judge should be presumed to have acted correctly or he, and not this court should make that factual determination.


author: PER CURIAM.

text:
    BURLEIGH HOUSE CONDOMINIUM, INC., Appellant, v. Herbert BUCHWALD, Trustee, Appellee.
    No. 75-666.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.

      Joseph S. Paglino, Miami, for appellant.
    Steel, Hector & Davis, Miami, for appel-lee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant, Burleigh House Condo-minimum, Inc., a condominium association, filed an action againt the developer-lessor for declaratory judgment as to its rights under a recreation lease and as to amounts, if any, owing by plaintiff to defendant for rental under the lease for a certain period. In that civil action in the circuit court of Dade County, No. 73-27193, the court entered two judgments.

In one of the judgments, dated March 4, 1974, and recorded March 7, 1974, the court granted judgment on the pleadings in favor of the defendant as to the subject matter of counts numbered I and II of the amended complaint, on the ground of res judicata based on a prior action which the court cited by style and number. From that judgment the plaintiff filed an appeal on March 25, 1974 (No. 74-450).

In the second judgment, dated March 6, 1974, and recorded March 8, 1974, the court dismissed with prejudice “the claims asserted by plaintiff, which seek on various grounds abatement of the rent prescribed by the Burleigh House Community Facility Lease between the parties for the period from July 25, 1970, and September 24, 1970”, and held the defendant Herbert Buchwald, trustee, was entitled to recover from the plaintiff rental under the lease in the amount of $43,092.00 with $1,873.95 interest, aggregating $44,965.95, for which judgment was entered and execution ordered to issue. From that judgment the plaintiff appealed on April 2, 1974 (No. 74-492), by a notice of appeal which stated “The portion of the judgment appealed from is the denial of the plaintiff’s claim for damages, voiding of the leasehold and other relief as prayed for in the complaint by plaintiff and the granting of the damages demanded in the counterclaim by counter-claimant”. The defendant cross appealed from the ruling of the court disallowing defendant’s claim for attorney’s fees.

On motion of plaintiff-appellant, those appeals were consolidated in this court. While the appeals were pending, the parties, acting without the assistance of their attorneys of record, entered into a compromise on October 24, 1974, incident to which the parties signed a “Settlement and Release Agreement”, as follows:

“WITH REGARD TO Civil Action No. 73-27193 between BURLEIGH HOUSE CONDOMINIUM, INC., Plaintiff, and HERBERT BUCHWALD, TRUSTEE, Defendant, pending before the Third District Court of Appeal, the following is hereby mutually promised and agreed upon;

1. Each of the parties to the above described suit hereby agrees to withdraw it’s Appeal and Cross-Appeal; and

2. Upon execution of this agreement, the parties will authorize and direct their Attorneys to prepare a Stipulation for Dismissal, which shall be filed with the Third District Court of Appeal; and

3. Herbert Buchwald, Trustee and Burleigh House, Inc., hereby release and forever discharge Burleigh House Condominium, Inc., their heirs, executors, administrators, assigns, property and estate from any and all right, claims, demands or obligations arising out of the issues raised in the litigation described above, under the laws of any state or territory of the United States or of any foreign country as such laws exist or may hereafter be enacted or amended; and

4. Burleigh House Condominium, Inc., for itself and on behalf of the Unit Owners of the Burleigh House Condominium, hereby release and forever discharge Herbert Buchwald, Trustee, and Burleigh House, Inc., their heirs, executors, administrators, assigns, property and estate from any and all right, claims, demands or obligations arising out of the issues raised in the litigation described above, under the laws of any state or territory of the United States or of any foreign country as such laws exist or may hereafter be enacted or amended; and

5. Herbert Buchwald, Trustee, and Burleigh House, Inc., hereby agree to indemnify and hold Burleigh House Condominium, Inc., harmless from any claims or costs whatsoever in connection with the legal fees incurred in defending the above described litigation; and

6. Burleigh House Condominium, Inc., hereby agrees to indemnify and hold Herbert Buchwald, Trustee and Burleigh House, Inc., harmless from any claims or costs whatsoever in connection with the issues raised in the above described litigation.”

On the basis of that instrument, by a motion which included a copy thereof, the ap-pellee applied for dismissal of the appeals. After a noticed hearing on the motion, this court entered an order which stated, “that jurisdiction of this cause is remanded to the trial court for the purpose of the trial court’s determining if the Settlement and Release Agreement resolved all the issues raised by the parties herein”.

On April 17, 1975, after a hearing thereon at which testimony was taken, the trial court entered the order from which the plaintiff has taken the present appeal (No. 75-666). Therein the trial court denied the plaintiff’s motion for jury trial on the matter to be heard on the remand, and, in determination thereof, held the “Settlement and Release Agreement” was valid and binding on the parties and their counsel, and further held as follows: “The Settlement and Release Agreement accurately expressed the intent of the parties and operates to settle and resolve all matters of controversy involved in this cause (Case No. 73-27193) and all issues raised on appeal (consolidated Cases Nos. 74-492 and 74-450 pending in the District Court of Appeal), without any reservation, limitation or exclusion”.

Upon receipt of a certified copy of such-, order of the trial court, this court dismissed appeals numbered 74-450 and 74-492. A petition for rehearing thereof, filed by the appellant, was denied.

On this appeal by the plaintiff below from the trial court’s order determining the scope and effect of the settlement agreement, the appellant contends the trial court erred in denying its request for a jury trial on the matter, and that the finding and ruling of the trial court as to the scope or effect of the settlement are contrary to the weight of'the evidence and not supportable by the evidence.

The court properly heard the matter without jury trial. First, this court had remanded the matter for determination by the trial court. Secondly, there was involved the necessity to resolve a latent ambiguity created by the written settlement agreement. Although clear on its face, as an apparent intent of the parties to settle the controversies involved in the cause, an ambiguity arose by reason of the circumstance that while the settlement agreement made reference to pendency of the cause on appeal, two appeals were pending, only one of which involved the money judgment and counterclaim, giving rise to a question of whether the settlement had reference to the subject matter of both appeals or only one of them. Such a latent ambiguity was properly resolved by the court on receiving testimony submitted by the parties bearing thereon.

On the question of the sufficiency of the evidence, we hold that the finding and judgment of the trial court on the scope and effect of the settlement had the support of competent substantial evidence. Appellant’s representative at the meeting at which the settlement was negotiated, drafted and signed, testified his intent was to settle only the money judgment and the counterclaim, and that his authorization by the corporation’s board was thus limited. However, the authorizing resolution, which was read into evidence, was not clear on that point and itself was ambiguous. The ambiguity therein was not resolved by other evidence. Opposed to that inconclusive resolution and the testimony of the plaintiff’s representatives at the settlement meeting, was testimony of the defendant’s representative at the meeting, who there drafted the settlement instrument and presented it for signature. The latter witness testified he explained to and informed the representatives of the plaintiff at the meeting as to the full scope and effect of the settlement agreement. This court may not re-evaluate the evidence. The trial court’s resolution of the matter on the conflicting evidence should not be disturbed. See Westerman v. Shell’s City, Inc., Fla. 1972, 265 So.2d 43.

The order appealed from is affirmed.

      . The plaintiff paid the defendant $30,000.00, and the latter relinquished the claim against the plaintiff for attorney’s fees.


author: SMITH, Judge.

text:
    W. R. SCOTT, d/b/a International Engineers, Appellant, v. PREMIUM DEVELOPMENT, INC., Appellee.
    No. Z-82.
    District Court of Appeal of Florida, First District.
    March 23, 1976.

      Robert B. Staats of Staats & Nabors, Panama City, for appellant.
    Marvin A. Urquhart, Jr., of Urquhart & Austin, Panama City, for appellee.
   SMITH, Judge.

By default a judgment was entered against Scott canceling his recorded mechanics lien under § 713.21(4), F.S.1973, declaring it fraudulent under § 713.31(2) (a) and retaining jurisdiction to assess against Scott compensatory and punitive damages, costs and reasonable attorneys fees incurred by Premium Development, Inc., in- obtaining discharge of the lien. Scott appeals, urging that the trial court abused its discretion in declining to set aside the default and consequent judgment.

Scott initiated the proceedings on May 5, 1975, by claiming a lien against Premium’s land in the amount of $136,971.16 for labor and materials furnished under a site development subcontract with Premium’s prime contractor. Secs. 713.01-.36, F.S. 1973. The claim of lien was recorded in accordance with § 713.08. Premium responded on May 14 by filing a complaint in the circuit court for discharge of the lien and for damages and other relief accorded by § 713.31 against fraudulent liens.

Sec. 713.21(4) provides in part:

“Upon filing a complaint . . . [for an order discharging a lien] by any interested party the clerk shall issue a summons to the lienor to show cause within twenty days why his lien should not be enforced by action or vacated and cancelled of record. Upon failure of the lienor to show cause why his lien should not be enforced or his failure to commence such action before the return date of the summons the court shall forthwith order cancellation of the lien.”

A rule to show cause was issued and served on Scott May 14, returnable June 3.

On May 28 the parties and their counsel met to discuss settlement. They concluded that litigation was unavoidable and parted. June 3 passed without the filing of a response to the rule by Scott. The attention of Scott’s lawyer had been diverted to other professional responsibilities; he had not received an abstract of public records affecting the title to the property, ordered to aid in the preparation of a counterclaim for foreclosure; and he thought he would be notified if Premium’s lawyer decided to insist on strict adherence to the prescribed schedule. Scott’s lawyer filed no appearance. He did not request of his adversary or of the court, formally or informally, an extension of time for Soctt’s response.

On the morning of June 4, without notice, Premium’s lawyer applied to the clerk for a default against Scott, which was entered. Rule 1.500(a), R.C.P. The next afternoon, June 5, Scott’s lawyer notified Premium’s by telephone that he had just received the abstract and would file an answer and counterclaim for foreclosure in a day or so, and was advised in turn that a default had already been entered. Neither lawyer asked for or received from the other any information or assurances concerning their respective plans.

On the afternoon of June 6, on ex parte application by Premium’s lawyer, the court below entered final judgment. Later that day, Scott’s lawyer filed a motion to vacate the default entered by the clerk two days earlier and, on June 12, he filed a motion to vacate the final judgment entered June 6.

A motion to set aside a default judgment addresses itself to the discretion of the trial court. Rules 1.500(d), 1.540 (b), R.C.P.; Florida Inv. Ent., Inc. v. Kentucky Co., 160 So.2d 733 (Fla.App. 1st, 1964). Cf. Rules 55(c), 60(b), Fed. R.C.P.; 6 Moore’s Federal Practice (2d ed.) para. 55.10[4]; 10 Wright and Miller, Fed.Prac. and Proc. § 2693 (1973). The trial court clearly is better able than we to weigh the proper effect in particular circumstances of the policy favoring prompt and orderly disposition of judicial business and the competing policy that it be determined on the merits.

In this case the trial court was substantially influenced to deny Scott relief from his default by the unique nature of the statutory proceeding. The assertion of a lien can have a drastic effect on the delicately balanced finances of land development. See Ervin, Revised Mechanics’ Lien Law; The Whys and Wherefores, 37 Fla.B.J. 1095, 1098 (1963). The legislature therefore provided affected parties the remedy invoked by Premium whereby a lienor may be judicially required to show cause within 20 days certain why his lien should not be enforced by action or else vacated. On Scott’s failure to respond to the rule by the return date and his failure to obtain an order extending the time for his response, the court was entirely correct in following the mandate of the statute by forthwith ordering the cancellation of Scott’s lien against Premium’s property.

For the same reasons, we hold that the trial court acted properly within the limits of its discretion in declining to set aside the final judgment against Scott consequent upon the default. Assuming without deciding that trial courts have power to set aside defaults in § 713.21(4) proceedings, this was not a case requiring such extraordinary action by the trial judge.

The affidavit of Scott’s lawyer, filed in support of his motion to set aside the default and consequent final judgment, reveals in some detail his reasons for urging that his neglect to respond was excusable. Whether or not the affidavit sufficiently carried that point, it clearly did not contain a factual demonstration that Scott had a meritorious defense. Except to say the parties’ conference on May 28 disclosed that there was a legitimate dispute between the parties and that Premium was indebted to Scott “over and above [the amount] set forth in [Premium’s] Complaint,” the affidavit contains no factual showing either that the lien should not have been enforced by action before June 3 or forthwith cancelled [§ 713.21(4)] or that Scott did not willfully exaggerate in asserting a lien of $136,971.16 [§ 713.-31(2)(a)]. Having shown no factual basis for his claim of a meritorious defense, Scott was not entitled to relief under Rules 1.500(d) and 1.540(b), R.C.P. Metcalf v. Langston, 296 So.2d 81 (Fla.App. 1st), cert. dism. 302 So.2d 414 (Fla.1974); Wesley Constr. Co. v. Yarnell, 268 So.2d 454 (Fla.App. 4th, 1972). Contrast Knight v. Gainer, 310 So.2d 58 (Fla.App. 1st, 1975); Palmer Johnson, Inc. v. Buxton, 262 So.2d 892 (Fla.App. 2d, 1972) ; Florida Inv. Ent., Inc. v. Kentucky Co., supra. See also Wright and Miller, supra, § 2697.

AFFIRMED.

McCORD, Acting C. J., and FULLER, RICHARD S., Associate Judge, concur.


author: GRIMES, Judge.

text:
    Terry A. DAY, a minor, by his father and next friend, Keith D. Day, et al., Appellants, v. NATIONWIDE MUTUAL INSURANCE CO., a Foreign Corporation, and Regina M. Bricker, Appellees.
    No. 75-1048.
    District Court of Appeal of Florida, Second District.
    March 17, 1976.
    Robert G. Shoemaker and Robert G. Varner, Jr. of Joseph H. Chambers, P.A., St. Petersburg, for appellants.
    Donald V. Bulleit and Edward M. Waller, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellees.
   GRIMES, Judge.

This case is one of first impression in Florida. The issue is whether a cause of action in tort exists for prenatal injuries negligently inflicted where the injured child is born alive.

On March 9, 1973, Regina Bricker’s car collided with an automobile driven by Ann Day. At that time Ann Day was in her sixth week of pregnancy. Terry A. Day was born November 19, 1973, with severe cerebral damage.

The lower court dismissed the two counts of the complaint which sought recovery for injuries to Terry Day alleged to have been caused by the accident. The judge expressed a personal preference for the child’s position but reasoned that the claim must be denied because neither the common law nor the case law of this state recognized a cause of action for prenatal injuries.

Initially, the courts of this country denied recovery of damages for injuries suffered by a child in its mother’s womb. Dietrich v. Northampton, 1884, 138 Mass. 14, was the first case to deny recovery. The rationale for the decision was that the unborn child was part of its mother rather than an individual human being. The holding of Dietrich was precedent for sixty years.

In 1946, a U. S. District Court broke with Dietrich and held that a child born alive had a cause of action for prenatal injuries sustained after viability. Bonbrest v. Kotz, D.D.C.1946, 65 F.Supp. 138. This case began a trend towards allowing recovery for prenatal injuries where the child was born alive. Currently, at least thirty jurisdictions now recognize the right to recover for prenatal injuries, and no court has held to the contrary for thirty years.

A related issue over which there is less agreement is whether the accident must have occurred after the child becomes viable; that is, where it is capable of living apart from its mother. Some jurisdictions which first permitted claims for prenatal injuries following Bonbrest appeared to limit recovery to those injuries occurring after viability. However, seventeen jurisdictions now permit an action to be maintained for negligently inflicted prenatal injuries without regard to viability, and no jurisdiction which first seemed to limit recovery to those instances involving a viable fetus has later denied recovery to a child who survived an injury suffered before it became viable.

The primary rationale for the classification of viability/non-viability is that proving causation is difficult when the injury occurs in the early stages of pregnancy. Thus, in discussing limitations upon the recovery for prenatal injuries, Prosser states:

“There is something to be said on both sides of this. Viability of course does not affect the question of the legal existence of the foetus, and therefore of the defendant’s duty; and it is a most unsatisfactory criterion, since it is a relative matter, depending on the health of mother and child and many other matters in addition to the stage of development. Certainly the infant may be no less injured; and all logic is in favor of ignoring the stage at which it occurs. But with our knowledge of embryology what it is, as we approach the beginning of pregnancy medical knowledge, and therefore medical testimony and medical proof of causes, becomes increasingly unreliable and unsatisfactory, so that there is good reason for caution. This, however, goes to proof rather than principle; and if, as is undoubtedly the case there are injuries as to which reliable medical proof is possible, it makes no sense to deny recovery on any such arbitrary basis.” Prosser, Torts, § 55 (4th Edition, 1971).

The issue is one of causation, not viability. Difficulty of proof should not prohibit the assertion of a cause of action.

The Restatement of Torts originally stated that one who negligently caused harm to an unborn child was not liable to the child for the harm. However, in its Tentative Draft No. 16 dated April 1970, the Council of the American Law Institute recommended a total revision of Section 869 so as to state the following:

“§ 869. HARM TO UNBORN CHILD.
“(1) ONE WHO TORTIOUSLY CAUSES HARM TO AN UNBORN CHILD IS SUBJECT TO LIABILITY TO THE CHILD FOR SUCH HARM IF IT IS BORN ALIVE.”

The comments which follow clearly indicate that the rule is intended to apply regardless of viability.

Appellees raise the issue that a fetus of six weeks is not a "person” in the constitutional law sense. They analogize to the case law concerning abortion, which holds that termination of pregnancy in the first trimester is within the pregnant woman’s personal discretion. Therefore, if a fetus of six weeks is not a “person” for purposes of an abortion, how can it be a “person” for purposes of this lawsuit? This court is not persuaded by such logic.

The decision to have an abortion during the first trimester has been held to be private and personal to the individual woman. Roe v. Wade, 1973, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; Doe v. Bolton, 1973, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201. The primary interest, at least in the early stages of pregnancy, is that of the woman and her right to privacy. But, Roe v. Wade and Doe v. Bolton, supra, also recognize that the interest of society increases with the development of the fetus to the point that states may proscribe abortions during the last trimester of pregnancy except where necessary to preserve the life or health of the mother.

Here, however, the primary concern is the child who has suffered an injury and who in many instances must go through life with an injury or some resulting deformity. Additionally, society also has a very direct concern. A child who is born alive but inflicted with a physical or mental injury or deformity is a potential public charge. Where the injury or deformity is caused by the fault of another, fairness dictates that the financial needs of such child should be borne by the tortfeasor rather than the taxpayer.

A child injured before birth and born alive is a person under the Florida and Federal Constitutions. As such, that person is entitled to all of the constitutional rights, privileges and protections afforded to all other persons.

Florida already recognizes property rights in an unborn child providing it is born alive. Shone v. Bellmore, 1918, 75 Fla. 515, 78 So. 605. A tort claim for a prenatal injury is no less important. We hold that a child born alive, having suffered prenatal injuries at any time after conception, has a cause of action against the alleged tortfeasor. If the child is born alive, there is a relation-back to the time of injury in order for the infant person to maintain its cause of action.

This court is not unmindful of the possibly false or fraudulent claims the holding in this case could engender. However, the plaintiff will be bound by the burden or proving a direct causal link between the alleged tortious behavior of the defendant and the prenatal injuries. If such causation is not proven, the plaintiff will, of course, be denied recovery, just as in any other tort case. In this regard, we believe that comment d to Section 869 in the Tentative Draft of the Restatements is apropos:

“d. The rule stated in Subsection (1) is not limited to unborn children who are ‘viable’ at the time of the original injury, which is to say, then capable of independent life, if only in an incubator. If the tortious conduct and the legal causation of the harm can be satisfactorily established, there may be recovery for any injury occurring at any time after conception. It is obvious, however, that in the present state of medical knowledge of embryology, as we approach the beginning of pregnancy medical testimony in proof of a causal connection becomes increasingly speculative, unreliable and unsatisfactory, and tends to become mere conjecture. For that reason a court may properly require more in the way of convincing evidence of causation when the injury is claimed to have occurred during the early weeks of pregnancy than when it comes later. This is not a matter of viability, nor is there any fixed and definite line to be drawn at any particular state of development of the foe-tus.”

The dismissal of Counts JII and IV of the complaint is REVERSED.

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

      . The significance of the child being born alive is well illustrated in Stokes v. Liberty Mutual Insurance Company, Fla.1968, 213 So.2d 695, which involved the claim for the wrongful death of a stillborn fetus.

      . E. g., Womack v. Buckhorn, 1971, 384 Mich. 718, 187 N.W.2d 218; Scott v. McPheeters, Cal.App.1939, 33 Cal.App.2d 629, 92 P.2d 678, reh. den’d., Cal.1939, 33 Cal.App.2d 629, 93 P.2d 562; Tucker v. Howard L. Carmichael and Sons, Inc., 1951, 208 Ga. 201, 65 S.E.2d 909.

      . See Smith v. Brennan, 1960, 31 N.J. 353, 157 A.2d 497.

      . E. g., Woods v. Lancet, 1951, 303 N.Y. 349, 102 N.E.2d 691.

      . E. g., Henry v. Jones, D.Mass.1969, 306 F. Supp. 726; Sinkler v. Kneale, 1960, 401 Pa. 267, 164 A.2d 93.

      . See Smith v. Brennan, supra.

      . For further references in harmony with our view, see 40 A.L.R.3d 1222 and the note at 16 Fla.L.Rev. 527 (1963) entitled “The Case of the Prenatal Injury.”


author: NATHAN, Judge.

text:
    Ralph Owen SANDS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-731.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Gerald Kogan, Miami, for appellant.

      Robert L. Shevin, Atty. Gen., J. Robert Olian, Asst. Atty. Gen., and Joseph F. Iracki, Legal Intern, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   NATHAN, Judge.

Ralph Owen Sands was charged by information in Count I with manslaughter by operating a motor vehicle while intoxicated and in Count II, with manslaughter by culpable negligence. After non-jury trial, the court found Sands not guilty as to Count II and guilty of “driving under the influence of intoxicated [sic] beverage causing property damage and injury,” as a lesser degree of Count I of the information, and sentenced Sands to one year in the county jail.

Sands contends that the offense of which he was convicted is not a lesser degree of the charge of manslaughter by operating a motor vehicle while intoxicated, but is a separate and distinct offense, and, therefore, he should be discharged because the State was limited to the prosecution of the offense of manslaughter for which he was found not guilty. The State agrees with defendant Sands that the court so erred and cross-appeals, requesting this court to reverse and remand with directions to find Sands guilty of manslaughter. Section 860.01, Fla.Stat., provides in pertinent part:

“(2) If, however, damage to property or person of another, other than damage resulting in death of any person, is done by said intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties, by reason of the operation of any of said vehicles mentioned herein, he shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.-083, and if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter, and on conviction be punished as provided by existing law relating to manslaughter.”

In construing § 860.01, Fla.Stat., the trial judge concluded that the first part of subsection (2) of the statute, which pertains to damage to person or property of another done by an “intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties,” does not require as high a degree of intoxication as the word “intoxicated” as it is used later in the same section relating to manslaughter. We do not agree. Being “under the influence of intoxicating liquor” and being “intoxicated” are different terms and do not have the same meaning. Cannon v. State, 1926, 91 Fla. 214, 107 So. 360; Clowney v. State, Fla.1958, 102 So.2d 619. However, “being under the influence of intoxicating liquor to such an extent as to deprive one of the normal control of one’s body or mental faculties, or both,” or “under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties/’ is equivalent to “being intoxicated” as used in § 860.01, Fla.Stat. Clowney v. State, supra; Hanemann v. State, Fla.App.1969, 221 So.2d 228. It follows then that “damage to property or person of another, other than damage resulting in death ... by said intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties,” is a separate and distinct offense and not a lesser included offense of “death . caused by the operation of a motor vehicle by any person while intoxicated.” This is buttressed by the fact that while the elements of the two crimes set forth within subsection two of the statute are identical, the statute makes it clear that damage to person by an intoxicated person and death by an intoxicated person are two different offenses and neither offense is comprehended to be within the scope of the other. Moreover, considering that the accusatory pleading (information) in this case charged Sands with manslaughter, and that all the evidence that was adduced proved that the alleged act of Sands did result in death, there is no rationale for reducing the offense of manslaughter to injury to the person.

Sands, then, not being tried or convicted of the offense with which he was charged, and the offense on which he was convicted not being a lesser included offense, but a separate and distinct one, his conviction must be reversed. Johnson v. State, Fla. App.1969, 226 So.2d 884; Causey v. State, Fla.App.197S, 307 So.2d 197.

We now consider the cross-appeal by the State. Authority for such procedure is pursuant to § 924.07(4), Fla.Stat., which provides in substance that the State may appeal from a ruling on a question of law when a'defendant is convicted and appeals from the judgment. The State is in accord with defendant Sands’ construction of § 860.01, Fla.Stat., that it was error for the trial court to require a higher degree of intoxication to be proved for manslaughter than that provided in the part of the statute relating to damage to property or person other than death. In holding the defendant guilty of the aforementioned separate offense, the trial court necessarily found that the damage was done “by said intoxicated person under the influence of intoxicating liquor to such an extent as to deprive him of possession of his normal faculties by reason of the operation of [a motor vehicle].” That being so, and it having been established that death of a human being was caused by the operation of a motor vehicle by the defendant Sands while in such condition, the offense of manslaughter under the statute was proved. The State, therefore, asks for remand of this cause to the trial court with directions to find Sands guilty of manslaughter. This result we cannot accomplish because the trial court failed to enter the judgment of conviction which was proper and called for on the evidence, thereby in effect acquitting Sands of the charged crime of manslaughter. An accused can only be retried for the offense on which he was convicted or a lesser included offense of the same crime. Otherwise, double jeopardy would attach. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300; Causey v. State, supra. The prohibition against being put in jeopardy for the same offense is an ancient and well-established doctrine and prohibited by our Federal and State Constitutions. Article V, Constitution of the United States; Article I, § 9, Constitution of the State of Florida. Sands having been convicted of an offense with which he was not charged and such offense not being a lesser included offense of manslaughter but a separate and distinct offense and notwithstanding proof of guilt of the offense charged, we have no recourse other than to discharge the defendant. Johnson v. State supra; Causey v. State, supra.

Reversed and remanded with directions.

      . “ . . . I am of the opinion the first section of 860.2, which he is charged with, 868.2, [sic] lesser included offense.

      As far as the felony is concerned. But, the evidence isn’t there in my opinion. In my opinion, I have to rule and I have got a sworn duty to do it with what the evidence presents. And the evidence appears to me to present clearly that he was under the influence of an intoxicating beverage, intoxicating liquor at the time of the offense, which is the precisely proven right down the line to your witnesses as to how many drinks he had.
      The second part under which he is charged, the manslaughter section never mentions those words. It has to he much beyond as I’d read the charge to the jury. And, as you know, it has to be synonymous with drunk, falling down drunk. Drunk, passed out drunk. Incoherent drunk, which is what it takes for the manslaughter charge. But, it isn’t what it takes for the lesser charge of causing damage while intoxicated, which is a misdemeanor of the first degree.”


text:
    UNITED FURNITURE COMPANY, a corporation, Appellant, v. I. F. REGISTER et al., Appellees.
    No. 75-1551.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Stephens, Thornton & Schwartz and Jonathan P. Lynn, Miami, for appellant.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Wicker, Smith, Blomqvist, Dav-ant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an interlocutory appeal from an order denying costs to a defendant who received a judgment in the trial court discharging it from liability. As such, it must be reversed. See Ossinsky v. Nance, Fla. App.1960, 118 So.2d 47; Jordan v. Reynolds, Fla.App.1963, 154 So.2d 200; Spicuglia v. Green, Fla.App. 1974, 302 So.2d 772.

The final judgment in this cause was entered on the 27th of May, 1975. Upon defendant United Furniture’s motion for costs, the trial court entered a cost judgment in the amount of $4,361.26. The judgment was entered against the plaintiffs and cross-plaintiffs jointly. Upon motion of the cross-plaintiffs, the cost judgment was set aside. On this appeal, the defendant urges (1) that it is entitled to costs and (2) that the trial court erred in setting aside its prior determination of costs. Inasmuch as it appears from the record that the ground upon which the trial court set aside its judgment of costs may have been that the cross-plaintiffs had no notice of the hearing, the order setting aside the cost judgment is affirmed insofar as it set aside the previously-entered order.

The second aspect of the order which denied defendant’s motion to tax costs must be reversed on authority of the above cited cases.

Whereupon, the order is affirmed in part, reversed in part and the cause is remanded to the trial court with directions to proceed to determine taxable costs in this matter and to assess said costs against respective parties according to whether the costs to be allowed were incurred upon the defense of the complaint or the cross-complaints respectively.

Affirmed in part, reversed in part and remanded.


text:
    Mercedes CASTILLO, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 75-785.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Grover, Ciment, Weinstein & Stauber, Miami Beach, and Allan S. Friedman, Miami, for appellant.
    Walton, Lantaff, Schroeder, Carson & Wahl, and Richard J. Thornton, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

Plaintiff, Mercedes Castillo, appeals from a judgment on the pleadings for defendant State Farm Mutual Automobile Insurance Company.

The automobiles owned by Maria Sierra and Iluminada Marrero collided. Plaintiff was a passenger in the Sierra car. Mar-rero’s No Fault (Florida Automobile Reparations Reform Act) insurance carrier, Gateway Insurance Company, became insolvent. Plaintiff, Castillo, brought suit for a declaratory judgment against Sierra’s insurer, State Farm Mutual Automobile Insurance Company, seeking to recover damages for bodily injury under the uninsured motorist provision in Sierra’s policy.

State Farm denied coverage on the basis that the insurance policy provides that State Farm is only required to pay such sums as the insured (Sierra) “shall be legally entitled to recover” from the uninsured motorist (Marrero).

Plaintiff having admittedly suffered no permanent injury, and her medical expenses having been less than $1,000, Marrero is “tort exempt” under the Florida Automobile Reparations Reform Act. § 627.737, Fla.Stat. We have considered this fact in the light of the uninsured motorist provision mentioned above, and we hold, therefore, that the plaintiff has no cause of action for bodily injury against State Farm. Accordingly, the judgment on the pleadings in favor of State Farm is affirmed.

Affirmed.


text:
    Merle VAN CLEAF, Appellant, v. STATE of Florida, Appellee.
    No. 75-846.
    District Court of Appeal of Florida, Second District.
    March 19, 1976.

      Jack O. Johnson, Public Defender, and Dan P. Brawley, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

In 1969 appellant, accompanied by his court-appointed counsel, entered a plea of nolo contendere to a charge of forgery. He was adjudicated guilty and placed on three years’ probation. Later that year he was charged with violating the conditions of his probation. He appeared without counsel at the revocation hearing. At the conclusion of the hearing, probation was revoked and appellant was sentenced to three years in the state prison. Appellant is now in prison in New York state. He has filed a motion to vacate the records incident to his revocation proceedings because he was not represented by counsel.

Appellant suggests that the revocation of probation is serving to enhance his prison tenure in New York. In any event, this court recently held in Weir v. State, Fla.App.2d, 1975, 319 So.2d 80, that a person no longer in custody could attack his conviction on Gideon grounds by way of coram nobis. Therefore, we will consider the motion on the merits.

A motion to vacate was filed under similar circumstances in Herrington v. State, Fla.App.2d, 1968, 207 So.2d 323, as a result of which this court stated:

“Florida courts have held that a probationer’s lack of counsel at a proceeding at which probation is revoked and sentence is imposed voids the sentence but not the order of revocation itself. See Bryant v. State, Fla.App.1967, 194 So.2d 21-22; Phillips v. State, FIa.App.1964, 165 So.2d 246, 247. The United States Supreme Court, however, has since ruled that such lack of counsel renders the entire proceeding subject to collateral attack, ‘whether it be labeled a revocation of probation or a deferred sentencing.’ Mempa v. Rhay, 1967, 389 U.S. 128, 88 S.Ct. 254, 258, 19 L.Ed.2d 336, 342. Therefore, if appellant was not afforded the opportunity to be represented by counsel at the hearing in question, both the sentence imposed and the order revoking his probation are void.”

However, the United States Supreme Court more recently revisited the issue in Gagnon v. Scarpelli, 1973, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. In Gagnon, the court held that an indigent person was only entitled to counsel in those probation revocation proceedings where he denied having committed the alleged violation of the condition of his probation or where there are other substantial and complicated reasons which may justify or mitigate the violation. The holding of Mempa v. Rhay, 1967, 389 U.S. 182, 88 S.Ct. 254, 19 L.Ed.2d 336, was limited to the proposition that a person is entitled to court-appointed counsel at sentencing even if this occurs at a probation revocation hearing.

Even though Gagnon tells us that for federal constitutional purposes our Herrington construction of the language of Mempa v. Rhay was stricter than necessary, we are unwilling to recede.from Her-rington because we believe that counsel should be appointed to represent an indigent probationer faced with revocation proceedings.

But does this mean that appellant’s revocation of probation must be set aside? The record reflects appellants probation revocation was predicated upon a conviction of disorderly conduct to which appellant had pled guilty. The effect of the colloquy at the hearing was an admission by appellant of his violation of the conditions of his probation. Measured by Gag-non, this was not the type of case in which counsel was required. We, therefore, hold that the failure to provide appellant with counsel at the revocation hearing was not an error of constitutional dimension. There being no fundamental error, the 1969 probation revocation need not be set aside.

This conclusion cannot be carried over to the sentencing which took place at the conclusion of the hearing because of the constitutional interpretation announced in Mempa v. Rhay. Nevertheless, appellant has already served the sentence, and we see no purpose in seeking appellant’s return from New York for resentencing. Therefore, the lower court’s order denying appellant’s motion is hereby

AFFIRMED.

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


text:
    Edwin Benjamin KAISER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-611.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Ellis Rubin, Miami, and Richard Mor-gentaler, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for ap-pellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant was charged with two counts of assault and battery, two counts of resisting an officer with violence to his person, one count of resisting an officer without violence to his person and obstructing a police officer. The jury found defendant guilty of one count of simple assault, obstructing an officer and one count of resisting an officer with violence to his person. The trial judge entered judgment in accordance with the jury verdicts, and sentenced the defendant to one year in the Dade County stockade. Defendant appeals the judgment of conviction.

The relevant facts are as follows: On December 28, 1974 the daughter and son-in-law of Mr. Erhlickman were unable to leave his home because defendant’s car was parked in front of the Erhlickman’s driveway and Mr. Erhlickman’s wife called the police. After their arrival, the defendant emerged from the next house and moved his automobile. Officer Petrie then questioned the defendant about what appeared to be newly incurred body damage to the front of his automobile. Unsatisfied with defendant’s response, the officer began to read to the defendant Miranda warnings. Defendant turned his back and began to walk away. Officer Petrie, his command to halt having been ignored by the defendant, came up behind defendant and placed a hand on his shoulder. At that point a scuffle ensued and the officer radioed for assistance. With the help of two other officers, the defendant was subdued and arrested.

Defendant urges as error the denial of his motion for directed verdict in that the State did not prove the officer, who was attempting to make the arrest without a warrant, had the lawful authority to make the arrest. We cannot agree.

We conclude Officer Petrie had the right to temporarily detain the defendant for further questioning to continue his investigation, and it did not matter that he did not have the authority to arrest defendant for a crime at that time. See Price v. State, Fla.App.1975, 318 So.2d 468, 471. His detention not being unreasonable, the defendant was not permitted to test the validity of being detained by the investigating officer by either turning his back on the officer and walking away or by engaging in physical combat with him, thus denying the officer the opportunity to continue his legal duty to investigate the cause of the fresh body damage to defendant’s vehicle. See Clarke v. State, Fla.App.1974, 303 So.2d 35 and Fla.Stat. § 843.01, F.S.A; § 21-26 of the Code of Metropolitan Dade County.

Affirmed.

      . “843.01 Resisting officer with violence to his person
      “Whoever knowingly and willfully resists, obstructs or opposes any sheriff, deputy sheriff, officer of the Florida highway patrol, municipal police officer, beverage enforcement agent, officer of the game and fresh water fish commission, officer of the department of natural resources, any member of the Florida parole and probation commission or any administrative aide or supervisor employed by said commission, any county probation officer or any personnel or representative of the department of law enforcement or other person legally authorized to execute process, in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”

      . “(A)(1) It shall be unlawful for any person to knowingly resist or obstruct the performance by one, who the person knows or has reason to believe is a police officer . . . , of any authorized act within such officer’s capacity.”


author: HENDRY, Judge.

text:
    Albert JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-768.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.

      Pollack, Tunkey, Robbins, Roth & Wei-ner, Miami, and Robert M. Leen, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant, defendant below, appeals from a judgment and sentence for murder in-the second degree.

On March 26, 1975, appellant was tried before a jury on a one count charge of second degree murder. The jury returned a verdict of guilty as charged and, accordingly, the trial court entered its judgment of guilty and sentenced appellant to ten years confinement at hard labor in the Florida State Penitentiary. From this judgment and sentence dated May 8, 1975, appellant appeals.

Appellant contends that the trial court erred in entering the judgment and sentence because during the trial certain statements and confessions made by him were admitted into evidence over his timely objections and motions to suppress them. Also, appellant contends that the trial court erred in denying his motions for mistrial and acquittal. Additionally, appellant contends that the trial court committed fundamental error by instructing the jury that second degree murder was a capital offense.

Appellee, prosecution below, contends that appellant has failed to demonstrate any reversible error in the trial court’s admission into evidence of his various statements and confessions because they were found to be freely and voluntarily made. Appellee also contends that appellant has failed to demonstrate any reversible error in regard to the trial court’s jury charge stating that second degree rriurder was a capital offense.

After a careful review of the record in the instant appeal, we are of the opinion that the trial court did not commit any reversible error by admitting into evidence the statements or confessions complained of by appellant. Each of them was made freely, voluntarily, and, where appropriate, after appellant was fully advised of his legal rights. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, 44 U.S.L.W. 4015 (1975); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966); McDole v. State, Fla. 1973, 283 So.2d 553; Ashley v. State, Fla. 1972, 265 So.2d 685; Fowler v. State, Fla. 1972, 263 So.2d 202; Simmons v. State, Fla.App.1969, 227 So.2d 84; Reynolds v. State, Fla.App.1969, 222 So.2d 246; Cameron v. State, Fla.App.1968, 214 So.2d 370; Foreman v. State, Fla.App.1968, 213 So.2d 754; and Barton v. State, Fla.App.1966, 193 So.2d 618.

The other points raised on appeal by appellant are also without merit. The record shows that he had a full and fair trial and no harmful or prejudicial error has been shown. See Yost v. State, Fla. App.1971, 243 So.2d 469; Blatch v. State, Fla.App.1968, 216 So.2d 261; Sections 59.-041 and 924.33, Fla.Stat., F.S.A.; and Rule 3.390(e), Florida Rules of Criminal Procedure, 33 F.S.A.; and Rule 6.7(g), Florida Appellate Rules, 32 F.S.A.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment of guilt and sentence appealed are affirmed.

Affirmed.


text:
    METROPOLITAN TRANSIT AUTHORITY, a political subdivision of Dade County, Florida, Appellant, v. Raquel PORTER, Appellee.
    No. 75-1589.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Stuart Simon, County Atty., and Thomas Goldstein, Asst. County Atty., for appellant.
    Lewis M. Williams, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, TT.
   PER CURIAM.

This is an interlocutory appeal by the defendant, Metropolitan Transit Authority, from an order of the Circuit Court of Dade County denying appellant’s motion to dismiss plaintiff’s action for personal injuries which she had failed to prosecute for a period of more than one year in accordance with Rule 1.420(e) Florida Rules of Civil Procedure, 30 F.S.A.

It affirmatively appears from the record that no action was taken by filing of pleadings, order of court or otherwise for a period of one year; that reasonable notice of the motion to dismiss was given to the plaintiff and no good cause was shown in writing why the action should remain pending.

It is contended by the appellant that the trial court erred in denying its motion to dismiss. We agree. Dade County v. Moreno, Fla.App.1969, 227 So.2d 548. Therefore, the order appealed is reversed and the cause is remanded with directions to dismiss the cause pursuant to Rule 1.420 (e), Florida Rules of Civil Procedure.

Reversed and remanded.


author: NATHAN, Judge. PEARSON, Judge

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. Bertie CHOTHEN, a minor, By and Through his natural mother and next friend, Rochelle Stewart, and Rochelle Stewart, Individually, Appellees.
    No. 75-1413.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 1, 1976.
    James A. Judkins, Tallahassee, for appellant.
    Levenstein, Burke & Associates and Linda Dakis, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is an interlocutory appeal by the State of Florida, Department of Transportation, one of the defendants, from two orders of the trial court denying a motion for change of venue.

The plaintiffs filed a complaint in Dade County circuit court against three defendants, The State of Florida Department of Transportation, Capelletti Brothers, Inc., and United States Fidelity & Guaranty Company, for damages for personal injuries allegedly received due to the negligence of the defendants in Dade County. There is no question that the accident occurred in Dade County and that the plaintiffs and defendant, Capelletti Brothers are residents of Dade County. Defendant, State of Florida, Department of Transportation, filed a motion to dismiss and to abate for improper venue or in the alternative to transfer to Leon County. The motion alleged that as a government agency, the Department of Transportation has a right to be sued in the county in which its principal office is located, namely Tallahassee, Leon County, Florida.

The trial court entered an order denying the motion to dismiss for improper venue because “ . . . the Department of Transportation is the initial and active sword-wielder in this case and said acts are alleged to have occurred in Dade County, Florida.” The court then entered a second order denying the motion to dismiss for improper venue in which it sets out statutory and case law in support of the denial. Thereupon, the Department of Transportation took this interlocutory appeal.

The appellant relies heavily on State v. Negrin, Fla.App.1975, 306 So.2d 606, as authority for its position. In our opinion, Negrin is inapposite to the case at bar since it treats § 337.19(1), Fla.Stat., which was intended to relate to actions contemplated by Chapter 337, Fla.Stat., “and not tort actions.” The appellant further asserts as authority, and we fully recognize, the well-settled principle that a governmental agency generally has a right to be sued in the county in which the agency’s principal office is located even though there are other defendants with their residences or principal offices in a different county. Flanagan v. Department of Health & Rehabilitative Services, Fla.App. 1975, 314 So.2d 235. We hold, however, that the court was correct in denying the change of venue since the facts presented in the instant case fall within an exception to the general rule.

Section 768.28, Fla.Stat., which waives sovereign immunity in tort actions became effective on January 1, 1975. It provides in pertinent part that:

“(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances . . . ”

Our interpretation of this statute subjecting state agencies to liability in the same manner as private individuals, is that it allows the general venue statutes to apply to such cases.

In addition to statutory authority, we look to Department of Revenue v. First Federal Savings & Loan Association of Fort Myers, Fla.App.1971, 256 So.2d 524, 526, wherein it is stated that,

“The question to be answered in these cases may be said to be whether the state is the initial sword-wielder in the matter and whether the plaintiff’s action is in the nature of a shield against the state’s thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on. On the other hand if plaintiff is the prime mover in the premises against a passive or dormant state or state agency then venue lies properly in the county wherein the state or the agency maintains its official headquarters.”

As the initial sword-wielder in this action, by allegely causing damage to the plaintiffs as a result of negligence, the State of Florida, Department of Transportation, is subject to venue in Dade County.

Affirmed.

PEARSON, Judge

(dissenting).

I am not so much concerned with the decision on this appeal as I am with the fact that the far-reaching effect of the rule that it establishes may be overlooked. The decision, in essence, abolishes for all tort cases the rule that, absent a waiver, the State or its agency may be sued in a county other than that which is the site of its official headquarters only when the official action complained of has, in fact, been or is being performed in the county wherein the suit is filed. See Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, Fla.App.1974, 295 So.2d 314, for a complete statement of the rule and the economic basis thereof.

In my view, the holding here is contrary to that of the District Court of Appeal, First District, in State v. Negrin, Fla.App. 1975, 306 So.2d 606, where that court held, in a negligence action, that the state agency’s motion for change of venue to Leon County should have been granted.

I would follow the decision of the Court of Appeal, First District.

      . § 47.011, Fla.Stat., provides in pertinent part that actions shall be brought only in the county where the defendant resides or where the cause of action accrues. § 47.021, Fla. Stat., provides that in actions against two or more defendants residing in different counties action may be brought in any county in which any defendant resides.


text:
    Ronald Joseph JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-920.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Phillip A. Hubbart, Public Defender, and Karen Gottlieb, Asst. Public Defender, and Irv Lamel, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for ap-pellee.
    Before HAVERFIELD and NATHAN, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was informed against, charged in one count with breaking and entering a building with intent to commit grand larceny, and in a second count charged with the crime of grand larceny. On a jury trial he was convicted on the first count, and has appealed therefrom. On the grand larceny count the jury was unable to agree and an order of mistrial was entered thereon.

While closed over Labor Day weekend, a lawyer’s office was broken into. Some coins of value in excess of $100.00 and other items were taken from a safe, and some business machines were taken. Fingerprints found in the office were determined to be those of the defendant. A confession was made by the defendant. His motion to suppress was heard and denied. The fingerprint evidence and confession were introduced at trial.

Appellant argues the court committed reversible error in denying his motions for mistrial following references in the prosecutor’s opening argument, and in testimony by a state’s witness as to comparison of defendant’s fingerprints found at the scene with his fingerprints previously made and on file. [The prints were also compared with standards taken for that purpose]. We hold that argument is without merit here.

Those references to fingerprints previously taken, or on file, were eviden-tially improvident. However, as to one of them there was an absence of any objection and request for a cautionary instruction (Morris v. State, 100 Fla. 850, 130 So. 582), and as to the other the defendant’s attorney decided against the giving of an instruction to disregard, when such was proposed by the court. Moreover, as argued by the state, any prejudicial effect thereof would not be of the substantiality which is attributed to references to “mug shots”, and even as to the latter it has been held that reference thereto will not constitute automatic reversibility, and that such references should be considered by an appellate court upon the entire record and surrounding circumstances, to determine whether they are of such character that neither rebuke nor retraction would entirely destroy their sinister influence. Loftin v. State, Fla. 1973, 273 So.2d 70; Akin v. State, 86 Fla. 564, 98 So. 609, 612. Also, in view of the overwhelming evidence of guilt, the errors in that regard would not warrant reversal in this case, in view of the harmless error rule.

The trial court correctly denied the defendant’s motion for mistrial based on a claim that a statement made by the prosecutor in final argument amounted to a comment on the failure of the defendant to testify in his own behalf. Read in context, the challenged statement of the prosecutor was not of the character claimed by the defendant, but was legitimate comment on the evidence. No useful purpose would be served by setting out in this opinion the portion of the prosecutor’s argument showing the comment in question and the portions thereof which reveal the context of the argument in relation to which the statement was made. The ruling of the trial court in that connection is supportable under Gray v. State, 42 Fla. 174, 28 So. 53; Clinton v. State, 56 Fla. 57, 47 So. 389; State v. Jones, Fla.1967, 204 So.2d 515; Woodside v. State, Fla.App.1968, 206 So.2d 426.

We find no error in the giving of the “Allen Charge”, when the jury announced its indecision. State v. Bryan, Fla. 1974, 290 So.2d 482; United States v. Furlong, 7 Cir. 1952, 194 F.2d 1; Andrews v. United States, 5 Cir. 1962, 309 F.2d 127. Lee v. State, Fla.App.1970, 239 So.2d 136, is distinguishable on its facts.

No reversible error having been shown, the judgment is affirmed.


text:
    Robert FITZPATRICK, Appellant, v. CITY OF MIAMI BEACH, a political subdivision of the State of Florida, Appellee.
    No. 75-477.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Eugene P. Spellman and Dennis R. Kuhn, Miami, for appellant.
    Joseph A. Wanick, City Atty., and Andrew H. Moriber and Michael Limond, Jr., Asst. City Attys.,' for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   HENDRY, Judge.

Appellant, petitioner below, appeals an order of the circuit court denying his petition for a writ of certiorari.

Appellant was suspended from his position as a police officer with appellee, the City of Miami Beach, respondent below, for a period of five work days due to his alleged misconduct involving another city employee. Subsequently, appellant filed an appeal of his suspension with the Personnel Board of the City of Miami Beach. After a hearing on his appeal, at which appellant contested the merits of his suspension, the Personnel Board entered a decision denying his appeal, finding him guilty of unnecessarily physically abusing a City employee, and upholding his suspension. The record reflects that this decision, dated April 27, 1973, was predicated upon a tie vote of the Personnel Board, i. e., three votes in favor of the suspension and three votes against such disciplinary action.

From the decision, appellant filed a petition for a writ of certiorari to the circuit court challenging the validity of the Personnel Board’s decision. From the circuit court’s order dated February 28, 1975, denying his petition, appellant brings this appeal.

Appellant contends that the burden of proof in his disciplinary hearing before the Personnel Board was upon the appointing authority (the Chief of Police of the City of Miami Beach) and, where balloting by the Personnel Board relative to the merits of his hearing resulted in a tie vote, the appointing authority failed to meet this burden; therefore, the decision of the Personnel Board, predicated upon such a vote, denying his appeal and upholding his suspension deprived him of the essential requirements of law. Appellant concludes that, based on such deprivation, the trial court erred in denying his petition for a writ of certiorari.

Appellee contends that the circuit court did not err in denying appellant’s petition because, as a matter of law, the tie vote of the Personnel Board sustained the disciplinary action of the appointing authority.

In hearings before the Personnel Board, Rule IX (3) (f), Personnel Rules of the City of Miami Beach, provides that the appointing authority shall have the burden of presenting evidence to support the truth of the charges against any employee being disciplined. The fact that the aggrieved employee must initiate the hearing before the Personnel Board or that such action is denominated an “appeal” does not alter the proposition that the burden of proving the basis for a disciplinary action rests with the appointing authority.

As stated by appellee in its brief, the basic question presented by this appeal is whether a tie vote of the Personnel Board, reviewing the action of the appointing authority in suspending appellant, can uphold the suspension. The answer to this question depends upon what criteria should be utilized by the Personnel Board in evaluating the sufficiency of the appointing authority’s evidentiary presentation.

In the case of Florida Dept. of Health & R. S. v. Career Serv. Com’n., Fla.App.1974, 289 So.2d 412, at 415, the court stated as follows:

“We adopt and quote with approval the following comments contained in 2 Am. Jur.2d, supra [Administrative Law], sec. 392:
“‘As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding — that is, a preponderance of the evidence. It is not satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.’ ”

We concur with this statement. Also, as stated in Florida Dept. of Health & R. S. v. Career Serv. Com’n., supra, at 415 n. 2, the following distinction should be noted:

“There is a distinction between the standard by which an administrative tribunal measures the proof presented to it, i. e., preponderance of the evidence, and the standard by which a reviewing court measures the correctness of an administrative order under, i. e., competent substantial evidence. See De Groot v. Sheffield, Fla.1957, 95 So.2d 912, 916. The functions of the two tribunals are dissimiliar and the standards are not interchangeable.”

We are of the opinion, in the instant appeal, the tie vote of the Personnel Board, denying appellant’s appeal and upholding his suspension, did not reflect that the appointing authority met its burden of proof, at appellant’s hearing before the Personnel Board, by showing, by a preponderance of the evidence, that the charges against him were true. The tie vote only reflected that the evidence presented created an equipoise, which did not have the efficacy of substantiating, by the proper rule of evidence, the charges against appellant. For this reason, at his hearing before the Personnel Board, appellant was denied an essential requirement of the law. Therefore, the circuit court erred in denying appellant’s petition for a writ of certiorari.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the order appealed is reversed.

Reversed.


text:
    Ella PEZZI, Appellant, v. BURNUP & SIMS, INC., a Florida Corporation, et al., Appellees.
    No. 74-1144.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 1, 1976.
    Horton, Perse & Ginsberg, Welsh & Carroll, Miami, for appellant.
    Knight, Peters, Hoeveler, Pickle, Nie-moeller & Flynn, Jeanne Heyward, Miami, Adolfo Del Castillo, Coral Gables, Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiff appeals an adverse final judgment entered against her following a jury verdict finding the defendants not guilty of any negligence which was a legal cause of the accident in which she was injured.

The principal point on appeal is whether the trial court committed prejudicial error in refusing plaintiff’s requested jury instruction on intervening cause.

We have carefully considered all points raised by appellant in the light of the record, briefs and oral arguments and find that no reversible error has been demonstrated. The record discloses that the case was fully and fairly tried; that the verdict is supported by the evidence and that the several rulings of the trial court challenged by appellant did not, on the record and under the law constitute harmful error. Rawls v. Ziegler, Fla. 1958, 107 So.2d 601; Anchor Hocking Corporation v. Allen, Fla. App.1964, 161 So.2d 853; Stiles v. Calvetto, Fla.App.1962, 137 So.2d 17; Maistrosky v. Harvey, Fla.App. 1961, 133 So.2d 103; Karp v. Hodor, Fla.App.1964, 166 So.2d 597; Gavin v. Headley, Fla.App.1973, 272 So.2d 843; Thompson v. Jacobs, Fla.App. 1975, 314 So.2d 797.

Accordingly, the judgment appealed is affirmed.

Affirmed.


text:
    Charles Edward BELL, Appellant, v. STATE of Florida, Appellee.
    No. 76-31.
    District Court of Appeal of Florida, Second District.
    March 17, 1976.
    Ronald H. Schnell, Carr & Schnell, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from a conviction for perjury by contradictory statements pursuant to Fla.Stat. § 837.021 (1973).

The information charged that appellant

“ . . . did wilfully make two or more contradictory or inconsistent material statements in one or more trials or investigations regarding the ownership of or interest in a certain business in Pinel-las County, Florida, known as ‘Book Broker’, said statements being under oath or affirmation pursuant to requirement or authorization of law and one or more of said statements are false, in that on the 30th day of April, 1974, CHARLES E. BELL did testify in the trial of State of Florida vs Charles B. Bell, Criminal Number 74-2666 as follows :
Question: Who is Jim Hamilton? (by Mr. Carr)
Answer: He’s a partner of mine. (by Charles E. Bell)
Question: Now . . . you never owned a hundred percent?
(by Cr. Casesa)
Answer: No.
(by Charles E. Bell)
Question: . . . . This affidavit does not mention any partner?
(by Mr. Casesa)
Answer: I don’t own the store myself, I always had a partner.
(by Charles E. Bell)
and he did further testify on June 10, 1974, in the investigation of State of Florida vs Richard Calvin Yeater, Circuit Criminal Number 74-2909, as follows :
Question: Do you own ‘Book Brokers’? (by Mr. Osborne)
Question: Do you have a partner in with you?
(by Mr. Osborne)
Answer: No, the store is in my name only.
(by Charles E. Bell)
Question: You have no partner?
(by Mr. Osborne)
Answer: No.
(by Charles E. Bell)”

The falsity of the statement is ordinarily an essential element of perjury. Gordon v. State, Fla. 1958, 104 So.2d 524. The statute insures proof of falsity by requiring that the statements be contradictory or inconsistent with each other. If one statement contradicts another, it follows that at least one must be false. Therefore, it is essential to the commission of the crime charged in this case that the statements are truly contradictory.

The statements allegedly made by appellant as set forth in the information are not necessarily contradictory or inconsistent with each other. On April 30, 1974, appellant is quoted as saying that he had a partner in his business on that date and had always had a partner in the business. On June 10, 1974, appellant is quoted as saying that he did not have a partner in his business. He is not quoted as saying on June 10, 1974, that he did not have a partner on April 30, 1974. If the partnership were dissolved between April 30, 1974, and June 10, 1974, the statements would be entirely consistent.

Since the information wholly failed to state a crime, appellant’s motion to dismiss should have been granted. See State v. Taylor, Fla.App.4th, 1973, 283 So.2d 882; cf. Hepburn v. Chapman, 1933, 109 Fla. 133, 149 So. 196.

REVERSED.

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