text:
    Calvin CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-487.
    District Court of Appeal of Florida, Second District.
    May 19, 1976.
    Amended on Rehearing June 10, 1976.

      Lester W. Jennings, Okeechobee, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The parties will be referred to as in the trial court. Defendant, Calvin Carter, timely appeals an adverse judgment and sentence rendered upon a jury verdict finding him guilty of rape. He was sentenced to serve SO years in the state peni-teritiary. The facts adduced in evidence at the trial are as follows:

The victim and her husband lived in a trailer in Moore Haven, next to her in-laws. At approximately one o’clock in the morning of April 23, 1974, a telephone call was received by the victim’s father-in-law, who operated a wrecker service business. The victim’s husband listened to this conversation on an extension line. The caller advised that he had a tractor-trailer loaded with watermelons stuck on Highway 80 and gave directions on how to get there. There was also a brief discussion regarding cost. It was customary for two men to go out together on the night calls. Thereafter, the victim’s husband went to join his father and the victim locked the trailer door and returned to bed. Both men left in the wrecker and proceeded to Highway 80 where they drove up and down the road looking for the alleged stranded vehicle, but were unable to find it. In the interim, while the men were looking for the truck, an assailant severed the victim’s telephone lines, broke out a jalousie window on the trailer door, cut a small hole in the screen next to the lock and gained his entrance to the trailer. The victim was asleep on her stomach. She was awakened by her assailant, who was armed with a knife. The sexual act was completed in such a manner that the victim was unable to see the assailant’s face. She did subsequently identify him by voice identification. The defendant’s voice was also identified by other witnesses who testified for the state.

We state that in view of the record, the victim was attacked and raped by force and against her will as she testified. It is submitted that there is ample evidence, both direct and circumstantial, to support the judgment of conviction; however, we do mention that the evidence was not overwhelming.

Nevertheless, what has caused us to deliberate and study this case for what may be regarded as an inordinate period of time is the acceptance and recognition of our responsibility and duty to determine, upon review of the complete record, whether the defendant received a fair and impartial trial by his peers. It has been said that the most despicable wretch that walks the face of the earth is entitled to a fair trial — a defendant charged with the reprehensible and heinous crime of rape is no exception. After tedious review of the voluminous record we conclude that the defendant was denied his right and opportunity of a fair and impartial trial as prescribed by the Constitutions of Florida and the United States.

We shall now proceed to discuss certain of the alleged errors raised by defendant on this appeal. Initially, we consider the point of whether the trial court erred, as defendant contends it did, in allowing Mr. Herndon to serve as a member of the jury. During the voir dire examination, the following colloquy took place between the court and Mr. Herndon:

THE COURT: Take Seat Number 5, Mr. Herndon. You know some of these people, Mr. Herndon. Which ones do you know the best?
MR. HERNDON: I know all the county officers. I know [the victim’s husband and father-in-law] I know Brother Brown down there, the pastor of the Assembly of God in Clewiston, and I believe that is Mrs. Brown. Well, I know those names there.
THE COURT: And I think you are well acquainted with one of the officers of the court here too, aren’t you ?
MR. HERNDON: Yes, sir.
THE COURT: The fact that you know these people, would it cloud your judgment to the point where you could not make a free and independent fair and impartial judgment here ?
MR, HERNDON: Well, Judge, I have talked personally with some of the people who are directly interested in the case. I have heard their side of it. I have heard other street talk.
THE COURT: Do you feel then that you would have acquired a fixed opinion on this thing?
MR. HERNDON: Well, as far as circumstantial evidence, yes, sir, I think so.
THE COURT: You have?
MR. HERNDON: Yes, sir.

The court dismissed Mr. Herndon from the panel with the following remark:

THE COURT: I am going to accept Mr. Herndon as my strike, so that will give you another strike.

The state objected to the court excusing Mr. Herndon. The objection was merely noted, however, the ruling was not changed and the court nevertheless permitted Mr. Herndon to be sworn in as a member of the jury and he later was even elected its foreman.

It is true that the record does not show that counsel for defendant challenged Mr. Herndon for cause. However, the-record does disclose that the defendant had one peremptory challenge that was not exercised. We are aware of the case of Withers v. State, Fla.1958, 104 So.2d 725, wherein it was held to be necessary for a defendant to exhaust his peremptory challenges before asserting as reversible error that the trial judge denied a challenge for cause; further, that challenges to be effec-.. tive must be timely exercised. See Ex parte Sullivan, 1944, 155 Fla. 111, 19 So.2d 611. Notwithstanding, under the particular circumstances here, and in light of other errors hereinafter discussed, the seating of this juror deprived the defendant of the right to have his cause tried fairly before an impartial jury.

The court here quickly realized, after having heard Mr. Herndon state that he had formed an opinion as to circumstantial evidence, that he could not serve as a fair and impartial juror. The court’s ruling was eminently correct. Mr. Hern-don should have been excused. The state’s argument that had the court stricken Mr. Herndon, as it indicated, it would, in effect, give defendant an additional peremptory challenge is untenable. The striking of Mr. Herndon was for cause and defendant has unlimited challenges in this regard. The seating of Mr. Herndon as a member of the jury constituted error. In the case of Farese v. United States, 5th Cir. 1970), 428 F.2d 178, the court held:

The Sixth Amendment guarantees that the accused shall enjoy the right to a trial by an impartial jury and shall be confronted with the witnesses and evidence against him. Certainly the definition of impartiality is not a static concept, but can be defined only in relation to specific facts and circumstances. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). The most general interpretation of a fair trial is that it be conducted before unprejudiced jurors under the superintendence of a judge who instructs them as to the law and advises them as to the facts.
[428 F.2d, page 179-180].

Secondly, it is contended that cross-examination of the defendant exceeded permissible limits. The defendant took the witness stand and the following questions were propounded to him by the prosecutor :

[BY PROSECUTOR]:
Q Kind of laying low since you raped Wanda?
[DEFENSE COUNSEL]: Objection, Your Honor; I think that’s not proper.
THE COURT: You asked him the question, he said no. It’s proper cross-examination. Overrule the objection. Go ahead.
[BY PROSECUTOR]: (Cont.)
Q Answer the question, Mr. 'Carter.
A Would you repeat it again ?
Q Are you just laying low since you raped Wanda?
A I didn’t rape Wanda.
Q Let’s get to the next part. Are you kind of laying low until the heat’s off?
A You might could say that.
* * * * * *
Q Mr. Carter, other than the early morning that you raped Wanda . . . , have you ever threatened to rape a woman ?
A Nope.
[DEFENSE COUNSEL]: I’ll object to that. He’s assuming something that I don’t think is proper.
THE COURT: Overruled.
[Bracketed material supplied].

This line of questioning was highly improper and potentially prejudicial. In the state’s case in chief, the prosecutor proffered the testimony of Mrs. Hill, see page 124 infra. At that time the prosecutor knew or should have known that Mrs. Hill would not testify that the defendant either raped or attempted to rape her. The timely objections of defendant’s counsel to the above questions should have been sustained as the evidence was inadmissible. The prosecutor had presented a prima facie case against the defendant as charged. This is another example of the prosecutor going for the overkill and it constitutes error.

Next, we turn to the admissibility of the testimony of Mrs. Hill, a rebuttal witness for the state. As indicated above, before the state closed its case in chief, the prosecutor proffered her testimony under the rationale of the Williams Rule. Mrs. Hill’s proffered testimony follows:

[PROSECUTOR]: ... In this instance the State would show under prior similar facts that in early March of this year prior to the attack in this case the defendant, Calvin Carter, knowing Tim Hill and his wife, Helen, and seeing Tim Hill shooting pool in the Pub in Clewiston, Florida, drove some 30 plus miles to Devil’s Garden and called upon Mrs. Helen Hill knowing her to be by herself except for her small children. At that time the defendant, Calvin Carter, according to Mrs. Hill’s testimony made certain advances on her trying to get her to have sexual relations with him and suggesting it to her in no uncertain terms. Further, at one point in there he stated to her “What if I just make you do it, then you can’t say that it was your fault,” to which she responded “If you do so you will see what my husband will do about it.” The defendant further in the course of this matter attempted to grab and kiss the witness, but after being bluntly and flatly rebuffed by her departed her residence. The State would show, Your Honor, this solely for the purpose of identification of the defendant showing a common scheme and a common intent in this and this is the sole purpose which the State would offer it.

Defense counsel objected to the proffer. The objection was sustained and the trial court ruled that the proffered evidence was remote in fact and would serve no useful purpose. We agree with this ruling. Clearly the testimony at that stage of the trial would only point to the defendant’s propensity and bad character. It is a general rule in a criminal case that the state cannot introduce evidence attacking the character of the accused unless he has first put his good character in issue. See 13 Fla.Jur. 156; 20 Am.Jur. 303. On further cross-examination of the defendant by the prosecutor, the following occurred:

[BY PROSECUTOR]:
Q Mr. Carter, do you cheat on your wife? Do you go out and have intercourse with other women since you’ve been married ?
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: It’s proper cross-examination. You brought up the matter of his sexual compatibility at home.
[BY PROSECUTOR]: (Cont.)
Q Do you cheat on your wife, Mr. Carter ?
A I have.
Q Have you cheated on your wife recently, Mr. Carter ?
A Not recently.
Q What is not recently ?
A Since all this has come up.
******
[BY PROSECUTOR]: (Cont.)
Q You’ve never asked a woman to to to bed with you and when she turned you down you never said, “what if I made you”?
A No.
Q And if somebody testified to that, they’d be lying, too, wouldn’t they, Mr. Carter?
A They sure would.

After the defendant rested his case, the state called Mrs. Hill as a rebuttal witness. She testified as follows:

[BY PROSECUTOR] :
Q Do you recall whether or not Mr. Carter specifically asked you to go to bed with him ?
A Yes, he did.
Q He asked you to go to bed with him that night?
A Yes.
Q What did you say to him ?
A I told him no.
Q Did he accept this readily ?
A No. He tried to convince me there was absolutely nothing wrong with it.
Q Did he use or attempt to use any force, Mrs. Hill, in convincing you?
A Just right before he left when we were at the door and he just took me by the arm and tried to pull me to him and I pulled away and said no. And he asked me to kiss him and I said no and then he said — he put one arm on each side — which you would have to see our trailer to know exactly what I was talking about, where the little partition was by the door — he put one arm on either side and just said, “What if I just went ahead and kiss (sic) you and you didn’t let me. It wouldn’t be your fault, you wouldn’t be letting me kiss you.” You know, just things like that.
Q Now, I believe you have already stated your husband was in town that night, Mrs. Hill.
A Yes, he was.
Q Did the Defendant, Mr. Carter, in any sense indicate that he knew that?
A Oh, yes; he told me he definitely knew my husband was in town.

As previously pointed out, the defendant testified that he had cheated on his wife; therefore, the testimony of Mrs. Hill that the defendant was cheating on his wife by making advances toward her cannot and should not have been admitted as rebuttal testimony. As a matter of fact, upon close examination, we find nothing in Mrs. Hill’s testimony that would constitute rebuttal testimony. We therefore hold that her entire testimony was highly prejudicial and constitutes error.

Lastly, the prosecutor in his final argument to the jury stated:

This man is a liar. This man is a rapist. He lied to you, gentlemen. He sat here and told you he had no problems. He sat here and told you and then upon cross-examination he said yes, he had played around a little and then suddenly we found out it was. more than playing around. He went down and wanted Mrs. Hill to go to bed with him, the wife of a friend. He went there and then he told her he knew her husband was in the pub. I draw your attention to the similarity in the method of operation here. Either knowing or luring the husband away, the approach is made. No rape occurred in this case, but the method is the same, the intent is the same, and the identity of the perpetrator is the same.

The above-quoted remarks by the prosecutor in his final argument were confusing and misleading to the jury and regarded by this court to be highly inflammatory and prejudicial to the defendant. It was not, we submit, within the proper scope of closing argument and was outside the evidence adduced at trial. The prosecutor sought to convey the impression to the jury that the defendant had asked Mrs. Hill to go to bed with him and when she refused he was supposed to have said “What if I made you.” The testimony of Mrs. Hill on this very vital point was clear and unequivocal, i. e. that the defendant had asked her to kiss him and when she refused he stated to her “What if I just went ahead and kiss (sic) you and you didn’t let me.” Mrs. Hill’s testimony was not proper as Williams Rule testimony in the state’s case in chief as the trial court had ruled. The defendant’s identity had been positively established. The prosecution contended that the method of operation was similar. Not so. The defendant was charged with raping the victim in the middle of the night after her husband had been lured away from the home by a telephone call. On the other hand, the testimony of Mrs. Hill shows the defendant, who was known to her, came to her home in the early hours of the night, asked her to go to bed with him and, after being rejected, he left without further incident; the significant difference being that in this case the victim was raped; while, according to Mrs. Hill’s testimony, the defendant attempted to kiss her. In the final analysis, the argument was grossly unfair, improper and highly prejudicial and constitutes error. In the case of Re Murchison, 1955, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942, the Supreme Court of the United States held:

. . . [O]ur system of law has always endeavored to prevent even the probability of unfairness.
[75 S.Ct. page 625, 99 L.Ed., page 946].

In Stewart v. State, Fla.1951, 51 So.2d 494, the court cautioned prosecutors to refrain from inflammatory and abusive argument, directing trial judges to restrain and rebuke counsel from engaging in such tactics. The reason for inhibiting such conduct was stated in the following terms:

. Under our system of jurisprudence, prosecuting officers are clothed with quasi judicial powers and it is consonant with the oath they take to conduct a fair and impartial trial. The trial of one charged with crime is the last place to parade prejudicial emotions or exhibit punitive or vindictive exhibitions of temperament. . . .
[51 So.2d, page 495],

The prosecutor in his argument referred to the defendant as a rapist which reference may well have been interpreted by the jury as referring not to the charge on which he was being tried, but, rather, to ascribe guilt to the defendant for his alleged prior actions with Mrs. Hill. Brown v. State, Fla.App.3d 1973, 284 So.2d 453.

We have considered the remaining points raised by the defendant on this appeal and find each of them to be without merit.

Having determined that error did occur in this case, we now turn to a determination of whether that error prejudiced the substantial rights of the defendant.

While a defendant is not entitled to a perfect trial, he certainly is entitled to a fair and impartial one. See United States Constitution, amend. VI and XIV. We have endeavored to point out in this opinion several errors that occurred during the course of this trial, the accumulation of which improprieties was so great as to warrant a new trial. See Douglass v. State, 1938, 135 Fla. 199, 184 So. 756. Any one of these errors standing and considered alone may not be cause for reversal, still when considered collectively and in relation to one another and upon review of the entire record, we are compelled to conclude that the defendant was denied his constitutional right to a fair and impartial trial before a fair and impartial jury. Accordingly, we

REVERSE and REMAND for new trial.

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

      . Apparently the referred-to officer is the wife of Mr. Herndon, who was deputy clerk of the circuit court. Mr. Herndon worked as a property appraiser for the county tax assessor.

      . Williams v. State, Fla.1959, 110 So.2d 654.


source: Caselaw Access Project

author: SCHWARTZ, ALAN R., Associate Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Arthur Gene CANNON and Lacey Hollingsworth, Appellees.
    No. 75-1848.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Abbott M. Herring, State’s Atty., and John Dean Moxley, Jr., Asst. State’s Atty., Titusville, for appellant.
    Daniel S. Ciener, Merritt Island, and R. V. Richards, Titusville, for appellees.
   SCHWARTZ, ALAN R., Associate Judge.

We agree with the trial judge and the Third District decision in Mullin v. State, 307 So.2d 829 (Fla.App.3rd 1975), cert. den. 317 So.2d 761 (Fla.1975), that an order under Rule 3.191(d) (2) (iv), F.R. Cr.P. is required to extend the speedy trial time during the pendency of an interlocutory appeal by' the state from an order suppressing evidence. Despite the state’s argument here, it is obvious that the portion of Fla.Stat. § 924.071(2), which provides for an automatic stay during the pendency of such an appeal has been superseded by the provisions of the rule in question which specifically require an order of extension, “. . . for a period of reasonable and necessary delay . for interlocutory appeals . . ..” A contrary ruling would mean that the state could automatically deprive a defendant of the benefits of the Speedy Trial Rule, which did not exist when Fla.Stat. § 924.071(2) was adopted, merely by filing an appeal from an order of suppression and without any judicial determination that the appeal was not frivolous or had not been taken simply for the purpose of securing such a delay. Accordingly, we affirm the trial judge’s order discharging the defendant under Rule 3.191(d)(1). See also State v. Wells, 326 So.2d 175, at 176 (Fla.1976) (opinion of Hatchett, J.); State v. Wilson, 305 So.2d 232 (Fla.App.3rd 1974); State v. Williams, 287 So.2d 415 (Fla.App.2d 1973); Esperti v. State, 276 So.2d 58 (Fla.App.2nd 1973); State v. Byrne, 331 So.2d 394 (Fla.App.4th 1976).

AFFIRMED.

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


author: PER CURIAM.

text:
    TERAMA HOTEL CORPORATION, a Florida Corporation, Appellant, v. Chris J. CHRIST, Appellee.
    No. 75-516.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Therrel, Baisden, Peterson, Stanton & Stillman and Allen R. Roman, Miami Beach, for appellant.
    Herman Grayson, Miami Beach, for ap-pellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

After long and exhaustive litigation in several courts, these contending parties reached a termination of their litigation in an amended final judgment in which the court found as follows:

* * * * * *
“1. That the property of Chris J. Christ, to wit, the boat hull, was converted by Terama Hotel and its predecessors in interest on July 24, 1972 to their own use.
“2. That at the time of conversion the value of the property of Chris J. Christ, to wit, the boat hull, was $7,-500.00.
“3. The Court finds that the Terama Hotel Corporation and their predecessors in interest and title are entitled to a total sum of $4,780.00 for rent, together with sales tax, until the time of conversion, and this award shall include any and all amounts heretofore allowed as a judgment against Chris J. Christ.
“4.' That Chris J. Christ is entitled, therefore, to a judgment against the Terama Hotel Corporation and/or its predecessors in title, jointly and severally, in the sum of $2,720.00, for which let execution issue forthwith.”
* * * * * *

On this appeal, in which we are presented with a very sketchy record, the appellant contends first that the finding of conversion was not supported by the record and, second, that the value of the chattel was inadequately proved. We have reviewed the record in the light of these contentions and find that error has not been demonstrated. See Quitman Naval Stores Co. v. Conway, 63 Fla. 253, 58 So. 840 (1912); General Finance Corp. of Jacksonville, Inc. v. Sexton, Fla.App.1963, 155 So.2d 159; Goodrich v. Malowney, Fla.App.1963, 157 So.2d 829.

Affirmed.


text:
    William D. FOLZ et ux., Appellants, v. Kenneth BEARD, Appellee.
    No. 74-1332.
    District Court of Appeal of Florida, Second District.
    May 19, 1976.
    Richard B. Moritz, Largo, for appellants.
    David A. Luczak, Largo, for appellee.
   PER CURIAM.

Appellants William Folz and wife appeal from a final judgment rescinding, for fraud, the sale of an employment agency to appellee, Kenneth Beard. We reverse since the trial court improperly instructed the jury on the law pertaining to actionable fraudulent inducement.

After presentation of evidence, the jury returned a verdict against appellants apparently upon a finding that certain representations made by appellants amounted to actionable fraud supporting rescission. The verdict was based upon the following charge, given over appellants’ objection, purporting to state the law as to appellee’s right to rely upon the representations made by appellants:

“If one party to a transaction possesses superior knowledge of the facts material to the transaction and statements of the party possessing such superior knowledge and the other party does rely upon the information and representations of the person possessing such superior knowledge and if the facts in evidence show the Defendant knows the Plaintiff was relying upon his statements and that the reliance by Plaintiff on Defendant’s representations are justifiable, the law imposes upon the person possessing such superior knowledge the duty of acting in the utmost good faith and of giving to the Plaintiff full and accurate information possessed by the Defendant affecting the transaction and if under such circumstances the person occupying the position of superior knowledge abuses the reliance placed in him by the Plaintiff by words or conduct or both and thereby induces Plaintiff to enter into the transaction by false representations, you must find for the Plaintiff.”

We think the charge is ambiguous, misleading, obviously incomplete and improperly states the applicable law. It is the rule in Florida that in the absence of a fiduciary relationship, or of actionable fraud inducing the representee to forbear investigation, or of circumstances making an investigation impossible, difficult, or expensive, (none of which circumstances is established here), the representee is under a duty to exercise reasonable diligence for his own protection. Thus in the absence of accompanying undiscoverable deception, artifice, or misconduct, where the means of knowledge are at hand and are equally available to both parties and the subject matter is equally open to their inspection, if one of them does not avail himself of those means and opportunities he will not be heard to say that he was deceived by the other’s misrepresentations.

The instruction given here is fatally defective since it fails to include any language placing a duty upon the buyer to investigate beyond the representations made by appellants. That is to say, it omitted any reference to- the law appertaining to appellee’s “right of reliance.” The instruction thus effectively removed any burden from the buyer in the transaction and improperly led the jury to believe that mere misrepresentations by appellants would constitute sufficient grounds for rescission.

Appellee suggests that a “fiduciary” or “confidential” relationship existed and that therefore he met one of the exceptions to the general rule. This is so, he says, because, since the seller was of the same religion as he, he was justified in reposing more than usual confidence in him and was entitled to the charge.

Although a proper instruction on the point could be sustained if a true confidential or fiduciary relationship in fact existed, the cited circumstances do not support the finding of such a relationship in this case. The parties were, in law, dealing at arm’s length. Simply-showing that both were acquaintances and belonged to the same religion will not, in our view, give rise to the higher relationship conceptually envisioned by the terms “confidential” or “fiduciary.”

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and appellants are awarded a new trial.

McNULTY, C. J., HOBSON, J., and EARNEST, JAMES H., Associate Judge, concur.

      . See Beagle v. Bagwell (Fla.App.1st, 1964), 169 So.2d 43; 14 Fla.Jur., Fraud and Deceit § 68 (1957).

      . We point out here that the objected to charge quoted herein, being obviously incomplete, would not be a proper one even if ap-pellee’s point was well taken.

      . Cf. Morton v. Young (Fla.App.3d, 1975), 311 So.2d 755.


text:
    Marvin GEORGE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1304.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    May 11, 1976.
    Philip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See State v. Kelley, Fla.App.1975, 322 So.2d 581; Eastwood v. Hall, Fla.App.1972, 258 So.2d 269.


text:
    Ivan MOREJON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1443.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Pollack, Tunkey, Robbins, & Leen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Quartz v. State, Fla.App.1972, 258 So.2d 283. See also Wallace v. State, Fla.App.1975, 319 So.2d 117.


text:
    Bruce GEORGE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1314.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Franklin D. Kreutzer, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.

      Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Rule 3.191(a)(1), and (e) RCrP; Brown v. State, Fla.App.1976, 328 So.2d 497, 498; State v. Kelley, Fla.App.1975, 322 So.2d 581; Eastwood v. Hall, Fla.App.1972, 258 So.2d 269.


text:
    Vernal Amtri TURNQUIST, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1111.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian Leslie, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See: Stanford v. State, Fla.1959, 110 So.2d 1; Chavigny v. State, Fla.App.1959, 112 So.2d 910; Evans v. State, Fla.App.1967, 197 So.2d 323; Fuller v. Wainwright, Fla.1970, 238 So.2d 65; Davis v. State, Fla.App.1973, 277 So.2d 790; High v. State, Fla.App.1973, 284 So.2d 239; McCleney v. State, Fla.App.1974, 304 So.2d 459; Flewellyn v. State, Fla.App.1975, 308 So.2d 46; McCrae v. State, Fla.App.1975, 313 So.2d 429; Wilkinson v. State, Fla.App. 1975, 322 So.2d 620.


text:
    William R. MAYO, a citizen of the State of Florida, Appellant, v. KNIGHT-RIDDER NEWSPAPERS, INC., a Delaware Corporation doing business within the State of Florida as Miami Herald Publishing Company, Appellee.
    Nos. 75-1611 and 75-1404.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Coleman R. Rosenfield, Fort Lauderdale, for appellant.
    Steel, Hector & Davis, Miami, for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

These consolidated appeals are affirmed on the authority of Bowden v. Seaboard Air Line R. R. Co., Fla.1950, 47 So.2d 786; Florida Hotel & Restaurant Commission v. Marseilles Hotel Co., Fla. 1956, 84 So.2d 567; New Amsterdam Casualty Company v. Intercity Supply Corporation, Fla.App.1968, 212 So.2d 110; Bergh v. Canadian Universal Insurance Company, Fla.1968, 216 So.2d 436.


author: McCORD, Judge.

text:
    Silas Wildly TOOMER, Appellant, v. STATE of Florida, Appellee.
    No. Y-505.
    District Court of Appeal of Florida, First District.
    May 24, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Appellant was charged with sexual battery and robbery and was convicted of bare assault (as a lesser included offense of sexual battery) and robbery. He was sentenced to six months imprisonment on the assault conviction and fifteen years for robbery, the sentences to run concurrently. He appeals the conviction and sentence for assault, contending first that the maximum sentence for assault, a second degree misdemeanor, is 60 days imprisonment under § 784.011(2), Florida Statutes, and second that he may not be sentenced for assault as it was a facet of the robbery and thereby violates the single transaction rule.

Appellant is correct as to his first point. As to his second point, however, the assault conviction related only to the sexual battery charge, a separate offense from the robbery. Thus, there was no violation of the single transaction rule.

Affirmed in part and reversed in part and remanded with directions to reduce appellant’s sentence for assault to a maximum of 60 days imprisonment. Such may be accomplished by order and without the necessity of returning appellant to court.

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


author: PEARSON, Judge.

text:
    R. D. C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1265.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Phillip A. Hubbart, Public Defender, and Elliott Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PEARSON, Judge.

The point presented on this appeal is whether the appellant, a juvenile respondent in a delinquency proceeding, was entitled to a judgment of acquittal when the State failed to present any evidence of his legal capacity to commit a crime. The hearing on the petition for delinquency revealed that the respondent had assaulted three elderly citizens and beaten one of the victims with a rock, thereafter grabbing a purse from another of the victims and fleeing with it. The respondent was twelve years of age on the date that the petition was filed. At the close of the State’s case, the respondent moved for a judgment of acquittal alleging that the common law presumption of incapacity to commit a crime which attaches to children between the ages of seven and fourteen had not been overcome. The State took the position that the evidence of the crime was sufficient to overcome the presumption. The motion for acquittal was denied.

The common law rule concerning criminal responsibility of children was set out by the Supreme Court of Florida in Clay v. State, 143 Fla. 204, 196 So. 462 (1940):

******
“It is well established at common law that a child under the age of 7 years is conclusively presumed to be incapable of committing a crime; the common law rule raises a presumption of incapacity of an infant between the ages of 7 and 14; and the presumption is that the incapacity after 7 years of age decreases with the progress of his years.”
******

In two recent cases, In Interest of E. P., Fla.App.1974, 291 So.2d 238; and State v. D. H., Fla.App.1975, 309 So.2d 601, the Fourth and Second District Courts of Appeal of Florida, respectively, have held that the presumption that a child between the ages of seven and fourteen is incapable of committing a crime applies to delinquency proceedings and in the absence of proof by the State of capacity, an adjudication must be reversed.

The District Court of Appeal, First District, in Porter v. State, Fla.App.1976, 327 So.2d 820, has held that the common law presumption is not applicable to delinquency proceedings. In that case, the court stated:

* * * * * *
“[2] The common law presumption of incapacity, on the other hand, was available as a defense to children charged with crimes and susceptible to receiving punishment as if they were adults. The intent of the presumption was to afford juveniles some limited protection against the ordinary criminal process. Given the extensive protections afforded juveniles in Florida’s Juvenile Court Act, the defense of incapacity would appear to be unnecessary. Moreover, the survival of the incapacity defense could act to defeat the juvenile statute’s effectiveness by preventing the reformation of children who successfully argue the defense. (See 34 Md.L.Rev., 178, ‘Juvenile Procedure — Common Law Presumption of Criminal Incapacity of Minors Under Age 14 Inapplicable to Juvenile Delinquency Proceedings’ (1974).) Having examined the intent of both the common law presumption of incapacity and Florida’s Juvenile Court Act, we conclude that the former is inconsistent with the latter and thus inapplicable to the instant proceedings.”
******

We believe that the reasoning in Porter v. State is the better and prevailing view. We, therefore decline to follow the first cited cases and hold in accordance with Porter v. State that proof of the capacity to commit a crime is not an essential requirement for an adjudication of delinquency under Fla.Stat. Chapter 39.

In Borders v. U. S., 256 F.2d 458 (5th Cir. 1958), the United States Court of Appeals, Fifth Circuit, considered the application of the common law presumption as to criminal acts of children in relation to an adjudication of the Federal Youth Delinquency Act. That court affirmed the holding of the United States District Court of Northern Alabama in U. S. v. Borders, 154 F.Supp. 214 (N.D.Ala.1957). In that case, the federal court followed what we believe to be the most common sense approach to the problem and urged the same conclusion as the District Court of Appeal, First District, quoted above. It is apparent that in dealing with an adjudication of delinquency, we are not dealing with a criminal proceeding and that although the United States Supreme Court has applied the standards of procedural due process and fair treatment to juvenile court proceedings, the presumption here sought to be imposed on juvenile delinquency proceedings has not been included as a requirement of procedural due process. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Nor do we think that the application of a common law presumption which was created by the courts as a safeguard in the criminal trial of juveniles in adult courts ought to be transposed to juvenile delinquency proceedings. These proceedings are, in their intent and nature, solely for the purpose of attempting to aid juveniles in throwing off the impending handicap of criminal adjudication. It would seem to be an unwarranted imposition upon the State to require proof of criminal capacity in order to aid a juvenile whose conduct has demonstrated his serious need for help.

We, therefore, hold that no error has been shown and the adjudication of delinquency is affirmed.

Affirmed.


author: HENDRY, Judge.

text:
    Alvin ROSE, Trustee and Individually and Jacqueline Rose, his wife, Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, et al., Appellees.
    No. 75-1281.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Max D. Puyanic, Miami, for appellants.
    Stuart Simon, County Atty., and St. Ju-lien P. Rosemond, Asst. County Atty., Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   HENDRY, Judge.

Appellants appeal from an order of the circuit court dismissing their complaint attacking the constitutionality of a zoning resolution in regard to their property.

Appellants had requested of the Board of County Commissioners of Dade County a change in the zoning classification, from RU-1 to BU-1, of certain property which they owned in Dade County. After a hearing the Board adopted a resolution, pursuant to Chapter 33 of the Metropolitan Dade County Code known as the Zoning Ordinance of Metropolitan Dade County, denying appellants’ request. Appellants then filed a complaint in equity attacking the constitutionality of the ordinance as applied to their property by the Board. Appellee Dade County filed a motion to dismiss appellants’ complaint on, inter alia, the ground that the complaint failed to state a proper cause of action against it, because certiorari was the only appropriate remedy by which to review the Board’s action. Subsequently, the circuit court granted appellee Dade County’s motion to dismiss and denied appellants’ motion for rehearing. From these orders of the circuit court, appellants appeal.

Appellants contend that (1) they may bring an action in equity to declare that Dade County's Zoning Ordinance is unconstitutional as it was applied to their property, and (2) their complaint stated a cause of action for declaratory relief in equity. Appellee Dade County contends that the only remedy which can be used to review a denial of a zoning change is certiorari.

After a careful review of the record, we are of the opinion that appellants’ complaint was an attempt to review the resolution passed by the Board denying appellants’ request for a zoning change, rather than a general constitutional attack on the underlying Zoning Ordinance of Dade County itself. In such a case, as contended by appellee Dade County, the proper method of review is by certiorari and not by an independent action in equity. Centex Homes Corporation v. Metropolitan Dade County, Fla.App.1975, 318 So.2d 149; and Baker v. Metropolitan Dade County, Fla.App.1970, 237 So.2d 201 and cases cited therein. Based upon this decision, it is unnecessary for us to consider appellants’ other point on appeal.

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

Affirmed.


text:
    Sherif SHAFEY, M.D., Petitioner, v. James H. TEASE and Helen V. Tease, Respondents.
    No. 75-1771.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for petitioner.
    Podhurst, Orseck & Parks; Spence, Payne & Masington, Miami, for respondents.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   HENDRY, Judge.

Petitioner brings his petition for writ of certiorari to review an order of the Circuit Court of Dade County entered in its appellate capacity reviewing an order of the County Court of Dade County.

During October, 1973, petitioner filed in the Civil Division of the County Court of Dade County a statement of claim for $630 due him for medical services rendered to respondent Mrs. Tease. Copies of the statement of claim and a completed form entitled “Notice to Plaintiff and Defendant to Appear and Notice of Pretrial Conference” were sent by certified mail in separate envelopes, one addressed to respondent Mr. James H. Tease and one addressed to his wife, Mrs. Helen V. Tease, to their home where they both resided. Subsequently, the respondents failed to appear or defend the action, and a final judgment in favor of petitioner against both respondents was entered on November 15, 1973, by the County Court.

Thereafter, on October 21, 1974, respondents filed a motion in the County Court to set aside the default and judgment. In their motion, respondents asserted, inter alia, the following grounds:

“That the default should be set aside for inadvertence and excusable neglect of the respondent husband in failing to recognize the documents as legal service of process;-
“That the respondents have a meritorious defense to the petitioner’s claim, in that the medical services were negligently rendered and that the negligence was not known to the respondents at the time judgment was entered against them;
“That the respondents did not advise their attorney of the service of the statement of claim, and;
“That the respondents were not aware that judgment had been entered against them until the petitioner, Dr. Shafey, asserted as an affirmative defense in a Circuit Court action filed by Mr. and Mrs. Tease for malpractice, that their claim was barred because it was a compulsory counterclaim in the action to recover for medical services.”

After a hearing on respondents’ motions to vacate, the County Court entered an order dated November 1, 1974, denying the motion of Mr. Tease and granting the motion of Mrs. Tease. Subsequently, interlocutory appeals were filed in the Circuit Court by petitioner to review that portion of the order granting Mrs. Tease’s motion and by Mr. Tease to review that portion of the order denying his motion.

After a hearing on these interlocutory appeals, the Circuit Court entered an order dated October 16, 1975, affirming the County Court order granting Mrs. Tease’s motion to set aside default and reversing the County Court order denying Mr. Tease’s motion to set aside default. From the order of the Circuit Court, petitioner brings this petition for writ of certiorari.

Petitioner argues that the Circuit Court violated the essential requirements of law by affirming the order of the County Court which had ■ granted the motion of Mrs. Tease to vacate the default and by reversing the order of the County Court which had denied the motion of Mr. Tease to vacate the. default against him.

The record shows that, although Mr. Tease personally received by certified mail the letters addressed to him and his wife containing the summons and statement of claim filed by petitioner, he ignored them and did not tell Mrs. Tease or their attorney about the letters. The record shows that Mr. Tease recognized the letters pertained to an attempt by petitioner to collect for medical services rendered to Mrs. Tease. Upon the failure of the Teases to appear or defend the actions by petitioner, the County Court entered a default judgment against them. .Ultimately, respondents, unaware of the default judgment, filed suit in the Circuit Court alleging medical negligence on the part of petitioner in his treatment of Mrs. Tease. Thereafter, petitioner interposed as a defense the default judgment entered in his favor against respondents and asserted that they no longer had a claim for malpractice against him because they had failed to assert their claim as a compulsory counterclaim in the County Court when he sued them for his medical fees. It was at this point that respondents filed their motions to vacate.

We have carefully considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law and have concluded that the Circuit Court erred in reversing the order of the County Court denying Mr. Tease’s motion to vacate. The action of a trial court in refusing an application to vacate a judgment is generally within the sound judicial discretion of that court and not reversible on appeal except for an abuse of that discretion. See, e. g., Edwards v. City of Fort Walton Beach, Fla.1972, 271 So.2d 136; Farish v. Lum’s, Inc., Fla.1972, 267 So.2d 325; Gacl, Inc. v. Zeger, Fla.App.1973, 276 So.2d 552; and 19 Fla.Jur., Judgments and Decrees § 459. Based on the record of the instant case, it does not appear to us that the County Court so abused its discretion, in denying Mr. Tease’s motion to vacate, as to have properly permitted a reversal by the Circuit Court acting in its appellate capacity. Therefore, petitioner’s petition for writ of certiorari is granted to the extent we hold that the Circuit Court erred in reversing on appeal the order of County Court denying Mr. Tease’s motion to vacate. Thus, that portion of the Circuit Court’s order reversing the order of the County Court as to Mr. Tease is quashed.

We further conclude that the Circuit Court did not err in affirming the order of the County Court granting Mrs. Tease’s motion to vacate. As discussed above, the granting of an application to vacate a judgment is within the sound judicial discretion of the trial court. See, e. g., Edwards v. City of Fort Walton Beach, supra; Farish v. Lum’s Inc., supra; Gacl, Inc. v. Zeger, supra; and 19 Fla.Jur., Judgments and Decrees, supra. Based on the record of the instant case in regard to Mrs. Tease’s motion to vacate, the County Court properly exercised its discretion in entering the order granting her motion to vacate and the Circuit Court appropriately affirmed the order. Therefore, petitioner’s petition for writ of certiorari is denied to the extent we hold that the circuit court properly affirmed the order of the County Court granting Mrs. Tease’s motion to vacate.

Certiorari granted in part and denied in part.


text:
    LEATHERBY INSURANCE COMPANY, a Foreign Corporation, Appellant-Petitioner, v. Anthony Lee JONES, Appellee-Respondent.
    No. 75-2018.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.

      Prunty, Ross, DeLoach & Olsen, Miami, for appellant-petitioner.
    Nachwalter, Christie & Falk and Steven Kronenberg, Miami, for appellee-respon-dent.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal by defendant, Leatherby Insurance Company, from two orders of the trial court in an automobile accident case. The first is an order granting partial summary judgment on liability in favor of the plaintiff, Anthony Lee Jones, for failure of co-defendant, Charles Jorden, Leatherby’s insured, to appear for deposition pursuant to court order. The second is an order- denying Leatherby leave to amend its answer to deny coverage to Charles Jorden due to Jorden’s lack of cooperation. We are treating the appeal on the order denying leave to amend as certiorari.

The thrust of Leatherby’s points on appeal is whether, as a real party in interest, Leatherby can be denied the opportunity to defend the issue of liability where its insured, the co-defendant, has failed to comply with discovery. We think not.

The trial court erred in granting summary judgment on liability against both Jorden and Leatherby as a result of Jor-den’s failure and refusal to make himself available for deposition pursuant to court order. Leatherby is a real party in interest in the cause, having been made a party defendant by the plaintiff and having filed an answer denying the allegation that the defendants were negligent and asserting the defense of negligence on the part of the plaintiff. Thus, Leatherby has the right to contest and defend the question of liability with reference to the direct action against it. Leatherby is entitled to have the factual issues determined by a jury since Jorden’s noncompliance with discovery is not chargeable to Leatherby. Rule 1.380(b)(2)(C), RCP, provides that for failure to provide or permit discovery, the court may strike pleadings or render a judgment by default against the disobedient party. As this court stated in Rashard v. Cappiali, Fla.App.1965, 171 So.2d 581, 583,

“The law abhors the denial of access to the courts for any reason other than a wilful abuse of the processes of the court. Such a wilful disregard of the rules of court will not ordinarily be shown by a record which does not show the violation of a specific order of the court.”

Leatherby was not in violation of any specific order of the court, and the sanctions against it were improperly invoked. The sanctions under the discovery rules are neither punitive nor penal. Their objective is to compel compliance with discovery, and then only in flagrant or aggravated cases. Hurley v. Werly, Fla.App.1967, 203 So.2d 530, 537. Also see Canella v. Bryant, Fla.App.1970, 235 So.2d 328, 332.

On the question of the denial of Leatherby’s motion for leave to amend its answer, we are of the opinion that the trial court departed from the essential requirements of law, and we grant certiorari. The record demonstrates that in spite of Leatherby’s efforts, Jorden failed and refused to assist or cooperate in defending the action. Under such circumstances, Leatherby was entitled to amend its answer to include the defense of no coverage due to lack of cooperation. A factual determination of this question could readily dispose of the entire case. Denying Leatherby the right to present the question of coverage and forcing a trial on the sole issue of damages would leave Leatherby without remedy to face the possibility of a substantial judgment, when it was not at fault. In American Universal Insurance Company v. Stotsberry, Fla.App.1959, 116 So.2d 482, 484, this court found that where there was alleged failure or refusal of the insured to cooperate, it was error to hold, on motion for summary judgment, that the plaintiff was entitled to judgment as a matter of law. The failure or refusal and the legal effect of such conduct under the circumstances of the case were questions of fact which were not resolved. The issue of non-cooperation, and whether it amounts to a breach of the policy under facts such as these is one for the jury to settle. See also Barnes v. Pennsylvania Thresherman and Farmers’ Mutual Casualty Insurance Company, Fla.App.1962, 146 So.2d 119.

Accordingly, the summary judgment on liability is reversed as to Leatherby, the order denying leave to amend is quashed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.


text:
    MARCA, S.A., a Panama Corporation, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 74-562.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    John G. Fletcher, Coconut Grove, for appellant.
    Stuart Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

In this case, appellant sought review of an order denying certiorari on an order of the Dade County Board of County Commissioners, denying a change of zoning. We reversed the order and held that the record on certiorari should be supplemented to include a zoning change on a tract of land larger than the appellant’s and in the same area, granted two weeks after the denial of the appellant’s application, so that the trial court would have all of the relevant facts before it. Subsequently, the Florida Supreme Court granted certiorari, quashed our decision, holding that the record in certiorari must be confined to the proceedings below and remanded the cause for further proceedings consistent with its opinion.

We adopt the opinion of the Florida Supreme Court denying supplementation of the record, and we answer the remaining question on appeal as follows:

The land in question, is a 320-acre tract located in southwest Dade County, zoned GU and EU-1, agricultural and interim use. The appellant sought a change of zoning in a manner it claimed to be compatible with the surrounding development, namely single family, townhouse and apartment house use. The planning department and the building and zoning department recommended denial of the application. The zoning appeals board recommended approval. The board of county commissioners denied the application and stated in its resolution that the requested changes would be incompatible with the neighborhood and would be in conflict with the principles and intent of the plan for the development of Dade County. The circuit court denied certiorari.

We have studied the record, and we agree with the trial court’s ruling that the burden of a party seeking relief from a zoning resolution is an extraordinary one which places upon the petitioner the duty to show from the record before the trial court that the application for rezoning raised a matter which was not a fairly debatable issue before the legislative authority. Smith v. City of Miami Beach, Fla.App.1968, 213 So.2d 281; Metropolitan Dade County v. Kanter, Fla.App. 1967, 200 So.2d 624, 626. The record demonstrates that this burden was not sustained and that the application for rezoning was fairly debatable. Accordingly, we find that the trial court did not depart from the essential requirements of law in denying cer-tiorari.

The order denying certiorari is affirmed.

      . See Marca, S. A. v. Dade County, Fla.App.1974, 304 So.2d 461.

      . See Dade County v. Marca, Fla.1976, 326 So.2d 183.


text:
    METROPOLITAN DADE COUNTY, etc., et al., Appellants, v. BLEAUFONTAINE, INC., a Florida Corporation, Appellee.
    No. 75-863.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Stuart Simon, County Atty., and Lisa Bennett, Asst. County Atty., for appellants.
    Sibley, Giblin, Levenson & Ward, Miami, for appellee.
    Before HENDRY, HAVERFIELD, and NATHAN, JJ.
   PER CURIAM.

Appellant, Metropolitan Dade County, seeks reversal of a final judgment in favor of appellee, Bleaufontaine, Inc., entered by the Circuit Court of Dade County in a suit brought by appellee to contest the 1973 ad valorem tax assessment on its property.

The complaint alleged that in 1972 the tax assessor had placed a valuation on the Bleaufontaine property of $1,790,463; that no improvements were made on the property in the year 1972, but that for the year 1973 the tax assessor placed a valuation on the property of $4,730,763. It was alleged that plaintiff had not received any notice from the tax assessor’s office of an increase in the assessment. The county denied the allegations relative to the receipt of notice.

The trial judge held an evidentiary hearing on the sole issues before him, i. e., whether or not the county had mailed a notice of increase in assessment to plaintiff and whether or not plaintiff had received it. See § 194.011(2) Fla.Stat., F.S.A.

After consideration of all the evidence presented the trial judge stated:

“We have heard all of the evidence, and I have got to make a finding of fact based on the conflicting evidence that has been presented.”

Thereafter, the court found that the plaintiff had overcome the rebuttable presumption and determined that, based upon the conflicting evidence, the plaintiff did not receive the notice of increase of its assessment for the year 1973 and, therefore, it was entitled to have a revaluation of its property and that the assessment placed thereon for 1973 was void. A final judgment was entered in accord with those findings.

The sole point presented by appellant on appeal is whether the trial court erred in holding that the plaintiff had overcome the presumption that the statutory notice had been duly mailed by the county and received by the plaintiff.

Findings of fact made by a trial judge not only arrive in this court with a presumption as to their correctness but they will be reversed only upon a holding of the appellate court that the findings are without substantial, competent evidence to support them. The burden is upon the appellant to demonstrate that the findings are incorrect and not supported by the record.

We have carefully reviewed the record in the light of the above principles and have concluded that the record shows substantial competent evidence to support the trial judge’s findings and judgment. Benedict v. Dade County Realty, Inc., Fla.App.1973, 274 So.2d 553. No reversible error having been demonstrated, the judgment appealed is affirmed.

Affirmed.


text:
    Omelio RODRIGUEZ, Appellant, v. Wilfredo HUGUET and the Travelers Insurance Company, a Foreign Insurance Company authorized to do business in Florida, Appellees.
    No. 75-1008.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.

      Kneale & Starkweather, Miami, for appellant.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff, Omelio Rodriguez, obtained a judgment against defendants, Wilfredo Huguet and The Travelers Insurance Company, for $1,500.00 in an action arising from an automobile accident.

Plaintiff brings this appeal claiming that the verdict was inadequate. He cites as error that the jury was influenced by passion, sympathy, bias and prejudice or a misunderstanding of the law as instructed by the court.

Plaintiff’s complaint alleged that the defendant was negligent and that plaintiff met the “no fault” threshold requirements to bring suit against the defendant tort feasor, the plaintiff having sustained permanent injuries and medical expenses in excess of $1,000. Defendant denied all allegations of the plaintiff’s complaint except that the accident happened. The trial court directed a verdict on liability. At trial, the medical expenses were less than $1,000 and the evidence was contradictory as to any permanent injury. The trial judge instructed the jury on the necessity that the plaintiff meet both threshold requirements alleged in the complaint. Plaintiff presented evidence that, at maximum, the automobile damage was $425, medical expenses were $873 and that there was some degree of permanency.

Plaintiff contends that the trial judge should not have so instructed the jury. In our opinion, the trial court, having before it the conflicting evidence as to permanent injuries, did not err in instructing the jury on the jurisdictional requirements of this suit against a tort feasor under the “no fault” insurance act. Wooten v. Collins, Fla.App.1976, 327 So.2d 795. The fact that the court included in its instruction “medical expenses in excess of $1,000” was harmless error as the jury did by its verdict find the plaintiff to have been permanently injured. It does not appear from the record that the alleged inadequate jury verdict was influenced by passion, sympathy, bias or misunderstanding. The jury verdict clearly exceeded the maximum possible special damages. The amount of damages awarded a plaintiff in a negligence action is peculiarly within the province of the jury, especially when it has been approved by the trial judge. Klefeker v. Ellington, Fla.App.1974, 304 So.2d 545.

Affirmed.

      . The Florida Automobile Reparations Reform Act, §§ 627.730-627.741, Fla.Stat.


author: CHARLES CARROLL, Associate Judge.

text:
    The STATE of Florida, Appellant, v. Craig B. MAY, Appellee.
    No. 75-1196.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Richard E. Gerstein, State Atty., and Harold Ungerleider, Asst. State Atty., for appellant.
    Richard B. Bergstresser, Miami, for ap-pellee.
    Before BARKDULL, C. J„ HENDRY, J„ and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

On Monday, June 23, 1975, the last day upon which the appellee Craig B. May could be brought to trial for a charged felony, a body of prospective jurors, who had been summoned for jury duty, were sworn in by the clerk of the court, by administration of the oath prescribed therefor in Rule 3.300(a) RCrP, following which they were examined as to their qualifications to serve as jurors (on cases for which they should be called and accepted) during that week.

During that day no jurors were called to serve on the trial of May, and no action was taken with reference to May’s case on that day. Two days later, with the situation unchanged, May moved for discharge from the crime, for failure of the State to bring him to trial within the period required under Rule 3.191(a)(1) RCrP, and certifying his continuous availability for trial during the allotted period therefor. The motion was granted, and the State appealed.

Rule 3.191(a)(3) RCrP provides as follows:

“A person shall be deemed to have been brought to trial if the trial commences within the time herein provided. The trial is deemed to have commenced when the trial jury panel is sworn for voir dire examination, or, upon waiver of a jury trial, when the trial proceedings begin before the judge.”

The State argues that the swearing in and qualification of a panel of jurors on the first day of the week amounted to bringing the defendant May to trial on that day, notwithstanding no action was taken with reference to his case that day, and even though his case should not be called and proceeded in until later in the week. The appellee May contends that swearing a panel of jurors and qualifying them to try cases does not amount, ipso facto, to bringing to trial him or any other defendant whose case could be tried on that day. The appellee May contends that in order for him to be brought to trial on such day it would be necessary, at the least, that his case be called for trial and that a trial jury be called and seated for voir dire examination for trial of his case.

We hold those contentions of the ap-pellee are correct, and so construe the rule, upon reading together the several portions of subsection (a)(3) of Rule 3.191. We regard State ex rel. Maines v. Baker, Fla.1971, 254 So.2d 207, as so recognizing and indicating.

In Maines it is disclosed that on the morning of September 27, 1971, which was the last day upon which Maines could be brought to trial under the Speedy Trial rule, a penal of jurors was sworn by the clerk, and the jurors were examined by the court as to their qualifications. Later on that day, at 8:30 P.M., jurors from that panel were called for the trial of Maines, and voir dire examination thereof began. The voir dire examination in Maines’ case continued until 11:15 P.M., by which time the panel of jurors present was exhausted by peremptory challenges, and the case was recessed to the next day. The following day Maines moved for discharge under the Speedy Trial rule. The trial judge denied the motion for discharge, but held the Speedy Trial rule was unconstitutional. Maines petitioned the Supreme Court for a writ of mandamus to command the trial court to enter an order of discharge. The Supreme Court held the Speedy Trial rule was constitutional and denied the application for mandamus. The Court held Maines had been brought to trial on September 27, 1971, and that his trial should proceed. Incident thereto the Court said:

“It is elementary that a trial jury panel is first sworn before any questions (a voir dire examination) are asked the jurors. It is admitted that the trial jury was sworn and voir dire examination began on the last day. The trial in the case sub judice commenced on September 27, 1971.”

The order of discharge is affirmed.

      . Section 40.41 Fla.Stat., F.S.A. provides: “Petit jurors shall serve for one week only, unless the circumstances, in the opinion of the judge, require such jurors to serve for a longer time.”


text:
    Robert E. PIKE, Appellant, v. Virginia PIKE, Appellee.
    No. 75-1264.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.

      Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Miami, for appellant.
    Quinton, Leib & Lummus, Miami, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Robert E. Pike, husband, seeks review of the financial provisions of a final judgment of dissolution of marriage from his wife, Virginia T. Pike.

At the time of the petition for dissolution the parties were married twenty-two years, had four children, only one of whom is still a minor and living with the wife. The husband is a practicing physician, fifty-six years of age, and the wife age forty-three, is trained and qualified as a registered nurse but is not employed. In 1974, the husband, after income tax, had a net yearly income of approximately $27,000. He owns a $5,000 boat and stocks valued at $12,000. Both the husband and wife own their respective automobiles and jointly own the marital home of the net value of approximately $200,000.

On appeal the husband argues as error the trial court’s award of the husband’s interest in the marital home to the wife as lump sum alimony and the award of rehabilitative alimony to the wife of $750 per month for a period of thirty-six months. The husband also assigns as error the court’s judgment that the husband pay the wife’s attorneys fees. The facts as disclosed by the record show that, irrespective of payment by the husband of rehabilitative alimony of $750 per month, plus $400 per month as child support which leaves him with net income of about $1,000 per month before taxes the husband will have assets of about $21,000 and the wife assets of about $202,000.

In our opinion, the obvious imbalance was created mainly by the trial court’s award to the wife of the husband’s interest in the marital home as lump sum alimony. We, therefore, reverse the judgment of the trial court awarding the husband’s interest in the marital home to the wife, the effect of which is that husband and wife will be tenants in common of the property. In such modified judgment, the wife shall have the right to the use and occupancy of the home until the minor child attains his majority or the wife remarries, whichever event occurs first.

In view of the substantial alteration of the trial court’s judgment herein appealed, this cause is remanded to the trial court with directions to re-evaluate and equitably modify or change, if appropriate, the alimony award (rehabilitative, lump sum or permanent periodic) as well as the award of attorneys fees.

Reversed and remanded with directions.


text:
    Conrad KAHN et al., Appellants, v. Joseph MILON, Appellee.
    No. 75-1978.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Seymour M. Litman and Jerry Kahn, Miami, for appellants.
    George Sampas, Miami, for appellee.
    Before HENDRY and HAVERFIELD, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiffs take this interlocutory appeal to review an order staying all proceedings until such time as the plaintiffs retain separate and independent counsel pursuant to defendant’s ore tenus motion. We reverse.

At the onset, we note that this order is not properly reviewable by interlocutory appeal pursuant to FAR 4.2. However, we shall treat this appeal as a petition for writ of common law certiorari and determine the cause on the merits. See Art. V, 2(a), Constitution of the State of Florida.

This cause arises out of a neighborhood backyard quarrel. As a result, plaintiffs Conrad and Pearl Kahn and their son Jerry filed suit against Joseph Milon for slander, intentional infliction of mental distress and invasion of privacy. Originally Andrew Tobin, Esq. represented plaintiffs. Thereafter, however, without moving for substitution of counsel, plaintiff Jerry Kahn and his brother Donald, both attorneys, began filing pleadings and/or appearing on behalf of plaintiffs at various hearings where they announced that Marvin Michaels, Esq. would act as trial counsel. Defendant then moved ore tenus for authority as to representation of counsel. Whereupon, the court entered the appealed order staying all proceedings until such time as plaintiffs retain, in effect, counsel separate and independent of plaintiff Jerry Kahn.

The law of Florida is well established that a party to a cause may act as his own attorney. See § 454.18, Fla.Stat., F.S.A. and Carr v. Grace, Fla.App.1975, 321 So.2d 618. Further, in general, any person who has the legal capacity to contract may employ an attorney of his choice. See 3 Fla.Jur. Attorneys at Law § 25 (1955). Thus, we find that appellant Jerry Kahn may represent himself in this action and if appellants Conrad and Pearl Kahn so choose, he may represent them also. Further, we note there is absent in the record any motion for substitution of counsel pursuant to RCP 1.030(e) and, therefore, whoever is substituted as attorney for appellants must file such a motion before he may be allowed to appear.

Accordingly, the order directing that appellants retain separate and independent counsel is quashed and the cause remanded to the trial court for further proceedings.

      . There being no conflict of interest in this case in having their son represent them.


text:
    Peter R. RESEDEAN, Appellant, v. CIVIL SERVICE BOARD OF the CITY OF PENSACOLA et al., Appellees.
    No. AA-364.
    District Court of Appeal of Florida, First District.
    May 14, 1976.

      Thomas G. Morton, Jr. of Parker & Morton, Milton, for appellant.
    Don J. Catón, and Ralph H. Atwell, Pensacola, for appellees.
   PER CURIAM.

Appellant, plaintiff in the trial court, filed an action for declaratory relief to determine whether or not appellant, a Captain in the Pensacola Fire Department, was precluded from remaining a civil service employee of the City of Pensacola while seeking the elective public office of Escam-bia County Property Appraiser during his off-duty hours. The trial court denied the requested relief, thereby engendering this appeal.

Appellant initially appeared before the Civil Service Board of the City of Pensacola which refused to exempt appellant from the provisions of Section 142 of the Code of the City of Pensacola. Essentially, that section which was originally-enacted as a special act of the legislature, forces a civil service employee of the City of Pensacola to choose between seeking elective public office and retaining his status as a civil service employee. The Civil Service Board advised appellant that it had no authority to exempt him from the provisions of the foregoing special act.

Appellant’s primary argument is that the special act which prohibits a Pensacola Civil Service Employee from running for elective office has been impliedly repealed by Chapter 74-13, Laws of Florida (1974), which amended F.S. 104.31(1) (d) and created Section 3 of F.S. 104.31. Indeed, the significant provisions of Chapter 74 — 13 manifest an obvious legislative intent to allow a municipal employee to participate in any political campaign during his off-duty hours.

We would have no qualms about accepting appellant’s position, but for the fact that F.S. 104.31(3) (1975) states that “nothing contained in this section or in any county or municipal charter” shall prohibit a municipal employee from participating in any election campaign during his off-duty hours. The apparent problem is that the prohibition which prevents appellant from retaining his municipal employment while he conducts a political campaign during his off-duty hours is not contained within the municipal charter of the City of Pensacola but was enacted as a special act by the legislature. Appellant claims that in actuality, there is no problem because a section of the Municipal Home Rule Powers Act enacted in 1973 provides that all existing special acts pertaining exclusively to the power or jurisdiction of a particular municipality except as otherwise provided in the previous subsection shall become an ordinance of that municipality on the effective date of the act. (F.S. 166.021(5), 1975) Appellant concludes that since the status of the special act which created the civil service law for the City of Pensacola became that of a municipal ordinance by virtue of F.S. 166.021(5), 1975, the provisions of Chapter 74 — 31, Laws of Florida, 1974, impliedly repealed Section 142 of the Code of the City of Pensacola.

Again, however, there is an apparent problem. The provisions of F.S. 166.021 (5), 1975, do not apply to the types of special acts contained in F.S. 166.021(4). One of the classifications of special acts contained in F.S. 166.021(4), 1975, is any special act which affects “any rights of municipal employees”. Appellees argue that Section 142 of the Code of the City of Pensacola clearly concerns the rights of municipal employees. Therefore, according to appellees, Section 142 retains its status as a special act of the legislature and is unaffected by Chapter 74-13, Laws of Florida, 1974.

Although we accept appellees’ assertion that F.S. 166.021(5), 1975, is inapplicable to Section 142 of the Code of the City of Pensacola, we nevertheless conclude that Chapter 74 — 13, Laws of Florida, 1974, repeals by implication Section 142. That section is governed by the terms of F.S. 166.021(4) which provides in pertinent part that, “* * * nothing in this act shall be construed to permit any changes in a special law or municipal charter which affect * * * any rights of municipal employees, without approval by referendum of the electors as provided in section 166.031.” F.S. 166.031 describes the manner in which amendments to municipal charters may be enacted. Since Section 142 of the Code of the City of Pensacola which certainly affects “any rights of municipal employees” may be repealed or amended only by the method described in F.S. 166.031 which, in turn, describes the method by which charter amendments are adopted, the result is that Section 142, originally adopted as a special act of the legislature, has, in effect, become a part of the Pensacola Municipal Charter. It follows that the Pensacola code’s prohibition of political activities by city employees is repealed to the extent of its inconsistency with § 104.31(3), F.S.1975.

The question before us is not precisely whether appellant may participate in a political campaign while off duty but rather whether he may “participate” by becoming a candidate. Was ch. 74 — 13 intended to repeal the Pensacola code’s prohibition of employees becoming candidates ? We think not. There are substantial conceptual and practical differences between being a candidate for public office and “expressing . . . opinions on any candidate or issue or . participating in any political campaign.” Settled rules of statutory construction militate against stretching the 1974 amendment of § 104.31 to abolish municipal prohibitions of employee candidacies when explicit repealing language could so easily have been placed in the bill. Armstrong v. City of Edgewater, 157 So.2d 422 (Fla.1963); In re Estate of Jeffcott, 186 So.2d 80 (Fla.App.2d, 1966).

Further doubt that the legislature sought to repeal municipal restrictions on employee candidacies arises from its qualified approval of only such off-duty campaign activities as “are not in conflict with section 110.092, Florida Statutes.” That statute provides that no State Career Service employee, shall become a candidate for any public office except a “local” public office, and permits that only when explicitly authorized by his agency head and the State division of personnel on an affirmative showing that there is no conflict of interest or interference with his State employment. Because § 110.092(4) levels its prohibition only at State employees, the significance of the reference in ch. 74 — 13 is unclear insofar as municipal employee candidacies are concerned. Yet that reference is a significant aid to construction of a measure which is said to have intended the repeal of all similar municipal and county prohibitions.

Finally, the title to ch. 74 — 13 expresses a legislative purpose “to assure freedom of expression and participation in the political process by public employees to the extent compatible with the public welfare” (emphasis added). In this there is a legislative assertion that there are yet some political activities by public employees which are not “compatible with the public welfare.” In considering whether by ch. 74 — 13 the legislature declared employee candidacies “compatible with the public welfare,” we may appropriately consider other legislation in the same field, with a view to harmonizing the legislation in question with other legislation which presumably was intended to reflect the same public policy. See Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation Dist., 274 So.2d 522 (Fla.1973). Not only in § 104.31(3), F.S., but also in § 99.012, the “resign to run law” which was significantly amended by the same legislature that passed ch. 74-13, there are legislative expressions that, as a general rule, faithful and diligent performance of one public office or employment is inconsistent with candidacy for another public office. Given this legislative determination that such candidacies are not compatible with the public welfare, we are unwilling to assume that, by the indefinite language of ch. 74 — 13, the legislature intended to preserve all its own restrictions on candidacies of State employees while striking down the similar restrictions of municipalities. Pensacola employees may participate while off duty in political campaigns, but only in the campaigns of others and not as candidates.

AFFIRMED.

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

      . Section 142 of the Code of the City of Pensacola provides as follows:
      “A. No person holding an office or place in the classified service under the provisions of this act (Article XV) shall seek elective public office, or serve in any elective or appointive position in any political campaign, or serve as an officer or a member of a committee or any political club or organization, or circulate or seek signatures to any petition provided for in any primary or election law, or act as a worker at the polls, or distribute badges, colors or indicia favoring or opposing a candidate for election or nomination to a federal, state, county or municipal public office, provided, however, that nothing in this act (Article XV) shall be constructed to prohibit or prevent any such officer or employee from becoming or continuing to be a member of a political club or organization or from attendance upon political meetings, or from enjoying entire freedom from all interference in casting his vote. Any person violating the provisions of this section shall be dismissed from the service of the city.
      B. Any member of the classified service of the City who resigns to seek election to public office may, within one (1) year following the effective date of his resignation, make written application to the Board to have his name placed at the top of the eligible list for appointment to positions of the same classification as formerly held, and his name shall remain at the top of said list for the remainder of the said one (1) year from the effective date of his resignation. It shall be the duty of any member of the classified service of the city, resigning for such purposes, to apply to the Civil Service Board in writing to have his name placed upon such eligible list, and his failure to do so shall not extend the time of the said one-year period from the effective date of his resignation for retention at the top of said list as hereinabove provided.”

      . See Chapter 63-1775, Section 28, Special Acts, as amended by Chapter 65-2097, Section 1, Special Acts.

      . F.S. 104.31(1) (d) provides, in pertinent part:
      “104.31 Political activities of state, county and municipal officers and employees.—
      * * * * *
      (d) The provisions of paragraph (a) of this subsection shall not be construed so as to limit the political activity in general, special, primary, bond, referendum or any other election of any kind or nature, of elected officials or candidates for public office in the state or of any county or municipality thereof unless, in the case of municipalities, there be provisions in the charters or ordinances thereof which apply to officers, employees or candidates in such municipalities (The underlined language was deleted by Chapter 74-13)

        .“(3) Nothing contained in this section or in any county or municipal charter shall he deemed to prohibit any public employee from expressing his opinions on any candidate or issue or from participating in any political campaign during his off-duty hours so long as such activities are not in conflict with the provisions of subsection (1) of this section or of section 110.092, Florida Statutes.” Appellees do not argue that the proposed off-duty activities of appellant conflict with the provisions of F.S. 104.31(1) or 110.092.


text:
    Betty Jo ROBINSON, Appellant, v. George Theodore ROBINSON, Appellee.
    No. 75-927.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Nachwalter, Christie & Falk, Miami, for appellant.
    Yates & Fann, Miami Shores, for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Lee v. Lee, Fla.App.1975, 309 So.2d 26; Fesak v. Fesak, Fla.App.1974, 303 So.2d 47; Bateman v. Bateman, Fla.App.1974, 301 So.2d 472; Vandervoort v. Vandervoort, Fla.App.1974, 300 So.2d 694, and Cardillo v. Cardillo, Fla.App.1972, 269 So.2d 773.


text:
    Mary Theresa JABLONKA, a minor, by her next friend and natural guardian, Mary Miller, and Mary Miller, Individually, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 75-1279.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellants.
    Magill & Sevier, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Hardee v. Gordon Thompson Chevrolet, Fla.App.1963, 154 So.2d 174; cf. Government Employees Insurance Company v. Butt, Fla.App.1974, 296 So.2d 599.


author: BOYER, Chief Judge.

text:
    William E. STUBBS and Gertrude Stubbs, Appellants, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. Y-285.
    District Court of Appeal of Florida, First District.
    May 24, 1976.
    R. Lee Smith of Greene, Greene, Smith & Davenport, Jacksonville, for appellants.
    Winifred Sheridan Smallwood and Geoffrey B. Dobson, Tallahassee, for ap-pellee.
   BOYER, Chief Judge.

This appeal emanates from an eminent domain proceeding. In 1969, appellee filed an eminent domain proceeding seeking to acquire two parcels of appellants’ land; one parcel for non-limited access right-of-way and a second parcel for limited access right-of-way. An answer was filed by appellants seeking, inter alia, severance damages caused by the impairment of access to their remaining adjoining property. The trial judge ruled at pre-trial conference that appellants could not recover severance damages. A jury was impaneled and a proffer of the testimony of appellants’ expert appraiser was made but the evidence was excluded. Final Judgment was entered and appeal taken to this Court. Chief Judge Spector, speaking for the court and citing every authority relevant here, held that the learned trial judge erred and reversed. Certiorari was granted by the Supreme Court of Florida which Court affirmed, saying:

“Petitioner has argued orally and in briefs that the case presently under review is distinguishable from the Anhoco [Anhoco Corp. v. Dade County, Fla., 144 So.2d 793] holding in that the Respondents still have access to Firestone Road by use of the overpass which crosses Interstate 295, and therefore their right of access is not ‘destroyed.’ We view this argument as an overly restrictive interpretation of Anhoco and not in keeping with the spirit of that decision or the cases cited above.
“A perusal of the record indicates Respondents’ commercial property has been adversely affected to some degree by the loss of access resulting from their property being placed in a cul-de-sac, which was a part of the project to bring into existence Interstate 295. The availability of ingress and egress to their property that previously existed has now been seriously disturbed, if not destroyed. Ease and facility of access constitute valuable property rights for which an owner is entitled to be adequately compensated.
******
“Where some right of access is still available, as would appear in the cause under consideration, it is for the jury to determine whether the resulting damages are nominal or substantial. See State Road Department of Florida v. McCaffrey, supra [Fla.App., 229 So.2d 668]; Stoebuck, supra at 765. (285 So.2d at page 3)
******
“However, the right to introduce evidence at trial of severance damages resulting from physical impairment of access rather than an impairment in ‘traffic flow’ is the subject of the litigation before this Court. To whatever other extent the language in Jahoda conflicts with our decision herein or that rendered by the District Court of Appeal, First District, at 265 So.2d 425, it is hereby expunged.
“Upon reviewing the record in this cause, we conclude that the District Court has correctly applied the law and its decision is hereby affirmed.” (285 So.2d at page 4)

The law of this case has therefore been established by the prior decision of this Court and that of our Supreme Court. Nevertheless, when the case was retried, appellee’s expert witness, Mr. Allen Say-ford, adamantly insisted that appellants’ access had not been affected, that it was “identically the same” and that appellants had sustained no severance damage. *' ‘

The date of taking was December 5, 1969. Mr. Sayford’s testimony was adduced in January of 1975. His opinion as to severance damages, or the lack thereof, was not related to any particular date or time.

Appellants moved to strike Mr. Sayford’s testimony on the ground that it was based on a misconception of the law and on the further ground that it did not relate to the date of taking. That motion was denied.

Appellants introduced expert testimony that as of the date of taking, December 5, 1969, they suffered severance damage as a result of loss of access in the sum of $24,700. The jury returned a verdict of zero. This appeal followed.

A reading of Mr. Sayford’s testimony reveals that he either had a misconception of the law or refused to recognize the pronouncements of the Supreme Court of Florida above quoted.

When the testimony of an expert witness is based upon an erroneous concept of the law it should be stricken.

Appellee, attempting to square Mr. Sayford’s testimony with the law of this case as pronounced by the Supreme Court, urges that when Mr. Sayford repeatedly and adamantly insisted that appellants had sustained no damages he really meant that they had sustained only nominal damages. There is a difference and our reading of the record reveals that appellee's witness was not confused. He testified that there were no damages and he obviously meant that there were no damages. That the testimony based upon an erroneous conception of the law was prejudicial is demonstrated by the jury’s verdict.

Further, the law of Florida is clear that in eminent domain proceedings a property owner’s damages must be related to the time of taking, and the testimony of the expert appraisers must be related to that time.

Appellant’s motion to strike Mr. Say-ford’s testimony should have been granted.

Reversed and remanded for a new trial.

Appellants have filed a timely motion for attorney’s fees incident to this appeal. Since the learned trial judge is better equipped than are we to conduct a hearing for the purpose of receiving evidence in that regard, we remand with directions that he, after appropriate proceedings, fix and determine compensation for appellants’ attorneys in accordance with the law in such cases made and provided.

IT IS SO ORDERED.

RAWLS and McCORD, JJ., concur.

      . Stubbs v. State Department of Transportation, Fla.App.1st 1972, 265 So.2d 425.

      . State Department of Transportation v. Stubbs, Sup.Ct.Fla.1973, 285 So.2d 1.

        . Anderson v. State Road Department, Fla.App.1st 1967, 204 So.2d 899; State of Florida, Department of Transportation v. Byrd, Fla.App.1st 1971, 254 So.2d 836. (Parenthetically, it is the testimony of the same appraiser who was involved in the Anderson case and the Byrd case which we now consider in the case before us.)

      . Anderson v. State Road Department, supra. Culbertson v. State Road Department, Fla.App.1st 1964, 165 So.2d 255.

      . Culbertson v. State Road Department, supra and Anderson v. State Road Department, supra.


author: SMITH, Judge.

text:
    Charles Edward BOOTH, Appellant, v. STATE of Florida, Appellee.
    No. Z-74.
    District Court of Appeal of Florida, First District.
    May 24, 1976.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

There was no error in Booth’s conviction on two counts of robbery and two counts of assault with intent to commit murder in the second degree. The issue is whether separate sentences were erroneously imposed for offenses which were “different aspects of a single criminal transaction.” Simmons v. State, 151 Fla. 778, 785, 10 So.2d 436, 439 (1942); Williams v. State, 69 So.2d 766 (Fla.1954); Cone v. State, 285 So.2d 12 (Fla.1973).

Booth viciously robbed and assaulted the manager of a convenience store- and then made a similar furious attack on a patron in the parking lot. He was sentenced to a term of imprisonment for fifteen years for assault on the manager, a consecutive term of fifteen years for assault on the patron, a consecutive life sentence for robbery of the manager and another life sentence, to run concurrently with the first, for robbery of the patron.

The circuit judge’s sentencing pattern is entirely in accord with Simmons. The attacks on the manager and on the patron were separately punishable; Booth’s counsel does not contend otherwise. Robinson v. State, 323 So.2d 630 (Fla.App.1st, 1975). We hold further that Booth’s assault on the store manager was not simply an aspect of the same transaction in which Booth robbed her, and that Booth’s assault to kill the patron was not merely an aspect of robbery of the patron.

There was a temporal distinction in the offenses involving the manager. After completing the robbery for money inside the store, Booth dragged the manager from the place threatening to kill her with his knife. In the parking lot he threw her into the path of the patron’s oncoming car before launching his criminal assault on the patron. Booth is separately punishable for assault on the manager with intent to commit murder in the second degree because his assault continued and intensified after the robbery motive was satisfied, and because his object then was not her money but, evidently, her life. Compare Meeks v. State, 289 So.2d 479 (Fla.App.3d, 1974); Tarpley v. State, 258 So.2d 301 (Fla.App.3d, 1972); Wade v. Wainwright, 266 So.2d 378 (Fla.App.4th, 1972).

Booth attacked the patron with mingled and seemingly contradictory efforts to kill him and to require him to surrender his wallet. While the patron fought desperately for an opportunity to give up his money, Booth alternately cursed him and demanded his wallet, forcing his blade to the victim’s throat in relentless grappling that made compliance with his demand impossible. He broke off the onslaught when the patron finally was able to produce his money clip. That fact unquestionably attenuates the identification of more than one “transaction.” But clearly Booth’s offenses have not the same necessary factual relationship with each other as, say, those of assault with intent to rape a girl and a simultaneous attempt to have unlawful intercourse with her. Simmons, supra. Neither of Booth’s offenses was a part of the other in the sense that the offense of displaying a firearm in the course of a robbery may be said to be, on the facts, an aspect of a robbery. Cone, supra. While on certain evidence it may be said that “the robbery was committed by use of the firearm contemplated by the charge” and accordingly that “the use of the firearm becomes a facet or phase of the one transaction, to-wit: the robbery,” Hernandez v. State, 278 So.2d 307, 308 (Fla.App.2d, 1973), Booth’s attempt to kill the patron was independent of and qualitatively other than an effort to force the surrender of his money. Booth’s frenzied attempt to kill was not “essential to the robbery”; it cannot be said that “all the evidence concerning such assault related to the elements of force and fear embraced within the aforesaid robbery.” Hernandez, supra, 278 So.2d at 308. The Supreme Court found two separately punishable offenses in an accused’s simultaneous possession of two controlled substances. Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975). That principle is sufficient to deal with the single violent manifestation of Booth’s twofold intention.

AFFIRMED.

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