text:
    William P. BRODSKY, a minor, Appellant, v. Bru SMALL et al., Appellees.
    Nos. 76-1046, 76-1052.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Sept. 8, 1977.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Pyszka, Kessler, Adams & Solomon, Richard M. Gale, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. Jackson v. Florida Weathermakers, Inc., 55 So.2d 575 (Fla.1951); Otis Elevator Company v. Fontainebleau Hotel Corp., 137 So.2d 19 (Fla. 3rd D.C.A. 1962); Nutt v. James City Inc., 162 So.2d 700 (Fla. 3rd D.C.A. 1964); Mansell v. Eidge, 179 So.2d 624 (Fla. 3rd D.C.A. 1965); O’Brien v. Francis, 231 So.2d 13 (Fla. 3rd D.C.A. 1970); North Shore Hospital v. Martin, 344 So.2d 256 (Fla. 3rd D.C.A. 1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, a Foreign Corporation, and Richard Waldie, Appellant, v. Anthony FASCE, Appellee.
    No. 76-1298.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Sept. 9, 1977.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Brumer, Moss, Cohen & Rodgers, Miami, for appellee.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Davis v. Sobik’s Sandwich Shops, Inc., (Fla.1977), Case nos. 75-693, 75-751, opinion filed June 16, 1977.


text:
    NEIDA’S BOUTIQUE, INC., Appellants, v. GABOR AND COMPANY et al., Appellees.
    No. 76-1405.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Aug. 31, 1977.

      Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellants.
    West, Friesner, Goldman & Major, Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for appellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Appellant, plaintiff below, appeals from a final order of dismissal entered in favor of appellees, defendants below.

Appellant’s amended complaint sought damages from appellee, Gabor and Company, Inc., as agents for appellee, Parliament Insurance Company, for negligently failing to procure both a renewal of a prior fire insurance policy issued by Parliament and an increase in the amount of coverage on said policy. In addition, the amended complaint also sought damages from appellee Parliament by virtue of an alternate theory that a renewal policy with increased coverage was actually in full force and effect on the date that appellant’s business suffered serious fire damage, which was shortly after the original policy of insurance had expired.

Appellees moved to dismiss the amended complaint for: failure to attach the policy of insurance that was allegedly in effect as of the date of the fire; failure to allege that the requested increase and extension of coverage was in fact obtainable under the terms and conditions as requested; and for the reason that there is no legal duty on behalf of an insurer to insure, merely because the same was requested, nor is there a duty for an agent to obtain insurance.

Thereafter, on April 13, 1976, the trial court entered an order dismissing the amended complaint with leave to amend within ten days from the date of the entrance of said order. On May 12, 1976, a second amended complaint was filed by appellants followed on May 13, 1976, by the trial court’s final order of dismissal. A post tfial “motion for rehearing, request for reconsideration and motion to vacate” was denied and this appeal follows.

Appellant’s basic contentions are twofold. ■First, appellant contends that its amended complaint stated a cause of action entitling it to receive damages. Second, even assuming said amended complaint did not state a cause of action, appellant argues that the court erred in entering its order of dismissal (for failure to file its second amended complaint within the ten day period, as per the order) when in fact, the second amended complaint had been filed prior to the entrance of the order of dismissal.

After carefully reviewing the record, briefs and arguments of counsel, we are of the opinion that the final order of dismissal was proper and affirm. The amended complaint did not state a cause of action against either appellee in that, among other things, the complaint did not allege an agreement between the parties to secure a policy of insurance nor did said complaint specify the terms and conditions of the allegedly requested additional insurance. Hettenbaugh v. Keyes-Ozon-Fincher Insurance, Inc., 147 So.2d 328 (Fla.3d DCA 1962). The allegations show only a request by appellant for additional insurance which falls short of a contract to obtain or supply such insurance. Leonard Taylor Jewelers, Inc. v. Hartnett, Inc., 222 So.2d 243 (Fla.3d DCA 1969).

In addition, we find no abuse of discretion on the part of the trial judge in dismissing appellant’s amended complaint with prejudice upon the failure of appellant to comply with the court’s order allowing a second amended complaint to be filed within ten days. The record does not reveal any justification for appellant’s failure to timely file its pleading nor does the record reveal that appellant sought any additional time in which to file. Fla.R.Civ.P. 1.420(b); Lasley v. Cushing, 244 So.2d 770 (Fla.1st DCA 1971); Reynolds v. Deep South Sports, Inc., 211 So.2d 37 (Fla.2d DCA 1968).

Any other points raised by either side on appeal have been considered by the court and have been deemed to be without merit.

Accordingly, the final order of dismissal is hereby affirmed.

Affirmed.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Harry WRIGHT and Marie Wright, his wife, Appellees.
    No. 76-1431.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Sept. 8, 1977.
    Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellant.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellee.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   PER CURIAM.

State Farm Mutual Automobile Insurance Company appeals from a final judgment in favor of the plaintiffs in the principal sum of $4,003.92, after an action to enforce an arbitration award in which State Farm contended it had a right to deduct workmen’s compensation payments from the award.

Following a collision with an uninsured motorist, Harry Wright filed a claim against State Farm. The claim was submitted to arbitration, which resulted in an award for Harry Wright. The arbitration award read as follows:

4c ' 4c 4c 4c 4c 4c
“1. That the claimant is entitled to recover of and from the carrier, State Farm Mutual Insurance Company, the following sums:
a. The sum of $15,000.00 representing compensatory damages exclusive of lost wages and medical payments.
b. The sum of $1,150.80 representing lost wages.
c. The sum of $2,701.65 representing award for medical payments.”
4« 4= 4= * * *
[This breakdown was pursuant to a request of State Farm’s trial counsel.]

After the award, State Farm made a deduction for a subsequent workmen’s compensation “washout” payment, and paid $10,-996.08 as the total award.

Thereafter, suit was filed by Wright claiming $4,004.08, which was the difference between the amount paid by State Farm and the award of $15,000.00. State Farm filed a motion to compel recusal of Mr. Stack and his firm as counsel for Harry Wright and Marie Wright, which was denied. It was alleged that Mr. Stack would be called as a witness at trial. At the trial, over objection, the arbitrators were permitted to testify. On June 24, 1976, final judgment was entered in favor of Harry Wright and Marie Wright in the principal sum of $4,003.92. In effect, the final judgment denied State Farm’s right to deduct the workmen’s compensation payments made to Mr. Wright after the arbitration award. This was the “washout” settlement.

We affirm as to Harry Wright, but find no evidence to support the judgment in favor of Marie Wright which error has been conceded by the appellee.

The judgment confirming arbitration award was correct, because the award clearly stated the amount to be recovered exclusive of any set-offs. The arbitrators’ testimony confirmed this intent and the insurer’s attorney specifically requested that the award be divided, so deductions could be made and the proper amount payable determined. Arsenault v. Thomas, 104 So.2d 120 (Fla. 3rd D.C.A. 1958); Lesperance v. Lesperance, 257 So.2d 66 (Fla. 3rd D.C.A. 1972); Werner v. Safeco Insurance Company of America, 323 So.2d 645 (Fla. 3rd D.C.A. 1975); 2 Fla.Jur., Appeals, § 313. The judgment of the trial court does not require reversal, because there has been no showing of any prejudice by denial of motion to compel recusal of attorney; his testimony was not necessary nor on a material issue. City of Miami v. Florida Power & Light Company, 180 So.2d 344 (Fla. 3rd D.C.A.1965); Wallace v. Rashkow, 270 So.2d 743 (Fla. 3rd D.C.A. 1972). The trial court did err in not dismissing Marie Wright, and the judgment under review will be modified by this opinion to eliminate her recovery.

Affirmed as modified.

      . The nature of workmen’s compensation washout recovery is a recovery for diminished earning capacity or lost wages, as a result of permanent injury plus the cost of future medical payments. See: In Re Lupola, 293 So.2d 354 (Fla. 1974). Therefore, there was no real need to take testimony because the items recovered in the washout settlement represented, in effect, the excluded items in “b” and “c” of the award.

      . Inasmuch as Mr. Stack, plaintiffs’ counsel, was called as a witness for the defense, we find no error in the trial court’s denial of the appellant’s motion to recuse Mr. Stack and his firm. In Beavers v. Conner, 258 So.2d 330 (Fla. 3rd D.C.A. 1972), we find the following:
      * * * * * *
      “ * * * As to the defense calling counsel-in-chief to testify as an adverse witness, we do not find any error in this regard because to do so would be to permit defense counsel to force a disassociation between counsel and client, which the courts do not approve. Phillips v. Liberty Mutual Insurance Company, 43 Del.Ch. 436, 235 A.2d 835; Galarowicz v. Ward, 119 Utah 611, 230 P.2d 576; Opin. 64-39, Selected Opinions of the Professional Ethics Committee, The Florida Bar 1959-1967. Cf. Hill v. Douglass, Fla.App.1971, 248 So.2d 182, 183.”


author: PEARSON, Judge.

text:
    GREENFIELD REAL ESTATE INVESTMENT CORPORATION and the Travelers Insurance Company, Appellants, v. Patricia MERRITT, Appellee.
    No. 76-1520.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Sept. 8, 1977.

      Joel R. Teague, Coral Gables, Greene & Cooper and Robyn Greene, Miami, for appellants.
    Stone, Sostchin & Gonzalez and Gisela Cardonne Dienstag, Miami, for appellee.
    Before HENDRY, C. J, and PEARSON and NATHAN, JJ.
   PEARSON, Judge.

The question presented by this appeal is whether the evidence is sufficient to support the jury’s verdict for the plaintiff. At the conclusion of plaintiff’s case, the defendant moved for a directed verdict upon the ground that no actionable negligence by the defendant had been established. The court denied the motion, submitted the cause to the jury, which returned a verdict for the plaintiff. Judgment was entered thereon and this appeal followed.

Plaintiff appellee’s statement of the facts states the following:

The appellee, Patricia Merritt, was crossing a grassy area at N.W. 79th Street and 28th Avenue on June 26, 1973, when her left leg hit a concealed pipe which caused her to fall and injure herself.

The appellee suffered a laceration to her left knee which required fifteen sutures. Subsequent treatment of the knee required the wearing of braces and exercises. Almost three years after the accident, in March, 1976, a consulting physician found objective signs of injury related to the accident: atrophy of the left thigh and pain upon palpation.

At trial, appellee’s uncontroverted testimony showed that there was a sprinkler system in the area in question prior to its use as a parking lot. The sprinkler system was removed in approximately 1966. Appellant testified that it has owned the present parking lot (where the sprinkler system used to be) for approximately ten years.

The complaint alleged that the defendant was negligent, as follows:

“6. That at the said time and place the Plaintiff tripped over a metal pipe that was protruding from the ground that had been hidden from view by an over-growth of grass.
“7. That the installation of said pipe was done in such a negligent manner as to make its presence a danger to anyone walking in the area.
“8. That the Defendant GREENFIELD REAL ESTATE INVESTMENT CORP. had installed the said pipe and knew or should have known of its dangerous propensity.”

An examination of the record shows that the following were not proved: (1) The pipe was upon defendant’s property. (2) The defendant installed the pipe. (3) The pipe was a part of a sprinkler system. (4) The defendant removed or was responsible for the removal of the former sprinkler system. (5) The defendant knew of the existence of the pipe.

Plaintiff urges that the jury could have inferred that since the defendant had owned the property for about ten years, he could have removed the system and left the pipe as a part of the debris. This argument requires the piling of inferences upon an inference: first, that the pipe was a part of an old sprinkler system; second, that the defendant was responsible for the removal of the old sprinkler system; and third, that the pipe was a part of the debris left by the removal. A prima facie case may not be built upon inferences. See McCormick Shipping Corporation v. Warner, 129 So.2d 448 (Fla. 3d DCA 1961).

The defendant has no duty to go forward with the evidence until the plaintiff establishes a prima facie case. As stated in Sharp v. Long, 283 So.2d 567 (Fla. 4th DCA 1973),

* * * * * *
“No recitation of authority is necessary for the proposition that the burden of proof is on the plaintiff to establish by a preponderance of the evidence each element of his cause of action.”

The judgment must be reversed with directions to enter judgment for the defendant.

Reversed with directions.


text:
    Earl R. LITTLE, Appellant, v. Hazel M. LITTLE, Appellee.
    No. 77-609.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Sept. 9, 1977.
    Silver S. Squarcia, Miami, for appellant,
    David M. Krause, Miami, and Neil P. Linden, North Miami Beach, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Appellant husband appeals an order denying his motion to dismiss his wife’s petition for dissolution of marriage pursuant to his motion claiming reconciliation. Upon review of the record, the denial of the husband’s motion is affirmed upon the basis of the rule stated in Busot v. Busot, 338 So.2d 1332, 1334 (Fla. 2d DCA 1976).

A second order appealed from is an order adjudging respondent in contempt for his failure to comply with orders of the court of October 17, 1975, April 30, 1976, and May 12,1976, all of which required that the respondent vacate the marital domicile of the parties. The finding of the trial judge is supported by clear evidence in the record that the husband has willfully failed to comply with the trial court’s order even though given every opportunity to do so. See Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976).

The orders appealed from are affirmed.

      . Previous appearances in this court of this litigation are reported at Little v. Little, 325 So.2d 424 (Fla. 3d DCA 1976); Little v. Little, 336 So.2d 622 (Fla. 3d DCA 1976).


author: LETTS, Judge.

text:
    The LEADER MORTGAGE COMPANY, Appellant, v. RICKARDS ELECTRIC SERVICE, INC., a Florida Corporation, Appellee.
    No. 76-1079.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1977.
    See also Fla.App., 348 So.2d 1206.

      Arnold T. Blostein of Arnold T. Blostein, P.A., Fort Lauderdale, for appellant.
    E. Clay Shaw, Jr., of Huebner, Shaw & Bunnell, P.A., Fort Lauderdale, for appel-lee.
   LETTS, Judge.

The final money judgment entered against the Leader Mortgage Company (appellant) and the Bruscino Construction Company, as same pertains to these two companies, is hereby affirmed. As said final judgment affects the real estate owned by Cleveland Trust Company, it is hereby reversed.

This particular suit was filed by appellee as a two count complaint, the first seeking foreclosure of a statutory mechanic’s lien and the second sounding in breach of an oral contract.

Thereafter, a non-jury trial was held resulting in a final judgment for the appellee against the above named defendants which we must assume, and which the parties now before us have assumed, found for the ap-pellee, as to both counts, by use of the following language in said judgment:

The material allegations of the complaint have been proved by competent substantial evidence and the equities in this cause are with the plaintiff,

although such a finding as to both counts is not otherwise spelled out.

To arrive at his conclusion, the trier of the fact chose to believe the testimony of the appellee’s witness (that there was an oral contract entered into) in preference to that of the witness for the defense, who testified otherwise. We see nothing in the record to suggest that the trial judge was in error in doing so, and no abuse of discretion has been shown. Accordingly, the final money judgment against the Leader Mortgage Company and the Bruscino Construction Company is hereby affirmed.

However, in addition to the entry of the foregoing money judgment, the trier of the fact decreed that:

Plaintiff has a lien to secure the payment of the above itemized sum against the property described in Exhibit “A” attached hereto.

In fact, the property (real estate) upon which the trial judge placed this paramount lien was owned by a third defendant, namely the Cleveland Trust Company, against which the final judgment was not entered. From this deliberate omission, the said Cleveland Trust Company was specifically relieved of liability from said money judgment. This being so, we must see if the mechanic’s lien foreclosed was superior to the fee simple interest of the defendant, Cleveland Trust Company. We rule that it was not.

In March of 1973, the appellant, Leader Mortgage Company, (Leader) took and recorded an open end construction mortgage under the terms of which Leader loaned $1,200,000 to the owner, Bruscino Construction Company, one of the defendants below.

Thereafter, in June of the same year, the said owner entered into a direct contract with the appellee, Rickards Electric Service, Inc., for the latter to provide and do all electrical work on the building covered by the said construction mortgage. The following year, the owner incurred financial problems and Rickards was not paid in full. Shortly thereafter, Leader filed a lis pen-dens and a suit to foreclose its mortgage in July of 1974 and later assigned all of its rights to said mortgage to the defendant below Cleveland Trust Company, resulting in a final judgment of foreclosure of the mortgage in favor of both Leader and the Cleveland Trust Company in January of 1975.

Also in June and July of 1974, the appel-lee, Rickards Electric, was re-employed by Leader under the oral contract, found to be valid by the trial judge, but Leader breached said contract in July of 1974. Thereafter, Rickards waited until September of 1974 to file a claim of lien, and until January of 1975 to file its complaint to foreclose its mechanic’s lien, which latter action resulted in the final judgment of foreclosure of said mechanic’s lien now appealed from. The appellee, Rickards, was not named as a defendant in the previously filed lis pendens and mortgage foreclosure action.

The foregoing facts are somewhat complicated, but a single issue is dispositive of this case.

Specifically, the appellant argues that the appellee, Rickards Electric, is barred from enforcing its mechanic’s lien because it failed to submit a contractor’s affidavit under Section 713.06(3)(d)(l), Florida Statutes (1975). We agree. Said particular section of the Statute reads as follows:

(d) When the final payment under a direct contract becomes due the contractor: 1. The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full and the amount due or to become due each for labor, services or materials furnished. The contractor shall have no lien or right of action against the owner for labor, services or materials furnished under the direct contract while in default by reason of not giving the owner such affidavit. The contractor shall execute said affidavit and deliver it to the owner at least five (5) days before instituting suit as a prerequisite to the institution of any suit to enforce his lien under this chapter.

To this argument the appellee responds first, that the appellant never raised this issue, either by motion or affirmative defense, until trial and that by then it was too late to do so; second, by alleging that the work undertaken was never completed and so no final payment ever became due; and third, that it was only a sub contractor and therefore, not required to file any such affidavit.

As to the first argument, this particular section of the statutes was raised at the non-jury trial during both opening and closing statements. Also, under cross examination, the appellee’s witness admitted that no such affidavit had been given.' There were no objections raised as to the above at trial. We therefore reject the first argument under the authority of Garrett v. Oak Hall Club, 118 So.2d 633 (Fla.1960), in which case the Supreme Court held that defenses not proffered but tried by express or implied consent of the parties may be treated as if raised by the pleadings and be made to conform to the evidence as late as, or after, judgment. We also note Brown v. First Federal of New Smyrna, 160 So.2d 556 (Fla. 1st DCA 1964), indicating that the filing of the affidavit is jurisdictional and “. a condition precedent to the right to maintain an action to foreclose the lien.” Id. at 561.

As to the second argument, we are of the opinion that when the appellee, Rickards Electric, quit the job for the last time, he submitted a request for final payment of the total outstanding balance, which said appellee claimed was then due. Moreover, appellee, in its complaint, claimed the balance due on the entire contract, as if completed, and likewise set forth the same total balance due in its recorded claim of lien. Under the circumstances, we find it an unacceptable paradox for the appellee to argue that the final payment is due and payable, eashwise, but that it need not comply with the requirements of the statute because the final payment is not due, work-wise. Such is a classic example of having your cake and eating it too.

As to the third argument that the appel-lee is only a subcontractor, we also find this without merit. The appellee made a direct contract with the owner and was in privity with said owner. The contract provided, inter alia, that appellee furnish all labor, tools, materials and equipment necessary to complete ail electrical work, including master antenna and telephone raceway systems and the connecting up of all appliances. We recognize that the form of printed contract used by the parties identified the ap-pellee as the “subcontractor” and the owner as the “general contractor;” however, notwithstanding this adaptation, the appellee falls within the definition of “contractor” under Section 713.01(2), Florida Statutes (1975), and is also subject to the provisions of Section 713.06(3), supra. We would refer again to Brown v. First Federal Savings of New Smyrna, supra, where pursuant to a contract with an owner/developer, a plumber agreed to furnish and install all plumbing materials and fixtures. In that case, the court held that:

Suffice it to say that although the owner may be performing or supervising some of the work on the project, those with whom he contracts directly to furnish labor and materials, other than a laborer or materialman, are themselves contractors within the definition of that term as contained in the Mechanics’ Lien Law. Id. at 563.

The court also pointed out that any doubt as to whether the sworn statement is required should be resolved in favor of strict compliance with the Mechanics’ Lien Law.

The appellees cite the case of Fontainebleau Hotel Corporation v. Lowry Electric Co., Inc., 269 So.2d 738 (Fla. 3rd DCA 1972), for the contra proposition that appellee was a mere subcontractor. We do not feel persuaded by that case. Not only are no facts set forth in Fontainebleau which would enable us to appreciate why the court found that particular electrical firm to be but a subcontractor, but in addition, the opinion would indicate that that defense was never raised. As has been discussed, this defense was raised in the case now before us.

Reversed in part and remanded for the trial judge to set aside that portion of the final judgment, creating a lien on the real estate referred to in Exhibit A to secure the payment of the money judgment.

The trial court is also directed to vacate the $2,500 attorneys fee award and remove it from the final judgment. This fee was awarded without a hearing, without testimony and without any affidavits. It was therefore improper and there are long lines of eases in agreement. See for example, Florida Silica Sand Co. v. Parker, 118 So.2d 2 (Fla.1960), and Nivens v. Nivens, 312 So.2d 201 (Fla. 2nd DCA 1975). We do not remand this issue to the trial court to receive evidence, as to attorneys fees inasmuch as the improper award was predicated on appellee’s success in the mechanic’s lien foreclosure, which we have now reversed.

MAGER, C. J., concurs.

ANSTEAD, J., concurs in conclusion only.


text:
    The CLEVELAND TRUST COMPANY, Appellant, v. RICKARDS ELECTRIC SERVICE, INC., a Florida Corporation, Appellee.
    No. 76-886.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1977.
    Richard D. Rosen and Lewis I. Horwitz of Broad & Cassel, Bay Harbor Islands, for appellant.
    E. Clay Shaw, Jr., of Huebner, Shaw & Bunnell, P.A., Fort Lauderdale, for appel-lee.
   LETTS, Judge.

This is the companion case to Case No. 76-1079, namely the Leader Mortgage Company v. Rickards Electric Service, Inc., Fla. App., 348 So.2d 1202, and the same record and issues are presented in both appeals.

In our view, the opinion filed in the companion case, immediately preceding this one, is dispositive of the identical final judgment appealed from.

The final money judgment against the Leader Mortgage Company and the Brusci-no Construction Company is hereby affirmed. The final judgment creating a lien on the real estate referred to in Exhibit A to secure the payment of the money judgment is reversed in part and remanded for the trial judge to set aside that portion of the final judgment.

MAGER, C. J., and ANSTEAD, J., concur.


text:
    Hubert E. PENDLETON, Appellant, v. STATE OF Florida, Appellee.
    No. 76-1566.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1977.

      Richard W. Springer of Kohl, Springer & Springer, Palm Springs, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   KOVACHEVICH, ELIZABETH A., Associate Judge.

Appellant-defendant appeals from a judgment of conviction of sexual battery using slight force, from an order denying motion for a new trial, and from a sentence of fifteen (15) years imprisonment. Of the five points involved in this appeal, one is particularly deserving of comment by this Court. Nevertheless, we affirm the trial court on all points raised.

The trial court was correct in permitting the State to introduce in its case-in-chief the testimony of the defendant that was given at a mistrial, held prior to this trial in which the defendant was convicted.

In the instant case, sub judice, defendant was arrested and charged with the crime of sexual battery pursuant to Florida Statute 794.011(4)(b). In the first trial of this cause before the Honorable Marvin Mounts, Circuit Judge, the jury was unable to reach a verdict and a mistrial was declared. Subsequently, a second trial was held before the Honorable James Stewart, Circuit Judge. During the presentation of the State’s casein-chief, the court allowed the State to call the court reporter from the mistrial as a witness, over the objection of the attorney for the defendant. The court reporter was permitted to testify that he was the official reporter during the mistrial; that the defendant was present at that time, and was the same man that was present in the courtroom for the instant proceedings, further identifying him by pointing to him, describing his clothing, and where he was seated. Continuing, the court reporter related that he had heard and recorded the sworn testimony of the five same witnesses who had testified in this second trial, and that their sworn testimony was given in the presence of the defendant. And then, the court reporter testified that the defendant took the witness stand, and denied under oath that he had given a statement to Detective Gabbard, who was 'one of the five said witnesses and had previously testified that the defendant had given him a statement, that the defendant admitted that he had been at the victim’s address on the date of the offense, and, that the defendant acknowledged that he had engaged in sexual intercourse with the victim.

Defendant asserts that it would not have been much different if the court had allowed the State to subpoena the defendant and to call him as a witness during the State’s case; the State was able to establish things in its case-in-chief through the use of the court reporter’s testimony that it would not have been able to prove during its case. Further, the testimony of a defendant at a motion to dismiss or motion to suppress hearing cannot be used in a subsequent trial. The legislature repealed as of January 1,1971, Section 902.12, Florida Statutes, that indicated that a defendant’s testimony at a preliminary hearing was admissible during a trial, from which it may be inferred that it was the intent of the legislature to prevent such action. We disagree with these contentions by defendant, and refer both appellant and appellee to these authorities, cited hereinafter, to which neither side made reference to this Court.

In general, in the absence of a statute governing the situation, it has generally been held that a defendant who has taken the stand in his own behalf in a criminal prosecution, testifying without asserting his privilege against self-incrimination has waived the privilege as to the testimony given so that it may be used against him in a subsequent trial in the same case. See Warde v. United States (1946), 81 U.S.App.D.C. 366, 168 F.2d 661. Even if the defendant does not take the stand at a second trial, that does not prevent the use of his testimony given in a former trial if it would otherwise be admissible. See Edmonds v. United States (1969), 106 U.S.App.D.C. 873, 273 F.2d 108; United States v. Hughes (C.A. 2 1969), 411 F.2d 461. In United States v. Grunewald (D.C. N.Y.1958), 164 F.Supp. 644, that court stated: “. . . Nor can it be argued persuasively that the use of the former trial testimony upon the present retrial constitutes improper pressure upon the defendant to take the stand, thus invading his privilege to remain mute. Presumably the defendant told the truth when he testified at the former trial with respect to the same transactions. The prosecution’s use of that former testimony constitutes no more pressure than the prosecution’s use of any other admission made by the defendant. That the prosecution’s proof may tend to incriminate the defendant and the defendant may deem it desirable to take the stand does not spell out improper pressure. Inferences flowing from properly adduced evidence do not constitute a coercive force in violation of a defendant’s Fifth Amendment privilege.” See also Smith v. Slayton (D.C.W.D. Va.1978), 369 F.Supp. 1213, and, United States v. Houp (C.A. 8, 1972), 462 F.2d 1338. Further, a court reporter’s testimony, read from original shorthand notes taken during robbery trial at which defendant admitted former convictions, was admissible as past recollection recorded. State v. Bailey (1967), 71 Wash.2d 191, 426 P.2d 988.

Notwithstanding the foregoing, this Court notes with more than a passing interest the expressions made by the current members of the Florida Supreme Court in their review of a decision by this District Court of Appeal in Nowlin v. State, Supreme Court of Florida, 346 So.2d 1020, opinion filed May 26, 1977. Nevertheless, on the basis of the aforementioned authorities, we conclude that the trial court did not err in permitting portions of the defendant’s testimony at the first trial to be used against him at the second trial, regardless of whether or not he testified at the second trial. Once he voluntarily waived his right against self-incrimination at the first trial, that former testimony was properly intra-ducibie at the second trial in the State’s case-in-chief. For additional references, see also 6 A.L.R.2d 1408, Previous Trial for Same offense; 23 C.J.S. Criminal Law § 892b, Testimony of Accused, Page 611; 22A C.J.S. Criminal Law § 666, Former Evidence, Page 661, and, Section 783, Judicial Admissions, Page 1061.

On the other four points raised on appeal, this Court finds no harmful error. The trial court was correct in excluding evidence concerning the background of the victim of the sexual battery in the case at bar that would have allegedly impeached her credibility. It is well recognized in Florida that permission to allow cross examination as to certain subject matter is discretionary with the trial court. Whitley v. State (3 D.C.A. Fla.1972), 265 So.2d 99; Urga v. State (2 D.C.A. Fla.1963), 155 So.2d 719. Next, the trial court properly admitted into evidence the testimony of two female witnesses for the state involving similar modus operandi of the defendant which tended to corroborate the testimony given by the victim. Under Williams v. State (Fla.1959), 110 So.2d 654, and interpretations thereof, Williams rule evidence of similar facts showing a method or scheme of an accused is admissible. The third point raised concerns the refusal of the trial court to instruct the jury concerning the weight to be given to the testimony of the victim of a sexual battery. The trial court decided to use the standard jury instruction rather than the special instruction requested by defendant, pursuant to Section 794.022, Florida Statutes. The trial court did not abuse its discretion; the use of the standard jury instruction cannot be claimed as error. Lastly, the trial court, in excluding evidence that the defendant passed a polygraph examination concerning his guilt, followed State v. Cunningham (3 D.C.A. Fla.1975), 324 So.2d 173, wherein generally, polygraph test and information gleaned therefrom are not admissible evidence in any criminal proceeding. The results may be admitted into evidence upon stipulation between the state and defense counsel. There was no such stipulation herein, nor other basis that would justify an exception herein.

Accordingly, we affirm the trial court on all points.

AFFIRMED.

MAGER, C. J., and CROSS, J, concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Michael Wayne RIGGINS, Appellee.
    No. 76-1367.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellant.
    Edward H. Fine of Campbell, Colbath, Kapner & Fine, West Palm Beach, for ap-pellee.
   DOWNEY, Judge.

Appellee was charged with two counts of vehicular homicide under Section 782.071, Florida Statutes (1975). The trial court granted appellee’s motion to suppress a blood sample taken from appellee over his vehement protest, and the state seeks review of the order granting the motion. We affirm.

It appears that appellee was driving an automobile that became involved in an accident in which two persons were killed, Ap-pellee was injured in the accident, and he was taken to a hospital. While in the emergency room or thereabouts, the police gave appellee his Miranda warnings, told him he was under arrest, and advised him they intended to take a blood sample from him. Although appellee was injured he was conscious and able to communicate. He smelled of alcohol and was uncooperative to the extent of physically resisting attempts to extract a blood sample from his person.

The police attempted to have a sample taken by force, and they sat upon appellee and twisted his broken arm in an effort to make him submit. Finally, the police allowed appellee to call his lawyer. The lawyer advised him not to allow the blood test to be performed, so appellee continued to refuse. The police then threatened to take him to jail, even though he was catheterized. At this point appellee’s sister intervened and persuaded appellee to allow the blood sample to be taken over his protest.

The following factors lead us to hold that, under the laws of this State, law enforcement authorities may not — over the protests of an individual — require the taking of a blood sample from the protesting individual in order to conduct a chemical test to determine whether the individual’s driving ability was impaired by the use of intoxicants.

I. Section 322.261(l)(a), Florida Statutes (1975), commonly referred to as the “implied consent law”, provides that any person accepting the privilege of driving a motor vehicle in this state shall be deemed to have given his consent to submit to an approved chemical test of the alcohol content of his blood if he is lawfully arrested for any offense committed while driving a motor vehicle under the influence of alcoholic beverages. But subsection (d) provides that, if such person refuses an officer’s request to submit to such test, the Department of Highway Safety and Motor Vehicles shall suspend the person’s privilege to operate a motor vehicle for a period of three months. Thus, it appears that the implied consent evidenced by accepting the privilege of operating a motor vehicle in this state may be revoked at the time the chemical test is suggested by an officer. Otherwise, the section providing for suspension upon refusal to submit would be superfluous. And there are other parts of Section 322.261 which indicate that the implied consent can be revoked. For example, Section (l)(a) provides “Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 3 months.” Sections (e) through (g) set up procedures for a hearing and review of the proposed suspension should the person involved wish to contest the suspension.

II. The author of the law review article, “Florida’s ‘Implied Consent’ Statute: Chemical Tests for Intoxicated Drivers”, 22 University of Miami Law Review 698, Robert H. McManus, points out that:

“The Florida ‘implied consent’ statute, which goes into effect on July 1, 1968, provides that every person who accepts the privilege of driving within the state shall be deemed to have given his consent to an approved chemical test of his breath, urine, saliva or blood if he is arrested for driving while under the influence of intoxicating beverages. Paradoxically, even though the driver has ‘consented’ to a chemical test, the statute provides that he may refuse to submit. However, upon refusal, the privilege of operating a motor vehicle may be suspended provided that the driver has been told of the consequences and that a subsequent hearing is given to him.” Id. at 698-699. (Emphasis supplied; footnote omitted.)
* * * *
“The statute also seems to be preferable to the Supreme Court’s holding in Schmerber since the motorist, unless he is unconscious, is given an alternative to undergoing a compulsory chemical test. Paradoxically, as a result of Schmerber, states without ‘implied consent’ statutes can compel a motorist to undergo a chemical test, while in states with ‘implied consent’ statutes the motorist has the option to refuse the test.” Id. at 727.

III. The Attorney General opined in AGO 073-186 that Section 322.261(1), Florida Statutes (1973), did not authorize the use of reasonable force to obtain a blood sample from an arrestee who voiced objection and resisted efforts to require submission to the forcible taking of a blood sample. The opinion went on to say that any change in the plain meaning of the statute would have to come from the Legislature. Although the Legislature has made additions to Section 322.261, none of those additions has changed the meaning of the statute insofar as the forcible taking of blood samples is concerned.

IV. The initial attacks on these chemical tests performed upon persons were generally made on constitutional grounds. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Mitchell, 245 So.2d 618 (Fla.1971); and Filmon v. State, 336 So.2d 586 (Fla.1976). Those cases stand for the proposition that the taking of a blood sample from an arres-tee involved in an automobile accident who appears to be under the influence of alcohol does not violate any constitutional provision. Filmon did not deal with the problem presented here, viz., whether the implied consent law authorized the police to have a blood sample taken from a person who is conscious and who verbally and physically protests the taking. Although there are cases in which courts have approved the taking of blood samples by force or in the face of express refusal to consent (see People v. Williams, 557 P.2d 399, 406 (Colo. 1976); State v. Jones, 28 Or.App. 131, 558 P.2d 1271 (1977), those cases do not involve a situation in which a statute plainly indicates that the sample can not be taken if the person objects.

Accordingly, we hold that Section 322.261, Florida Statutes (1975), prohibited the taking of a blood sample from a person suspected of driving while under the influence of alcohol when that person expressly objects to the taking thereof. The order of the trial court suppressing the blood sample in this case is therefore affirmed.

AFFIRMED.

ANSTEAD, J., and DEAN, ROY E„ Associate Judge, concur.


text:
    SOUTH FLORIDA VENDORAMA, INC., Appellant, v. Michael COLODNY, D. F. of Hollywood, Inc., a Florida Corporation, et al., and Florida Business Opportunities, Inc., Appellees.
    Nos. 76-558, 76-737 and 76-738.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    Joseph R. DeLucca, North Miami, for ap. pellant,
    Leo N. Rose, Hunter, Atkinson & Golden, P. A., Hollywood, for appellee, D. F. of Hollywood, Inc.
    No brief filed by Michael Colodny.
   LETTS, Judge.

This is a consolidated appeal from the granting of an ex parte default judgment for failure to answer a cross claim. We reverse.

The original complaint in interpleader was filed by the named stakeholder, in an agreement for the sale of a business, against the proposed buyer and seller named as defendants. The sale had collapsed and both buyer and seller were demanding the $108,000.00 'deposit from the stakeholder. Not unexpectedly, both the buyer and seller filed cross claims against each other, which the buyer duly answered, but which the seller omitted so to do for a period of eighteen months. At the end of this time lapse, the buyer filed a motion for default which the judge granted on the same day without any notice to the seller. Also all on the same afternoon, the judge entered a final default judgment for $108,-000.00, plus interest, against the seller and in favor of the buyer.

There are other procedural and factual complications to these consolidated appeals, but the foregoing is deemed adequate for disposition hereunder.

Rule 1.500(b) Fla.R.Civ.P. (1976) provides in pertinent part:

By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute . . , the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default (Emphasis supplied).

Pursuant to this rule, the buyer defends the entry of the default because of the failure to file any answer to the cross claim. The fallacy in this argument, however, rests upon the words emphasized above in the quoted rule. The seller did file and serve many papers during the eighteen month period including, for example, a motion for continuance, motion to withdraw as counsel, notice of taking deposition and motion for summary judgment. Similarly, during the same period the buyer, seller and other intervening parties, all rained pleadings on each other. Pursuant thereto they also attended depositions and hearings, all of which indicate to us that neither the litigants nor the court were conscious of the omission.

Without further discussion, we hold that the seller did file and serve “(m)any paper(s) in the action” and was therefore entitled to “notice of the application for default”, all in accordance with Rule 1.500(b) Fla.R.Civ.P. (1976). See also Freedman v. Freedman, 235 So.2d 544 (Fla. 3rd DCA 1970).

Reversed and remanded for further proceedings.

MAGER, C. J., and CROSS, J., concur.

      . Note the judge granted this motion, not the clerk.


text:
    James A. LAMPA, Appellant, v. BLUE CROSS OF FLORIDA, INC., et al., Appellees.
    No. 76-1184.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    R. Edward Cooley and James W. Markel of Graham, Markel & Scott, P.A., Winter Park, for appellant.
    James M. Corrigan and Thomas F. Lang of Maguire, Voorhis & Wells, P.A. Orlando, for appellees.
   PER CURIAM.

Upon review and consideration of the record we are of the opinion that the judgment sought to be reviewed is neither a final judgment subject to a plenary appeal nor within the category of orders subject to an interlocutory appeal, under Rule 4.2, Fla. App.R. Furthermore, finding no basis in the record to provide review by way of common law certiorari, the subject appeal is dismissed.

APPEAL DISMISSED.

MAGER, C. J., and CROSS and LETTS, JJ., concur.


text:
    Irwin F. DAVIS and Theresa Marie Davis, his wife, Appellants, v. DEERFIELD LAKE CONDOMINIUM MANAGEMENT ASSOCIATION, INC., a Florida Corporation, Appellee.
    Nos. 76-1909, 76-2030.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.

      Joseph De Gance of Jansen & De Gance, P. A., Port Lauderdale, for appellants.
    Edward R. Rumin of Adams & Adams, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed. The appellants, Irwin F. Davis and Theresa Marie Davis, claim the appel-lee, Deerfield Lake Condominium Management Association, Inc., has violated Section 718.112(2)(c), Florida Statutes, in failing to conduct open meetings of the Association’s board of administration and to give reasonable notice thereof. The only evidence before the trial court in considering the appel-lee’s motion for summary judgment was the testimony in deposition of the appellants. That testimony asserts violations of the statute in respect to the requirements of both reasonable notice and open meetings and precludes the entry of a summary judgment for appellee.

DOWNEY and ANSTEAD, JJ., and DEAN, ROY E., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Willie FELTON, Willie Davis and Ulysses Holt, Appellees.
    No. 76-1945.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, and James K. Green, Asst. Public Defenders, West Palm Beach, for appellees Felton and Holt.
    Ronald W. Black, Orlando, for appellee Davis.
   DOWNEY, Judge.

Appellees’ trial for armed robbery commenced on July 14, 1976. After two jurors were chosen and sworn, the State moved for a continuance of the trial and an extension of the time for trying the appellees under Fla.R.Crim.P. 3.191, on the ground that exceptional circumstances existed. The circumstances alleged to warrant such action by the court were that Gwendolyn Tisdale, an essential witness for the State, had fled the jurisdiction and had just been located outside the State of Florida. The State intended to extradite Tisdale and call her as a witness. It was pointed out to the trial court that Tisdale, the girl friend of one of the appellees, had been involved in the robbery. She had given a sworn statement implicating herself and the appellees and had identified the appellees in a. photographic lineup. The State had granted her immunity on condition that she testify for the State in this case. Upon consideration of the foregoing circumstances the trial court granted a continuance of the trial until July 26, 1976.

On July 26, 1976, the State requested a further continuance because no order of extradition had yet been entered, although extradition proceedings were pending. The trial court continued the case until August 4,1976. On that date the witness appeared in open court at a pretrial hearing on appel-lees’ motions for discharge under the Speedy Trial Rule. Although granted immunity by the State and advised of her rights and admonished by the trial court that if she refused to testify she could be held in contempt, Tisdale refused to testify. Accordingly, the trial court found the witness in contempt and sentenced her to six months in jail.

The trial court also entered an order that granted appellees’ motions for discharge, which motions had been grounded on appel-lees’ contention that the State had not proved that the two extensions of time had been valid. The State seeks review of that order. We reverse.

Rule 3.191(f) provides:

“(f) Exceptional Circumstances. As permitted by this Rule, the court may order an extension of time or continuance where exceptional circumstances are shown to exist; exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation or failure to obtain available witnesses, or other foreseeable delays.
Exceptional circumstances are those which as a matter of substantial justice to the accused or the State or both require an order by the court. Such circumstances include (i) unexpected illness or unexpected incapacity or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial; . (iii) a showing by the State that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time; provided, not more than two continuances shall be granted on this ground; . .

The Rule contemplates that the running of the time allowed for a speedy trial shall be tolled when exceptional circumstances exist. The Rule sets forth several examples of such circumstances, but the Rule also specifies that those examples are not the exclusive grounds for granting extensions of time.

It seems to us that the circumstances in the case at bar constitute exceptional circumstances warranting the two extensions the court granted. The witness had given a sworn statement inculpating the appellees and she had identified them from photographs. The State had assured her of immunity if she testified. Thereafter, the witness fled and the State’s efforts to locate 'her were finally successful on the day of trial. Being advised of the State’s intention to extradite the witness, the trial judge was presented with exceptional circumstances warranting a continuance and an extension of the time for a speedy trial. The Rule provides that exceptional circumstances are those which as a matter of substantial justice to the accused or the State require an order by the court. We think substantial justice to the State required the orders in this ease.

Appellees contend the State was not entitled to the continuances or extensions of time because the State failed to demonstrate that the witness would testify at appellees’ trial. Moreover, the appellees assert that, since the witness had, before fleeing the jurisdiction, refused to permit the appellees to take her depositions on Fifth Amendment grounds, the State was on notice that the witness would not testify. We reject this argument. First, the State can never guarantee that a witness will testify when called to the stand. Second, the fact that Tisdale had refused to be deposed by appellees does not necessarily mean she would not testify upon being extradited, granted immunity, and threatened with contempt.

Accordingly, the order discharging appel-lee is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD and LETTS, JJ., concur.


text:
    BUMBY & STIMPSON, INC., Appellant, v. SOUTHERN REINFORCING STEEL CO., INC. (now known as Southern Steel Industries, Inc.), Appellee.
    No. 76-1974.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    Charles R. Stepter, Jr. of Fishback, Davis, Dominick & Simonet, Orlando, for appellant.
    Michael P. Smodish of Reed & Smodish, P. A., Boynton Beach, for appellee.
   PER CURIAM.

Based upon a review of the briefs and record on appeal we are of the opinion that there exist issues of triable fact which preclude the entry of summary judgment. Shaffran v. Holness, 93 So.2d 94 (Fla.1957); Nance v. Ball, 134 So.2d 35 (Fla. 2d DCA 1961); Coquina Ridge Properties v. East West Company, 255 So.2d 279 (Fla. 4th DCA 1971). For example, the existence or nonexistence of a contract between the parties as well as the presence or absence of a unilateral mistake are such issues that do not lend themselves to summary disposition. We further conclude that the doctrine of promissory estoppel, as delineated in Drennan v. Star Paving Co., 51 Cal.2d 409, 333 P.2d 757 (1958), (but see Southeastern Sales & Service Co. v. T. T. Watson, Inc., 172 So.2d 239 (Fla. 2d DCA 1965)) should be considered and applied as the facts suggest after a hearing on the merits. Accordingly, the summary final judgment is reversed and the cause remanded to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

MAGER, C. J., LETTS, J., and MOUNTS, MARVIN U., Jr., Associate Judge, concur.


text:
    SHULT HOMES CORPORATION, a corporation a/k/a Shult Mobile Home Corporation, Appellant, v. Donald MAURICE d/b/a Starlight Mobile Homes Estates a/k/a Starlight Mobile Home Sales and Mary Ann Maurice, and the First National Bank of Kissimmee, Appellees.
    No. 76-2062.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    Martha A. Snedaker of Friedman & Brit-ton, Orlando, for appellant.
    Donald Walker, Orlando, and Ellis F. Davis, Kissimmee, for appellee.
   DOWNEY, Judge.

Appellant having recovered a judgment for $2780.00 garnished the judgment debt- or’s bank account in the appellee bank. Ap-pellee duly answered that it held $28.77 for the account of the judgment debtors. Ap-pellee filed a petition for allowance of attorney’s fees for garnishee and appellant moved for judgment on the pleadings. Appellant filed two affidavits as to reasonable fees for garnishee’s counsel of $25.00 and $35.00 respectively. Appellee filed two affidavits of $75.00 and $90.00 respectively. The trial court awarded garnishee a fee of $60.00.

Appellant’s sole point on appeal is that the attorney’s fee awarded is excessive! We have successfully resisted the temptation to quash this appeal as frivolous, and decided to treat it on the merits.

The fee awarded is $25.00 more than the amount mentioned in one of appellant’s own affidavits, and it is well within the proof which appellee adduced.

AFFIRMED.

CROSS and LETTS, JJ., concur.


text:
    Calvin J. LEACH, Appellant, v. STATE of Florida, Appellee.
    No. 76-2177.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, and Paul M. Tabio, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We find no error in the trial of this case and affirm defendant’s conviction. In sentencing the defendant, however, the trial court failed to give the defendant credit for jail time already served while awaiting sentence. He is entitled to such credit although not to duplicate credit. McKnight v. State, 325 So.2d 79 (Fla. 4th DCA 1976). Upon remand the trial court is directed to determine whether defendant has, in fact, received credit for jail time served and if he has not, the court shall modify the sentence in this case accordingly.

AFFIRMED and REMANDED.

CROSS, ALDERMAN and DAUKSCH, JJ., concur.


text:
    Constance GOURLEY, Individually, and Kevin Valencourt, a minor, by and through his next friend and natural guardian, Constance Gourley, Appellants, v. Kermit WOLLAM and Lydia L. Wollam, his wife, Appellees.
    No. 76-2590.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.

      Edward J. Richardson, Saxon & Richardson, Melbourne, for appellants.
    Truman G. Scarborough, Jr., Titusville, for appellees.
   DOWNEY, Judge.

In 1972 Kermit and Lydia Wollam (the appellees) sold a parcel of real property in Brevard County to Donald Budnick and took back a purchase money first mortgage. On August 27,1975, Constance Gourley and Kevin Valencourt (the appellants) obtained a money judgment against Budnick. That judgment was recorded in Brevard County on August 28, 1975. On October 29, 1975, Budnick, being in default on the Wollam mortgage, conveyed the encumbered property back to the Wollams by quit claim deed. On January 29, 1976, the property was sold pursuant to a writ of execution upon the appellants’ judgment and appellants were the purchasers at the sale.

In May 1976 appellees instituted this suit to foreclose the Budnick mortgage naming Budnick (who is not involved in this appeal) and the appellants as defendants. Appellants filed affirmative defenses and a counterclaim. In sum, the appellants’ pleading asserted that there had been a merger of the equitable and legal title when the Wo-llams recorded the quit claim deed from Budnick and thus appellants’ judgment was a first lien upon the real property in question. The counterclaim prayed for cancellation of the Wollam mortgage because of the merger. Pursuant to a motion by the ap-pellees the trial court entered an order that (a) dismissed the counterclaim with prejudice and (b) struck the affirmative defenses with prejudice. That order is the subject of this appeal. For the reasons which follow we hold that the order was erroneous.

Appellants’ affirmative defenses recited the entry of the judgment for appellants and the subsequent transfer of the quit claim deed from Budnick to the Wollams. Another affirmative defense alleged:

“That the Plaintiffs accepted said Quit Claim Deed as a full and complete satisfaction of the debt owed under said note and mortgage; that the Plaintiffs intended that such Quit Claim Deed would vest legal title to the real property in them and that no further action under the note and mortgage would be taken against DONALD W. BUDNICK: . . . that such actions on the part of the Plaintiffs resulted in a merger of the title and equity of redemption with the first mortgage as an encumbrance against the lands described in the Complaint.”

The counterclaim reasserted the pertinent allegations of the affirmative defenses.

In support of their argument for reversal, the appellants contend they alleged there was a merger of the legal and equitable title in the appellees by virtue of the Bud-nick quit claim deed and that the effect of such merger was to elevate appellants’ judgment to a first lien status. Appellees on the other hand argue that a merger does not necessarily follow from appellants’ allegations since two presumptions arise if appellants’ allegations are regarded as true. The first presumption is that appellees intended a merger only if it benefited them. The second is that a merger does not occur if there is an intervening judgment lien. Appellees contend that, since the allegations of appellants’ affirmative defenses and counterclaim do not rebut these presumptions, the order dismissing those pleadings with prejudice was correct.

The rule in Florida and most other jurisdictions seems to be that a transfer of the interest of a mortgagor in mortgaged property to a mortgagee generally operates as a merger of the legal and equitable estates which results in a discharge of the mortgage and a satisfaction of the debt. 22 Fla.Jur., Mortgages, § 534; 55 Am.Jur.2d, Mortgages, § 1256. However, the joinder of both legal and equitable title in one person does not always have that result. The intention of the party who unites the two estates in himself is determinative of whether a merger results or not. Jackson v. Relf, 26 Fla. 465, 8 So. 184 (1890); Lawton v. McIlvaine, 113 Fla. 743, 152 So. 179 (1934); Fay v. Lougee, 113 Fla. 784, 153 So. 91 (1934); Friedman v. Pohnl, 143 So.2d 690 (Fla. 3d DCA 1962); 22 Fla.Jur., Mortgages, § 535. As the Supreme Court of Florida stated in Relf:

“When a mortgage on lands and the equity of redemption in the same lands have become united in the same person, ordinarily the mortgage is merged, — in other words, ceases to be an incumbrance, — and the owner will hold the lands with an unincumbered title, if there be no other mortgage or lien. But this is not always and necessarily the result. Whether it is or not, depends upon the intention of the person in whom the interests are united, and that intention is to be determined by his declarations at the time, or, in the absence of these, by his interest, as shown in the condition of things then existing, or by the attending circumstances. When there is no evidence of the intention of the owner in uniting the legal and equitable estates in himself, it is proper to presume that he intended that effect which is the most beneficial to him.” 8 So. at 185.

Since the operative factor seems to be the intention of the mortgagee in accepting a deed from the mortgagor, it is a question of fact as to what the Wollams intended when they accepted Budnick’s quit claim deed. Appellants’ allegations here are that the Wollams accepted the deed as a full and complete satisfaction of the debt owed under the note and mortgage; that no' further action would be taken on the note and mortgage; and that such action resulted in a merger of the two estates thereby extinguishing the Wollams’ mortgage.

Unquestionably at trial appellants will have the burden of proving appellees intended a merger resulting in appellants’ judgment being a first lien on their property. All the presumptions are against such a result. But this is a fact question and for ought we know appellants may be able to prove that was appellees’ intention at the time.

While not necessarily models, appellants’ pleadings contain sufficient allegations to put appellees on notice of their claim. Therefore the affirmative defenses and counterclaim' should not have been dismissed.

Accordingly, the order appealed from is reversed and the cause is remanded with directions to reinstate the affirmative defenses and counterclaim.

REVERSED AND REMANDED, with directions.

ANSTEAD and LETTS, JJ., concur.


author: BARKDULL, Judge.

text:
    John MATHIS, a/k/a David Lee Mathis, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-806 and 76-810.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Rehearing Denied Sept. 8, 1977.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   BARKDULL, Judge.

The defendant appeals from a revocation of probation and from conviction of two counts of robbery, one count of possession of a firearm during the commission of a felony, and one count of possession of a short-barreled shotgun, pursuant to a jury verdict. The defendant was sentenced to the following: 30 years for each of the robbery convictions; 5 years for possession of a short-barreled shotgun [the sentence was suspended as to possession of a firearm during the commission of - a felony]; 5 years for revocation of probation, to run concurrently with the sentences imposed in Case No. 76-810.

The appellant urges that the trial court erred in refusing to instruct the jury on attempted possession of a short-barreled shotgun as a lesser included offense, in violation of Fla.R.Crim.P. 3,510, citing Brown v. State, 206 So.2d 377 (Fla.1968); Miles v, State, 258 So.2d 333 (Fla. 3rd D.C.A. 1972); Clark v. State, 301 So.2d 456 (Fla. 3rd D.C.A. 1974); State v. Terry, 336 So.2d 65 (Fla.1976).

The defendant was given five years for possession of a short-barreled shotgun, to run concurrently with the other sentences, Therefore, in light of the other sentences accorded the defendant and under the reasoning of the following cases, we decline to entertain any alleged error in the trial judge’s failure to give a charge on attempted possession of a short-barreled shotgun. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1942); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); United States v. Radue, 486 F.2d 220 (5th Cir. 1973); Ethridge v. United States, 494 F.2d 351 (6th Cir. 1974); United States v. Bowman, 502 F.2d 1215 (5th Cir. 1974). In Ethridge v. United States, supra, we find the following:

“Petitioner, who was convicted on a variety of counts, including first degree murder, after a lengthy trial before the United States District Court for the Middle District of Tennessee, Nashville Division, and whose conviction we affirmed in 424 F.2d 951 (6th Cir. 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 463, 27 L.Ed.2d 442 (1971), now appeals from denial by a Judge of that court of his motion to vacate sentence under 28 U.S.C. § 2255 (1970).
“As a discretionary matter, we decline to consider this issue. See Barnes v. United States, 412 U.S. 837, 848 n. 16, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). The Supreme Court has indicated, ‘The concurrent sentence rule may have some continuing validity as a rule of judicial convenience.’ Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 2061, 23 L.Ed.2d 707 (1969). In Barnes v. United States, supra, it very recently squarely employed the concurrent sentence rule.
“We can think of few circumstances where the rule can be more aptly applied than here. Appellant was convicted upon four counts with the sentences shown below:
Count 8 — murder to avoid apprehension for bank robbery — 50 years.
Count 1 — conspiracy to commit bank robbery and murder — 5 years.
Count 2 — bank robbery — 20 years.
Count 3 — possession of the proceeds of a bank robbery — 10 years.
“All of these sentences are concurrent. The 50-year sentence is not under attack. We can think of no set of circumstances where there could be meaningful collateral effects of the sentences he now attacks. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Benton v. Maryland, supra.
“The judgment of the District Court is affirmed.”
* * * * * $

For the reasons stated, the convictions here under review and the revocation of probation be and the same are hereby afT firmed.

Affirmed.

      . The defendant also appeals a revocation of probation following a previous felony conviction, which we find to be without merit.

      . Particularly where the record shows four other felony convictions which have not been attacked.


author: HUBBART, Judge.

text:
    STATE of Florida, Petitioner, v. Aníbal SOTTO and Joaquin A. Amor, Respondents.
    No. 77-39.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Rehearing Denied Sept. 8, 1977.

      Richard E. Gerstein, State Atty., and Kurt Marmar, Asst. State Atty., for petitioner.
    Max B. Kogen and Geoffrey C. Fleck, Miami, for respondents.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

The state petitions this court for a writ of certiorari to review orders of a trial court which mitigated a three year prison sentence imposed upon the defendants for various lottery law violations. The trial court vacated the defendants’ prison sentences and placed the defendants on five years probation. The trial court’s mitigation orders were entered more than sixty days after the denial of certiorari by the Florida Supreme Court upon review of the defendants’ convictions.

The law is clear that a trial court pursuant to Fla.R.Crim.P. 3.800(b) may reduce a legal sentence at any time within sixty days after the imposition of sentence or within sixty days after the highest state or federal court, to which a timely appeal or petition for writ of certiorari has been taken, has entered an order of affirmance, an order dismissing the appeal or an order denying certiorari. A trial court lacks the jurisdiction to mitigate a legal sentence after the above sixty day periods have elapsed or to mitigate a legal sentence by vacating it and placing the defendant on probation. Moss v. State, 330 So.2d 742 (Fla. 1st DCA 1976); State v. Rodriguez, 326 So.2d 245 (Fla. 3d DCA 1976); State v. Brown, 308 So.2d 655 (Fla. 1st DCA 1975); Smith v. State, 289 So.2d 410 (Fla. 4th DCA 1974); Sayer v. State, 267 So.2d 42 (Fla. 4th DCA 1972); Ware v. State, 231 So.2d 872 (Fla. 3d DCA 1970); Jefferson v. State, 320 So.2d 827 (Fla. 4th DCA 1975); State v. Evans, 225 So.2d 548 (Fla. 3d DCA 1969), cert. den. 229 So.2d 261 (Fla.1969), cert. den. 397 U.S. 1053, 90 S.Ct. 1393, 25 L.Ed.2d 668 (1970).

The orders under review are quashed because the trial court lacked jurisdiction to enter them. The sixty day time periods under Fla.R.Crim.P. 3.800(b) had elapsed at the time the mitigation orders were entered. Since this is a jurisdictional matter, we must of necessity reject the defendants’ contentions which seek to excuse the trial court’s delay in mitigating the sentences. Moreover, the mitigation orders are further invalid because they do not reduce legal sentences; they vacate the sentences and place the defendants on probation.

The state’s petition for writ of certiorari is granted, the orders vacating the defendants’ sentences and placing the defendants on five years probation are quashed, and the original three year sentences imposed on the defendants are reinstated with credit given for any time served. The cause is remanded for proceedings consistent with this opinion.


text:
    Armand HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-848.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Rehearing Denied Aug. 31, 1977.
    Bennett H. Brummer, Public Defender, and Karen Gottlieb, Asst. Public Defender, and Michael Zelman, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   BARKDULL, Judge.

Armand Hernandez appeals from convictions of arson and conspiracy to commit arson following a jury trial; judgment and sentence to fifteen years.

The appellant has preserved numerous points for review on appeal. The first is that the State produced one Huffman, a coperpetrator of the alleged crime, as State’s witness after he had been given immunity. He was the principal witness for the State. At the conclusion of his testimony in chief, the following appears in the transcript [questions by the State Attorney]:

* * * * * *
“Q . did you then give a statement to the State’s Attorney’s office outlining your basic testimony here today?
“A Yes.
“Q Is the testimony you gave to the State’s Attorney substantially the same testimony you gave today?
“MR. AARON [defense counsel] Objection.
“THE COURT: Sustained.”
* * Jk * * *

After the direct examination of Huffman was completed, the defendant moved, at a side bar conference, that the State be compelled to produce Huffman’s sworn statement [previously given to the State Attorney], on the ground that the statement contained inconsistencies and thus constituted Brady material. The court immediately conducted an in camera inspection of the sworn statement. Upon completing its inspection, the court stated:

“There were obvious inconsistencies with the statement of Mr. Huffman, given to the State’s Attorney Monday, July 28, 1975. But that statement is certainly not in any way exculpatory. Does the fact that there is a prior inconsistent statement make it Brady material?”

Defense counsel responded that the inconsistencies provided impeachment material which would be relevant in the jury’s assessment of Huffman’s credibility as a witness. The court then denied the motion on the ground that the sworn statement could not reasonably affect the jury in its determination of a verdict. Defense counsel contended that this sworn statement should have been presented to him after the State had interrogated the witness in the fashion it did, and when it appears that there were inconsistent statements made by the witness that went to his credibility and directly to testimony relating to both the crime of arson and the crime of conspiracy to commit arson.

We find it was error for the trial judge not to permit defense counsel to see the statement and use it as he might see fit in conducting the defendant’s defense. State v. Drayton, 226 So.2d 469 (Fla. 2nd D.C.A. 1969); State v. Williams, 227 So.2d 253 (Fla. 2nd D.C.A. 1969); State v. Gillespie, 227 So.2d 550 (Fla. 2nd D.C.A. 1969); Brady v. Maryland, supra; United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968).

The other points urged for reversal have been examined and found to be without merit. See: Loftin v. State, 273 So.2d 70 (Fla.1973); State v. Rucker, 330 So.2d 470 (Fla.1976).

Therefore, for the reasons above stated, the convictions and the sentence be and the same are hereby set aside and the cause is remanded to the trial court for the purposes of a new trial.

Reversed and remanded, with directions.

PEARSON, J., dissents.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . It was not necessary that the statement show exculpatory material to entitle the defense to it; it went to impeachment on material issues, which entitled the defense to it. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Williams v. Dutton, supra.


text:
    Peter J. H. PROHASKA, Appellant, v. W. B. MOUTZ, Jr., Medora M. Moutz, J. R. Grubbs, Loretta C. Grubbs and the Bank of Bellview, a Florida Banking Corporation, Appellees.
    No. EE-309.
    District Court of Appeal of Florida, First District.
    July 29, 1977.
    Rehearing Denied Sept. 9, 1977.
    Merritt C. Fore, Jr., of Fore & Futch, Ocala, Ken Van Assenderp of Smith, Young & Blue, Tallahassee, for appellant.
    Gary C. Simons of Savage, Drim, Simons & Fuller, Ocala, for appellees.
   PER CURIAM.

Affirmed. See Davidson v. Davis, 59 Fla. 476, 52 So. 139 (1910); Nelson v. Scarritt Motors, Inc. et al., 48 So.2d 168 (Fla.1950); Dillon v. J. W. Walter, Inc., 98 So.2d 391 (Fla. 1 DCA 1957); Mid-State Homes, Inc. v. Staines, 161 So.2d 569 (Fla. 2 DCA 1964).

RAWLS, Acting C. J., BOYER, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Aaron ADIRIM, d/b/a Central Hauling System, Appellant, v. CITY OF MIAMI, a Municipal Corporation and Industrial Waste Service, Inc., a Florida Corporation, Appellees.
    No. 76-137.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Rehearing Denied Sept. 9, 1977.

      Tew & Tew and Donald Eugene Mason, Miami, for appellant.
    George F. Knox, Jr., City Atty., and Stanley Sterbenz, Asst. City Atty., James F. Eckhart, Coral Gables, for appellees.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   HUBBART, Judge.

The defendant Aaron Adirim appeals from a contempt of court judgment and contends that the evidence is insufficient to support the judgment. We agree and reverse.

On February 21, 1975, the City of Miami filed an action in the Circuit Court for the Eleventh Judicial Circuit of Florida seeking to enjoin the defendant Adirim from operating a commercial waste collection business within the city of Miami for failure to obtain a city waste collection license. The trial court after appropriate hearings issued a temporary injunction and later a permanent injunction restraining the defendant Adirim from operating a waste collection business in the city of Miami without an appropriate license.

On February 26, 1975, the City of Miami filed a motion for a rule to show cause why the defendant Adirim should not be held in contempt of court for violating the temporary and permanent injunctions entered by the court, attaching an affidavit alleging that Adirim was operating his waste collection business in defiance of the injunctions. The trial court issued an appropriate rule to show cause against the defendant Adirim and an evidentiary hearing was held. At the conclusion of the hearing, the trial court adjudged Adirim in contempt of court as charged and sentenced him to thirty days in the county jail. This appeal follows.

It is the established law of this state that a criminal contempt proceeding is maintained solely to vindicate the authority of the court or to punish conduct offensive to the public in violation of a court order. Customarily, when imprisonment is ordered, it is generally for a fixed, rather than an indefinite term and is administered as punishment for an act rather than as coercion to compel the contemnor to do something which he has previously failed to do. Civil contempt, by contrast, is coercive rather than punitive in nature. Its purpose is to coerce action or non-action and its orders imposing imprisonment are indefinite without fixed term, but providing for termination of the sentence upon the contemnor’s purging himself of the contempt. In that sense, it is said that the civil contemnor carries the keys to his jail cell in his pocket. A person charged with criminal contempt is presumed to be innocent and his guilt must be proven beyond a reasonable doubt before he can be convicted. Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977) (filed June 9,1977); Demetree v. State ex rel. Marsh, 89 So.2d 498 (Fla.1956).

Measured by these standards, the contempt proceeding in the instant case was criminal in nature. Its purpose was to punish conduct allegedly committed in violation of a court order, not to compel action or non-action by the contemnor in the future. Moreover, the defendant Adirim was sentenced to a fixed jail term with no provision for purging himself of the contempt. In no sense did he carry the keys to his cell in his own pocket. As such, the defendant Adi-rim was presumed innocent of the criminal contempt charge in this case and his guilt was required to be proven beyond a reasonable doubt before he could be convicted. The proofs presented in this case fall far short of that standard of proof.

Only one witness testified at the contempt hearing. Viewed in a light most favorable to the contempt judgment, this witness’ testimony established that two unidentified men drove the defendant’s trash collection truck into the back of a business establishment in Miami, collected the trash left for pickup by the business, and drove off. No evidence was ever adduced to show that the defendant Adirim participated in this trash pickup, or authorized it, or was even aware of it. Nor was it established that the two unidentified men worked for the defendant or that the defendant was compensated by the business establishment for the trash pickup. In the absence of such proof, it cannot be said that the defendant was operating a trash collection business in the city of Miami in violation of the court’s permanent injunction. Certainly, the defendant’s guilt was not established beyond a reasonable doubt.

The contempt order is reversed and the cause remanded to the trial court with directions to discharge the defendant Adirim from the cause.

      . In a proceeding not relevant here the defendant Adirim was adjudged in contempt of the temporary injunction and given a $500 fine or fifteen days in jail. Adirim did not appeal this contempt order.


text:
    John DAVIS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 76-1221.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Rehearing Denied Sept. 6, 1977.
    Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ,
   PER CURIAM.

Appellant appeals his sentence and conviction for the crimes of involuntary sexual battery and burglary with intent to assault in violation of Sections 794.011(5) and 810.-02(2), Florida Statutes (1975), respectively.

Appellant raises two points on appeal, only one of which we need discuss, to-wit:

“Whether the trial court erred in permitting a five year old child to offer testimony where the child was not shown to be competent to testify and where the child’s testimony was shown to have been influenced by his parents.”

For the reasons that follow, we must answer the above question in the affirmative.

Prior to the prosecution presenting its case, the court conducted a hearing, outside the presence of the jury, to determine whether the victim’s children, Charles Cheatham, age five, and Latonia Cheatham, age six, were competent to testify as to appellant’s involvement in the alleged crimes. After questioning the children, the court ruled as follows:

“THE COURT: All right.
“The Court is going to exclude Latonia Sams as a witness.
“She may have the requisite intelligence and understanding but it appears that she is afraid to exercise and at least to this Court that she is unable or unwilling to answer the questions that are posed to her.
“With regard to Charles Cheatham, he does appear to have the intelligence and the ability to respond to questions.
“However, this Court is still concerned as to whether or not he has been influenced by his parent.” [Emphasis added.]

The court thereupon decided to question the victim, Jessie Mae Sams, concerning any influence she may have exerted over her son, Charles, to testify in a certain manner.

“Q. (by the Court) Did you remind him what had happened?
“A. (Jessie Mae Sams) He had to tell the truth, yes.
“Q. Did you remind him about some of the events that he might be questioned about?
“A. About John (appellant) and what happened to me, yes.
“Q. You did remind him?
“A. That is all. That is all of what he is supposed to say, well, of how he supposed to say it and who he was supposed to be talking about, I mean, going in and tell the Judge what happened with John.
“That is all.
“I didn’t tell him too much more.
“Q. Did you tell him what happened with John?
“A. I mean, he knows already.
“Q. Did you talk to him and remind him?
“A. Well, my husband was out there talking to him, telling him, talking to him.
“Q. You husband was out there talking to him?
“A. Yes.
“Q. About what?
“A. About John, what to tell, what to tell them, to tell the truth, get up, don’t be scared, talk loud because they hardly talk.
“Q. (By Mr. Kaye) Did you in any way put the words in Charles’ head as to what he was to tell this Court, or did you leave it up to him to relate what it was he knew?
“A. Well, they know what they had to say, but we kept remind them to' talk loud and don’t be afraid.
“Q. So whose words would Charles be speaking, his own or words that you taught him?
“A. Well, I told him what, you know, what had happened, no, nothing else.
“Q. In other words—
“A. See—
“Q. —when you spoke with your son the first time that something had occurred?
“A. Well, he say he was going to talk about John Davis.
“I said, ‘What are you going to get in there and tell the Judge if she asked?’
“He say he will tell them about John Davis.
“Q. Did he tell you what he knows about John Davis?
“A. No.
Well, he didn’t tell me anything, no until you came and got him.
“Q. Did you—
“A. Talk in here.
“Q. Well, did you tell your boy what it is you want him to say?
“A. Well, I told him what he is supposed to say.
s(: % sf: * Hi *
“Q. (Mr. Van Zamft) You brought him down to my office once for deposition; didn’t you?
“A. Yes, I did.
“Q. And you brought him back from the deposition; right?
“A. Yes, I did.
“Q. Did you talk to him about what took place at the deposition?
“A. When, today?
“Q. No, afterwards, when you were with him then.
“A. Today, no.
“Q. Not today, but back the day the time of the deposition.
“A. That day?
“Q. Before you came.
“A. Well, my husband talked to him then.
“Q. And today before you came in here and when he came in, you refreshed his memory?
“A. Refresh his memory, I did.
“Q. As to what you did and you reminded him of all the different facts to be sure he remembered them all?
“A. Not everything, I just told him to get up here and tell the truth, what he knew, and talk loud.
“Q. Did you also remind him of some of the facts, certain things, you refreshed his memory as to what had taken place?
“A. Of what had happened, yes, I did."

Thereupon, the competency hearing was terminated with the result that Charles Cheatham was held competent to testify.

After carefully reviewing the record and briefs, we are of the opinion that the trial court abused its discretion in allowing Charles Cheatham to testify at trial in light of a record permeated with instances of undue influence over Charles by his parents.

Both during the competency hearing and at his deposition, Charles continually responded in the affirmative when asked whether his mother had told him “what to say” in court. As can be seen from the above exerpts, Mrs. Sams did not hide the fact that she and her husband had “refreshed” young Charles’ memory of the alleged incident any number of times.

While we are well aware of the fact that the competency of a witness is within the judicial discretion of the trial judge, that discretion is not without bounds, and is subject to appellate review. Bell v. State, 93 So.2d 575 (Fla.1957). Sub judice, it is our opinion that the interests of justice would best be served by granting appellant a new trial, at which time we would hope that the trial judge question young Charles every carefully so as to purge him of all but his own recollections of the incident in question. See Cross v. Commonwealth, 195 Va. 62, 77 S.E.2d 447 (1953).

Accordingly, appellant’s conviction and sentence are hereby reversed and remanded for new trial.

Reversed and remanded.


text:
    Edward James WHALEN, Appellant, v. STATE of Florida, Appellee.
    No. EE-212.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1977.
    Rehearing Denied Sept. 9, 1977.

      Michael J. Minerva, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Following affirmance of his conviction by this court, Whalen v. State, 335 So.2d 631 (Fla.1st DCA 1976), Whalen filed in the trial court a motion to vacate the judgment and sentence on grounds including the alleged incompetence of his trial counsel. That motion and the files and records of the ease did not conclusively show Whalen not entitled to relief. Fla.R.Crim.P. 3.850. The trial court accordingly held a hearing. While the trial court’s order denying relief from the judgment and sentence was deficient in its failure to “make findings of fact and conclusions of law” concerning the alleged incompetency of Whalen’s trial counsel, no evidence was offered in support of Whalen’s contention and none is alluded to here except that which appears from our earlier opinion. The admitted lapses by Whalen’s trial counsel were not so egregious as to deny Whalen constitutional guaranties. McCrae v. State, 313 So.2d 429 (Fla.3d DCA 1975); Potts v. State, 242 So.2d 729 (Fla.2d DCA 1971).

AFFIRMED.

BOYER, Acting C. J., and MILLS and SMITH, JJ., concur.


author: HENDRY, Chief Judge.

text:
    David CASTANEDA, Marta Manzanilla Castaneda, and Marta Elena Castaneda, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 76-1249.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.

      Stabinski, Funt, Tucker & Levine, Miami, for appellants.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HENDRY, Chief Judge.

This is an appeal from a final judgment on the pleadings dismissing appellant’s, plaintiffs below, amended declaratory action against appellee, defendant below.

Appellants Marta Manzanilla Castaneda and Marta Elena Castaneda were injured in an automobile accident on December 13, 1972. The accident occurred when a vehicle owned by one Al R. Denker and operated by one Ricardo R. Caceres struck appellants’ vehicle. The automobile owned by Denker was insured by Gateway Insurance Company.

After suit was filed against Denker and his insurer, the latter filed an offer of judgment for the total amount of bodily injury liability coverage available. The offer of judgment was accepted by appellants and the suit against Gateway and Denker was dismissed. Appellants thereupon commenced the above declaratory action in December of 1975, seeking uninsured motor vehicle coverage from appellee under four policies of insurance covering four vehicles owned by appellant, David Castaneda, one of the covered vehicles being the automobile involved in the accident.

Appellants’ amended complaint for declaratory relief alleged that the Denker automobile was either an uninsured motor vehicle at the time of the accident, by virtue of the fact that the driver Caceres, was uninsured and owned no motor vehicle, or alternatively, that the vehicle was underin-sured, in that the vehicle’s owner, Denker, had coverage limits of bodily injury liability insurance which were less than the limits provided to appellants by virtue of the combined (stacked) uninsured motor vehicle coverage limits on their four policies of insurance.

Appellee filed a motion for judgment on the pleadings based upon the grounds that the Denker vehicle was neither uninsured nor underinsured in that (1) the owner of the vehicle, Denker, had coverage from Gateway Insurance Company and (2) that the concept of “underinsured” motor vehicles arose out of Section 627.727(2)(b), Florida Statutes (1973), which was not in effect at the time of the accident. Judgment on the pleadings was granted and this appeal follows.

After carefully reviewing the record and briefs, and having heard arguments of counsel, we are of the opinion that the final judgment must be affirmed. Section 627.-727(2)(b), Florida Statutes (1973), which defines an uninsured motor vehicle to include an insured motor vehicle when the liability insurer thereof, “has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage,” became effective on October 1, 1973, and is only “applicable to policies delivered, issued for delivery, or renewed in this state with an inception date on or after October 1, 1973.” Appellants’ policies of insurance were issued on January 3, 1972, and, as mentioned above, the accident occurred on December 13, 1972, precluding the applicability of the “underinsured” concept sub judice. See Government Employees Insurance Co. v. Butt, 296 So.2d 599 (Fla. 3d DCA 1974).

In addition, the Denker automobile was not an uninsured motor vehicle as appellants contend. While the vehicle may have been driven at the time of the accident by an uninsured motorist, the record is clear that the owner of the automobile owned a policy of insurance issued by Gateway Insurance Company, the proceeds of which were paid to appellants. Hayston v. Allstate Insurance Co., 290 So.2d 67 (Fla. 3d DCA 1974).

Accordingly, the judgment appealed from is hereby affirmed.

Affirmed.


text:
    Charles Daniel DEARING, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 76-1380.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 9, 1977.
    Koeppel, Stark & Newmark and Nelson C. Keshen, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., and John Moppert, Legal Intern, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The defendant Charles Dearing, Jr. appeals a criminal conviction entered upon a jury verdict for unlawful possession of explosives without a permit [Sections 552.101, 552.22. Florida Statutes (1975)] in the Circuit Court for the Eleventh Judicial Circuit of Florida. He contends on appeal that the trial court erred in certain of its instructions to the jury in the denial of defense motions to suppress and dismiss, and in a ruling on the waiver of defendant’s right to counsel and to remain silent. We affirm based on the following authorities: Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) adopted by Section 933.-19, Florida Statutes (1975); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Ponder v. State, 323 So.2d 296 (Fla. 3d DCA 1975); State v. Stanzione, 315 So.2d 500 (Fla 4th DCA 1975); King v. State, 303 So.2d 389 (Fla. 3d DCA 1974); Yost v. State, 243 So.2d 469, 471 (Fla. 3d DCA 1971); Fla.R.Crim.P. 3.390(d).


text:
    Edward ROBBINS, Appellant, v. Bret CIPES and Selma Cipes, his wife, Herman Selinsky and Paula Selinsky, Logan Trucking, Inc., Appellees.
    No. 76-1453.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 9, 1977.
    Andrews, Voorheis, Lehrer & Baggett and Thomas H. Lehrer, Fort Lauderdale, for appellant.
    Kelly, Black, Black & Kenny and Brian P. Patchen, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed based on the following authorities: Hinchee v. Fisher, 93 So.2d 351 (Fla. 1957); Gordon v. Gordon, 59 So.2d 40, 43-45 (Fla.1952); Gray v. Gray, 91 Fla. 103, 107 So. 261 (1926); Simco Operating Corp. v. City National Bank of Miami Beach, 341 So.2d 232, 234 (Fla.3d DCA 1976). See also Bobbins v. Cipes, 190 So.2d 221 (Fla.3d DCA 1966).


author: NATHAN, Judge.

text:
    PALMER FIRST NATIONAL BANK, Appellant, v. RINKER MATERIALS CORP. et al., Appellees.
    No. 76-1536.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 9, 1977.
    Rosin, Abel, Band, Rosin & Brown, Saro-sota, for appellant.

      Cagle & Whelchel, South Miami, for ap-pellees.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   NATHAN, Judge.

Although several points are raised by appellant bank in this action, the sole question which merits discussion herein is whether a mortgagee can waive the priority of its mortgage over mechanic’s liens where the mortgagee induced the lien claimants to continue to furnish construction materials and labor while simultaneously refraining from filing lien claims absent fraud or active misrepresentation on the part of the mortgagee. We answer this question in the negative given the facts before us.

Appellees are subcontractors who furnished labor and materials for the construction of the Gallery Condominium. Appellant was the mortgagee on the construction loan for the project. At one time or another, the appellees were all assured by Clyde Brantley, the appellant bank’s vice president in charge of construction loans, that there were sufficient funds in the construction loan account to complete the project; that they should continue to furnish labor and materials; that there was no need to file mechanic’s liens; and, finally, that Brantley would do everything in his power to see to it that the subcontractors were paid, including the issuance of joint checks, if necessary.

The trial judge found that appellees had relied upon Brantley’s statements, which induced them to continue furnishing labor and materials without filing liens. It was therefore ruled that appellant had waived the priority of its mortgage over the mechanic’s liens which were ultimately filed by the appellees.

We do not agree with this conclusion. The trial court specifically found that Brantley’s statements were neither fraudulent nor untrue; nor had any misrepresentations been directed toward the appellees. In light of this finding, which is supported by the record, we hold that the trial court erred as a matter of law in ruling that appellant waived the priority of its mortgage over appellees’ liens. Cf. Merritt v. Unkefer, 223 So.2d 723 (Fla.1969), quashing Unkefer v. Merritt, 207 So.2d 726 (Fla. 4th DCA 1968); see also Kimbrell v. Fink, 78 So.2d 96 (Fla.1955); J. G. Plumbing Service, Inc. v. Coastal Mortgage Co., 329 So.2d 393 (Fla.2d DCA 1976). See this writer’s opinion in Gancedo Lumber Co., Inc. v. Flagship First National Bank of Miami Beach, 340 So.2d 486 (Fla.3d DCA 1976).

As we have held that appellant has not waived the priority of its mortgage over the appellees’ claims, there is no need to consider the remaining points on appeal.

Reversed.


text:
    Roger T. ANDERSON, Sherry Anderson, Alvin G. Campbell and Marcey Campbell, Appellants, v. PLANTS BY TROPICO, INC., Appellee.
    No. 77-947.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 6, 1977.
    Bradford, Williams, McKay, Hamann & Jennings and R. Benjamin Reid, Miami, for appellants.
    Edward C. Tietig, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Horace v. American National Bank and Trust Co. of Ft. Lauderdale, 251 So.2d 33 (Fla. 4th DCA 1971).