author: BOYER, Judge. RAWLS, Acting Chief Judge

text:
    John Doyle WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. DD-167.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1977.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BOYER, Judge.

After trial by jury, Wright was found guilty of the offense of possession of more than five grams of cannabis contrary to Section 893.13(l)(e), Florida Statutes, and sentenced to imprisonment at hard labor for the term of three years. His sole point on appeal is that the trial court erred in not granting either his motion for directed verdict of acquittal or his motion for new trial to the extent that said motion was directed toward the sufficiency of the evidence to support the jury’s verdict. More specifically, Wright argues that the state failed to prove all of the essential elements of the felony offense he was charged with.

Wright was charged by amended information with the “actual or constructive possession of a controlled substance, named or described in Section 893.03(l)(c), Florida Statutes, to-wit: more than five grams of Cannabis, contrary to Section 893.13(l)(e), Florida Statutes.” Since the state did not allege nor prove a prior conviction under Section 893.13(l)(f), it is only the weight of the cannabis that determines whether the offense is a felony or a misdemeanor.

At trial, Wright stipulated to the expertise of the state’s forensic chemist and toxicologist, Nalley, who testified on direct examination that the “baggie” taken from Wright tested out as ten grams of cannabis sative (or sativa). However, Nalley’s testimony upon cross-examination and re-direct revealed that her test method consisted of microscopic and chemical analysis of a randomly selected portion of the alleged cannabis and a weighing of the contents of the baggie. Nalley explained that the contents of the baggie weighed ten grams and that a randomly selected portion of the contents (of an undetermined weight) tested positively as cannabis sative. When asked if she had tested the entire contents to determine if it contained any other substance than cannabis, Nalley stated that she had not.

At the close of the state’s case, Wright made a motion for directed verdict on the grounds that the state failed to prove each and every material allegation of the information, followed by a request that the trial court consider a reduction from a felony to a misdemeanor since, Wright contended, a felony amount of cannabis had not been proved. Both were denied.

Criminal convictions cannot be based upon probabilities nor suspicion. It is also a basic rule of statutory construction that statutes that are penal in character must be strictly construed and the accused must be plainly and unmistakably within the criminal statute to justify a conviction. In the instant case, proof that the cannabis in the bag weighed in excess of five grams was an essential element of the felony possession offense charged. However, weight of the evidence is generally to be determined by the jury. As recited above, Wright was charged with possession of more than five grams of cannabis. Nalley, unequivocally testified that the contents of the baggie weighed ten grams and that it was cannabis. On cross-examination she candidly stated that she did not test every molecule separately but that her test of the contents of the baggie was “picked at random”. Her testimony may have been weakened by cross-examination but it was not destroyed. Her statement that the baggie contained ten grams of cannabis was not contradicted. The law does not require each molecule, grain, leaf or stalk to be tested separately. Neither does the law prohibit an expert from arriving at a logical conclusion based upon a random sampling.

At the conclusion of the trial the record contained the unequivocal testimony of witness Nalley that the baggie contained ten grams of cannabis. The record also revealed the testimony on cross-examination that Nalley’s conclusion was based upon positive identification of a random sample. The issue was made for resolution by the jury and the jury has spoken. The learned trial judge did not therefore err in denying a motion for directed verdict, in refusing to reduce the charge to a misdemeanor nor in failing to grant a new trial. It is axiomatic that an appellate court may not substitute its judgment for that of a jury on a question of fact. (See Lyles v. State, 312 So.2d 495 (Fla.1st DCA 1975) and cases therein cited.)

AFFIRMED.

SMITH, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

I dissent. By their opinion, he majority acknowledge that criminal convictions cannot be based upon probabilities or suspicion. Further, they recognize a basic rule of statutory construction which holds that statutes that are penal in character must be strictly construed, and the accused must be plainly and unmistakably within the criminal statute to justify a conviction. Lastly, they find that in this case proof that appellant was in possession of in excess of five grams of cannabis to be an essential element of the felony possession charged. However, they conclude that, considering the testimony of the state’s expert, it is within the province of the jury to find, or believe, that the entire contents of the ten-gram “baggie” was, in fact, cannabis. While the implicit foundation of the majority’s result is the oft-mouthed and generally correct statement that the weight of the evidence is to be determined by the jury, the question must be asked: Is it within the purview of the jury to mentally weigh the physical evidence and determine the nature of the substance when there exists a standardized system of weights and measurements and laboratory procedures for scientifically accomplishing the same end? I think not.

Possession of marijuana or cannabis sa-tive in the State of Florida is a statutory criminal offense of several degrees which are distinguished primarily by the weight of the controlled substance possessed. Specifically, the legislature of this state has determined as a breakpoint that first offenders convicted of being in possession of five grams or less of cannabis are to be treated and may be punished as first degree misde-meanants. Section 893.13(l)(f), Florida Statutes (1975). Possession of in excess of five grams of cannabis is deemed a more serious offense and the offender is subject to being punished as a third degree felon. Section 893.13(l)(e), Florida Statutes (1975). These, of course, are distinctions with a profound difference for appellant, because, as a first degree misdemeanant, he is exposed to a maximum sentence of one year in the county jail; whereas, as a third degree felon, he is vulnerable to as much as five years imprisonment.

In the face of the disparate sentences that appellant could have received depending upon the proof of weight, the state, at trial, argued that to require a chemist to scientifically examine more than a random sample was a near impossibility.

Section 893.02(2), Florida Statutes, defines “cannabis” as:

“(2) ‘Cannabis’ means all parts of the plant of the species cannabis sativa [L], including all varieties thereof, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake; or the sterilized seeds of the plant which is incapable of germination.”

Section 893.02(2) proscribes cannabis indica, cannabis ruderalis, as well as cannabis sativa L. Walker v. State, 318 So.2d 519 (Fla.3rd DCA 1975); Nelson v. State, 319 So.2d 154 (Fla.2nd DCA 1975). However, by definition, “cannabis” does not include the mature stalks or sterilized seeds of the plant or products derived from them.

The tests for cannabis are not complex. 13 Am.Jur. Proof of Facts, Drug Addiction and Possession § 21, reveals:

“A standard test for determining if a suspect substance is marijuana is a modification of Beam test. A test tube is filled to a depth of approximately one inch with the suspect material. Should the material be in raw or leaf form, it will generally be pulverized by means of mortar and pestle, being ground into a relatively coarse powder. A reagent of 100 cc of 95 per cent ethyl alcohol in two gms of potassium hydroxide is poured over the substance until it is covered completely; then Vi teaspoonful of activated charcoal is added and the tube is shaken. A violet color is regarded as a positive reaction for the presence of marijuana. If the material is several months old, a very faint violet color will be produced against a brown background within three to five minutes; shortly thereafter fading will occur. When fresh material is used, a striking, lasting, violet color will be produced, even when relatively minute portions of the drug are under analysis.”

Marijuana may also be identified by its striking and highly characteristic odor when it is burned. Additionally, identification by microscopic examination for non-glandular hairs with pointed ends is effective and proper even when the material to be tested is from six to eight years old.

Once aware of the relative simplicity of the tests, it becomes apparent that conclusive proof of a felony possession of cannabis by the state is within the realm of the possible. It should only be necessary to separate something in excess of five grams of the proscribed “cannabis” and, thereafter, to perform recognized scientific tests upon it.

In the instant case, the state did not accomplish this task. The majority, however, argue that the question of whether or not the “baggie” contained in excess of five grams of cannabis was a question of fact to be resolved by the jury. I cannot agree. Weight, unlike the obfuscated concepts of intent or knowledge, is capable of measurement. Weight, akin to distance, time and other discrete units, is capable of conclusive measurement; its degree of accuracy limited only by the refinement of the scale and the skill of its operator. While it is within the province of the jury to call the shade of a gray, it is not for them to confuse black with white or ignore the day for the night.

Appellant was charged with felony possession of in excess of five grains of cannabis. The burden to prove this essential element was upon the state, and the state failed. I would reverse with directions to reduce the conviction and corresponding sentence to that of a first degree misdemeanor possession of five or less grams of cannabis.

      . Sec. 893.13(l)(f), Fla.Stat., provides that if the first offense is the possession or delivery without consideration of not more than five grams of cannabis, that person shall be guilty of a misdemeanor of the first degree.

      . Pope v. State, 268 So.2d 173 (Fla.2nd DCA 1972). Compare this court’s recent opinion in Purifoy v. State, 342 So.2d 560 (Fla.1st DCA 1977), in which it was held that Purifoy failed to meet the burden of proof placed upon him pursuant to Sec. 893.10(1), Fla.Stat., to show that the 7.05 grams of cannabis he was charged with possessing did not weigh more than five grams, after excluding those portions of the plant cannabis sativa specifically excluded from the criminal definition of “cannabis” contained in Sec. 893.02(2), Fla.Stat.

      . State ex rel. Cooper v. Coleman, 189 So. 691 (FIa.1939); Watson v. Stone, 148 Fla. 516, 4 So.2d 700 (1941); Newman v. State, 174 So.2d 479 (Fla.2nd DCA 1965).

      . Gunn v. State, 336 So.2d 687 (Fla.4th DCA 1976); Samet v. State, 284 So.2d 450 (Fla.3rd DCA 1973); and Pope v. State, 268 So.2d 173 (Fla.2nd DCA 1972), cert disch. 283 So.2d 99 (Fla.1973).

      . The amount is not burdensome. The gram, as a measure of weight, is approximately equal to 0.035 of a U.S. ounce. Webster’s Third New International Dictionary, Unabridged (1966), It, therefore, does not appear an onerous burden that the state be prepared to prove at trial that something in excess of five grams (or roughly .175 U.S. ounce) was analyzed and scientifically proven to be cannabis.

      . In addition to removing mature stalks and other portions of the plant defined as not being cannabis by the statute, the Attorney General has recommended that if the cannabis seized from a defendant is mixed with extraneous vegetative debris, or wrapped in cigarette papers, such matter be separated from the cannabis before weighing the cannabis in order to determine whether it weighs more than five grams for purposes of determining the penalty. Atty.Gen.Op. 071-238, August 12, 1971.

      .Testimony, even of disinterested and unim-peached witnesses on subjects of measurement, distance, etc., based merely on memory, estimate, or casual observation, must yield to that which is based on actual measurement. 31 Am.Jur.2d, Expert and Opinion Evidence § 156; C. J. Jones Lumber Co. v. Morrison, 154 So.2d 721 (Fla.2nd DCA 1963); cert. den. 165 So.2d 758 (Fla.1964). More importantly is the view that the testimony of experts becomes more than mere opinion when it consists of facts revealed by the use of mechanical instruments and where it is scientifically established to the degree of actual demonstration. 31 Am. Jur.2d, Expert Opinion and Evidence § 183; Boyd v. Gosser, 78 Fla. 64, 82 So. 758 (1918), 6 A.L.R. 500.


source: Caselaw Access Project

author: BOYER, Judge.

license: Public Domain

text:
    GRANDIN LAKE SHORES ASSOCIATION, INC., a Florida non-profit Corporation, Petitioner, v. Thomas L. UNDERWOOD, Respondent.
    No. FF-96.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1977.
    Timothy C. Keyser, Gainesville, for petitioner.
    Tito S. Smith of Dowda, Hedstrom & Fields, Palatka, for respondent.
   BOYER, Judge.

Grandin Lake Shores Association, Inc. recovered a judgment in the County Court of Putnam County against Thomas L. Underwood. Appeal was taken by Underwood to the Circuit Court in and for that county which reversed. Grandin Lake Shores Association now seeks certiorari in this court.

Article V, Sec. 4(b)(1) of the Constitution of the State of Florida provides that:

“District Courts of Appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appeala-ble to the Supreme Court or a Circuit Court. They may review interlocutory orders in such cases to the extent provided by rules adopted by the Supreme Court.” (Emphasis added)

Fla.App. Rule 4.5 c generally provides for certiorari in the District Courts of Appeal.

In Dresner v. City of Tallahassee, 164 So.2d 208 (Fla.1964) the Supreme Court of Florida held that the judgment of a Circuit Court affirming a conviction in a municipal court is subject to review by the appropriate District Court of Appeal “by petition for a so-called common law writ of certiorari pursuant to Art. V, Sec. 5(3), Florida Constitution.” Explaining, the Supreme Court said:

“The type of certiorari which we here discuss is in the nature of the common law writ which issues in the sound discretion of a superior court directed to an inferior court in order to determine from the face of the record whether the lower court has exceeded its jurisdiction or has otherwise deviated from the essential requirements of law. * * * ” (164 So.2d at page 210)
******
“ * * * Florida has consistently held that an adverse judgment reached in the face of a total lack of evidence constitutes a deviation from the essential requirements of the law. When such a judgment is not otherwise reviewable by appeal, it may be reached by a common law writ of certiorari issued to the appropriate court. The scope of review is limited to an exploration of the record to ascertain whether supporting evidence is totally lacking. It will not be expanded by the reviewing court to attempt a reevaluation of the probative weight of the evidence. * * * ” (164 So.2d at page 211)

In Cribbs v. State, 237 So.2d 297 (Fla. 1st DCA 1970), this court stated:

“We are committed to the precedent heretofore set by this court and other appellate courts of this state, that the certiorari jurisdiction of this court directed to the Circuit Courts sitting in their appellate capacity is limited to determining from the face of the record whether the lower court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of law which are deemed essential to the administration of justice.” (237 So.2d at page 297)

In Coffman v. State, 292 So.2d 608 (Fla. 4th DCA 1974), our sister court, though finding that the Circuit Court in its appellate capacity had departed from the essential requirements of law said:

“On a petition for a writ of certiorari to review an order of a Circuit Court in its appellate capacity, our review is limited to the face of the record to determine whether the Circuit Court has exceeded its jurisdiction or has otherwise departed from the essential requirements of law. Dresner v. City of Tallahassee, 164 So.2d 208 (Fla.1964).” (292 So.2d at page 609)

It is apparent from the foregoing authorities that a District Court of Appeal may not, on certiorari sought to a Circuit Court in the exercise of its appellate jurisdiction, re-evaluate or weigh the evidence. Indeed, the mere fact that a Circuit Court in its appellate capacity errs (should such be the fact) does not necessarily mean that it has either exceeded its jurisdiction or departed from the essential requirements of law.

The certiorari jurisdiction of the district courts of appeal is granted by Article Y, § 4(b)(3), of the Florida Constitution. Florida Appellate Rule 4.5 c sets forth the procedure for seeking the writ. While it is not permissible for an appellate court to re-evaluate or re-weigh the evidence on an appeal from a circuit court in the exercise of its appellate jurisdiction, the appellate court can and should examine the record to determine whether or not there is competent substantial evidence to support the circuit court’s ruling if petitioner contends there is no such evidence. No evidentiary question has been raised in the case sub judice, however. Also, while the mere fact that a circuit court in its appellate capacity errs does not mean that it has exceeded its jurisdiction or departed from the essential requirements of law, an error could be of such nature that it would constitute an excess of jurisdiction or a departure from the essential requirements of law. There was no such error in the case sub judice. Finding, therefore, that we are without jurisdiction, the issuance of our writ is denied and the petition therefor is dismissed.

IT IS SO ORDERED.

McCORD, C. J., and MELVIN, J., concur.


author: PER CURIAM.

text:
    Leon GANDY, Petitioner, v. DEPARTMENT OF OFFENDER REHABILITATION of the State of Florida and the Career Service Commission of the State of Florida, Respondents.
    No. FF-258.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1977.
    Joseph C. Jacobs and Robert J. Angerer, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    Raymond W. Gearey, Jr., Betty J. Stef-fens, Asst. Attys. Gen., for respondent.
   PER CURIAM.

Petitioner Gandy seeks review of a final agency action of the Career Service Commission which sustained a disciplinary suspension ordered by the Department of Offender Rehabilitation. Although the record appears to sustain the charges leveled against petitioner, we are unable to reach the merits of the case because of a procedural problem of due process proportions. The record reveals that during the hearing before the hearing officer counsel for the respective parties became engaged in a controversy as to the issues involved and the admissibility of certain evidence. Finally, the record reveals, both attorneys stated the issue whereupon petitioner’s attorney recited:

“That is the sole issue and that is the sole question on negligence, and I will stipulate to that, and any other testimony which has been introduced is clearly irrelevant and that is the sole issue, and, therefore, I will object.”

Whereupon the hearing officer stated:

“Counsel, I’ll agree to your stipulation retrospectively but retroactively. Let’s roll on.”

The issue was thereby narrowly defined as was the scope of the evidence. The record clearly reveals that following that stipulation petitioner’s attorney curtailed the scope of his examination and confined himself to the agreed issue. Nevertheless, as appears from the hearing examiner’s recommended order, the examiner relied upon evidence, objected to, outside the scope of the stipulated issue. Petitioner filed objections to the recommended order but it was adopted and forms the basis for the review now sought.

It is axiomatic that neither a hearing examiner nor a court may, in the absence of consent, either express or implied, consider evidence received over objection which is outside the issues and then rely upon that evidence as a basis for his or its ultimate order. Further, when the issues have been narrowed by stipulation and a party thereby lulled into responding to evidence adduced over his objections outside the issues, such evidence may not be used to his detriment.

The petition is therefore granted and the order of which review is sought is

QUASHED.

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


author: SMITH, Judge.

text:
    James PEACOCK, Appellant, v. Willie WISE, Appellee.
    No. FF-402.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1977.
    Mayo C. Johnston of Davenport, Johnston, Harris, Gerde & Harrison, Panama City, for appellant.
    Stanley Bruce Powell, of Douglass & Powell, Tallahassee, for appellee.
   SMITH, Judge.

An appeal from a judgment declaring all absentee ballots invalid in a party primary in Calhoun County and ousting appellant from the office of clerk of the circuit court as a result. The trial court’s conclusion that at least 25 absentee ballots were void because the ballot and “application for absent elector’s ballot” were mailed to the supervisor of elections in the same envelope, Section 101.67(3), Florida Statutes (1975), is supported by substantial competent evidence. The trial court properly ruled that all absentee ballots would not be counted. “[WJhere the number of invalid absentee ballots is more than enough to change the result of the election, then the election shall be determined solely upon the basis of the machine ballot.” Boardman v. Esteva, 323 So.2d 259, 268 (Fla.1975), app. dism., 425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed.2d 791 (1976). The judgment is

AFFIRMED.

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


text:
    Bernard MALPHUS, Appellant, v. STATE of Florida, Appellee.
    No. 76-2047.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1977.
    LeRoy H. Merkle, Jr., Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court, but we remand the case to the trial court for the correction of appellant’s sentence. The present sentence does not specify the amount of credit for time served which appellant is to receive as Section 921.161(1), Florida Statutes (1975), requires. Brooks v. State, 349 So. 794 (Fla.2d DCA 1977). Appellant need not be present for resentencing.

HOBSON, Acting C. J., and OTT and DANAHY, JJ., concur.


text:
    Victor Lamar CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 77-91.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1977.
    Ellen M. Condon, Temple Terrace, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and sentence of the court while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

GRIMES, Acting C. J., and SCHEB and RYDER, JJ., concur.


text:
    Delbert ZAHN, Appellant, v. STATE of Florida, Appellee.
    No. 77-570.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1977.
    Jack 0. Johnson, Public Defender, David S. Bergdoll, Asst. Public Defender, Bartow, and Charles M. Johnston, Research Asst., Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court, but we remand this case for the correction' of appellant’s sentence. The present sentence does not specify the amount of credit appellant is to receive for time served as Section 921.161(1), Florida Statutes (1975) requires. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Appellant need not be present at resentencing.

HOBSON, Acting C. J., and OTT and DANAHY, JJ., concur.


author: BOARDMAN, Chief Judge.

text:
    FOX, GEORGE, LOEFFLER & DOWNEY, P.A., a Professional Association, Plaintiff, v. UTICA MUTUAL INSURANCE COMPANY, Defendant.
    No. 77-720.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1977.
    Douglas J. Loeffler, of Fox, George, Loeffler & Downey, Clearwater, for plaintiff.
    Charles P. Schropp, of Shackleford, Farri- or, Stallings & Evans, Tampa, for defendant.
   BOARDMAN, Chief Judge.

The Honorable John S. Andrews, Circuit Judge of the Sixth Judicial Circuit, has certified the following two questions to this court.

1. MAY AN ATTORNEY BRING AN INDEPENDENT ACTION FOR PAYMENT OF HIS FEES AGAINST AN ADVERSE PARTY IN A PRIOR ACTION WHO HAS MADE SETTLEMENT WITH THE ATTORNEY’S CLIENT, WITHOUT THE KNOWLEDGE AND CONSENT OF THE ATTORNEY, BUT AFTER THE CLIENT HAS DISCHARGED THE ATTORNEY?
2. IF THE ANSWER TO QUESTION NUMBER 1 IS IN THE AFFIRMATIVE, MAY SUCH AN INDEPENDENT ACTION BE MAINTAINED IN THE ABSENCE OF AN ALLEGATION OF COLLUSION BETWEEN THE ATTORNEY’S CLIENT AND THE ADVERSE PARTY?

Our research reveals persuasive authority in Florida which would resolve the issues presented to us, and we therefore decline to answer the certified questions. See Fla.R.App.P. 4.6(a)(b). See Miller v. Scobie, 152 Fla. 328, 11 So.2d 892 (1943); State Farm Mutual Automobile Insurance Co. v. Ganz, 119 So.2d 319 (Fla.3d DCA 1960).

OTT, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


author: OTT, Judge.

text:
    GARCIA INSURANCE AGENCY, INC., Appellant, v. Jennifer Joan DIAZ, Individually and Gino Diaz, by and through his parents and natural guardians, Jennifer Joan Diaz and Benigno Diaz, Jr., Appellees.
    No. 77-1034.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1977.
    Edward E. Fessenden, Jr. of Lane, Massey, Trohn, Clarke, Bertrand & Smith, P. A., Lakeland, for appellant.
    Bernard C. Silver of Mitzel & Silver, Tampa, for appellees.
   OTT, Judge.

The trial court denied appellant’s motion to set aside a default. We reverse.

The appellant insurance agency was sued by appellee for alleged negligent failure to renew appellees’ policy of automobile insurance including personal injury protection and uninsured motorist benefits. On March 23, 1977 service of the summons and complaint was made upon appellant’s resident agent. On March 29, 1977 appellant forwarded the summons and complaint to the insurer from whom it had purchased an Errors & Omissions insurance policy. On April 15, 1977 a default was entered. On April 18,1977 the Errors & Omissions carrier informed appellant (by mail) that it was denying coverage. Appellant received this notice on April 21, 1977 and promptly informed its attorneys, who, in turn, immediately contacted appellees’ counsel and learned that default had already been entered. On April 25, 1977 appellant served its motion to set aside default. Along with the motion appellant included a proposed answer and defenses denying liability to appellees. Prior to the hearing on the motion appellant served appellees with three affidavits setting forth the above sequence of events.

Our task is to successfully combine two deeply held propositions under Florida law: that there exists a “long standing policy of liberality toward the vacating of defaults” — North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962); and, that “a showing of gross abuse of a trial court’s discretion is necessary on appeal to justify reversal of the lower court’s ruling on a motion to vacate [a default].” [Emphasis in original] Barber at 852. A casual review of the cases may lead the reader to the conclusion that the two principles are inconsistent or at least have led to bizarre results. We think that under a more careful reading and analysis this apparent inconsistency disappears.

The latter proposition has been with us for quite some time, see, e. g., Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9 (1942), and has been reiterated recently both by this court, Chamberlin v. Mid-Century Insurance Co., et al., 350 So.2d 364 (Opinion filed October 5, 1977), and the supreme court, Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977). See also this court’s recent opinion in Bailey v. Deebold, 351 So.2d 355 (Opinion filed October, 21, 1977).

With reference to the former doctrine, appellate courts after Barber have not hesitated to reverse lower courts for failure to vacate defaults where excusable neglect and due diligence are demonstrated. See Fla.R.Civ.P. 1.540(b). In Travelers Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977) suit was filed; the defendant secured one extension of time to plead by stipulation between counsel and moved for a second; the plaintiffs moved for a default and noticed the same for hearing as required by Fla.R.Civ.P. 1.500(b). On the day of the hearing on plaintiffs’ motion for default counsel for the defendant filed an answer but failed to appear at the hearing because the date had not been properly noted on his calendar. The trial court entered a default on plaintiffs’ motion and thereafter the defendant moved to vacate the default which was denied by the trial court. The Fourth District Court of Appeal reversed finding that the “trial judge abused his discretion in not vacating the default.” 341 So.2d at 1014. (The word “gross” was not used.) The court found excusable neglect to be present. The court indicated it was greatly influenced by the diligence or promptness demonstrated by the defendant — the suit was filed on January 7, the default entered on March 5, and Motion to Vacate filed on March 8. In Sterling Drug, supra, the supreme court similarly accords considerable weight to defendant’s “diligence in moving to vacate the default.” 342 So.2d at 505.

In Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976) the court vacated a default on facts much similar to those in Barber. In Imperatori, the Fourth District Court of Appeal held that the misfiling of the summons and complaint constituted excusable neglect and reversed the lower court’s denial of the motion to set aside the default judgment. Other cases where the liberal approach of Barber was followed — but where the district court of appeal in question affirmed the lower court’s vacating of a default judgment — were: Flaxman v. Metropolitan Life Insurance Co., 340 So.2d 515 (Fla. 3d DCA 1976); and, Plotkin v. Deatrick Leasing Co., 267 So.2d 368 (Fla. 3d DCA 1972).

An analysis of the various decisions strongly suggests that a greater showing is required to reverse the trial court’s granting of a motion to vacate default than in reversing the denial of such a motion. The eases also strongly support the conclusion that diligence by the defendant is an important factor. Lack of diligence probably explains the distinction suggested by the supreme court in Barber, supra, that there is a difference — at least in appellate treatment — in the review of a motion to vacate that comes after final default judgment as distinguished from after initial default but before final judgment.

We hold that the undisputed facts in this case established the type of neglect that is excusable and the type of diligence that is expected and favored. It certainly falls within the parameters of such cases as Bryson and Imperatori where district courts of appeal have at least implicitly found gross abuse of discretion to have occurred. As a consequence we hold that the lower court has grossly abused its discretion in failing to find excusable neglect under the facts and circumstances clearly established in this case. We are cognizant of appellees’ argument which urges great respect for:

[t]he exercise of discretion by a trial judge who sees the parties first-hand and is more fully informed of the situation .. Farish v. Lum’s, Inc., 267 So.2d 325, 327 (Fla.1972).

but feel strongly that this must yield in those instances where a blind adherence to such a principle results in an obvious transgression of equally important principles, i.e. those that free our system of justice from technicality and from results that do not comport with justice and common sense.

As stated in Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540, 542 (Fla. 3d DCA 1972), “[t]he discretion of a trial judge is ... a heavy factor . but as always judicial discretion must rest upon facts ascertainable from the record.”

Reversed and Remanded.

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


author: HAVERFIELD, Judge.

text:
    MICHIGAN NATIONAL BANK OF DETROIT, Appellant, v. MELRU INTERNATIONAL, LTD., and Finnsilver Corp., Appellees.
    No. 77-1976.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1977.

      Steel, Hector & Davis and Patricia A. Seitz, Miami, for appellant.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford and Paul J. Levine; Friedman & Britton and Arnold D. Schatzman, Miami, for appellees.
    Before HENDRY, C. J., and HAVER-FIELD, J., and DREW, E. HARRIS, (Ret.), Associate Judge.
   HAVERFIELD, Judge.

Defendant national banking association takes this interlocutory appeal to review an order denying its motion to dismiss for improper venue and lack of jurisdiction over its person.

Plaintiffs, Melru International, Ltd., is a Florida corporation which sells fish and shrimp products. Defendant Finnsilver, a Michigan corporation, agreed to purchase from Melru fish for $83,220.05 and to make part payment from the defendant Michigan National Bank of Detroit through an irrevocable letter of credit for $50,000 payable to Melru as beneficiary. Melru delivered the fish; but claims that Finnsilver never paid for it and that payment was refused when the letter of credit was presented upon Michigan National Bank. Thereupon, Mel-ru filed suit here in Dade County against Finnsilver for $83,220.05 and against Michigan National for $50,000 for breach of the letter of credit. In the complaint Melru alleged that both defendants were engaging in business in Dade County. Michigan National filed a motion to dismiss the complaint for lack of jurisdiction over its person and improper venue in that it was a national banking association with its principal place of business in Detroit, Michigan and pursuant to the venue provisions of Title 12, Section 94, U.S.C. (National Banking Act) may only be sued in the district or county where it is established. Attached to this motion were supporting affidavits to the effect that Detroit, Michigan was the Bank’s principal place of business and that the Bank does not engage in or carry on business in Dade County. Melru filed opposing affidavits to the effect that Michigan National Bank was doing business in Dade County. The trial judge after hearing denied the motion on the ground that Michigan National had waived its venue privilege by virtue of its activities in Florida. Michigan National filed this interlocutory appeal and then moved for a stay in the trial court of further proceedings until this court disposed of the appeal. The trial judge entered an order staying the proceedings conditioned upon Michigan National posting a $50,000 bond and that the bond remain in effect until it obtains a dismissal with prejudice, defense judgment or satisfies any judgment of Melru entered against it. Michigan National filed in this court a motion to vacate or modify the stay order on the grounds that the amount of the bond is excessive and the other conditions arbitrary and unreasonable. Oral argument on this motion was heard by this court. Although argument was confined only to this motion, the entire record and briefs of the respective parties on the merits have already been filed and, therefore, in the interest of justice and expediting this matter, we have decided to dispose of this interlocutory appeal. Cf. Boire v. International Broth. of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 479 F.2d 778 (5th Cir. 1973); Zabel v. Pinellas County Water & Nav. Control Auth., 154 So.2d 181, 186 (Fla. 2d DCA 1963).

The firmly established law still remains that the federal statute prescribing venue in the district or county in which the national bank is located is mandatory unless expressly waived; the commission of a tort or the entering into a contractual arrangement in a foreign district is an insufficient basis for inferring a waiver of the venue privilege. See Exchange National Bank of Chicago v. Rotocast Plastics Products, Inc., 341 So.2d 787 (Fla. 3d DCA 1977) and cases cited therein. Guided by this principal of law, a review of the record fails to demonstrate a waiver by Michigan National of its venue privilege. We, therefore, conclude that the court erred in failing to grant Michigan National’s motion to dismiss and remand the cause to the trial court to enter an order dismissing this action against Michigan National Bank for improper venue.

Reversed and remanded with directions.


author: ERVIN, Judge.

text:
    Jon McMINIS and Larry McMinis, d/b/a Panama Aviation, Appellants, v. Earle L. PHILLIPS, Appellee.
    No. EE-283.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1977.
    John F. Daniel of Sale, Bryant, Daniel & Thompson, Panama City, for appellants.
    Scott R. Nabors, Panama City, for appel-lee.
   ERVIN, Judge.

Panama Aviation appeals a judgment entered following a jury verdict awarding Phillips damages for unworkmanlike and negligent repair done to his airplane by Panama. At trial, Phillips elected to use, as a measure of his damages, the cost of repair necessary to correct Panama’s negligent repairs, consisting of stripping, sanding and repainting the airplane.

The sole point on appeal concerns the failure of Phillips to submit proof of his airplane’s value immediately before and after the alleged damages. Panama contends Airtech Services, Inc. v. McDonald Construction Company, 150 So.2d 465 (Fla. 3rd DCA 1963) is controlling as to the point involved. That opinion relies on the RESTATEMENT OF TORTS, § 928 (1939), which states:

“Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for
(a) the difference between the value of the chattel before the harm and the value of the harm or, at the plaintiff’s election, the reasonable cost of repair or restoration where feasible, with due allowance for any difference between the original value and the value after repairs and
(b) the loss of use.” (Emphasis added.)

Phillips elected to recover the reasonable cost of repairs to his airplane. True, he failed to present proof of the difference between the original value and the value after repairs. Nevertheless the submission of such evidence was not the only avenue available to him necessary to the recovery of damages. The reasoning supporting the RESTATEMENT’s rule is clear. A plaintiff whose chattel has been damaged should not be unjustly enriched by the repairs necessitated by a tortfeasor. For example, following an automobile accident, a plaintiff should not have his car repaired so that it is in better condition than before the accident and then seek to hold a defendant liable for the entire cost of that repair.

Phillips took his airplane to Panama with the idea that its value would be increased by the repainting. The increase in value was contemplated by the parties in entering into their agreement. A mechanical application of the RESTATEMENT rule would preclude Phillips from any recovery, since it is unrefuted the value of his airplane had appreciated following the repair work.

Moreover Phillips sued in two counts, one in contract for breach of the contract between the parties, and the second in tort for negligence. Panama has not argued the cost of the second repair job is an inadequate measure of damages arising from the breach. This being so, we need not decide whether Phillips properly established damages under his negligence theory. The final judgment is

AFFIRMED.

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


text:
    James Allen MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. FF-284.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1977.
    Salvatore D. Mollica, Asst. Public Defender, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

An appeal from a judgment of conviction entered on a plea of guilty to possession of more than five grams of marijuana. Appellant, a juvenile, complains of the hearsay character of the evidence adduced against him in the circuit court waiver hearing which resulted in an order transferring appellant for this criminal prosecution. Section 39.09(2), Florida Statutes (1975). The State urges that the asserted error was waived by appellant’s failure to appeal from the transfer order within 30 days. Section 39.14(1), Florida Statutes (1975); O’Brien v. Juvenile & Dom. Rel. Court of Dade Co., 161 So.2d 220 (Fla.3d DCA 1964) (involving a dependency adjudication). But a transfer order such as this contemplates further prosecution and is interlocutory. We need not decide whether the appeal apparently afforded from such an order by Section 39.14(1) is one of which we have jurisdiction, notwithstanding the absence of constitutional and rule provisions granting this court jurisdiction; but we do hold that any error in the antecedent juvenile proceedings may be complained of on proper appeal from an ensuing judgment of conviction. Here, however, appellant’s plea of guilty waived reliance on any such error. Williams v. State, 259 So.2d 753 (Fla.1st DCA 1972). There was no error in the trial court’s refusal to permit withdrawal of the guilty plea on account of the asserted ineffective assistance of counsel.

AFFIRMED.

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


text:
    Jerome GUYTON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1287.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Spinkellink v. State, 313 So.2d 666 (Fla.1975); Johnson v. State, 338 So.2d 556 (Fla.3d DCA 1976); Abbott v. State, 334 So.2d 642 (Fla.3d DCA 1976); Kelly v. State, 311 So.2d 124 (Fla.3d DCA 1975); Wilson v. State, 305 So.2d 50 (Fla.3d DCA 1974); Mabery v. State, 303 So.2d 369 (Fla.3d DCA 1974); and Bass v. State, 232 So.2d 25 (Fla.2d DCA 1965).


text:
    James C. COLROSS, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 76-1845.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.

      Aronovitz & Weksler and Bernard B. Weksler, Miami, for appellant.
    Stuart L. Simon, County Atty. and Robert A. Ginsburg, Asst. County Atty., for appellee.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

This is an appeal by a landowner from an order of the circuit court denying a petition for a writ of certiorari. The petition was sought to review a resolution of the Dade County Board of County Commissioners denying, without prejudice, appellant’s request for a zoning change.

Our review of the record on appeal reveals that the circuit court had before it competent, substantial evidence to support its judgment that the enactment of the contested resolution was fairly debatable, and that the petitioner did not sustain his burden of proving the contrary. The order of the circuit court accords with the essential requirements of the law. Therefore, we affirm the judgment below. City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953); City of Miami Beach v. Wiesen, 86 So.2d 442 (Fla.1956); De Groot v. Sheffield, 95 So.2d 912 (Fla.1957).

Affirmed.


text:
    Ronald N. FERN, Appellant, v. Sam KRANTZ, Appellee.
    No. 76-1915.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.

      Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Ryskamp, Miami, for appellant.
    Grover, Ciment, Weinstein & Stauber and Marvin Weinstein, Miami Beach, for appel-lee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   PER CURIAM.

Defendant, Ronald Fern, appeals a final judgment for $25,000 entered on behalf of the plaintiff in a breach of contract action.

Plaintiff, Sam Krantz, filed a complaint for breach of oral employment contract against defendant Fern alleging that he had breached the terms of the contract by failing to pay him a $25,000' bonus upon the sale of Fern’s apartment building which he managed. Fern answered and counterclaimed for damages alleging that he was forced to sell the building at a loss as a result of Krantz’s mismanagement and threats to quit. The cause proceeded to jury trial and Krantz’s case-in-chief consisted of his testimony to the effect that as an inducement to change employment to manage. Fern’s apartment building, Fern had agreed, as one of the terms of employment, to pay him a $25,000 bonus if the building was sold. Krantz called Fern to the stand as an adverse witness and Fern testified that he had paid $1,000,000 for the building and that under the agreement Krantz was entitled to a $25,000 bonus only if the building was sold at a substantial profit. During the presentation of his defense and counterclaim, Fern introduced evidence reflecting that he had sold the building for $975,000. Krantz then called the custodian of records at the county records office, Jack Pales, as a rebuttal witness. Fern objected to this witness, but the objection was overruled. A certified copy of the deed to Fern was then introduced into evidence without objection; and Pales testified that the state documentary stamps attached to the deed indicated that Fern had paid $875,000 for the property, but he could not say that, in fact, this amount was the actual purchase price. Fern’s counsel was permitted to cross-examine Pales and after the close of all testimony, the court entered a directed verdict for Krantz on Fern’s counterclaim and submitted Krantz’s claim to the jury. The jury returned a verdict for $25,000 and judgment was entered accordingly.

Fern contends that the trial court erred in permitting Krantz to produce Pales as a rebuttal witness because rebuttal testimony offered by a plaintiff is directed to new matters brought out by evidence of the defendant, and Pales’ testimony properly should have been submitted by Krantz in his case-in-chief. We cannot agree.

Assuming arguendo Pales’ testimony was cumulative rather than rebuttal, it was within the sound discretion of the trial judge to allow its admission, and the exercise of this discretion will not be disturbed on appeal unless it appears to so prejudice the result as to indicate an abuse of discretion. See Driscoll v. Morris, 114 So.2d 314 (Fla. 3d DCA 1959). After a consideration of the record, we cannot say that the admission of Pales’ testimony so prejudiced the result as to constitute an abuse of discretion. First, Krantz claimed that under the agreement he was entitled to a $25,000 bonus upon the sale of the building regardless of whether Fern did or did not make a profit. Second, Pales testified that he did not know who actually came into the office and placed the documentary stamps on the deed. Third, the implication of Pales’ testimony was that although the stamps reflected a purchase price of $875,000, that figure may not have been the actual price. Last, we find that Pales’ testimony, at the very least, was presented in rebuttal to Fern’s counterclaim that he lost money on the sale because he was forced to sell the building as a result of Krantz’s mismanagement and threats to quit.

'Affirmed.


text:
    Sam BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1937.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., John C. Mop-pert, Legal Intern, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. Falcon v. State, 226 So.2d 399 (Fla.1969); Blackman v. State, 279 So.2d 99 (Fla.3d DCA 1973); Thomas v. State, 326 So.2d 413 (Fla.1975); Darden v. State, 329 So.2d 287 (Fla.1976); James v. State, 334 So.2d 83 (Fla.3d DCA 1976).


text:
    Samuel Louis FULLER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2376.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Samuel Louis Fuller, in pro. per.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Appellant, defendant below, brings this appeal from the denial of a third Fla.R. Crim.P. 3.850 motion to vacate several judgments. We have completely reviewed the record in this matter and have considered all of the points raised by appellant on appeal. After such review and consideration, we have concluded that all of the points raised are totally devoid of merit; therefore, the order appealed is affirmed.

Affirmed.


text:
    Albert Eugene HOWARD, Jr., Appellant, v. Mary Scott HOWARD, Appellee.
    No. 77-110.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Walter & Pelaia, Miami, for appellant.
    William John Mason, Miami, for appellee.

      Before HENDRY, C. J„ and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See: Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    The STATE of Florida, Appellant, v. Ivan P. OLANDER and Mary W. Olander, Appellees.
    No. 77-966.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Richard E. Gerstein, State Atty. and Dennis Curran, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for Ivan P. Olander; Ronald C. Dresnick, for Mary W. Olander, appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Reversed and remanded on the authority of State v. Featherstone, 246 So.2d 597 (Fla. 3d DCA 1971).


text:
    Robert COREA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1873.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz and Lonworth Butler, Jr., Asst. Attys. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of In re Beverly, 342 So.2d 481 (Fla.1977); and In re Alvarez, 342 So.2d 492 (Fla.1977).


text:
    G & M SPORTSWEAR CORPORATION, a Florida Corporation, Appellant, v. JOY-SEE FASHIONS, INC., a New York Corporation, registered to do business in Florida, Appellee.
    No. 76-2301.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Carlos Lidsky, Coral Gables, for appellant.
    Anthony S. Paetro, Miami, for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Upon stipulation of counsel, the final judgment here under review be and the same is hereby reversed and the matter is returned to the trial court for the purpose of a new trial, in accordance with the stipulation heretofore filed in this cause.

Reversed and remanded, with directions.


author: DOWNEY, Judge. PER CURIAM.

text:
    PORT EVERGLADES AUTHORITY, a Public Corporation of Florida, fubo the Glens Falls Insurance Company, a New York Corporation authorized to do business in the State of Florida, and Marine Industry Association et al., Appellants, v. R. S. C. INDUSTRIES, INCORPORATED et al., Appellees.
    No. 75-1382.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.
    As Amended On Denial of Rehearing Oct. 15, 1976.

      Carol M. Anderson of Anderson & Anderson, P. A., Port Lauderdale, for appellants.
    Fred J. Ward of Crouch, Ward & Africa-no, P. A., Hallandale, for appellee Marine Industry Ass’n of Broward County.
    Nancy Little Hoffmann of Druck, Grim-mett, Norman, Weaver & Scherer, Fort Lauderdale, for appellee R. S. C. Industries, Inc.
   DOWNEY, Judge.

Appellant Port Everglades Authority leased certain premises to appellee Marine Industry Association of Broward County so Marine could hold a boat show. The leasing agreement contained a provision that Marine Industry would indemnify appellant for any claim, loss or demand made against or suffered by the appellant arising out of the Marine Industry’s use of the property in question.

Thereafter Marine Industry entered into numerous display space agreements so exhibitors could display their merchandise during the boat show. One of these exhibitors was appellee R. S. C. Industries, Inc. The R. S. C. Industries space agreement contained a provision that R. S. C. would indemnify Marine Industry from any claim that might occur in, on, or about the exhibit area.

During the lease term a fire damaged the leased premises. As a result thereof appellant filed suit for the use and benefit of its fire insurance carriers against appellee Marine Industry based upon the indemnification provisions contained in the lease agreement. Appellee Marine Industry then filed a third party complaint against appellee R. S. C. Industries, Inc., alleging that the fire loss resulted from the negligence of appel-lee R. S. C. Industries, and seeking judgment “for all damages that are adjudged against [Marine Industry] in favor of [Port Everglades Authority].” Before trial the court entered a partial summary judgment in favor of appellant and against appellee Marine Industry on the question of liability.

At trial appellant proved: the indemnification agreement; the occurrence of a fire loss; and payments to appellant totalling $9,184.08 from appellant’s insurance carriers. Appellant adduced no proof as to the amount of loss occasioned by the fire other than payments totalling $9,184.08. There was no competent evidence that that sum represented the proper measure of damages or that the sum in question, or any sum, was reasonable payment for the fire loss. On motion for dismissal for appellant’s failure to prove its damages by competent evidence, the trial court dismissed appellant’s complaint and entered judgment for appel-lee Marine Industry. In view of the dismissal of the main claim the trial court held Marine Industry’s third party claim against R. S. C. Industries was moot and refused to try that claim even as to the issue of attorney’s fees and costs which appellee Marine Industry had allegedly incurred in defense of the claim of Port Everglades.

Appellant seeks review of the judgment dismissing its complaint, and appellee cross-appellant Marine Industry seeks review of the judgment holding its claim for indemnification against appellee R. S. C. Industries to be moot. In our judgment the trial court was correct in its ruling on appellant’s claim against Marine Industry but incorrect in its ruling on Marine Industry’s third party claim against R. S. C. Industries.

Appellant initiated this action for the use and benefit of its fire insurance carriers, the real parties in interest. Those parties stand in the shoes of the appellant vis a vis the parties against whom the claim is being made. Thus, if appellant sued ap-pellee R. S. C. Industries on its indemnifying agreement for damages arising out of a fire caused by R. S. C., and no fire insurance was involved, it would appear quite obvious that appellant would have to prove its loss in order to recover. Although the contractual provision in question provides for payment of any claim, loss, or demand made against or suffered by appellant, that provision does not give appellant carte blanche to recover any sum which suits its fancy. The recovery must be reasonable, based upon the accepted measure of damages.

As pointed out in the Restatement of Restitution, § 80:

“A person who has discharged a duty which, as between himself and another, should have been performed by the other, and who is entitled to indemnity from the other under the rules stated in §§ 76-79, is entitled to reimbursement, limited
(a) to the amount of his net outlay properly expended, except where he became subject to the duty by the fraud or duress of the other, and
(b) if the payor became a party to the transaction without the consent or fault of the other, to the amount by which the other has thereby benefited.” (Emphasis added.)

The comment contained under the aforesaid section explains that recovery “is limited to reimbursement for the net outlay reasonably expended by the payor.” (Emphasis added.)

The underlying issue on the main appeal is: who had the burden of proof as to the reasonableness of the $9,184.08 the insurance carriers paid to the appellant? Appellant contends that after it showed the indemnification agreement, the occurrence of a fire loss, and payment of $9,184.08 from its insurance carriers, the burden of proof shifted to Marine Industry to show that that sum was not the reasonable value of appellant’s damages. Marine Industry contends the burden was on appellant to prove the $9,184.08 the carriers paid was a reasonable payment, and we agree.

The general rule on the burden of proof in suits for indemnity is stated in 42 C.J.S. Indemnity § 35, as follows:

“The rules of evidence which govern in other actions on contracts, as discussed in Contracts §§ 926-959, and the general rules set forth in Evidence §§ 103-157, apply in an action on a contract of indemnity with regard to the presumptions and burden of proof. Thus the burden of proof is on indemnitee to prove clearly all the material elements of his cause of action against the indemnitor, including, inter alia, breach of the indemnity contract, the responsibility over of the in-demnitor to him, the fact and amount of loss sustained, the facts on which his legal liability to pay the claim existed, as well as the reasonableness of the amount paid. . . . ” (Emphasis added; footnotes omitted.)

Accordingly, because appellant failed to prove that the amount it received from its carriers was reasonable, the trial court’s dismissal of appellant’s complaint (on Marine Industry’s motion) was proper, as was the entry of final judgment in Marine Industry’s favor.

Since the appellant did not recover against Marine Industry for the amount appellant claimed, Marine Industry could not recover that amount from R. S. C. Industries on the third party complaint. However, under its third party complaint, Marine Industry might, upon appropriate proof, be able to recover reasonable attorney’s fees and court costs arising out of its defense against appellant’s claim. See Milohnich v. First National Bank of Miami Springs, 224 So.2d 759, 762 (Fla.3d DCA 1969); Annot.: Damages—Attorneys’ Fees, 45 A.L.R.2d 1174; Annot.: Attorneys’ Fees as Damages, 4 A.L.R.3d 270. We therefore conclude that the trial court erred in dismissing Marine Industry’s third party complaint as moot.

The judgment appealed from is affirmed as to the claim of appellant against appellee Marine Industry Association and reversed as to the claim of appellee Marine Industry Association as third party plaintiff for attorney’s fees and costs. This holding will of course revive the fourth party complaint filed by appellee R. S. C. Industries, which complaint has lain dormant during these appellate proceedings.

Appellee Marine Industry has moved for an allowance of attorney’s fees in this court. We believe such fees should be allowed only for the cross appeal and only if it is ultimately determined that appellee R. S. C. Industries is liable to appellee Marine Industry Association on the third party complaint. We remand Marine Industry’s motion for attorney’s fees to the trial court for disposition in accordance with this opinion.

Affirmed in part, reversed in part, and remanded.

CROSS, J., and WEAVER, SIDNEY M., Associate Judge, concur.

ON PETITION FOR REHEARING

PER CURIAM.

In its petition for rehearing appellant asserts our opinion is in error when it states: “Thus, if appellant sued appellee R.S.C. Industries on its indemnifying agreement for damages arising out of a fire caused by R.S.C.”

The opinion is in error to the extent it uses the name R.S.C. Industries in that sentence. R.S.C. Industries was a third party defendant. Instead of R.S.C. Industries we intended to name the original defendant in this case, Marine Industry Association of Broward County.

Our opinion published July 30, 1976, is so amended, and the petition for rehearing is denied.

CROSS and DOWNEY, JJ., and WEAVER, SIDNEY M., Associate Judge, concur.


author: PER CURIAM. BOYER, Acting Chief Judge,

text:
    Jack R. WRIGHT, Appellant, v. Dick McGINLEY and Mary McGinley, Appellees.
    No. EE-163.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1977.
    Hale R. Stancil, Ocala, for appellant.
    Willard Ayres of Ayres, Cluster, Curry, Meffert & McCall, Ocala, for appellees.
   PER CURIAM.

Appellant seeks review of an order dismissing its complaint with prejudice. After appellant was evicted from farm property he had leased from his landlords, appellees, he brought an action seeking to replevin certain crops he had planted during the first year of his tenancy, alleging that at the time of his eviction the crops were either mature and ready for harvest or were approaching maturity. Although growing crops may be treated as personalty for the purpose of sale, they are part of the real estate until severed and follow the real estate unless specifically reserved. Simmons v. Williford, 60 Fla. 359, 53 So. 452 (1910). We find no error.

AFFIRMED.

MILLS and ERVIN, JJ., concur.

BOYER, Acting C. J., concurring specially-

BOYER, Acting Chief Judge,

concurring specially.

I reluctantly concur in the result reached, but only because of the law that if the estate of a tenant is forfeited or the tenancy terminated by some act of the tenant, (which appears to be the case sub judice) he will not be entitled to recover the crops from the demised premises. 21 Am.Jur.2d “Crops”, § 24 et seq., pp. 609-610


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Lindy TILLETT.
    No. 59550.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On January 16, 1975 in the early afternoon, a man entered Brotherhood Grocery in New Orleans. He wore a handkerchief tied around his mouth and carried a sawed-off shotgun partially wrapped in a handkerchief. He demanded to be given money from a cigar box in which about one hundred dollars had been hidden. The store owner, Mrs. Camile Jackson, gave him the money. The robber forced Mrs. Jackson and her elderly uncle who also worked in the store to lie on the floor. The robber fled.

Mrs. Jackson reported the crime to police and described the robber as a light-complexioned black male about eighteen or twenty years old and about five feet eight or nine inches tall. She identified the man who robbed her from a group of photographs and the man, whose name was James Cook (or Cooke), was arrested. Thereafter the arrestee’s mother came to Mrs. Jackson’s store and told her that the store owner mistakenly identified James Cook. Mrs. Cook suggested to her that a man named Lindy Tillett (defendant herein), whom Mrs. Jackson did not know, might have been the robber. Subsequently, Mrs. Jackson’s son told her that the description she had given police fit a person named Lindy Tillett with whom he played pool. Mrs. Jackson then informed police that a person named Lindy Tillett might be the person who held her up.

Defendant Tillett was arrested and Mrs. Jackson and her uncle were asked to come to a lineup in which he would be standing. Although they knew Tillett would be in the lineup, neither victim knew Tillett and neither had been shown any pictures of him. Before the lineup defendant Tillett, with the assistance of counsel, chose his own position and selected the man he chose to stand beside. All of the men were dressed exactly alike in overalls and all were barefooted. The men were of approximately the same height, build and skin color as the suspect. Both Mrs. Jackson and her uncle, who were seated apart, independently identified Tillett as their assailant.

Defendant Tillett was charged with the armed robbery and was tried by jury. At trial, the state’s case was based solely on the identification of the Jacksons and the testimony of one other witness, who had seen a man she identified as defendant sitting near the store before the crime. Defendant had asked her who was working at the Brotherhood Grocery.

After hearing this evidence, the jury convicted defendant Tillett and he was sentenced as a multiple offender to spend thirty-three and one-third years at hard labor. He now appeals on the basis of three argued assignments of error. Because we reverse Tillett’s conviction on the basis of error numbers four and five, we first discuss those assignments.

ASSIGNMENTS OP ERROR NOS. 4 AND 5

Defendant Tillett argues that the trial court erred in failing to allow him to demonstrate that he did not have a Spanish accent, and in failing to grant his motion for new trial on the same basis.

The alleged error arose in the following manner. At trial, Mr. Bither Jackson, Mrs. Jackson’s seventy-four year old uncle who was present in the store when it was robbed, testified on cross-examination as follows:

“Q. You said you are positive that Mr. Tillet is the man that held you up. Why do you remember him so well?
A. I remember. I remember you. If I see you one time I remember you.
Q. How do you remember him? What is there particular about him that makes you remember?
A. By his forehead. His eyes and his accent. The way he talked.
Q. Did he have an accent? What kind of accent did the man have?
A. Kind of like a Spanish or something like that. I don’t know.
Q. Are you certain that the man that held you up had a Spanish accent?
A. What?
Q. Mr. Jackson, you said the man that held you up had a Spanish accent?
A. The one that robbed me.
Q. Are you sure?
A. Yes.
Q. Did you think Mr. Tillet had a Spanish accent?
A. The one that robbed me.
Q. Do you think that he had that Spanish accent? The one at the table? There is no way to tell. He didn’t speak any English.
A. It’s kind of the way that I feel.
Q. You said you could identify Mr. Tillet by his accent. Have you ever heard Mr. Tillet speak?
A. I know the fellow that came in that store and held me up.”

Out of the presence of the jury defense counsel moved to allow defendant to read a passage of the court’s choosing so as to demonstrate to the jury whether he spoke with a Spanish accent. He asked that such demonstration not expose him to cross-examination. The state argued that any such recital would have the effect of waiving defendant’s privilege against self-incrimination and would thereby subject him to cross-examination. Defendant also asked that he be allowed to read a passage in camera. The trial court denied defendant’s motions, ruling that any voice demonstration would waive defendant’s fifth amendment privilege. Because defendant refused to waive his privilege, no reading took place. Defendant did not take the stand in his own behalf. He now argues that the trial court erred in its rulings, that the errors prejudiced his defense, and that his conviction should be reversed. We agree.

It has long been held that the compelled display of identifiable physical characteristics infringes no interests protected by the constitutional privilege against compulsory self-incrimination. In the case of Schmer-ber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held that evidence of analysis of petitioner’s blood taken over his objection was not inadmissible on the ground that it violated defendant’s privilege against self-incrimination. There the Court stated:

“It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” 384 U.S. at 763-64, 86 S.Ct. at 1832. (citations omitted) (emphasis added)

This distinction between an act which communicates and an act which merely makes an accused’s physical characteristics the subject of evidence has been consistently applied in fifth amendment analysis. In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the United States Supreme Court held that the state’s taking of a handwriting exemplar did not violate the accused’s fifth amendment privilege. The Court stated that:

“One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. . No claim is made that the content of the exemplars was testimonial or communicative matter.” 388 U.S. at 266-67, 87 S.Ct. at 1953. (emphasis added)

On the same day that Gilbert was handed down, the United States Supreme Court likewise held that the fifth amendment privilege against self-incrimination was not violated when the state required the defendant accused of a bank robbery to utter the words used by the robber. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The Court ruled that “compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly said by the robber, was not compulsion to utter statements of a ‘testimonial’ nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt.” 388 U.S. at 222-23, 87 S.Ct. at 1930. Finally, in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), it was held that requiring a defendant to produce voice exemplars was constitutionally acceptable because the voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said.

In Louisiana we have similarly allowed the state to compel a criminal defendant to exhibit his physical make-up, including his voice, without finding an infringement of his privilege against self-incrimination. We have compelled a defendant to put on a shirt, State v. Morgan, 333 So.2d 642 (La.1976); to allow his height to be measured, State v. Roy, 220 La. 1017, 58 So.2d 323 (1952); and to exhibit a scar, State v. Anthony, 332 So.2d 214 (La.1976), a bruise, State v. Washington, 294 So.2d 794 (La.1974), and a tatoo, State v. Wilson, 329 So.2d 680 (La.1976). Defendants in Louisiana have been forced to stand and identify themselves, State v. Jones, 261 La. 422, 259 So.2d 899 (1972), to give blood samples, State v. Dugas, 252 La. 345, 211 So.2d 285 (1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691, and handwriting samples, State v. Thompson, 256 La. 934, 240 So.2d 712 (1970); and to demonstrate the manner in which they open cigarette packs, State v. O’Conner, 320 So.2d 188 (La.1975).

In the case of State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970), we held that the state could compel a defendant in an armed robbery case to say the words used by the robber (“Hurry up”) without any infringement of the privilege against self-incrimination, saying that the words were:

“for the purpose of voice identification by the witness . . . . The words were not of a testimonial nature; they had no testimonial significance. The entire subject matter went to the jury for its consideration. The utterance and identification made therefrom were admissible evidence to be weighed by the jury in determining the guilt or innocence of the accused.” 256 La. at 720, 237 So.2d at 879.

Under this federal and state jurisprudence, it is unquestionably clear that had the state sought to have defendant speak for the purpose of revealing whether he had a Spanish accent, defendant would have been required to do so, notwithstanding an effort on his part to invoke his constitutional privilege against self-incrimination. The words he spoke (which could have been any words of the judge’s choosing) would not have been a communication of their content, but merely a display of a physical characteristic, i.e. an accent. Gilbert v. California, supra; Schmerber v. California, supra; State v. Lacoste, supra. Defendant’s act in speaking would simply have made one of his physical characteristics the subject of evidence, and as such would not have been protected by his rights against self-incrimination.

Since the state could have compelled defendant to display the quality of his voice without infringing on his fifth amendment privilege, his offering to make such a demonstration could not have constituted a waiver of his privilege against self-incrimination. Waiver of the privilege is accomplished, in the case of a criminal defendant, when he voluntarily takes the stand to testify in his own behalf. Johnson

v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937); Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926); State v. Smith, 283 So.2d 470 (La.1973). Once a defendant knowingly and intelligently waives his privilege, he is of course subject to cross-examination on the whole case like any other witness. La. R.S. 15:462. However, defendant Tillett’s request to reveal a physical characteristic would not have been testimony in his behalf, but merely a voice recital for the purpose of revealing a physical characteristic as evidence in the case. United States v. Wade, supra; United States v. Dionisio, supra; State v. Lacoste, supra; State v. Jones, supra. Therefore, his proposal to demonstrate his accent, or lack of it, did not waive his fifth amendment rights and make him liable to cross-examination. It has long been held that one of the essential ingredients of due process is reciprocity, see Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), and we hold that if the state can compel a criminal defendant to demonstrate his physical characteristics before the jury without infringing on his fifth amendment rights, a defendant’s offer of such a demonstration does not constitute a waiver of that same right.

We find that the judge’s error severely prejudiced defendant’s case. The entire state case was based upon identification, and one of the two people who identified the accused as the robber said that he did so on the basis of his forehead, his eyes, and his Spanish accent. See testimony produced above. Although defendant’s mother testified that her son had no Spanish accent, she also testified that he was an alien from Honduras, testimony which might indeed raise a question about whether defendant spoke with an accent. Under these circumstances we find that the trial judge’s refusal to allow defendant to demonstrate his voice to the jury for their determination as to its qualities constitutes reversible error, and on this basis we remand the case for new trial.

Because we anticipate that one other of the issues on this appeal will arise at retrial of this case, w£ deem it appropriate to discuss that other assignment at this time.

ASSIGNMENT OF ERROR NO. 3

Defendant Tillett alleges that the trial court improperly denied his motion to suppress identification. Specifically, he contends that the lineup was impermissibly suggestive because the victim knew that defendant Tillett would be in the lineup, and because the defendant’s skin color was noticeably lighter than that of any of the other men in the lineup.

We find no merit in this assignment. Although Mrs. Jackson did know that a suspect named Lindy Tillett would be in the lineup, the record does not reflect that she had ever seen him or a picture of him before, except, of course, on the occasion of the robbery. There is no indication at all in the record, and no allegation has been made, that she received any information from Mrs. Cook or from her son regarding his physical characteristics. The fact that a robbery victim knows that a named suspect will be in a lineup does not render that lineup impermissibly suggestive when, as here, the victim had no prior acquaintance with him nor any outside knowledge of his physical characteristics. Especially is this so where it was persons other than representatives of the state who told the victim that they suspected Tillett was the robber.

Moreover, we have studied the photograph taken of the lineup. It shows six men of approximately the same height, build and skin color dressed exactly alike. One of the men seems to be of a lighter color than defendant Tillett. We find nothing suggestive in the lineup. The resemblance between the men is sufficient to reasonably test identification. State v. Anthony, 347 So.2d 483 (La.1977). Therefore, we find that the motion to suppress identification was properly denied.

Because we find merit in Tillett’s fourth and fifth assignments of error, we reverse his conviction and sentence, and remand the case for retrial.

      . While it is not particularly pertinent in view of our action herein vacating defendant’s sentence, we notice that the minutes reflect that the accused was sentenced to serve fifteen years as to R.S. 14:64 (the armed robbery) and thirty-three and one-half years as to R.S. 15:529.1 (as a multiple offender), the two sentences to run concurrently. If the minutes accurately reflect the sentence imposed by the trial court, the sentence is erroneous. Louisiana Revised Statute 15:529.1 permits only one sentence to be imposed for a single crime and the previous sentence, if any, is vacated coincident with imposition of the enhanced penalty.

      . Two of the defendant’s five original assignments have not been briefed and are therefore considered waived. State v. Phillips, 337 So.2d 1157 (La.1976).


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Keith Anthony KLEIN.
    No. 59422.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Thomas W. Mull, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Appellant, Keith Klein, was charged by bill of information with the armed robbery of Joel Jolley on November 3, 1975. La. Rev.Stat. 14:64. After entering a plea of not guilty he was tried, found guilty of simple robbery and sentenced as a multiple offender to serve 6% years at hard labor.

Three errors are assigned in support of this appeal.

Assignment 1

According to the defense it was error for the trial judge to refuse to permit defense counsel to ask the investigating officer, Peter Cuadrado, where he had been told the victim was robbed. In addition, the defense contends the trial judge erred in refusing to allow defense counsel to impeach the testimony of Officer Cuadrado by using the statements made by the officer in the preliminary hearing held in this case.

According to defendant’s brief Officer Cuadrado testified at the preliminary hearing that the victim stated that he had been robbed at the “Magazine Street entrance to the Hibernia Bank”. Accepting this version of Officer Cuadrado’s testimony, although it does not seem to be supported by the record in those explicit terms, defendant’s contention is without merit. At the trial, the victim testified that he had been robbed at the General Pershing Street entrance. (The robbery occurred immediately after the victim Jolley walked out of the bank located at the corner of Magazine and General Pershing Streets).

After testifying at the trial that he had been robbed at the General Pershing Street entrance of the bank, the victim was asked by defense counsel:

“Q. Did you ever tell the Police you walked out the Magazine Street entrance?
A. No.
Q. You are positive about that?
A. I am positive.
Q. Now, when you got outside the bank, were you robbed right near the door or did you walk down the street some?”

This line of questioning was then discontinued. Defense counsel did not at this time attempt to impeach the victim Jolley, and obviously he could not do so on the basis of the foundation thus laid.

“Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.” La.Rev.Stat. 15:493.

All the witness was asked here was whether he told the police he walked out the Magazine Street entrance of the bank, to which the witness answered “No.” Defense counsel failed to refer to the time or circumstances. He accepted the witness’ answer and pursued another line of questioning. State v. Evans, 317 So.2d 168 (La.1975) and State v. Smith, 301 So.2d 594 (La.1974).

Then, in an apparent effort to rebut the victim’s testimony, when Officer Cua-drado was called as a witness by the State, defense counsel sought on cross-examination to question him about his testimony at the preliminary hearing. He was asked where the victim told him the robbery took place and the trial judge ruled that the question sought hearsay. Thus, in this latter instance the trial judge did not deny defense counsel the right to impeach the victim’s testimony.

This assignment is without merit.

Assignment 2

Appellant’s mother Marion Klein was called as a witness for the defendant. She testified that the victim came to her house about 4:15 on the afternoon of the alleged robbery, and, when she sought to testify to what he said to her on that occasion, the State’s attorney objected that the testimony would be hearsay. The trial judge sustained the objection. No objection was made to the ruling and no error was assigned at that time.

In brief defense counsel argues that the ruling denied the defendant the right to testimony which was part of the res gestae, statements of the victim to appellant’s mother concerning the facts of the robbery within ten to fifteen minutes of the occurrence.

This assignment of error is not well taken. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. The party aggrieved should, at the time the ruling is made, make known to the court his objections and the grounds therefor. La.Code Crim.Pro. art. 841.

This assignment is without merit.

Assignment 3

It is contended in brief that in the State’s rebuttal argument to the jury the prosecutor declared that defendant was in the throes of a narcotic seizure at the time of the offense. According to defense counsel’s brief, this was extremely prejudicial and was in no way supported by the evidence.

The defense contention is not well-founded. Although the defense has not lodged the entire transcript of the rebuttal argument in this Court to support its contention, the record has been supplemented with selected portions of the transcript bearing upon the issue raised by this assignment. The record discloses that defendant took the stand and while he was being cross-examined by the prosecutor the following exchange took place:

“Q. Did you ever make a statement that I will be sick tomorrow, I am taking six bags of heroin a day?
A. No, sir, I never .
Q. You didn’t make that statement when you were booked at the Central Lock-Up for this armed robbery?
A. No, sir, I never. I did make a statement about narcotics though.
Q. I am going to ask you what your counsel previously marked as D-2. What does that say right there?
A. I will be sick tomorrow, I take six bags of heroin a day.
* * * * * *
Q. Do you have any idea how that got there?
A. No, sir, I don’t.
Q. Whose arrest register is that?
A. Keith A. Klein.
Q. What are you charged with?
A. Armed robbery.
Q. What’s the date?
A. 11/4/75.
Q. But you didn’t make that statement?
A. No, sir, I never. I did make a statement about narcotics though.”

Defendant did admit that he made a “statement about narcotics.” However, when faced with his statement in the arrest record, “I am taking six bags of heroin a day,” he denied that he made such a statement. No objection was made to the prosecutor’s reference to the arrest record or its content. Thus, while defendant did contradict the arrest record, its content disclosed by the prosecutor’s question did nevertheless constitute damaging evidence that defendant was using large quantities of heroin at the time of his arrest.

Considering the fact that the arrest register indicated an admission of heavy heroin use on the day of the offense, the prosecutor’s argument that defendant was in the throes of a narcotic seizure at the time of the offense may fairly be said to be a logical and reasonable inference from the evidence.

Inferences from facts established or indicated by trial evidence are permissibly drawn by counsel during argument. State v. Sheppard, 350 So.2d 615 (La., decided September 19, 1977); State v. Lockett, 332 So.2d 443 (La.1976).

This assignment is without merit.

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

DIXON, J., concurs, disagreeing with the treatment of assignment # 2.


text:
    STATE of Louisiana v. Paul Edward WARE.
    No. 59682.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Robert F. DeJean, Sr., Opelousas, David J. Dennis, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert -Brinkman, First Asst. Dist. Atty., for plaintiff-appel-lee.
   SUMMERS, Justice.

Defendant Paul Edward Ware was charged by grand jury indictment with armed robbery. La.Rev.Stat. 14:64. After trial by jury he was found guilty as charged and sentenced to thirty-eight years at hard labor without benefit of probation, parole or suspension of sentence.

The offense involved an armed robbery of a woman clerk at a convenience store in Opelousas, Louisiana. Defendant pulled a gun and pointed it at the clerk and demanded money. Money was handed to him. When defendant was leaving the store taking the woman clerk with him, several deputies from the sheriff’s office arrived. As defendant attempted to escape a shoot-out resulted in which the woman, a deputy sheriff and defendant were wounded. Defendant was subdued and arrested at the scene.

One assignment of error is urged on this appeal. It is based upon statements made by the trial judge at the time of imposing sentence. The alleged error is principally based upon the following statement:

“Because I suspect that you have some mental illness, I strongly recommend that you be given psychiatric tests and if necessary, [be] treated by the Department of Corrections. I order that not only this sentence but the remarks made herein be transmitted to the Department of Corrections with your other records.”

In truth, the defense argues, the statement of the trial judge was a fact-finding adjudication of defendant’s mental condition. He should not have been compelled to stand trial with such an illness. A proper procedure under these circumstances, according to the defense, would require the trial judge to hold the defendant for further proceedings. This would involve further inquiry into defendant’s mental condition by medical experts. They would either corroborate the findings of the trial judge or determine that defendant’s mental condition was such that he was capable of understanding the proceedings against him prior to and at the time of sentencing.

In a per curiam the trial judge explained that on the basis of a presentence report and conversation with members of the family of the accused, the armed robbery was a radical departure from his former conduct and the life the accused had lived in the past. He had accomplished much in life and was highly regarded in the community. But he presently complained about everything incessantly. He even maintained his innocence despite the fact that he was caught at the scene of the crime and engaged in a shoot-out which was responsible for the shooting of two others besides himself.

These were the facts, according to the per curiam, which prompted the trial judge to observe that the man may need psychiatric help. The trial judge did not say or even suggest that defendant was insane to such an extent that he was unable to understand the proceedings against him or to assist in his defense. These observations were made out of humanitarian considerations and in the hope that they would promote the well-being of the defendant during his incarceration. If he had felt at any stage of the proceedings that the defendant was laboring under any incapacity impairing his understanding or his ability to assist counsel, he, the judge, would have ordered a sanity commission on his own motion.

The per curiam observes further that at no time did defense counsel or the prosecutor question defendant’s mental capacity to stand trial.

In our view the remarks of the trial judge are satisfactorily explained by the per curiam, and no error prejudicial to the accused resulted.

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