text:
    Dennis Roy GOLSTON v. STATE.
    6 Div. 907.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Rehearing Denied Dec. 16, 1975.

      Gordon L. Ladner, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and David L. Weathers, Asst. Atty. Gen., Birmingham, for the State, appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment in the penitentiary for thirty years.

The scene of the occurrence was in the store of Mulkin Auto Parts in Hueytown. Defendant was charged with robbing Charles Looney, an employee of Mulkin Auto Parts, in charge of the store at the time of the alleged robbery. Witnesses for the State were Charles Looney; Robert Shelton, a young stock clerk of the store; George Powell, a young customer in the store at the time, and two police officers, H. G. Riley and Frank M. Love, who went to the scene on call. Defendant was his only witness.

Some variations are to be found in the testimony of the witnesses, but for a better understanding of a resolution of most of the problems presented on this appeal, we set forth in the next paragraph a summary of pertinent undisputed evidence.

Defendant entered the store waving a revolver and wearing a hard hat and ski mask. Thus equipped he asked for “the money.” Mr. Looney “got all the money out of the drawer, put it in a sack and handed it to him.” The amount was one thousand ninety-four dollars and eighty-nine cents. Mr. Looney handed the sack over the counter to defendant. Defendant received the sack of money and in handling it the “money sack broke open and the money fell on the floor.” Defendant directed Mr. Looney and others to pick up the money, which they did. About that time one of the policemen drove up in front of the store. Defendant then started toward the door with the money. Defendant’s pistol was fired. Officer Riley was armed with a pistol; he saw defendant with his pistol but Officer Riley did not have a chance to fire at him. Officer Love was armed with a shotgun loaded with buck shot. He shot defendant, who was dropped to the floor and was after-wards carried out on a stretcher.

Part of the testimony of defendant was as follows:”

“Q You admit going there August 27th, taking a pistol, covering your face, put ting a hat on, going in and telling the man ‘give me your money’ ?
“A Yes, sir.
“Q And he gave you the money, didn’t he?
“A Yes, sir.
“Q And put it in a sack and you started to leave. Is that right ?
“A Yes, sir.
“Q And what kept you from leaving?
“A Saw police officers outside.”

Defendant further said:

“Q And you used this pistol to take the money from Mr. Looney ?
“A Yes, sir, I did.”

The defendant also said:

“Q (By Mr. Reynolds) You told this jury, I believe, that the sack that Mr. Looney had put the money in broke and the money was on the floor ?
“A Sir, sir.
“Q And you told them you asked him to put the — pick the money up. Do you recall what your exact words were ?
“A Pick it up, put it in the bag.
“Q Pistol pointed at them ?
“A No, I had the pistol down like that. Said ‘Pick it up, put it in the bag.’
“Q You still had the pistol, didn’t you?
“A I had it in my hand.
“Q Was it cocked?
“A No, it wasn’t cocked.”

There was evidence by State’s witnesses to the effect that defendant moved through a front door and returned into the store, but defendant denied that he ever left the store. He testified, however, that when he came to the front of the store he had the money with him at the time. There was testimony that two shots were fired by defendant’s pistol, but defendant said that only one shot was fired and that it was fired when he stumbled and fell. Testimony of the State was to the effect that defendant was using one or more of the persons in the store as hostages after the police arrived, but defendant denied this. Four shots were fired by Officer Love.

Appellant’s principal contention is that the court erred in refusing to charge the jury as to lesser included offenses of the crime of robbery. Written charges requesting that the court charge generally as to lesser included offenses and specifically as to the crime of larceny and “the crime of attempted robbery” were refused.

Appellant relies upon Code of Alabama 1940, Title 15, Section 323, which provides:

“When the indictment charges an offense of which there are different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto, or of an attempt to commit the offense charged; and the defendant may also be found guilty of any offense which is necessarily included in that with which he is charged, whether it be a felony, or a misdemeanor.”

An indictment for robbery includes the lesser offenses of larceny, assault, assault and battery and an attempt to rob, and if the evidence, according to any “reasonable theory,” presents a controversy whether the particular conduct constitutes robbery on the one hand or one or more of the lesser included offenses on the other, defendant is entitled to have the court charge on such lesser included offense or offenses. Kelly v. State, 235 Ala. 5, 176 So. 807 (1937). To the same effect is Stovall v. State, 34 Ala.App. 610, 42 So.2d 636 (1949), wherein it is stated:

“A defendant who is accused of the greater offense is entitled to have the court charge on the lesser offenses included in the indictment if there is any reasonable theory from the evidence which would support the position.”

The question presented may be otherwise stated as whether according to the evidence it can within reason be said that defendant was guilty of one or more of the mentioned lesser included offenses without being guilty of robbery.

There is no statutory definition of robbery in Alabama, but the common law definition thereof has prevailed throughout the years, which is that robbery is the felonious taking of money or goods of value from the person of another or in his presence by violence or by putting him in fear. Johnson v. State, 52 Ala.App. 277, 291 So.2d 369; Clay v. State, 52 Ala.App. 272, 291 So.2d 364, cert. denied 292 Ala. 716, 293 So.2d 828; Staggs v. State, 51 Ala.App. 203, 283 So.2d 652.

Essential elements of robbery are felonious intent, force, or putting in fear as the means of effecting the intent, and by that means, taking and carrying away the property of another from his person or in his presence. Floyd v. State, 52 Ala.App. 291, 291 So.2d 382; Tarver v. State, 53 Ala.App. 661, 303 So.2d 161.

In support of his contention that the evidence in this case would justify a conviction of “attempted robbery,” appellant relies partly upon White v. State, 24 Ala.App. 575, 139 So. 113 (1932) wherein defendant came into a bank with a gun in his hand, told the cashier to “stick ’em up” and walked over and put the money in his pocket and made the bank employee get into the vault until the defendant left with the money. The question here is not whether defendant was guilty of an attempt to rob. A robbery cannot be committed without some effort, some attempt to rob on the part of the robber; in any robbery there is an attempt to rob. The question here is whether defendant could have been guilty under the evidence of merely an attempt to rob as distinguished from robbery. In White, the indictment charged an assault with intent to rob. It did not charge robbery. The court did not hold that he could have been legally convicted of an assault with intent to rob under an indictment charging robbery. That a grand jury may elect to charge the lesser of two crimes, one includible within the other, does not prevent a conviction even though the evidence shows that the greater crime has been committed. There is language in many of the authorities that an attempt to commit a crime is an ineffective or unsuccessful effort to commit the crime, but it is clear that under consideration at the time was whether the particular conduct amounted to a mere attempt as distinguished from an element of a completed offense. Whether person should have been charged with the greater crime is no responsibility of the trial jury, but it is the duty of a trial jury, under the direction of the court, to determine the issues as to the express charge and not to render a verdict on an impliedly included charge, unless there is a reasonable doubt as to guilt of the express charge. To permit the jury to do so is to promote compromise as to the truth, which is beyond its rightful province, with the result of a compromise on the extent of punishment, which is often within its province. It furnishes the basis for the opinion in such cases as Cochran v. State, 42 Ala.App. 144, 155 So. 2d 530 (1963) and Broadhead v. State, 24 Ala.App. 576, 139 So. 115 (1932), in which the indictments were for robbery and in which it was held that convictions for attempt to rob were erroneous and subject to reversal and rendition if and when the evidence showed an actual robbery, as expressly charged, as distinguished from a mere attempt to rob, as impliedly included. The difference is vivified by consideration of the fact that the opinion in Broadhead v. State, supra, was delivered the same day, January 12, 1932, as the opinion in White v. State, supra.

Mitchell v. State, 31 Ala.App. 470, 18 So.2d 696 (1944), in which the indictment was for robbery, is more nearly in point. A conviction was allowed to stand for assault with intent to rob even though the recitation of the evidence to some extent at least indicates that there was a robbery. Even so, the case is to be distinguished from this in that in Mitchell the opinion does not purport to include a recitation or summary of all the evidence on the particular point and further no question was raised whether there was a robbery on the one hand as distinguished from an attempt to rob on the other, but the position taken by the appellant was that the evidence indicated larceny instead of robbery.

Defendant’s plea was not guilty, but the evidence was overwhelming to the effect that he was guilty, and there was no definite evidence to the contrary. From his testimony, the conclusion seems inescapable that he was either (1) striving for a verdict of not guilty on the ground of some sympathy for him or (2) hoping for as light punishment as possible on account of sympathy for him or possibly (3) aiming for a verdict of guilt of a lesser included offense and resultant lighter punishment. If he had obtained the first, it would have been contrary to the law and the evidence, but the State would have had no relief. If (2), he was doubtless disappointed in the verdict, punishment being fixed at thirty years instead of the minimum of ten years, but, punishment being for the jury according to the statute, neither side can justly complain of the punishment. If he was striving for (3), the evidence fails to furnish a basis, we think, for the result sought.

Appellant argues that as to the lesser included offense of larceny it would have been reasonable for the trier of facts to find that defendant stole the money but that he did not rob Mr. Looney of the money. He argues that according to some of the evidence a jury could have logically found that he did not have the felonious intent to rob. It also requires a felonious intent to be guilty of grand larceny. The appellant also argues that a jury could have reasonably found that Mr. Looney was not caused to part with the money by reason of violence or fear. We think the evidence conclusively shows that he did part with the money by reason of fear, as that term is to be understood in connection with the subject of robbery. The word “fear” as here employed is not to be considered as an antonym of courage or fortitude. As stated in 6 Am.Jur.2d, Robbery, §22:

“No matter how slight the cause creating the fear may be or by what other circumstance the taking may be accomplished, if the transaction is attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger and for the sake of his person, the victim is put in fear. Moreover, actual fear need not be strictly and precisely proved, since the law will presume fear if fear is to be just ground for it. And the mere fact that the victim complied with the assailant’s demands is itself indicative of fear. But the putting in fear must be sustained by evidence of acts or conduct or words or circumstances reasonably calculated to effect that result.”

No reasonable conclusion can be reached other than that Mr. Looney was caused by the conduct of defendant, a masked and armed man, to have reasonable apprehension that force would be used against him if he did not comply with the request of defendant to deliver to him the money. Brown v. State, 48 Ala.App. 456, 265 So.2d 898.

In arguing that there could have been a valid conviction of an attempt to commit robbery, appellant stresses the circumstance of defenant’s not leaving the store with the money and of his being brought down by slugs from a shotgun before he could do so. The essential elements of the crime of robbery are to be found even though defendant did not succeed in permanently or indefinitely converting the money to his own use, as was held in Cochran v. State, supra, and Broadhead v. State, supra.

To consummate a robbery the money or goods of value do not have to be removed to a place of safe and certain possession by defendant. He succeeded in robbing Mr. Looney, even though he did not succeed in evading capture and using the money. Asportation is necessary in robbery, as it is in larceny, but the asportation does not have to be for any extended distance.

“The crime of robbery is complete as soon as the robber unlawfully and by means of force or fear gains possession of the movable property of another in the presence of its lawful custodial and reduces it to his manual possession. Robbery is committed when a thief puts a man in fear, and then in his presence drivers away his cattle, or takes his goods, or intimidates the owner into opening his desk or safe, from which the defendant then takes the papers . . . ” Wharton’s Criminal Law and Procedure § 553 (12th ed.)

Appellant also insists that the court erred in refusing defendant’s requested written charge that if the jury believed from the evidence that “Defendant was of such a state of mind that he could not form the intent to commit robbery, then” the jury “must return a verdict of not guilty.” It is argued that there was some evidence that defendant was intoxicated and that such evidence entitled defendant to the charge. The requested charge is inconsistent with the main contention of appellant asa hereinabove discussed to the effect that the evidence established guilt of a lesser offense than robbery, but inconsistency is permissible and in and of itself does not invalidate either contention. Under no circumstance would intoxication warrant a “not guilty” verdict. Brown v. State, 39 Ala.App. 149, 96 So.2d 197. In view of the contention previously considered, it should be noted also that any evidence as to intoxication consists of nothing but defendant’s answer to a question propounded to him by his attorney as to what his general state of physical well being was at the particular time, which answer was:

“Well, I was depressed, for one thing, and highly intoxicated for another.”

Immediately after making that statement he was asked by his counsel:

“You are not saying, though, that you were so intoxicated that you didn’t know what you were doing, didn’t really know what you were doing, are you? That’s not your defense is it ?”

to which his answer was:

“No.”

Much has been said on the subject of voluntary drunkenness as a defense in criminal cases, but there has been no departure from the rule announced in Walker v. State, 91 Ala. 76, 9 So. 87 (1890) and recently quoted in Beasley v. State, 53 Ala.App. 488, 491, 301 So.2d 252, as follows :

“Mere drunkenness, voluntarily produced, is never a defense against a criminal charge, and can never palliate or reduce the grade of an offense, unless it is so extreme as to render impossible some specific mental condition which is an essential element of the criminal act.”

In Walker the court justified the refusal of requested charges on the subject of drunkenness, by reason of the principle quoted. There was no evidence tending to show such extreme intoxication as to render defendant incapable of having the felonious intent that is an essential element of the crime of robbery. The trial court properly refused the requested instruction.

We have considered the entire record as provided by Title 15, Section 389, Code of Alabama 1940 and conclude that there is no prejudicial error therein and that the judgment of the trial court should be affirmed.

Perhaps it should be said that there was a prior conviction of this defendant of the crime of robbery. Evidence thereof was presented by defendant himself, that is, on interrogation of defendant by defendant’s counsel. We doubt not that this was good trial strategy on the part of defendant’s counsel, for the reason that defendant’s guilt was so conclusively established by the State’s evidence there was nothing to be gained by defendant’s not taking the stand, which of itself would have entitled the State to have shown his previous conviction on cross-examination. By bringing it out on direct examination, defendant was not making his case worse than it would have been otherwise, and it probably placed him in a more favorable position for the invocation of sympathy for him when the fact of his prior conviction and penitentiary confinement was considered along with other evidence of adversity. What effect it had upon the jury we do not attempt to assay, but it is clear that the jury could have given him twenty years less than they did or twenty years, or more, more than they did, which would have been entirely within their province.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

Affirmed.

All the Judges concur.

      . Conviction of an attempt under an indictment charging “any offense” is also authorized by Code of Alabama 1940, T. 14, § 42.


source: Caselaw Access Project

license: Public Domain

text:
    Corine CLAY, alias v. STATE.
    6 Div. 846.
    Court of Criminal Appeals of Alabama.
    June 17, 1975.
    Rehearing Denied July 29, 1975.
    Barnett, Tingle & Noble, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery and David L. Weathers, Asst. Atty. Gen., Birmingham, for appellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent, was convicted after indictment of second degree forgery. Sentence imposed by the court was one year and one day imprisonment.

The instrument, the subject of forgery and set out in the indictment, reads as follows:

We note that the insertion “68733 G. J. Ex 1” was not on the instrument when presented to the bank teller, but was placed there by the stenographer taking this evidence adduced before the grand jury. This was done to identify this paper.

It appears from the evidence that defendant presented this instrument to the bank teller, Dorothy Ann Johnsey, about four or four-thirty in the afternoon and demanded “Cash this. My account is in the Midfield office.”

The account number being absent on the withdrawal receipt, supra, the teller referred the defendant to an officer of the bank. She did not thereafter handle the transaction.

Mrs. Johnsey testified on recall that when the instrument was presented for withdrawal of funds from a savings account, that Cleo Bryant did not have a savings account with the bank and further, without a savings account number thereon, the instrument was invalid and void. Cleo Bryant testified that she did not sign the instrument.

However, the witness, Mrs. Johnsey, testified in response to the court’s question as follows:

“THE COURT: And this is important. Along that same line, if the — if the person whose name appears on there had had an account in one of the stores, .pnd, on checking, if that number had been located and inserted in there, then would that have had the validity to cause you to pay money on it?
“A. Right.”

Appellant’s contention on this appeal that the instrument was void and was not the subject of forgery is without merit.

It appears to us from the question and answer of the witness, supra, that on checking and ascertainment of the number and its insertion, the instrument would have been sufficient to pay money on it.

We are impressed that the presence of the account number on the withdrawal receipt was a bookkeeping requirement and an accounting convenience to the bank. Its absence served to alert the bank teller to postpone payment and refer the matter to a bank officer. In other words, she was alerted to question the authenticity of Cleo Morgan’s signature appearing thereon. The testimony of the witness that the instrument was void was an issue properly addressed to the court and not the witness.

We conclude that the instrument was not void because the account number on the instrument was absent. If it was void, the bank could not breathe validity into it by placing the account number on it, as the witness stated the bank could do, and then pay it.

As we understand the evidence, receipts in the form appearing, supra, were used at the bank to withdraw money from savings accounts and not checks as used in regular checking or commercial accounts.

The instrument was in proper form and lacked only an identification number of the account involved. This could have been inserted by the bank had payment of the instrument otherwise been in order.

We conclude that the instrument, supra presented to the teller was the subject of forgery as alleged in the indictment, and was not in the same category of instrument considered in Fuller v. State, 257 Ala. 502, 60 So.2d 202; Hamilton v. State, 46 Ala.App. 128, 238 So.2d 295, and Manaway v. State, 44 Ala. 375. It reasonably possesses apparent legal efficacy. Hall v. State, 31 Ala.App. 455, 18 So.2d 572(5), cert. denied 245 Ala. 671, 18 So.2d 574; Wyatt v. State, 36 Ala.App. 125, 57 So.2d 350(9), cert. denied 257 Ala. 90, 57 So.2d 366.

We think the refused charges were substantially covered by the oral charge of the court or by given charges requested by defendant.

We affirm the judgment of the trial court.

The foregoing opinion was prepared by Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

Affirmed.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.

CATES, P. J., not sitting.


author: BOYD, Justice.

text:
    Jimmie WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 46584.
    Supreme Court of Florida.
    April 7, 1976.
    Phillip A. Hubbart, Public Defender, and Kurt Marmar and Elliot H. Scherker, Asst. Public Defenders, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff and Stephen V. Rosin, Asst. Attys. Gen., for appellee.
   BOYD, Justice.

This is an appeal from a judgment of guilty of five felonies including rape, robbery and assault with intent to commit murder in the first degree entered in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County. At hearing on a pre-trial motion, Appellant moved that the jury panel be dismissed on the ground that Section 40.01, Florida Statutes, is unconstitutional. The trial court denied the motion. We have appellate jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

Appellant argues that Chapter 40.-01(1), Florida Statutes, on its face and as applied, violates Appellant’s constitutional right to be tried by jury and rights to equal protection of the law. That statute in not unconstitutional on its face or as applied in Dade County. Wilson v. State, 306 So.2d 513 (Fla.1975); Reed v. State, 292 So.2d 7 (Fla. 1974).

Appellant raises another point concerning the introduction at trial of similar fact evidence pointing to separate crimes committed by Appellant, which took up over 600 pages of trial transcript. In Williams v. State, 110 So.2d 654 (Fla.1959), we held the introduction of similar fact evidence admissible where relevant, even though it points to the commission of a separate crime, except where the evidence is relevant solely to prove bad character or propensity. We have carefully examined the record. Although the similar fact evidence introduced at Appellant’s trial is extremely extensive, it establishes a pattern of conduct similar to the pattern of conduct in the crimes now reviewed. In each pattern a man and a woman were initially accosted while sitting in cars located in large parking lots. The victims were driven to remote spots in Dade County where the woman was raped on the hood of the car. Then both the man and woman were shot with 45 caliber bullets and left for dead. The similar fact evidence was relevant to prove the identity of Appellant in the crimes charged. Although the amount of similar fact evidence introduced approaches the outer boundary of what is permissible before prejudice begins to outweigh probative value, we find the use of it made by the state here to be proper.

Since the similar fact evidence admitted by the trial court complied with the Williams standards, we find no reversible error. Accordingly, the judgment of the trial court is affirmed.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


author: BY THE COURT:

text:
    In re ARTICLE XVIII OF the INTEGRATION RULE OF THE FLORIDA BAR.
    No. 46652-B.
    Supreme Court of Florida.
    April 7, 1976.
   BY THE COURT:

Upon the petition of the Dean of the College of Law of the Florida State University, we have been asked to clarify the educational prerequisite for participation of law students in supervised internship programs. Our review discloses that clarification is needed. Therefore, Article XVIII § 3(B) is amended to read as follows :

“B. Have completed legal studies amounting to at least four semesters or six quarters for which the student has received not less than 48 semester hours or 72 quarter hours of academic credit, or the equivalent if the school is on some other basis.”

It is so ordered.

OVERTON, C. J, and ROBERTS, ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


author: OVERTON, Chief Justice.

text:
    STATE of Florida, Petitioner, v. Michael David ASKARY, Respondent.
    No. 45740.
    Supreme Court of Florida.
    April 7, 1976.

      Robert L. Shevin, Atty. Gen., and Stephen V. Rosin, Asst. Atty. Gen., for petitioner.
   OVERTON, Chief Justice.

This cause is before us on petition for writ of certiorari to review a decision of the Third District Court of Appeal reported at 294 So.2d 33 (Fla.App.3rd 1974). In its opinion the District Court held illegal an order of a trial court imposing three years probation with six months incarceration in the county jail as an initial condition, citing Hutchins v. State, 286 So.2d 244 (Fla.App.3d 1974). That holding conflicts with our recent decision in State v. Jones, 327 So.2d 18 (Fla.1976). We have jurisdiction.

We reverse the portion of the District Court’s opinion striking the imposition of probation by the trial court, and the cause is remanded with directions to reinstate the order of probation. See State v. Jones, supra.

It is so ordered.

ROBERTS, ADKINS, BOYD and ENGLAND, JJ., concur.

      . Art. V, See. 3(b)(3), Fla.Const.


author: ENGLAND, Justice.

text:
    DADE COUNTY, etc., et al., Petitioners, v. MARINE EXHIBITION CORP., a Florida Corporation, Respondent.
    No. 45923.
    Supreme Court of Florida.
    April 7, 1976.
    Stuart L. Simon, County Atty., and R. A. Cuevas, Jr., Asst. County Atty., for petitioners.
    Woodrow M. Melvin, Jr., Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for respondent.
   ON REHEARING

ENGLAND, Justice.

This cause is before us on a petition for rehearing, the Court having denied a petition for a writ of certiorari on December 4, 1974. The basis of the original petition was a direct conflict between the decision of the Third District Court of Appeal below, reported at 296 So.2d 652, and two prior decisions of this Court. The petition for rehearing alleges conflict with a third decision which was published shortly after the petition was filed. Our independent review of the controversy reveals that direct conflict now exists with Williams v. Jones, 326 So.2d 425 (Fla.1975). We have jurisdiction under Article V, § 3(b)(3) of the Florida Constitution.

The simple issue decided below was whether a factual question is presented, so as to overcome summary final judgment on the pleadings, as to whether on January 1, 1972 respondent used land which it leased from Dade County for a “public purpose” so as to be liable for tax on the leasehold interest. Petitioner contends that a fact question exists on the basis of an affidavit of the Dade County tax assessor stating that respondent’s use served a non-public, profit-making purpose.

Respondent’s eligibility for tax exemption on the basis of a “public” use of property leased from a political subdivision of the state is an issue of fact, not law. The tax assessor’s affidavit, filed in response to respondent’s motion for summary judgment, was sufficient to raise an issue of fact and preclude disposition on the pleadings.

The decision of the district court is quashed and the cause is remanded for further proceedings consistent with this decision.

OVERTON, C. J., and SUNDBERG and HATCHETT, JJ., concur.

ROBERTS and ADKINS, JJ., dissent.

      . Shevin v. Kahn, 273 So.2d 72 (Fla.1973) ; Juarrero v. McNayr, 157 So.2d 79 (Fla. 1963).

      . Straughn v. Camp, 203 So.2d 689 (Fla. 1974).

      . Williams v. Jones, 326 So.2d 426 (Fla.1975) ; Straughn v. Camp, 293 So.2d 689 (Fla.1974) ; Hillsborough County Aviation Auth. v. Walden, 210 So.2d 193, 196 (Fla.1968) ; Gamma Phi Chapter of Sigma Chi Bldg. Fund Corp. v. Hade County, 199 So.2d 717, 718 (Fla. 1967) (dictum). See also Walden v. Hertz Corp., 320 So.2d 385, 386 (Fla.1975) (dissent) .


author: PER CURIAM.

text:
    BAKER PROTECTIVE SERVICES, INC., Petitioner, v. William T. MAYO et al., Respondents. TEL-CAR CORPORATION and Radio-Paging, Inc., Petitioners, v. William T. MAYO et al., Respondents.
    Nos. 48084, 48085.
    Supreme Court of Florida.
    March 31, 1976.
    Rehearings Denied May 14, 1976.
    David B. Erwin and Alan N. Berg of Mason & Erwin, Tallahassee, for Baker Protective Servilces, Inc., and Wilfred C. Varn and C. Everett Boyd of Ervin, Varn, Jacobs & Odom, Tallahassee, for Tel-Car Corp. and Radio-Paging, Inc., petitioners.
    Prentice P. Pruitt and Norman H. Horton, Jr., and Felix A. Johnston, Jr. of Woods & Johnston, Tallahassee, for respondents.
   PER CURIAM.

Our careful consideration and analysis of the petition, the record, briefs and arguments of counsel sustain the view that the findings of the Commission are supported by competent substantial evidence and that, in entering its orders, Respondent Commission met the essential requirements of law.

Accordingly, the petition for writ of cer-tiorari is

DENIED.

OVERTON, C. J., and ROBERTS, BOYD, SUNDBERG and HATCHETT, JJ., concur.


author: HATCHETT, Justice.

text:
    George GRAYSON, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 48360.
    Supreme Court of Florida.
    April 7, 1976.
    George Grayson, in pro. per.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for respondent.
   HATCHETT, Justice.

In this case a Florida convict challenges the validity of a detainer lodged against him by Louisiana officials. Time remains to be served on the Florida sentence, but we conclude that the challenge does not come too early. We decide the prisoner’s claim adversely to him, however, because the challenge to the detainer is in fact an attack on an agreement between the governors of Florida and Louisiana, as subsequently modified. A prisoner has no standing to challenge such agreements.

In support of his petition for writ of ha-beas corpus, Grayson alleged that he was serving a 21 year sentence in the Louisiana State Penitentiary for manslaughter when authorities in Florida sought his return here to stand trial for murder. Petitioner claimed he was brought to Florida under an agreement “that in the event that the petitioner was sentenced to a death penalty or a life sentence he would not have to be transferred back to the state of Louisiana.” Since he was brought to Florida, convicted of murder, and sentenced to life imprisonment, he maintains that the detainer, which the Louisiana officials have lodged against him here, is unauthorized. By the present petition, Grayson seeks a declaration that the Louisiana detainer is invalid.

We granted the writ of habeas corpus and required respondent Wainwright to make return to the writ. As an attachment to his return, respondent submitted a copy of the executive agreement pursuant to which petitioner was returned to Florida from Louisiana. The agreement is between Governor Kirk of Florida and Governor McKeithen of Louisiana and provides that the petitioner be extradited:

. upon the express condition that [petitioner] be taken from and returned to the State of Louisiana at the expense of the State of Florida, to be so returned, as soon as the prosecution in the State of Florida is terminated, to the custody of the officer, agent or person making the original surrender of the prisoner to the agent of the State of Florida.

According to the return, petitioner’s conviction in Florida on March 13, 1970, was followed by a letter dated May 4, 1970, from Governor McKeithen to the Florida state attorney who secured Grayson’s murder conviction. Respondent has attached a copy of the letter, in which Governor McKeithen wrote:

At the request of the State of Florida I herewith grant a reprieve to Mr. A1 Johnson, alias Charles Grayson, on the sentence which he has incurred in Louisiana so long as he is incarcerated in the Florida State Penitentiary under a present life sentence which he is serving. It is understood that in the event Mr. Johnson is released from the Florida State Penitentiary for any reason that the State of Florida will return him to this State under the re-extradition agreement previously entered into between myself and the Governor of Florida.

Because of the view we take of this case, and in the absence of any traverse of the return, we have dispensed with a hearing to “receive evidence in contradiction of the return.” Fla.Stat. § 79.06(1) (197S).

The detainer lodged by the Louisiana authorities is one of two bases on which respondent justifies petitioner’s present detention. Petitioner is incarcerated pursuant to the judgment and sentence of a Florida court, the validity of which is not at issue here, but he is also held on the basis of the Louisiana detainer. In an analogous case, the United States Supreme Court concluded that “the State holding the prisoner in immediate confinement acts as agent for the demanding State,” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 498-9, 93 S.Ct. 1123, 1131, 35 L.Ed.2d 443, 454 (1973), notwithstanding the prisoner’s service of a sentence imposed by a court of the State in which he is incarcerated.

On account of the conditional reprieve, the sentence on which the detainer is predicated is presumably held in abeyance for the duration of petitioner’s confinement in Florida; but it does not follow that petitioner’s attack on the detainer lodged against him is premature. Although a prisoner serving one sentence has never begun the service of a consecutive sentence imposed for a different offense, the sentence slated to begin in futuro, as well as the underlying judgment, are susceptible of collateral attack. Mr. Justice Adkins, writing for the Court in Lawson v. State, 231 So.2d 205 (Fla. 1970), citing Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), stated the Florida rule succinctly:

A prisoner serving consecutive sentences is “in custody” under any one of them for the purposes of Rule 1.850, Florida Rules of Criminal Procedure, 33 F.S.A., formerly Criminal Procedure Rule One [and now Rule 3.850, RCrP] At 207.

Service of the Louisiana sentence in the present case had already begun, moreover, and was interrupted when petitioner was brought to Florida for trial. Because the detainer is grounded on the unserved portion of the Louisiana sentence, petitioner is “in custody” under the detainer for purposes of challenging the detainer’s validity. Additionally, it is generally recognized that a detainer itself has significant custodial consequences, whatever its legal justification. See Braden v. 30th Judicial Circuit of Kentucky, supra; Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970).

While petitioner has standing to attack the Louisiana detainer on other grounds, it “is well-established that a prisoner has no standing to contest an agreement between two sovereigns concerning the . . . exchange of custody of the prisoner . . .” Chunn v. Clark, 451 F.2d 1005, 1006 (5th Cir. 1971); Dorrough v. Texas, 440 F.2d 1063 (5th Cir. 1971); Nelson v. United States, 406 F.2d 1322 (5th Cir. 1969). In any event, petitioner does not explain why a breach of the agreement should invalidate the detain-er. The Louisiana conviction is necessarily unaffected by proceedings in connection with a separate prosecution; it is the Louisiana conviction, and not the executive agreement, on which the detainer is based.

The writ of habeas corpus is discharged.

OVERTON, C. J., and ROBERTS, ADKINS and BOYD, JJ., concur.

      . The effect of the reprieve is a question of Louisiana law. See generally State ex rel. Melerine v. Trist, 238 La. 853, 116 So.2d 691 (1959). This situation is now treated in the interstate agreement on detainers. See Fla. Stat. §§ 941.45(5) (f) and 941.45(8) (1975).

      . There is now an executive agreement among Florida and the other states party to the interstate agreement on detainers, codified as Fla.Stat. §§ 941.45-50 (1975). A prisoner has no standing to contest this new agreement, either, but the agreement itself confers certain remedies when detainers are based on untried accusatorial writs.


author: PER CURIAM. BOYD, Justice

text:
    THE FLORIDA BAR, Complainant, v. Jack F. WHITE, Jr., Respondent.
    No. 48705.
    Supreme Court of Florida.
    April 7, 1976.
    Dennis P. Thompson, Clearwater, Bar Counsel, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

This matter is before the Court on a stipulated disposition of a complaint by The Florida Bar against Jack F. White, Jr., Respondent, pursuant to Article 11 of the Integration Rule of The Florida Bar as amended.

On the narrow file before us, we glean that in a case entitled Van Dolen v. Peeples, Case No. 71-456, CIV JLK, a civil case filed in the United States District Court for the Southern District of Florida in 1971, the Respondent was duly retained by the Peeples to defend their cause. After conducting settlement negotiations involving the Respondent’s traveling to Miami, he entered into a stipulation for his clients to settle the Van Dolen case for $1,000 if paid within 30 days from November 24, 1971, but the stipulation provided that if the settlement was not concluded within 30 days, the Peeples would be subject to an increased liability of $15,000. Meantime, Mr. Peeples was dismissed as a defendant in the case because of pending bankruptcy proceedings. The Respondent failed to notify his clients of his settlement arrangement as a result of which the settlement offer of $1,000 was not paid and judgment in the amount of $15,000 was entered against Mrs. Peeples on February 4, 1972. Subsequent to that date, Mrs. Pee-ples, through other counsel, did arrange to settle the $15,000 judgment for $3,876.00 plus an additional $805.57 in attorney’s fees and interest on loans necessary to raise the money for a total of $4,713.94. Thus, the case of Van Dolen v. Peeples was concluded and is of no further interest in this matter.

During the 30-day period provided for the payment of $1,000 in settlement, the Peeples did not provide that sum of money because they did not know of the settlement agreement. Collateral to the foregoing circumstances, we learn from the record that on September 13, 1971, Mr. and Mrs. Peeples entered into a contract to purchase a home and provided a binder of $1,000 and thereafter engaged the Respondent and paid him $140 as an attorney’s fee to close the transaction. The record indicates that Mr. and Mrs. Peeples decided against the purchase of the home and agreed to sell their purchase agreement to the Respondent and a friend of his for $1,000. We must assume from the record, but without knowing, that the sale of this purchase agreement for $1,000 was intended to provide the sum necessary to settle the Van Dolen case and that perhaps accounts for the failure of the Peeples to provide $1,000 in cash from their own funds. Towards the end of the confusion, the Respondent and his associate, having been given credit for $1,000 on the purchase price of the property, became indebted to the Peeples in that amount and the Respondent advised Mrs. Peeples on or about May 26, 1972, that he was holding that sum for her. We are not informed as to why she did not call for her money and on December 1, 1972, the Respondent applied the sum of $1,000, then on deposit with him, for his attorney’s fees in the case from which he had been relieved in the interim.

Subsequently thereafter, a disposition without trial was discussed between the Respondent and The Florida Bar following which on November 25, 1975, all parties agreed to the following disciplinary measures on the Respondent, to-wit:

1. Restitution to Mary W. Peeples in the amount of $4,713.94.
2. A public order to be published in the Southern Reporter, Second Series, providing for a recitation of the material facts alleged in the complaint and an order suspending the Respondent from the practice of law for a period of 14 consecutive days with automatic reinstatement at the end of the period of suspension as provided in Rule 11.10(3).

subject, however, to approval of this Court.

Accordingly, the settlement stipulation, having been approved by The Florida Bar and the Respondent, is approved by this Court and it is therefore,

Ordered and adjudged that the Respondent, Jack F. White, Jr., is suspended from the practice of law for a period of 14 consecutive days beginning May 3, 1976, at the expiration of which time he shall stand reinstated as a member in good standing of The Florida Bar.

It is further ordered and adjudged that the Respondent, prior to May 3, 1976, pay to Mary W. Peeples the sum of $4,713.94 in accordance with the stipulation and the costs of this proceeding fixed at $675.85.

It is so ordered.

OVERTON, C. J., and ROBERTS, ENGLAND and HATCHETT, JJ., concur.

BOYD, J., concurs specially with an opinion.

BOYD, Justice

(concurring specially).

The record reflects no ulterior motive of respondent in this unfortunate situation, which could easily be due to confusion in a busy law office. Respondent has agreed to pay in full the damages arising to his clients, thereby relieving them of economic detriment. Since both complainant and respondent have agreed to the majority opinion, I reluctantly concur.


text:
    Peter ARIS, Petitioner, v. BIG TEN TAXI CORPORATION, Employers Service Corporation, and Industrial Relations Commission, Bureau of Workmen’s Compensation, Respondents.
    No. 46116.
    Supreme Court of Florida.
    March 17, 1976.
    On Rehearing May 22, 1975.
    Rehearing Denied May 14, 1976.
    Peter S. Schwedock, of Pelzner & Schwedock, Miami, for petitioner.
    John G. Tomlinson, Jr., of Williams & Tomlinson, Coral Gables, for respondents.
   ON PETITION FOR CERTIORARI AND EXTRAORDINARY ATTORNEY’S FEES.

This cause having heretofore been submitted • to the Court on Petition for Writ of Certiorari upon the transcript of record and briefs to review the order of the Industrial Relations Commission and the Court finding no departure from the essential requirements of law, it is ordered that said petition be and the same is hereby denied. See: Scholastic Systems, Inc., et al. v. LeLoup, et al., 307 So.2d 166 (Fla. 1974).

It is further ordered that the Petition for Extraordinary Attorney’s Fee filed by attorney for petitioner is denied.

ROBERTS, BOYD, McCAIN and OVERTON, JJ., concur.

ADKINS, C. J., and ENGLAND, JJ., dissent.

ON REHEARING

ENGLAND, Justice.

This matter is here on a petition for cer-tiorari to the Industrial Relations Commission, seeking review of an order in which the Commission denied workmen’s compensation benefits because the statute of limitations precluded recovery. Our jurisdiction is based on Article V, Section 3(b)(3) of the Florida Constitution.

Mr. Aris obtained a determination by the Judge of Industrial Claims that he was mentally incompetent as a result of an injury sustained in 1962 during a robbery in the course of his employment as a taxicab driver. The Judge also ruled that respondent was responsible for workmen’s compensation benefits because the statute of limitations which would bar his entitlement to benefits (Section 440.19(1), Florida Statutes (1973)) would not apply to an incompetent unless a guardian or other authorized representative had been appointed to protect his interests. Section 440.19(3), Florida Statutes (1973). It is undisputed that no such guardian has ever been appointed to represent Mr. Aris.

Respondent sought review of the Judge’s determination before the full Commission. In the meantime, Mr. Aris fired his attorney. As a result he was not represented before the Commission either orally or by brief. The Commission held no hearing on respondent’s application for review of the Judge’s order. Nonetheless, the commission reversed the ruling of the Judge and reversed his award, indirectly at least ruling that the statute of limitations barred Mr. Aris’ claim. We hold this was error.

Section 440.19(3) suspends the period of limitations until a guardian is appointed to represent an incompetent. The Commission has discretion to direct such an appointment under Section 440.17, Florida Statutes (1973). Allure Shoe Corp. v. Lymberis, 173 So.2d 702 (Fla.1965). As a preliminary matter, proceedings before the Commission should have been suspended until a guardian had been appointed to protect Mr. Aris’ interests. In deciding his case without any presentation on his behalf through a guardian or appointed counsel, the Commission departed from the essential requirements of law.

As to whether the statute of limitations bars Mr. Aris’ claims we cannot escape the plain language of the provision on which the Judge relied. The Commission gives no legal reason why the statute should bar this claim. The Commission’s Order reviews the long history of litigation by Mr. Aris and intimates that his claim is barred by estoppel, res judicata, laches or some other unnamed, like legal theory. The Commission concluded, essentially, that Mr. Aris had his cause tried at least once before this most recent proceeding, and that there was no basis for a retrial. This general conclusion, however cast, was not raised here by respondent’s counsel, and in any event it does not address the Judge’s conclusion that the statute of limitations on claims is no bar to Mr. Aris so long as he is incompetent and no guardian has been appointed to represent him.

Respondent’s counsel bottoms his argument to us relative to limitations on an assertion that Mr. Aris was competently represented in fact in all of the compensation proceedings. That may be so, but Section 440.19(3) does not allow the claims statute to run against adequately represented incompetents for whom no guardian has been appointed.

We hold, therefore, that the claims statute in Section 440.19(1) is no bar to Mr. Aris’ recent proceeding and will not be until a guardian is appointed to protect his interests in these matters.

The principal argument raised by respondent here is that the Judge erred in adjudging Mr. Aris incompetent, in that there was inadequate evidence to support that finding.

In Thomas v. Westinghouse Electric & Mfg. Co., 60 Fla. 687, 36 So.2d 377 (1948) we defined incompetency for purposes of this statute of limitations to be an inability to manage ordinary business affairs. That definition contemplates more than an ability to satisfy physical needs. Here, as in Thomas, there was expert testimony that Mr. Aris is and has been legally incompetent. The record discloses that only heavy medication prevents Mr. Aris from being institutionalized and that he lives in a delusional state. Mr. Aris’ own testimony adequately bears out the opinion of the experts. There was substantial competent evidence supporting the order of the Judge of Industrial Claims.

This matter has been in litigation since 1963. It is time for it to be concluded. Certiorari is granted, the decision of the Commission is reversed, the decision of the Judge of Industrial Claims is reinstated, and the case is remanded to the Commission for the purpose of obtaining a guardian to accept, manage and account for the benefits awarded by the Judge of Industrial Claims.

OVERTON, C. J., and BOYD, SUND-BERG and HATCHETT, JJ., concur.

ROBERTS and ADKINS, JJ., dissent.


author: BOYD, Acting Chief Justice.

text:
    AIRVAC, INC., etc., et al., Petitioners, v. RANGER INSURANCE CO., etc., Respondent.
    No. 46610.
    Supreme Court of Florida.
    Feb. 25, 1976.
    Rehearing Denied May 10, 1976.

      Ray Sandstrom and Fred Haddad of Sandstrom & Hodge, Fort Lauderdale, for petitioners.
    James V. Dolan of the Law Offices of James V. Dolan and Associates, Fort Lau-derdale, for respondent.
   BOYD, Acting Chief Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, reported at 302 So.2d 801. Our jurisdiction is based on alleged conflict between the decision sought to be reviewed and Palm Beach Estates v. Croker, Pavlis v. Atlas-Imperial Diesel Engine Co., Federal Land Bank of Columbia v. Brooks, United States Fidelity and Guaranty Co. v. Sellers, Dixie Sightseeing Tours, Inc. v. Florida Transportation Co., and State v. Holt. The facts of this case are as follows.

The Petitioner is Catherin Kirohn, who was the Appellee below; Airvac, Inc., is not a party to this cause. In 1968 Petitioner sued Respondent upon a breach of warranty endorsement which was a part of that certain insurance policy issued by Respondent to Airvac, Inc. Petitioner was the holder of a $40,000.00 note from Air-vac, which note was secured by a chattel mortgage upon Airvac’s aircraft insured by Respondent and further insured by the breach of warranty endorsement in the amount of the outstanding loan for the Petitioner beneficiary. The aircraft having been lost, this suit was instituted.

Eighteen months after answering and four days before trial, Respondent moved to amend its answer to include an issue of a fraudulent conveyance creating Petitioner’s lien on the aircraft, but that motion was denied. This first trial resulted in a directed verdict against Airvac, Inc., and the jury returned a verdict thereafter for Respondent and against Petitioner., On the first appeal that followed, the denial of this motion to amend was not cross-assigned as error. On that appeal the District Court of Appeal, Fourth District, reversed and remanded the cause for determination of (1) whether Airvac, Inc., had an insurable interest in the lost aircraft; (2) whether Petitioner held a valid lien on the aircraft; and (3) if those questions were determined affirmatively allowing recovery by Petitioner under the breach of warranty clause, what was the amount of the lien which the endorsement purported to insure.

After remand and prior to retrial Respondent sought to amend its answer to include the fraudulent conveyance issue. The trial court initially granted that leave, but upon reconsideration it determined the law of the case did not permit such action, and the order was “. . . cancelled, set aside and held for naught.” The cause came on for retrial and resulted in a verdict and final judgment, together with costs, entered for Petitioner. The case was then appealed for the second time to the District Court; the majority of that court reversed, holding that the trial court should have allowed the post-appeal amendment sought by Respondent.

Upon careful examination of the record and argument of counsel we are compelled to reverse the decision of the majority of the District Court of Appeal for we agree with the reasoning of the dissenting opinion.

It is clear that in the initial trial Respondent sought- to amend its answer, but that amendment was denied; that denial could have been assigned as error in the first appeal of this case, but it was not. On retrial the lower court was bound by the Appellate Court’s decision; and, since the fraudulent conveyance issue was neither a matter of record upon which the appeal was decided nor was it a matter to be determined by the trial court on remand, the trial court had no authority on remand to permit Respondent to amend its answer to interject that issue into the cause. The trial court’s erroneous order granting Respondent leave to amend was properly remedied by its vacating said order. The District Court’s failure to affirm that order denying amendment is contrary to Palm Beach Estates v. Croker, Dixie Sightseeing Tours, Inc. v. Florida Transportation Co., United States Fidelity and Guaranty Co. v. Sellers, Federal Land Bank of Columbia v. Brooks, and Pavlis v. Atlas-Imperial Diesel Engine Co., supra. Enunciations in a prior appellate decision upon the same case becomes the law governing that case, and the court upon a second appeal must take judicial notice and knowledge of the opinion and the judgment rendered in the first appeal, as well as the facts presented by the transcript of record in the original case. The record sub judice clearly shows that Respondent had full knowledge of the purported “fraudulent conveyance” prior to the initial trial; that it sought by amendment to submit that issue to the court; that it had full opportunity to perfect an appeal, assign as error or otherwise present the issue of the denial of its motion to the appellate court on the initial appeal but did not, thereby waiving any objection to the trial court’s rejection of its amendment on this issue. It cannot be heard to complain now that it was unaware of such “defense” or that it is not bound by the state of the record upon which appeal was had and the points of law therein decided. Under the authority cited above the trial court after remand is prohibited from allowing amendments to pleadings to insert a new defense, particularly when that same defense was sought to be employed prior to the initial trial, was rejected and was never assigned as error or made subject to the first appeal. It is clear that Respondent had every opportunity to introduce all proper and admissible evidence in the retrial of this case after reversal and that it enjoyed fully every right to a trial by jury.

Accordingly, the decision of the District Court of Appeal, Fourth District, is quashed and the cause remanded to the Broward County Circuit Court in order to reinstate its original final judgment entered for Petitioner.

It is so ordered.

OVERTON, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . 106 Fla. 617, 143 So. 792 (1932).

      . 126 Fla. 808> 172 So. 67 (1937).

      . 139 Fla. 506, 190 So. 737 (1939).

      . 197 So.2d 832 (Fla.App.1967), cert. den. Fla., 204 So.2d 211.

      . 164 So.2d 196 (Fla.App.1963).

      . 117 So.2d 428 (Fla.App.1960).


text:
    STATE of Florida, Petitioner, v. Horace Oliver RUCKER, Respondent.
    No. 47031.
    Supreme Court of Florida.
    April 7, 1976.
    Robert L. Shevin, Atty. Gen., and Lance R. Stelzer and Ira N. Loewy, Asst. Attys. Gen., for petitioner.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer and Elliot H. Scher-ker, Asst. Public Defenders, for respondent.
   ENGLAND, Justice.

By petition for a writ of certiorari, the State asks that we review and reverse a decision of the Third District Court of Appeal reported at 307 So.2d 830. We noted a direct conflict between that decision and Loftin v. State, 273 So.2d 70 (Fla. 1973), issued our writ and dispensed with oral argument.

The point at issue is whether reference to the phrase “mug shots” in a prosecutor’s closing argument to a jury constitutes reversible error in all cases. The district court believed it did, stating that such a statement “clearly indicated to the jury the nature thereof.” 307 So.2d at 831. We do not agree, and we reaffirm the view expressed in Loftin that:

“We are not, however, willing to say that such error in this matter should be an ‘automatic reversal’ upon the mere use of the words ‘mug books’. As in other such instances, the entire' record and surrounding circumstances must be considered . . . .” 273 So.2d at 71.

At the close of argument following the trial of this case, defendant’s counsel moved for a mistrial on the ground that the prosecutor had prejudiced his client when he argued:

“We have brought you not only the victim, making a positive identification, but the only discrepancy at all in this testimony is that he didn’t recall the mous-tache on the mug shot that he looked at, which only means to prove another thing, that nobody was rehearsing him on the mug shot.”

The trial judge thereupon excused the jury and in consideration of our opinion in Lof-tin ruled that the error was harmless in view of all the circumstances of the trial. When the jury returned he gave them cautionary instructions on the prosecutor’s comment, and on their use of the photographs in the jury room.

We note that the district court did not conclude that the trial judge abused his discretion in finding the error harmless and failing to direct a mistrial. See Thomas v. State, 326 So.2d 413 (Fla.1975). On the basis of the entire record, such a finding would not have been warranted.

The court did, however, begin in its opinion by stating that defendant’s first allegation of trial error involved the reference to “mug shots”. The court never indicated whether other alleged errors would require a new trial. Accordingly, the decision of the district court is vacated and the cause is remanded for further proceedings in the district court consistent with this opinion.

ROBERTS, Acting C. J., and BOYD and SUNDBERG, JJ., concur.

ADKINS, J., dissents.

       Defense counsel argues that the prejudice here stems from a combination of the prosecutor’s remark in closing argument and the introduction into evidence of the front and side view “mug shot” photographs. The thrust of his argument is that we should adopt as the law of this state a rule which absolutely prohibits the introduction into evidence of photographs of this type, on the grounds of inherent and uncorrectable prejudice. See Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966) ; United States v. Harrington, 490 F.2d 487 (2d Cir.1973). This we decline to do. We are not called upon here and expressly decline to decide when and if the introduction of photographs of this type may be prejudicial error, in light of the overwhelming independent proof of defendant’s guilt in this case. This is not to say, however, that the other proof was itself necessarily free of prejudicial error, as our mandate indicates.


author: RAWLS, Acting Chief Judge.

text:
    Anthony Gernell BURT, Appellant, v. STATE of Florida, Appellee.
    No. Z-210.
    District Court of Appeal of Florida, First District.
    April 20, 1976.
    Richard W. Ervin, III, Public Defender; and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

By amended information, appellant was charged in Count I with breaking and entering a dwelling with intent to commit a misdemeanor and in Court II with carrying a concealed firearm.

After a jury trial, appellant was found guilty of the lesser included offense of attempted breaking and entering with intent to commit, a misdemeanor as to Count I, and guilty as charged as to Count II. The trial court imposed five year sentences on each count to run concurrently.

By way of this appeal, appellant contends that the trial judge erroneously instructed the jury on the potential penalty for attempted breaking and entering with intent to commit a misdemeanor. In his instructions, the trial judge stated: “The crime of guilty of attempted breaking and entering with the intent to commit a misdemeanor, the penalty cannot exceed two and a half years in the state prison.” However, upon the jury rendering a verdict of guilty of the lesser included offense of attempted breaking and entering with intent to commit a misdemeanor, the trial judge adjudicated appellant guilty of this crime and proceeded to sentence him to five years to run concurrently with a five year sentence imposed for carrying a concealed firearm.

Inasmuch as the jury settled on an offense which was a lesser degree of the one with which appellant was charged, and did so after having been informed by the trial court that the penalty therefore was imprisonment for a maximum of two and a half years, we hold that the interest of justice would best be served by resentencing appellant to two and a half years for the crime of attempted breaking and entering with intent to commit a misdemeanor. See Stern v. State, 296 So.2d S49 (Fla.App.3rd 1974).

The judgment and sentence as to carrying a concealed firearm are affirmed. The judgment as to attempted breaking and entering with intent to commit a misdemean- or is affirmed. The sentence as to attempted breaking and entering with intent to commit a misdemeanor is reversed and remanded with directions to the trial judge to amend the sentence for a period of two and a half years to run concurrently with the five year sentence imposed for carrying a concealed firearm. It will not be necessary for appellant to be present for resentencing.

Affirmed in part; reversed in part.

MILLS and SMITH, JJ., concur.

      . The maximum penalty for attempted breaking and entering with intent to commit a misdemeanor is five years.


text:
    Robert Paul SHELEY, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent. Robert Paul SHELEY, Appellant, v. STATE of Florida, Appellee.
    Nos. Y-513, Y-519.
    District Court of Appeal of Florida, First District.
    April 20, 1976.
    Richard W. Ervin, III, Public Defender, for appellant-petitioner.
    Robert L. Shevin, Atty. Gen. and Charles W. Musgrove, Asst. Atty. Gen., for appellee-respondent.
   PER CURIAM.

Appellant in Case No. Y-S19 having filed an untimely notice of appeal, and he having thereafter filed an application for Writ of Habeas Corpus pursuant to Hollingshead v. Wainwright, Sup.Ct.Fla.1967, 194 So.2d 577 and Baggett v. Wainwright, Sup.Ct.Fla.1970, 229 So.2d 239, and this Court having thereupon entered an order granting full appellate review pursuant to said opinions and thereafter having granted a motion to consolidate said cases and treat as a single appeal, and a review of the record and briefs having failed to reflect prejudicial error, the judgment, conviction and sentence so appealed are

AFFIRMED.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: BOYER, Chief Judge.

text:
    R. E. CONNELL and Evelyn Ruth Connell, his wife, Appellants, v. Hesta GREEN, as Guardian of the property and person of L. V. Phelps, Appellee.
    No. Y-387.
    District Court of Appeal of Florida, First District.
    April 20, 1976.

      L. Ralph Smith, Jr., of Smith & Moore, Tallahassee, for appellants.
    M. Howard Williams and Robert E. Gibson, Tallahassee, for appellee.
   BOYER, Chief Judge.

Appellants, defendants in the trial court, appeal from a final judgment setting aside a deed conveying to them certain real property. Appellee’s complaint alleged that when Mrs. L. V. Phelps executed and delivered the challenged deed to appellants she was incompetent, and that the transaction was the result of undue influence. Although several points are raised, the primary issue on appeal is whether the trial court erred in refusing to allow one of appellants’ witnesses, a lawyer, to give his opinion as to whether Mrs. Phelps was competent on the day that she executed the subject deed.

A detailed recitation of the evidence is not necessary for our resolution of the issues presented. To briefly summarize, ap-pellee, one of Mrs. Phelps’ daughters, called several witnesses, including two physicians, who testified that Mrs. Phelps had been suffering from severe physical illnesses for several years which had caused her to become senile and to act strangely. Appellants, friends of Mrs. Phelps and her late husband for more than 30 years, called witnesses who substantially admitted Mrs. Phelps’ physical disabilities but claimed that she was, for the most part, mentally normal. Upon being called as a witness, the attorney who prepared the subject deed described the two meetings which he had with Mrs. Phelps. He related what transpired at those meetings and stated that Mrs. Phelps was specific as to what she wanted done with her property. The following thereupon ensued:

“A As a result of your discussions with her that day and the conversation that you had concerning this property and what she wanted to do with it, did you arrive at an opinion as to whether or not she was competent or incompetent ?
“Mr. WILLIAMS: We object to that. This man is not a doctor; he’s a lawyer.
“THE COURT: Objection sustained.
“Q (By Mr. Smith) Did you have any reason to believe that she was incompetent?
“A No, sir.
“MR. WILLIAMS : That’s a conclusion and we object to it and move that it be stricken.
“THE COURT: Objection sustained.
“Q (By Mr. Smith) Were there any actions that would indicate to you that she was incompetent ?
“A No, sir.
“MR. WILLIAMS: Objection, leading, Your Honor.
“MR. SMITH: That’s all the questions I have, Your Honor.”

Refusal by the trial judge to allow the attorney to express his opinion as to Mrs. Phelps’ competence was clearly erroneous. Testimony by a non-medical witness concerning a person’s competence is proper “where the witness is shown to have had adequate opportunity to observe the manner or conduct of such person.” 13 Fla.Jur. 330, “Evidence”, § 329; see also 40 A.L.R.2d 15. Appellee correctly asserts that the trial judge has discretion to determine whether or not a witness had sufficient opportunity to observe the person about whom he is testifying. However, it is clear from the above-quoted portion of the trial transcript that the trial judge incorrectly excluded testimony of the attorney on the ground that he was not a physician. The record further reveals that the attorney had, in fact, sufficient opportunity to observe Mrs. Phelps, and that his testimony should not have been excluded on that ground.

Having found that the trial judge committed error in excluding the testimony, we must determine whether such error was prejudicial. Our reading of the transcript reveals that it was not. The excluded testimony was cumulative, as several other witnesses called by appellants, including appellants themselves, testified as to Mrs. Phelps’ mental condition. More importantly, the record reveals that the rejected testimony was later inadvertently admitted. Accordingly, the error being harmless, it cannot serve as a basis for reversal.

We have carefully considered the other points raised by appellants and find them to be without merit.

AFFIRMED.

HATCHETT, JOSEPH W. and LEE, THOMAS E., Associate Judges, concur.


author: SMITH, Judge.

text:
    Margaret TAPSCOTT, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Appellee.
    No. Z-470.
    District Court of Appeal of Florida, First District.
    April 20, 1976.

      Richard B. Rosier of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellant.
    John L. Graham of Landis, Graham, French, Husfeld, Sherman & Ford, De-Land, for appellee.
   SMITH, Judge.

Summary judgment was entered against appellant Margaret Tapscott on her claim against State Farm for personal injury protection benefits payable under the Florida Automobile Reparations Reform Act, § 627.730 et seq., F.S.1975, and State Farm’s policy insuring an automobile owned by appellant’s father, in whose household she lived. While driving her father’s car, appellant was injured in an accident. The trial court held that § 627.736(4) (d)3, F.S. 1975, disentitles appellant to benefits under her father’s State Farm policy because áp-pellant was herself “the owner of a motor vehicle with respect to which security is required,” i. e., the owner of a vehicle “required to be registered and licensed.” Sec. 627.733(1), F.S.1975. Appellant has no other source of personal injury protection benefits because her estranged husband cancelled the insurance on her automobile. Ms. Tapscott appeals the adverse summary judgment, asserting that her automobile was not one required to have been registered because it had been disabled with clutch and transmission problems for four days prior to her accident.

This -Court confirmed in Staley v. Florida Farm Bureau Mut. Ins. Co., 328 So.2d 241 (Fla.App.1976), that only those motor vehicles which are required by Florida law to be registered are subject to the security requirements of the Automobile Reparations Reform Act. The owners of such vehicles, and those alone, are excluded from the benefits afforded by § 627.-736(4) (d) 3. As Circuit Judge Mason held in Kotich v. Criterion Ins. Co., 38 Fla. Supp. 199 (C. C. Escambia Co., 1973), there are no registration or security requirements for motor vehicles which are neither operated over the public streets or highways of Florida nor maintained for that purpose. Secs. 320.01(1) (a), 320.02(1), 320.35, F.S.1975. We agree with Judge Mason that Florida's motor vehicle registration requirements apply to vehicles “maintained” for operation on Florida’s public streets and highways. Sec. 320.-02(1), F.S.1975; Kotich, supra, 38 Fla. Supp. at 202. It follows that a vehicle previously required to be registered is excused from registration requirements, and its owner is correspondingly excused from the security requirements of § 627.733(1), when the owner no longer “maintains” the vehicle in order to operate it on public streets and highways.

Although the Tapscott automobile was temporarily inoperable and in need of repair, there was no claim in this case, nor any basis for appellant claiming, that she had abandoned her automobile as a means of transportation on public streets and highways. The insurance on her car was cancelled for reasons unconnected with its inoperability. The car was inoperable for only four days before her injury, and neither in that period nor afterward did appellant evidence an intention no longer to maintain her automobile for its usual purpose. After recovery from her injuries, appellant repaired and reinsured her car.

Because appellant owned a motor vehicle for which security was required by § 627.-733(1), F.S.1975, the Act required that appellant provide her own personal injury protection benefits insurance. The summary judgment entered for State Farm is

AFFIRMED.

RAWLS, Acting C. J., and SWIGERT, WILLIAM T., Sr., Associate Judge, concur.


author: MAGER, Judge.

text:
    ATLANTIC AMBULANCE AND CONVALESCENT SERVICE, INC., and Travelers Insurance Company, Appellants, v. Geraldine ASBURY et al., Appellees.
    Nos. 74-1706 and 74-1751.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.

      Edna L. Caruso, West Palm Beach, William D. Thompson, Howell, Kirby, Montgomery, D’Aiuto & Dean, Fort Lauderdale, for appellants.
    Robert Orseck, Podhurst, Orseck & Parks, P. A., Miami, and Ferrero, Middle-brooks & Houston, Fort Lauderdale, for appellees Asbury.
    Nancy Little Hoffmann, Druck, Grim-mett, Norman, Weaver & Scherer, Fort Lauderdale, for appellees State Farm and Goldman.
   MAGER, Judge.

Upon a review of the record we are of the opinion that no reversible error is reflected in the trial court’s denial of Atlantic Ambulance and Travelers’ (defendants-appellants) motions for a new trial.

We are satisfied that the limitation-of-liability agreement between defendant State Farm and plaintiff Asbury (ap-pellees herein) did not exist prior to or during trial so as to be characterized as a “Mary Carter” agreement subject to discovery within the contemplation of Ward v. Ochoa, Fla.1973, 284 So.2d 385. The record sufficiently reflects that the subject agreement did not arise until after the jury retired and was not entered into in such manner or in an effort to circumvent the pronouncements of Ward v. Ochoa.

The essence of the “Mary Carter” agree-, ment is the secrecy of its existence or arrangement whether in form or substance prior to or during the trial the disclosure of which is required so as to enable the trier of fact, i. e. the jury, to be fully apprised of all factors bearing upon the testimony and conduct of the signing as well as the non-signing parties. Such is not the case here and therefore the trial court was correct in denying defendants’ motions for new trial.

However, we are of the opinion that the trial court erred in denying defendants’ (Atlantic Ambulance and Travelers) motion to set-off the amount submitted for payment by State Farm to plaintiff pursuant to said agreement, to wit, $3,297. Defendants were entitled to have the amount of the verdict, i. e. $30,00(1 reduced by the amount that defendant State Farm transmitted to plaintiff pursuant to its agreement. Ward v. Ochoa, supra; see also sec. 768.041(2), F.S.; cf. Leaseco, Inc. v. Bartlett, Fla.App.1971, 257 So.2d 629, The following statement made by a sister state court fully reflects what we perceive to be the intended application of the set-off concept:

“ . . . Any amount received by a party as compensation for his injuries, whether under a covenant not to sue, a conditional release or any other kind of arrangements, should be applied as a pro tanto reduction upon damages recoverable from another joint tort-feasor. . ” Williams v. Colquett, 1961, 272 Ala. 577, 133 So.2d 364, 368. (Emphasis ours.)

See also Restatement, Torts, § 885, and Prosser, Law of Torts, 4th ed., sec. 49, pp. 304-5.

The subject limitation-of-liability agreement, although not a “Mary Carter” agreement for the reasons as hereinabove discussed, is nevertheless some form of “arrangement” resulting in the payment of an “amount received by a party as compensation for his injuries” subject to set off.

Having considered and found all other appellate points to be without merit the final judgments are affirmed except as modified. The cause is remanded to the trial court with respectful direction to enter an appropriate order reducing the verdict and final judgment by $3,297.

Affirmed, as modified.

WALDEN, C. J., and CROSS, J., concur.

      . The import of the decision in Booth v. Mary Carter Paint Company, Fla.App.1967, 202 So.2d 8, lias, in our opinion, been effectively overruled by Ward v. Ochoa, supra.

      . The limitation-of-liability agreement, strictly speaking, is not a release or covenant not to sue; but it does have all the aspects of a covenant not to enforce judgment. The Uniform Contribution Among Joint Tortfeasors Act, sec. 768.31, F.S., cited by appellants, provides that when any of the aforementioned types of agreements are entered into the effect is to reduce the claim against the other tortfeasors to the extent of any amount stipulated by the covenant or consideration paid for such covenant.

      . Defendants’ contention regarding the failure of the trial court to instruct the jury on apportioning the negligence of all of the defendants is rendered moot by the action ultimately taken by the jury in that respect and by the recent decision in Lincenberg v. Issen, Supreme Court of Florida, 1975, 318 So.2d 386, construing the Uniform Contribution Among Joint Tortfeasors Act as requiring a pro rata apportionment of damages rather than an apportionment based upon percentages of fault.


author: OWEN, Judge.

text:
    Elizabeth A. DUNCAN, Appellant, v. Matilda Jeanne GERMAINE and Gerard A. Germaine, Appellees.
    No. 74-554.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.

      J. B. Booher of Booher & McGrotty, Fort Lauderdale, for appellant.
    K. P. Jones of Jones & Montgomery, Fort Lauderdale, for appellees.
   OWEN, Judge.

Mrs. Duncan sued Mrs. Germaine and her adult son, Gerard, in a civil action for assault and battery. The Germaines filed a counterclaim for assault and battery and for malicious prosecution. Trial by jury resulted in a verdict adverse to Mrs. Duncan on both her claim and the counterclaim, Gerard being awarded $10 compensatory damages and Mrs. Germaine being awarded $5,000 compensatory and $25,000 punitive damages. Mrs. Duncan appeals from the judgment entered thereon.

Appellant had contracted to refinish some furniture at Mrs. Germaine’s apartment. The work had progressed for some three or four days without incident, but then suddenly, on Friday afternoon, an altercation occurred at the Germaine apartment which culminated in these proceedings. Although the evidence is in sharp conflict as to how or why the dispute arose, the appellees’ evidence (which the jury obviously accepted as true) established that (1) appellant was ordered to remove herself, her paint and her equipment from the Germaine apartment and was informed that she would not be paid the remainder of the contract price for the refinishing job; (2) appellant then threatened harm to the furniture and tussled with Mrs. Germaine over a chair; (3) Mrs. Germaine then instructed her son to “get her out of the house, but don’t touch her;” (4) Gerard responded, seizing appellant around the waist from behind and dragging her out of the apartment into the hallway where the two of them fell down. The police arrived and informed the parties that if they so desired they could prefer mutual charges in the municipal court. In accordance with such suggestion, appellant had the Germaines charged with assault and battery and likewise, Gerard had appellant charged with assault and battery. The disposition of those proceedings was never established by the evidence, but the parties apparently concede that the prosecutor later dismissed them. Thereafter this civil suit ensued between the parties.

Appellant contends that the trial court erred in denying her motion for directed verdict on the count for malicious prosecution. We find that point to he well taken. An essential element of this cause of action is the absence of probable cause for commencement of the original judicial proceeding. Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926). If the facts relied on by a plaintiff to establish the absence of probable cause on the part of the defendant are in dispute, the existence of such facts is a jury question, Hunter v. First Baptist Church, Inc., 294 So.2d 355 (4th DCA Fla. 1974), but as in all cases wherein the defendant has moved for a directed verdict, the legal sufficiency of the plaintiff’s evidence, whether the facts be admitted, or uncontradicted, or in dispute but viewed most favorably to the plaintiff, remains a question of law to be determined by the court. Glass v. Parrish, 51 So.2d 717 (Fla.1951); Priest v. Groover, 289 So.2d 767 (2nd DCA Fla.1974).

Here the Germaines’ version of what transpired in their apartment, accepted as true, proved an assault and battery on appellant by Gerard at the instance of Mrs. Germaine, and thereby established probable cause for appellant’s commencement of judicial proceedings in the municipal court. It is true that the assault and battery charge which appellant caused to be filed in the municipal court was subsequently dismissed, and it is also true that the jury in the instant case found to its satisfaction that the Germaines had a valid legal defense to the civil charge of assault and battery. Nonetheless, the ultimate exoneration of the Germaines is not at all controlling on the question of the absence of probable cause for appellant’s commencement of the original judicial proceeding. One of the hallmarks of civilization is that persons aggrieved by the conduct of another resort to law for settlement of such grievances rather than resorting to self help. We do not encouráge resort to the law if the price for bringing such legal proceeding unsuccessfully includes facing a subsequent suit for malicious prosecution. We hold that the Germaines’ evidence, viewed most favorably to them, established the existence of probable cause on the part of appellant to resort to the original judicial proceeding, and thus, appellant was entitled to a directed verdict on the malicious prosecution count made at the close of all of the evidence. Because the case went to the jury on this cause of action and on the separate cause of action of assault and battery, and the jury returned a general verdict, appellant is entitled to a new trial.

Appellant also contends that the trial court should have granted her motion for a directed verdict on the count of appellees’ counterclaim for assault and battery, but this point is without merit. Appellant raises other points related to trial errors, some of which appear to have merit, but we deem it unnecessary to decide the remaining points in view of our disposition of the case.

The final judgment is reversed and this cause remanded for a new trial on the ap-pellees’ counterclaim for damages on the count alleging an assault and battery.

REVERSED and REMANDED.

CROSS and DOWNEY, JJ., concur.


text:
    Eddie C. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 75-1304.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.

      Richard L. Jorandby, Public Defender, and Frank Kessler and Mitchell Beers, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond and Harry M. Hipler, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant-defendant, Eddie C. Smith, was charged with breaking and entering with intent to commit a misdemeanor, to-wit: petit larceny, by information filed in the Circuit Court for Orange County, Florida. Defendant entered a plea of guilty to the offense charged in the information. The trial court adjudged the defendant guilty and placed him on probation for a period of five years. As a condition to said probation, defendant was required to serve fifty-one weeks in the Orange County Correctional Facility.

After defendant was released from the Orange County Correctional Facility, an affidavit was filed alleging that defendant violated various conditions of his probation. Defendant pled guilty to each violation of probation alleged in the affidavit. The trial court entered an order revoking defendant’s probation and sentenced defendant to five years in prison with no credit for the time served as a condition of his probation. Defendant appeals.

The defendant here contends that the trial court erred in failing to credit the time served as a condition of his probation toward the five year sentence imposed by the trial court following revocation of defendant’s probation. We must agree. The Florida Supreme Court has clearly indicated that upon revocation of probation and incarceration a defendant must be given credit for any time spent in jail as a condition of the probation. State v. Jones (Fla.1976), 327 So.2d 18; Ivey v. State (Fla. 1976), 327 So.2d 219.

Accordingly, the sentence imposed upon the defendant’ is set aside and the cause is remanded to the trial court for imposition of a proper sentence.

Sentence vacated and cause remanded.

CROSS, MAGER and DOWNEY, JJ., concur.


text:
    DAVAR CORPORATION, Appellant, v. TROPIC LAND IMPROVEMENT CORPORATION, a Florida Corporation, Appellee.
    No. 74-1131.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.

      Michael D. Jones and Terry P. Mc-Mahan, of Jones & Jones, Altamonte Springs, for appellant.
    Jesse E. Graham, of Graham, Markel & Scott, P. A., Winter Park, for appellee.
   PER CURIAM.

Appellee sued to foreclose a mechanic’s lien in the amount of $60,000 against appellant’s property. Appellant alleged a set off in its answer as a result of various alleged breaches of contract by appellee. In addition, appellant counterclaimed for damages occurring as a result of appellee’s breaches of the contract. Appellant also charged that a lien filed by appellee was so grossly exaggerated in amount as to constitute a fraudulent lien.

The trial court found there was no genuine issue of material fact regarding appel-lee’s complaint and entered summary judgment thereon in favor of appellee for $8895.37, together with interest, costs, and attorney’s fees. The counterclaim remains pending in the trial court.

The notice of appeal states the appeal is taken from the order denying appellant’s motion for rehearing. But it is obvious from the assignment of error, appellant’s brief, and the record on appeal that appellant intends to seek review of the final summary judgment for appellee rendered July 30, 1974. Accordingly, the notice of appeal is adequate for us to review the summary judgment in question. State ex rel. Poe v. Allen, Fla.1967, 196 So.2d 745.

Our reading of the depositions and other evidentiary matters considered by the trial court convinces us that appellee was not entitled to a summary judgment. There are controverted questions of fact concerning appellee’s right to recover, and if so, how much.

We also question the propriety of entering a final summary judgment for the plaintiff-appellee while a counterclaim remains undisposed of without at least staying execution thereon. To allow a plaintiff to recover judgment and have execution while a defendant’s counterclaim remains undisposed of might well result in the plaintiff recovering on its claim without the ability to respond should the defendant recover on its counterclaim. We think the better practice in that situation would be to grant the motion for partial summary judgment on plaintiff’s claim in a specific amount but withhold final judgment thereon until the outcome of the counterclaim is determined, or to grant plaintiff a final judgment but suspend execution thereon until the counterclaim is determined. See: Annot: Summary Judgment-Counterclaim, 8 A.L.R.3d 1361, §§ 5, 6(a). Cf. Netterville v. Osborn, Fla.App. 1st 1962, 139 So.2d 921.

Accordingly, the summary judgment appealed from is reversed and the cause is remanded for further proceedings consistent herewith.

CROSS, OWEN and DOWNEY, JJ., concur.


text:
    SEAGATE CONDOMINIUM ASSOCIATION, INC., a Nonprofit Florida Corporation, Appellant, v. William B. DUFFY and Richard G. Duffy, as Executors of the Estate of Alice M. Duffy, Deceased, Appellees.
    No. 75-77.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.
    Frederick L. R. Hill, Boynton Beach, and Guy C. Hill, West Palm Beach, for appellant.
    Manley P. Caldwell, Jr., of Caldwell, Pa-cetti, Barrow & Salisbury, Palm Beach, for appellees.
   OWEN, Judge.

Appellant-condominium association appeals from a final judgment declaring certain restrictions upon the leasing of condominium units, contained in its Declaration of Condominium, invalid as an unlawful restraint on alienation and awarding appel-lee-unit owners damages for rents lost as a result of the enforcement of these restrictions.

The restrictive provision in question was added to the appellant’s Declaration of Condominium, pursuant to the amendment procedures prescribed therein, upon an affirmative vote of’ over ninety-six percent of the unit owners. It provided as follows :

“As previously stated, it is the intent that the owner of each unit of Seagate Towers Condominium shall occupy and use such unit as a private dwelling for himself and his immediate family, and for no other purpose including business purposes. Therefore, the leasing of units to others as a regular practice for business,- speculative, investment or other similar purposes is not permitted.
To meet special situations and to avoid undue hardship or practical difficulties the Board of Directors may grant permission to an owner to lease his unit to a specified lessee for a period of not less than four consecutive months nor more than twelve consecutive months.”

Appellee-unit owners inherited their unit from their mother, the original purchaser. They received notice of the condominium association meeting at which the amendment was to be considered, but did not attend this meeting and did not return a proxy ballot mailed to them. In fact, they did not voice any objection to the amendment until well after its passage, when it first became apparent that the restriction would interfere with their plans to lease their unit. At that point, they initiated the instant suit. The trial court determined that the amendment was both an unreasonable restriction and an unlawful restraint on alienation and awarded damages to ap-pellees for lost rents.

The ancient rule against restraints on alienation is founded entirely upon considerations of public policy, specifically, the idea that the free alienability of property fosters economic and commercial development. 2 Archbold’s Blackstone, Ch. XIX (1825); Simes & Smith, The Law of Future Interests, § 1135 (2nd ed., 1956); Manning, “The Development of Restraints on Alienation Since Gray,” 48 Harv.L.Rev. 373, 403 (1935); IV Restatement, Property, 2129-33, 2379-80 (1944); 61 Am.Jur.2d, Perpetuities and Restraints on Alienation, § 93 (1972). Competing policy considerations, however, have, almost from the inception of the rule, caused exceptions to be carved out of it. Our courts have traditionally undertaken to determine the validity of restraints by measuring them in terms of their duration, type of alienation precluded, or the size of the class precluded from taking. 4A Thompson, Real Property, § 2016 (1961); 61 Am.Jur.2d, Perpetuities and Restraints on Alienation, §§ 102-104(1972). The rule has long been recognized as precluding only unlimited or absolute restraints on alienation. Robinson v. Randolph, 21 Fla. 629, 58 Am.Rep. 692 (1885); Davis v. Geyer, 151 Fla. 362, 9 So.2d 727 (1942).

The test which our courts have adopted and applied with respect to restraints on alienation and use is reasonableness. E. g., Points v. Barnes, 301 So.2d 102 (4th DCA Fla.1974); Robinson v. Speer, 185 So.2d 730 (1st DCA Fla.1966); Blair v. Kingsley, 128 So.2d 889 (2nd DCA Fla. 1961). The question for us here, therefore, is whether appellant’s leasing restriction is reasonable given the context in which it was promulgated, i. e., the condominium living arrangement.

Our courts have on several occasions pointed out the uniqueness of the problems of condominium living and the resultant necessity for a greater degree of control over and limitation upon the rights of the individual owner than might be tolerated given more traditional forms of property ownership. Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (4th DCA Fla.1975); Holiday Out in America at St. Lucie, Inc. v. Bowes, 285 So.2d 63 (4th DCA Fla.1973); Sterling Village Condominium, Inc. v. Breitenbach, 251 So. 2d 685 (4th DCA Fla.1971); Chianese v. Culley, 397 F.Supp. 1344 (S.D.Fla.1975). As this court said, in Hidden Harbour Estates, Inc. v. Norman, at 181-2:

“ . . . inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.”

Our Legislature also has expressly recognized the necessity for restrictions upon the use, occupancy and transfer of condominium units. Fla.Stat. § 711.08(2) (1973).

It is our opinion that appellant’s leasing restriction constitutes neither an unlimited nor unreasonable restraint on alienation. The restriction is not unlimited in several respects: it prohibits only a specific form of alienation, i. e., leasing; under general but not unlimited circumstances, i. e., the condominium association will consider its suspension in hardship for a not unlimited period of time, i. e., because it can be terminated at any time by a vote of the condominium unit owners pursuant to the amendment provisions of their Declaration of Condominium. The restriction, moreover, is reasonable. Given the unique problems of condominium living in general and the special problems endemic to a tourist oriented community in South Florida in particular, appellant’s avowed objective — to inhibit transciency and to impart a certain degree of continuity of residence and a residential character to their community. — is, we believe, a reasonable one, achieved in a not unreasonable manner by means of the restrictive provision in question. The attainment of this community goal outweighs the social value of retaining for the individual unit owner the absolutely unqualified right to dispose of his property in any way and for such duration or purpose as he alone so desires.

The judgment is therefore reversed and the cause remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

WALDEN, C. J., and DOWNEY, J., concur.

      . This approach has been criticized by more modern authorities which have taken the position that the validity of restraints should be weighed more simply in terms of the competing social policies involved. See, e. g., Gale v. York Center Community Cooperative, Inc., 21 I11.2d 86, 171 N.E.2d 30, at 33 (1960) :
      “From the authorities here mentioned and many others examined, it would appear that the crucial inquiry should be directed at the utility of the restraint as compared with the injurious consequences that will flow from its enforcement. If accepted social and economic considerations dictate that a partial restraint is reasonably necessary for their fulfillment, such a restraint should be sustained. No retraint should be sustained simply because it is limited in time, or the class of persons excluded is not total, or all modes of alienation are not prohibited. These qualifications lessen the degree to which restraints violate general public policy against restraining alienation of property and should be considered to that extent; but they are not, in themselves, sufficient to overcome it. In short, the law of property, like other areas of the law, is not a mathematical science but takes shape at the direction of social and economic forces in an ever changing society, and decisions should be made to turn on these considerations.”
      See also, 2 Rohan & Reskin, Condominium Law and Practice, § 10.03[2] (1975) ; Simes & Smith, The Law of Future Interests, § 1168 (2nd ed. 1956) :
      “In last analysis a given rule as to restraints on alienation is a resultant of balancing the beneficial character of the purposes of the restraint as against the extent to which alienability would be hindered, if the provision in question were held valid. . . . One may well anticipate that, in the face of new purposes which are definitely in accord with good public policy, the courts may make new exceptions to the old doctrines with respect to direct restraints.”

      . There is a distinction between restraints on alienation and restraints on use. 25 Fla. Tur., Perpetuities and Restraints on Alienation, § 17 (1959). Appellant urges that we apply the reasoning of Holiday Out in America at St. Lucie, Inc. v. Boxees, 285 So.2d 63 (4th DCA Fla.1973), wherein we held that a restraint on the method of leasing was not in violation of the rule against restraints on alienation. The appellees in that case were not prohibited from conveying a fee or a leasehold interest, but simply restricted in the manner in which they could do so.

      . Appellees in fact had the benefit of this exception for one year, prior to bringing the instant suit, because the condominium association board concluded that since appellees’ decedent’s estate was still being administered, they did have a “special situation” or “practical difficulties” within the meaning of the provision. Appellees stipulated in the proceedings before the trial court, however, that they no longer fell within any of the enumerated special circumstances at the time that they filed this suit.