author: SCHEB, Judge. McNULTY, Chief Judge

text:
    James SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-845 to 74-848.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Rehearing Denied Sept. 23, 1975.
    Frederick L. Mouser, Harris, Harris & Andrews, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

The appellant James Smith was charged, tried by jury, and found guilty of (1) sale of cocaine, (2) sale of marijuana, (3) possession of cocaine, and (4) possession of marijuana. For each offense he was sentenced to six months to five years in prison with credit for time spent in the county jail.

The issue now presented is whether it was reversible error for the trial court to refuse to permit appellant’s counsel to develop the identity of the state’s confidential informant and his relations with the appellant and undercover police officer where the state’s evidence disclosed substantial participation by the informant in “setting up” a narcotics sale. We hold it was and we reverse.

Except for chemical identification of the marijuana and cocaine, the state’s case consisted solely of testimony of Harry A. Herbst, a detective with the St. Petersburg Police Department, who testified substantially as follows: On the evening of December 20, 1973, and while working on an undercover basis, he and a confidential informant who had previously arranged a meeting with appellant, went to the appellant’s place of employment in Largo where Herbst asked the appellant if he could “score some narcotics.” As suggested by appellant, they returned during his “two-hour break,” at which time appellant accompanied them to a residence in St. Pe-tersburg occupied by Wayne Hilliard from whom Herbst sought to purchase “two lids of marijuana, plus a dime-packet of cocaine.” While Herbst, appellant, and the informant returned to appellant’s house to await delivery of the narcotics, the appellant rolled a marijuana cigarette and passed it to the other men. An hour later, Detective Herbst became concerned with Hilliard’s failure to arrive, so he, along with the appellant and the informant, returned to the Hilliard residence. There Hilliard delivered the requested narcotics directly to the detective, and he and the informant returned the appellant to his place of employment.

Both prior to trial and during cross-examination, defense counsel sought to determine the identity of the confidential informant. The state’s objection to disclosure on grounds of the “informer privilege” was sustained.

By not being allowed to develop the relations between Detective Herbst and the confidential informant, the appellant was effectively precluded from establishing his defense, i. e., that he was not involved in narcotics activities but merely was persuaded to go along with his friend, who was, in fact, the police informant. We make no comment on whether there was merit to such defense, but where the state’s own witness testified that the informant arranged the whole affair which brought about events which resulted in offenses being committed, the defendant was entitled to an opportunity to have an informer who was an eye and ear witness to these events identified to the jury. Moreover, being prevented from inquiring about the relations between the officer and the informer hindered the appellant in attacking Detective Herbst’s credibility.

As the dissenting opinion points out, the identity of the confidential informant may well have become an “open secret” after appellant called his “friend” to the stand. However, the court’s ruling forced appellant to conduct his defense in an almost fictional atmosphere, in which he was prevented from equating the “confidential informant” mentioned in Herbst’s testimony with the “friend.” The resulting limitations on cross-examination of Herbst and direct examination of the “friend” imposed by the trial judge, as well as the restrictions on the scope of closing argument which would naturally be assumed by counsel for the defense, constituted prejudicial and harmful error.

The mere presence of a police informant when narcotics are sold to an officer does not require a disclosure of the informer’s identity, Doe v. State, Fla.App.3d 1972, 262 So.2d 11, but where that informant’s identity or his communications are relevant and helpful to the defense or are essential to a fair determination of a cause, the privilege of non-disclosure must give way. Roviaro v. U. S., 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. Thus in Gilmore v. U. S., 5th Cir. 1958, 256 F.2d 565, the court reversed the conviction of a defendant where, as here, the trial judge refused, on cross-examination of a narcotics agent to require revelation of the identity of an informant who had actively participated in setting up an “illegal buy” of drugs.

The law places the burden on the defendant to show why there should be an exception to the rule, which for obvious public policy considerations, permits the state to withhold the identity of informant. Treverrow v. State, Fla.1967, 194 So.2d 250. This court has held, however, where an informer was an active participant in an illegal drug sale there is a basis for requiring disclosure of the identity of the informant. English v. State, Fla.App.2d 1974, 301 So.2d 813. To like effect are several recent drug cases where the state has used informants who, at request of an officer, have actively participated with an accused in commission of the offense. See, e. g., Davenport v. State, 1973, 50 Ala.App. 321, 278 So.2d 769; Hardy v. State, Miss.1975, 313 So.2d 26; Sims v. State, Miss.1975, 313 So.2d 27.

The use of informants is valuable in prosecution of crimes, especially in offenses such as illegal sale of narcotics where complaining witnesses are not common. Therefore, there is a proper justification for protecting their identity where possible. Nevertheless, it is necessary at times, in the interest of fairness, to distinguish, as we have done here, between persons who are simply informers and those whose participation make them essential witnesses to a crime for which a defendant is being prosecuted.

Reversed and remanded.

HOBSON, J., concurs.

McNULTY, C. J., dissents with opinion.

McNULTY, Chief Judge

(dissenting) :

I dissent.

My brethern would suggest that the situation here is substantively analogous to that in Roviaro v. United States and in English v. State. Not so. In those cases it was apparent that a confidential informant was present at certain material times and places relating to the commission of the offense involved and his identity and whereabouts were unknown by, and/or unrevealed to, the defendant whose rights of compulsory process were frustrated in that he was unable to secure a material witness having direct knowledge of circumstances which may be relevant to a valid defense. Here, the truth is that appellant knew the identity of the confidential informant before, during and after trial; and, indeed, called the informant as a witness in his own defense.

As noted by the majority, the only three people involved in the purchases giving rise to the instant charges, aside from the seller, Hilliard, were Herbst, the “confidential informant” and appellant. Appellant obviously knew who the “confidential informant” was, now known to be one Dickenman — he was a friend and fellow employee. True it is that at the time appellant did not know that Dickenman was indeed working with Detective Herbst, who was himself working undercover. The problem herein arose, however, when on cross-examination of Detective Herbst appellant’s counsel asked Herbst whether Dickenman was the confidential informant. The state objected invoking the “informer privilege” and the court sustained the objection. It is clear from a conference at the bench at that time that the court was well aware that appellant knew the identity of the confidential informant, and I am at a loss to understand why he thought the “informant privilege” was a viable consideration. The obvious purpose of the informant privilege is, of course, twofold: to protect the identity of an informer lest his usefulness as an informer be destroyed and to protect him from possible personal harm in retribution. Here, the cat was already out of the bag; so the “informer privilege” concept was inapplicable. Clearly the court erred on the matter.

But I am of the view that the error was harmless. The only restriction imposed by the court was that during the examination of both Herbst and Dickenman appellant was not permitted to identify him as the “confidential informant.” In the end, it was obvious to everyone in the courtroom, including the jury, that Dickenman was the confidential informant. The simple process of elimination would compel that conclusion; so the defendant was not prejudiced merely because he couldn’t hang a “confidential informant” tag on Dicken-man. He had Dickenman under subpoena and called him as a witness. It is clear from the record that he had virtually every opportunity to establish by examination of Dickenman, and/or cross-examination if he proved hostile, to establish or elicit evidence of any facet of any defense legally available to him.

Roviaro and English are simply not applicable here. Appellant was deprived of no rights and he had a fair trial. His conviction herein should stand.

      . In view of our disposition of this case, we do not reach the issue whether these sentences violated the same transaction rule. Cf. Cai-vano v. State, Fla.App.2d 1973, 276 So.2d 245; Yost v. State, Fla.App.3d 1971, 243 So.2d 469.

      . (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639.

      . (Fla.App.2d, 1974), 301 So.2d 813.


source: Caselaw Access Project

author: McCORD, Judge.

license: Public Domain

text:
    In re James Wilbur GRANGER and Samuel Corbett Granger, Executors of the Estate of Hugh J. Granger.
    No. W-46.
    District Court of Appeal of Florida, First District.
    Aug. 27, 1975.

      David W. Foerster, Jones, Foerster & Hodge, Jacksonville, for appellants.
    Rutledge R. Liles, Smith, Hulsey, Schwalbe, Spraker & Nichols, Jacksonville, for appellee.
   McCORD, Judge.

This appeal is from an order denying the executors’ petition for an order authorizing sale of real property and requesting the court’s approval of a pending sale. § 733.-225, Florida Statutes, which became effective October 1, 1973, and was in effect at the time of the probate court’s order, provides as follows:

“(1) No court order is required to authorize or confirm a sale made pursuant to a general power of sale contained in a will, and such a sale need not be justified by any necessity.
(2) Conveyances or transfers of property heretofore made pursuant to a general power of sale contained in a will may not be invalidated as not being justified by necessity.”

Item Eighteen of the Will of the testator provides in pertinent part as follows:

“In addition to the other powers and duties herein conferred upon my Executors and my Trustees for the purpose of enabling them to perform their duties and exercise their rights herein, and in addition to the powers conferred upon them by law, I hereby authorize and empower my said Executors and my said Trustees as follows:
(e) To assign, transfer, lease, sell and convey any and all of the property of my estate and Trust, or any part thereof, upon such terms, conditions, and for such consideration as they may deem appropriate

Pursuant to the foregoing provision of the will the executors (appellants) sold three parcels of estate land with court approval. The three sales were necessary to pay taxes and administration expenses of the estate. Subsequently, the executors entered into negotiations to sell an additional 367 acres of estate lands for the sum of $200,000. In spite of the above-quoted statute, the purchaser insisted on approval of the sale by the Probate Court in order to be assured of a clear title. Appellee, Frances Granger Thompkins, a beneficiary under the will, objected to the sale and the court entered the order from which this appeal has been taken denying authority to sell the property and stating as follows:

“ . . . it being the opinion of this Court that Section 733.225, Florida Statutes, does not apply where the Court is petitioned to approve a sale of real property by an estate and that the petition must therefore be considered as if no power of sale were conferred by the Will of the decedent, and the court, being further of the opinion that, under Florida law, title to real estate vests in the beneficiaries at the death of the decedent subject only to divestment when necessary to pay taxes, debts and expenses of administration of the estate [In re Smith’s Estate, 200 So.2d 547 (Fla.App., 1967); In re Gamble’s Estate, 183 So.2d 849 (Fla.App., 1966)], and it appearing that all taxes, debts and substantially all administration expenses have been paid and that there is therefore no present necessity for such sale, and it further appearing that at least one beneficiary of the estate objects to such sale, it is thereupon . . . ”

Appellants contend that § 733.225, above quoted, was adopted to avoid the e'ffect of decisions in Estate of Gamble, Fla.App. (1st), 183 So.2d 849 (1966), and Estate of Smith, Fla.App.2d, 200 So.2d 547 (1967), which were relied upon by the probate court in its denial of authority for the sale; that the statute was obviously passed to override the rulings in Smith and Gamble ; that the statute is clear and unambiguous that an executor’s sale under a general power of sale need not be justified by any necessity.

Appellee states that the power of sale granted by the will is ambiguous or limited rather than unlimited but argues that, assuming the will gives the power of sale contemplated by § 733.225, the executors, by seeking judicial approval, abandoned or waived the power and thereby subjected themselves to the provisions of § 733.23, Florida Statutes, pertaining to sales in the absence of a power and the common law regarding vesting and divesting of real estate upon the death of a testator.

We do not agree with appellee’s statement that the power of sale contained in this will is ambiguous or limited, and appellee has made no argument supporting that assertion. Here the power is general and under the foregoing statute the court erred in grounding his denial of approval upon a lack of necessity. The statute is clear that necessity is no longer a consideration when a general power of sale has been given the executor. The statute is dual in purpose — no approval order is required and the sale need not be justified by any necessity.

Under the statute, an executor, proceeding pursuant to a general power of sale, need not seek a court order of confirmation, but if he does, it would be fallacious to say that the court is powerless to do more than give a rubber stamp approval. Under such circumstance, although the probate court may not consider necessity, it may consider such things as adequacy of consideration, whether or not the transaction is in good faith, whether' or not the sale will benefit one or more beneficiaries to the detriment of others and whether or not there is fraud involved.

This ruling is limited to the issue now before the court and we do not here make any ruling as to the effect of failure of an executor to have obtained court approval should it later develop that a sale was a fraud upon beneficiaries.

Reversed and remanded with directions to reconsider appellants’ petition for authority to sell in the light of this opinion.

BOYER, C. J., and RAWLS, J., concur.


author: PER CURIAM. DOWNEY, Judge

text:
    Fred FULTON, Appellant, v. STATE of Florida, Appellee.
    No. 74-978.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.

      Richard L. Jorandby, Public Defender, and Martin H. Colin, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon a review of the record on appeal and after due consideration of the briefs we are of the opinion that no reversible error has been demonstrated. In particular, allowing the State to cross-examine a witness for the defendant with respect to criminal charges pending against that witness was at the most harmless error under the particular circumstances of this case. See Dennis v. State, Fla.App.1968, 214 So.2d 661; Herzig v. State, Fla.App.1968, 213 So.2d 900; Morrell v. State, Fla.App.1974, 297 So.2d 579; cf. State v. Ramos, 1972, 108 Ariz. 36, 492 P.2d 697.

Affirmed.

WALDEN, C. J., and MAGER, J., concur.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge

(dissenting).

This is an appeal from a conviction of second degree murder and a sentence of life imprisonment.

It appears from the evidence that appellant and Louise Fuller, after living together for some years, separated. During the separation the victim, M. C. Banks, began visiting Ms. Fuller over appellant’s objection. On the day of the homicide Banks came to see Ms. Fuller and was sitting in his car conversing with her when appellant drove up, exited his car, gun in one hand and beer in the other. Appellant approached Bank’s car and said: “You son-of-a-bitch, didn’t I tell you not to be caught hanging around here?” He then pointed the gun into the car and fired it and told Banks to get away from there. Banks also had a weapon on the seat of the car, and he returned fire. A gun battle lasting several minutes ensued. It ended when Banks broke off contact by driving down the street. The car went out of control and ran into some bushes. Banks later died from gunshot wounds.

At trial upon an information charging him with second degree murder, appellant based his case on a contention of self-defense. In pursuit of that defense appellant produced a witness who testified that Banks’s general reputation in the community for violence was bad. On cross-examination the prosecutor asked the witness if he had any feelings of bias or prejudice against the state, and the witness replied that he did not. Then the prosecutor asked what charges were pending against the witness. Eventually, over appellant’s objections, the prosecutor brought out that the witness was soon to be tried for second degree murder (an entirely unrelated crime). It appeared to be the state’s position that the witness was prejudiced against the state in this proceeding since he was charged by the state with second degree murder and had taken issue with the state by pleading innocent to that charge. The trial court ruled that the questions were a proper attack upon the witness’ credibility.

The only point on appeal meriting comment involves the foregoing ruling by the trial court, namely, whether it was reversible error under the circumstances to allow the state over objection to interrogate appellant’s witness concerning criminal charges pending against that witness.

There are circumstances in which it is proper to interrogate a witness about pending criminal charges. For example, in Herzig v. State, Fla.App.1968, 213 So.2d 900, a defense witness was properly interrogated about criminal charges pending against him because said charges arose out of the same episode for which the defendant was then on trial. The identity of interests between the defendant and the witness made the questions proper. In Moore v. State, Fla.App.1975, 308 So.2d 563, the state was allowed to question defense witnesses regarding their presence in jail so as to show that the facts about which the witnesses were testifying were obtained by them from the defendant while he was in jail with them awaiting trial. However, absent some factor which connects the criminal charges pending against the witness to the case then being tried, proof of such pending charge is inadmissible and can be highly prejudicial. Jordan v. State, 107 Fla. 333, 144 So. 669 (1932); Hudson v. United States, 387 F.2d 331 (5th Cir. 1967). See Annot. 20 A.L.R.2d 1421. The rule is clear that generally only conviction of a crime may be introduced in evidence in order to attack the credibility of a witness. McArthur v. Cook, Fla.1957, 99 So.2d 565; Harden v. State, Fla.App.1974, 303 So.2d 679. Accordingly, the trial court committed error in over-ruling the objection to the production of the witness’ pending criminal charges, since there was no connection between the charge pending against the witness and the charge upon which appellant was being tried.

In its brief the state argues that the interrogation was proper; but in the event it was not, the court’s ruling thereon constituted harmless error. While of course it is possible that the improper testimony adduced to impeach the witness in question was harmless, I am unable to reach that conclusion with sufficient certitude to let stand a conviction of the highest charge contained in the information and a sentence of life imprisonment. Cf. Pitts v. State, Fla.App.1975, 315 So.2d 531, Second District. We really cannot say that had this testimony not been adduced the jury would not have found appellant guilty of one of the lesser included offenses about which they were fully instructed.

I would therefore reluctantly reverse the judgment and sentence appealed from and remand the cause for a new trial.


author: DOWNEY, Judge.

text:
    Charles B. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 74-1382.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1975.
    Rehearing Denied Sept. 29, 1975.

      Sanford M. Swerdlin, Clewiston, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

On May 25, 1973, appellant was indicted on two counts of petit larceny and one count of grand larceny (circuit court case No. 73-1043 CF). On July .13, 1973, appellant moved for and was granted a continuance and the case was reset for trial October 1, 1973. On July 26, 1973, appellant filed a waiver of his right to be tried within the time periods set forth in Rule 3.191, RCrP. On September 18, 1973, the state entered a nolle prosequi on the charges contained in the indictment, and on the same day the state filed three informations (circuit court case Nos. 73-1994 CF, 73-1995 CF, and 73-1996 CF) against appellant charging him with fourteen counts of embezzlement. On December 26, 1973, appellant filed a motion to dismiss all three informations on the ground that the state had failed to bring him to trial within the time limit specified in the speedy trial rule; Rule 3.191, RCrP. Said motion was denied; appellant was tried on February 11, 1974 and convicted on all counts.

The appellate question presented is whether the trial court erred in refusing to grant appellant’s motion for discharge because the time had expired for bringing appellant to trial under Rule 3.191 RCrP.

The record demonstrates that the original indictment on three counts of larceny, case No. 73-1043 CF, and the information in case No. 73-1994 CF, were based upon the same conduct or criminal episode. However, the other eleven counts of embezzlement contained in the informations in case Nos. 73-1995 CF and 73-1996 CF, were based upon different criminal episodes. Therefore, the speedy trial rule did not begin to run as to the counts on the in-formations in cases Nos. 73-1995 CF and 73-1996 CF until September 19, 1973, when they were filed; and the trial date of February 11, 1974 was well within the 180 days provided by the rule.

Since the charge contained in information No. 73-1994 CF arose out of the same conduct or criminal episode as did the charges in the original indictment, the speedy trial rule began to run as to those charges on May 30, 1973, when appellant was arrested. But on July 11, 1973, appellant sought and obtained a continuance. Then on July 26, 1973, appellant filed a waiver of his rights under Rule 3.191. That made the speedy trial rule no longer applicable to those charges. State ex rel. Butler v. Cullen, Fla.1971, 253 So.2d 861. When the new information was filed appellant made no motion for speedy trial, which motion would have required that he be tried within 60 days of the filing date of the motion (Rule 3.191(a)(2)); instead, as in State ex rel. Butler v. Cullen, supra, appellant improperly attempted to rely on Rule 3.191, RCrP, after he had waived its protection.

Therefore, as to the information in case No. 73-1994 CF, we hold on authority of the Cullen case, supra, that the motion for discharge filed December 26, 1973, was properly denied, and that the state was obliged to bring appellant to trial within 90 days of the denial of that motion when the appellant reinvoked his right to the protection of Rule 3.191, RCrP, by filing his motion for discharge. Since the state tried appellant within the 90 day period after the denial, the judgment of conviction in case No. 73-1994 CF was lawful.

Affirmed.

WALDEN, C. J., and MAGER, J., concur.


author: OWEN, Judge.

text:
    COLONNADES, INC., a Florida Corporation, Appellant, v. VANCE BALDWIN, INC., etc., Appellee.
    No. 74-153.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.

      C. Robert Burns and Mike S. Buckner of Burns, Middleton, Farrell & Faust, Palm Beach, and Alan Meltzer, Lake Park, for appellant.
    Samuel H. Adams of Adams, Sullivan & Coogler,-. West Palm Beach, for appellee.
   OWEN, Judge.

Although we find no error, and therefore affirm the judgment appealed, we take this opportunity to discuss one of the questions raised, i. e., whether a party who desires to use at trial pursuant to Rule 1.-330(a)(3) RCP the deposition of a non-party witness, on the grounds that the witness is, at the time of trial, either (a) more than 100 miles from the place of trial, or (b) out of the state, may lay the predicate for the deposition’s use solely by the deponent’s deposition testimony.

At trial plaintiff-appellee offered into evidence the deposition of a nonparty witness whose testimony was both material and vital to the plaintiff’s case. The deposition had been taken in Atlanta, Georgia on June 30, 1973, three days before trial. The deponent stated in the deposition that he lived in Birmingham, Alabama, and that he would not be in West Palm Beach, Florida on July 3 to attend the scheduled trial. Plaintiff offered no evidence (independent of the deposition) to establish a predicate for its use under Rule 1.-330(a)(3) RCP. Defendant-appellant’s objection to plaintiff’s use of the deposition, on the ground that the witness was not shown to be unavailable for trial, was overruled. This is the assigned error upon which the question is raised.

Appellant relies upon Haverley v. Clann, 196 So.2d 38 (2nd DCA Fla.App. 1967) for its position that it is error for the trial court to permit a party to use a deposition at trial under Rule 1.330(a)(3) RCP on the grounds that the witness is then either (a) more than 100 miles from the place of trial, or (b) out of the state, unless and until the party desiring to use the deposition has shown to the court’s satisfaction by sworn evidence, independent of the deposition itself, that one of these conditions exists. While we agree that as a threshold requirement to the use of a deposition under this subdivision of Rule 1.330 RCP there first must be a finding by the court that the required predicate has been shown, we hold that the trial court has broad judicial discretion as to the source, nature and sufficiency of the facts which he may consider for this purpose, and that neither the cited case, nor logic and reason, prohibit the trial court from relying solely upon the deponent’s deposition testimony in finding that the required predicate for the use of the deposition has been established.

Our view does not conflict with the holding in the case of Haverley v. Clann, supra, nor with the holdings in the earlier cases of Weber v. Berry, 133 So.2d 327 (2nd DCA Fla.App.1961) and Driscoll v. Morris, 114 So.2d 314 (3rd DCA Fla.App. 1959). In Driscoll v. Morris, supra, the trial court was found not to have abused its discretion in denying the proffered deposition when there was no evidence, outside of the deposition itself, to show a proper predicate for the deposition’s use. In Weber v. Berry, supra, the trial court’s denial of the proffered deposition was held not to be an abuse of discretion where the opponents failed to adduce evidence that the witnesses, who lived and were deposed in Chicago, “were more than 100 miles away” at the time of trial. However, neither case held that the trial court would have abused its discretion had it, instead of refusing the proffered deposition, received it into evidence upon a finding, based solely upon the deponent’s sworn testimony in the deposition, that the witness was unavailable to testify at trial. In Haverley v. Clann, supra, it was held that the trial court did abuse its discretion in admitting the deposition into evidence, not because the predicate was found in the deponent’s sworn testimony, but because the only showing in support of the predicate was counsel’s unsworn statements over the objection of opposing counsel. None of these cases held that the trial court may not rely solely on the deponent’s deposition testimony to find a proper predicate for use of the deposition under Rule 1.-330(a)(3) RCP.

Nor do we see any sound logical reason why the trial court should be prohibited from relying solely on the deposition testimony as a basis for finding that the required predicate has been established. Here, just three days before trial, deponent stated in a deposition taken in Atlanta, Georgia, that he was a resident of Birmingham, Alabama, and that he did not expect to be in the State of Florida, and more particularly West Palm Beach (the site of the trial) on the following July 3 (the date of the trial). In Dickson v. Feiner's Organization, Inc., 155 So.2d 703 (2nd DCA Fla.App.1963), the court approved as a proper predicate the testimony of a brother of the deponent who testified that deponent lived in Miami Beach [which was more than 100 miles from the place of trial] and that he (the witness) assumed that, at that particular moment, the deponent was at her home although obviously he could not swear to her exact whereabouts since he had last seen her some three weeks prior to the trial. Presumably, in the instant case counsel who took the deposition in Atlanta could have taken the witness stand and under oath stated that the deponent lived in Birmingham, Alabama, and that he assumed that, at that particular moment, the deponent was at home although obviously he could not swear to his exact whereabouts since he had last seen the deponent three days prior to the trial. If we assume that such testimony would have been a valid basis upon which the trial court could find that a proper predicate had been established, it seems illogical to suggest that the trial court could not consider the identical testimony from the deponent, merely because it is found in the deposition. There is no reason to fetter the trial judge with unrealistic and impractical requirements in this respect. His job is to determine whether there is a valid reason within the provisions of the rule as to why the deposition should be used in lieu of the witness’s live testimony. If he can satisfy himself in this respect by ex-amming the deposition testimony, then he should not be precluded from doing so.

During oral argument of this case it was suggested that trial counsel who wishes to use the deposition on the grounds of the unavailability of the witness should be prepared, as a minimum requirement, to contact the witness by telephone or other means immediately prior to the time the deposition is to be used so that counsel may assure the court of the deponent’s unavailability as of the time the deposition is proffered. Trial counsel who are fortunate enough to be able to do this will undoubtedly have little difficulty in convincing the trial court that there is a valid predicate for the use of the deposition, but to hold such to be a minimum requirement in establishing a predicate for use of the deposition would be to impose a condition that is highly impractical (if not impossible) in most cases, and we therefore reject such suggestion.

Affirmed.

WALDEN, C. J., and MAGER, J., concur.

      . Rule 1.330(a)(3) RCP provides:
      “(a) Use of Depositions. .

      *****
      “(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the State, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or (F) the witness is an expert or skilled witness.”


author: PER CURIAM.

text:
    Jimmie Eddie DEGOLYER, Petitioner (Defendant), v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. Z-293.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1975.
    Louis O. Frost, Jr., Public Defender, and William P. White, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., for respondent.
   PER CURIAM.

By petition for writ of habeas corpus, Degolyer seeks review of the trial court’s order denying him bail pending appeal. Petition for writ of habeas corpus is not the proper method to seek review of the trial court’s order; the proper method is by motion. Rule 6.1S, subd. d., Florida Appellate Rules. We will construe the petition as a motion, and rule on the motion.

On authority of Rolle v. State, 314 So.2d 624 (Fla.App. 1st, 1975), jurisdiction is relinquished to the trial court with directions to comply with the requirements of Rule 3.691, Florida Rules of Criminal Procedure, and if bail pending appeal is denied, to enter the order denying same pursuant to said Rule and within IS days from the date hereof. The Clerk of the trial court is directed to forthwith forward a certified copy of said order to the Clerk of this Court.

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


author: HAVERFIELD, Judge.

text:
    Acey WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1586.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1975.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HAVERFIELD, Judge.

Appellant, defendant in the trial court, was charged by information with the sale of marijuana in violation of § 893.13, Fla. Stat. After a jury trial, defendant was found guilty and then placed on probation for five years.

On appeal, defendant urges as reversible error the entry by the trial court of an order granting the state’s motion to exclude expert testimony regarding the polytypic nature of cannabis. Appellant was charged with the sale of cannabis sativa L and during the trial defense counsel desired to call as an expert witness one Dr. Monroe Birdsey, a professor of biology, who would testify that in addition to cannabis sativa L, there exists other varieties such as cannabis indica or cannabis ruder-alis. The trial judge determined that § 893.02(2), Fla.Stat. which defines cannabis did not specifically except cannabis indica, cannabis ruderalis or the like and, therefore, granted the above motion of the state.

After a careful reading of § 893.-02(2), we conclude that the statute does not limit itself to cannabis sativa L; but, to the contrary, refers to any other species or varieties of cannabis. Furthermore, the statute provides a sufficient description of what was intended to be prohibited to give notice to all persons of the illegality of the actions of the defendant. See United States v. Gaines, 489 F.2d 690 (5th Cir. 1974) and cases cited therein.

Further, the defense made no proffer that Professor Birdsey would testify that the nature of the subject marijuana was not a variety of the cannabis listed under the statute so it appears that the professor’s testimony in effect merely would be a dissertation on the varieties and species of cannabis, or “A rose by any other name would still be a rose.”

Hence, we find the trial judge did not commit reversible error in excluding testimony of the polytypic nature of cannabis. Cf. Grissom v. State, Fla.App.1970, 237 So.2d 57.

For the reasons cited thereinabove, the judgment is affirmed.

Affirmed.

      . “893.02 Definitions
      The following words and phrases as used in this chapter shall have the following meanings, unless the context otherwise requires:
      ‡ ‡ ‡ ‡
      “ (2) ‘Cannabis’ means all parts of the plant of the species Cannabis sativa, L., including all varieties thereof, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake ; or the sterilized seed of the plant which is incapable of germination.” [Emphasis Supplied]


author: MILLS, Judge.

text:
    James Crit ESTEP, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. V-462.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1975.

      Richard W. Erwin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   MILLS, Judge.

Estep seeks reversal of a judgment of conviction and sentence based on a jury verdict finding him guilty of the crime of escape.

Estep asserts that the judgment of conviction is fatally defective as the State failed to present evidence that at the time of the escape he was in lawful custody of a law enforcement official.

The owner of a car destroyed by fire informed an officer that a box of tools was stolen from his car the night before its destruction. Later the tools were located at a car lot operated by Estep’s father who advised the officer that his son had brought the tools to the lot. The tools were identified by the owner as the tools stolen from his car. In addition, a citizen informed the officer that Estep was the individual who set fire to the car. While confined to jail serving a sentence for violation of a municipal ordinance, Estep was arrested without a warrant, and charged with breaking and entering with the intent to commit a felony. Subsequently, Estep escaped from the jail.

An officer may arrest a person without a warrant if a felony has been committed and the officer reasonably believes the person committed it. Section 901.15(2), F.S.

Section 944.40, F.S., under which Estep was charged, provides that any prisoner confined in a jail who escapes from confinement shall be guilty of a felony in the second degree. Section 944.02(4), F.S., defines prisoner as any person who is under arrest and in lawful custody of any law enforcement official.

We are of the opinion that probable cause existed for the officer to arrest Es-tep without a warrant, and that Estep was in lawful custody at the time of his escape. It is uncontroverted that Estep escaped from a municipal jail to which he was confined.

The other point raised by Estep is without merit.

We affirm.

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


text:
    David BONDS, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1207.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.

      Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Stephen V. Rosin and Arthur Joel Berger, Asst. Attys. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

From an order revoking probation, this appeal was taken. While on probation, appellant was arrested on a charge of assault with intent to commit robbery. In the proceedings upon this charge, appellant successfully moved to suppress the victim’s identification of him to a police officer. He thereupon moved for a jury trial as to the issue of identification in his probation violation hearing. The motion was denied and probation revoked upon the clear identification of the appellant as the person who committed the assault.

Appellant argues that the trial court abused its discretion by failing to impanel a jury for an advisory opinion on the issue of his identity as the perpetrator of the crime for the purpose of determining whether his parole was, in fact, violated. We find no abuse of discretion. See Singletary v. State, Fla.App.1974, 290 So.2d 116 and Heath v. State, Fla.App.1975, 310 So.2d 38.

Affirmed.


text:
    Edward Michael GOULD, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1788.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1975.
    Phillip A. Hubbart, Public Defender, Bennett Brummer, and Paul Morris, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The appellant was tried (non jury) and convicted of forgery and buying, receiving or concealing stolen property. He was sentenced to a term of 3Y2 years on each count, the sentences to run concurrently.

Appellant seeks reversal of the judgment of conviction on the grounds that the trial court erred in denying a motion to suppress his confession and the in court idem tification of the appellant.

We have considered appellant’s points on appeal in the light of the record, briefs and argument of counsel and have concluded that no reversible error has been made to appear.

Affirmed.


text:
    Barney Buford HUNT, Appellant, v. STATE of Florida, Appellee.
    No. X-209.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1975.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   McCORD, Judge.

On November IS, 1972, appellant was convicted of unlawful possession of a firearm by a convicted felon and was sentenced to six years imprisonment. He filed a motion for new trial on November 25, 1972, upon which a hearing was held and an order denying same was inadvertently styled in a different case number and erroneously filed. It subsequently came to the court’s attention that appellant’s right to appeal had been denied because of such error and the court then entered an order on November 19, 1974, denying the motion for new trial, which order was properly filed on that date. This appeal is from the judgment and conviction and the denial of the motion for new trial entered on November 19, 1974.

Appellant contends that he is entitled to credit on his six year sentence for the time he was held in the county jail on the charge prior to sentence. At the time of sentence, there was no statutory requirement that jail time credit be given on a sentence. Subsequently, § 921.161(1), Florida Statutes, was amended by Ch. 73-71, Laws of Florida, which requires that such credit be given. We previously held in Joins v. State, Fla.App. (1st), 287 So.2d 742 and Hollingshead v. State, Fla.App. (1st), 292 So.2d 617, that an appellate court will apply the law which obtains at the time the appeal is decided in determining the correctness of the order or judgment before it and remanded those cases to the trial court with directions to give jail time credit. Therefore, the order of sentencing is reversed with directions that the trial court resentence appellant giving due credit for the time earlier spent in jail, or the trial court may enter an order reducing the sentence without calling the defendant back before the court.

Reversed with directions.

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


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. William Wade HENDERSON, Appellee.
    Nos. 75-375, 75-376.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    James A. Gardner, Public Defender, and Steven H. Denman, Asst. Public Defender, Bradenton, for appellee.
   HOBSON, Acting Chief Judge.

The State appeals interlocutory orders granting Henderson’s motions to suppress evidence.

Henderson was charged by two informa-tions with receiving and concealing stolen property and possession of burglarious tools as a result of property seized in a search of his home. The property was seized pursuant to a search warrant based upon an affidavit in which affiant stated his reasons for believing the laws were being violated on the described premises as follows:

“Affiant’s reasons for this belief are that on November 25th, 1974, he had occasion to interview Gail Lord Henderson, the wife of the previously mentioned William Wade Henderson, and she related to your Affiant that on the 25th of November, 1974, she observed at the above described premises items of stolen property to-wit: A carrying case with zippers bearing the name Charlotte Williams upon the outside and within the case were watches, bracelets, and other items of jewelry. Your Affiant verified that Charlotte Williams was a victim of a burglary to her motel room at The Hilton Motel, 4711 Gulf of Mexico Drive, Longboat Key, Florida, November 17, 1974. Your Affiant contacted Charlotte Williams who stated that stolen as a result of the above mentioned burglary was a blue leather pouch with three zipper compartments, which bore on the outside in gold block style letters her name to-wit: Charlotte Williams. . . .”

The affidavit then stated that Charlotte Williams particularly described the jewelry contained in the pouch, which description was included in the affidavit.

Affiant appeared before the issuing magistrate and swore to the allegations contained in his affidavit, stating the facts on which he based his reason for believing that the law was being violated in the premises. He also told the magistrate that Mrs. Henderson appeared at his office and told him that she had been involved in cashing checks taken in burglaries by Mr. Henderson.

At the hearing on the motion to suppress, affiant stated, that Mrs. Henderson told him she was in fact married to William Wade Henderson, although she did not present any positive proof of her identity.

The trial court granted the motion to suppress, relying on Wolff v. State, Fla.App.3d 1974, 291 So.2d 15, which held that a search warrant for a private dwelling could not be based on hearsay information.

The State petitioned for a rehearing, pointing out to the trial judge that this court, in State v. Compton, Fla.App.2d 1974, 301 So.2d 810, had held that an affidavit based upon hearsay information was sufficient for issuance of a search warrant. The trial judge concluded that Compton was controlling as to hearsay information, but denied the petition, noting that in Compton the informant had proven himself to be reliable and trustworthy; whereas in this case the officer had talked to the wife of appellee, but admitted under oath that he did not inquire or receive any absolute identity, did not know her, and had no idea of her trustworthiness and reliability.

In State v. Wolff, Fla.1975, 310 So.2d 729, the Supreme Court said that before issuing a search warrant an issuing magistrate must evaluate the reliability of the hearsay information, if any. In the case sub judice the issuing magistrate examined affiant under oath and determined the facts as alleged did exist. Affiant did independent police work and corroborated the information given by the informant, at least to the extent that the stolen property observed by the informant on the premises and particularly described by the informant, was the subject of a burglary. ' See Findlay v. State, Fla.1975, 316 So.2d 33. This was sufficient, for the magistrate to determine that the named informant was reliable. Additionally, the inculpatory statements of the informant strengthened her credibility. State v. Patterson, Fla.App.2d 1975, 309 So.2d 555.

The orders appealed are reversed and the causes remanded for further proceedings.

Reversed and remanded.

BOARDMAN and SCHEB, JJ., concur.

      . The holding in Wolff has since been reversed by the Supreme Court. State v. Wolff, Fla.1975, 310 So.2d 729.


text:
    John Joseph GUGLIELMO, Appellant, v. STATE of Florida, Appellee.
    No. W-515.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1975.
    Richard W. Ervin, III, Public Defender, and Judith A. Dougherty, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   McCORD, Judge.

Appellant was convicted on one count of breaking and entering with intent to commit grand larceny and one count of grand larceny. He appeals from the judgments and sentences contending that the trial court erred in not providing him with a copy of the factual, physical and/or mental evaluations contained in the presentence investigation report a reasonable time before sentencing as required by Rule 3.-713(b) F.R.Cr.P. When appellant came before the court for sentencing, he was asked by the court, “Do you or anyone in your behalf have legal cause to show why sentence should not be pronounced?” In response to that question, appellant’s attorney objected on the grounds that he had not been furnished a copy of the presen-tence investigation. The court then furnished him with a copy of the presentence investigation and declared a recess for appellant and his attorney to go over it. Following the recess, the court again asked the question, “Do you or anyone in your behalf have any legal cause to show why sentence should not be pronounced ?” to which appellant’s attorney answered, “None advanced at this time, your honor.” The aforesaid rule states that the material required to be disclosed to the defendant and the state shall be disclosed “a reasonable time prior to sentencing.” While we do not consider that the day of sentencing is a reasonable time prior to sentencing for the material to be disclosed, it appears from the record in this case that appellant was satisfied to proceed with sentencing after reading the report. Had appellant then desired additional time, he could have requested that sentencing be deferred; but he did not do so — his words indicated that he was ready to proceed. We, therefore, find no error.

We have considered appellant’s two additional points raised in this appeal but find them to be without merit. See Wilson v. State, Fla., 304 So.2d 119 (1974); Bunch v. State, Fla.App. (1st), 303 So.2d 705 (1974); and Estevez v. State, Fla., 313 So.2d 692 (1975).

Affirmed.

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


text:
    Warren J. DOBBS and Henry J. Game, Appellants, v. STATE of Florida, Appellee.
    Nos. W-172, W-173.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1975.
    John F. Sproull, III, Harriet & Sproull, Palatka, for appellants.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

These are consolidated appeals from convictions of appellants of the crime of an attempt to enter ranchland of another with the intent to commit larceny of cows and armed with a dangerous weapon in violation of § 822.23, Florida Statutes. Appellants contend that their trial for this offense violated their constitutional right against double jeopardy and was barred by the doctrine of collateral estoppel. They further contend that the evidence was insufficient to support a conviction.

On the same day that appellants were informed against on this charge, they appeared in the County Court of Flagler County and pled guilty to attempting to take deer with a gun and a light at night in a closed season (in violation of § 372.99, Florida Statutes) and, in addition, appellant Dobbs pled guilty to attempting to elude a police officer. They were adjudged guilty and sentence was imposed. Appellants contend that the county court convictions were a bar to prosecution in this case.

The events out of which the convictions sub judice and the county court convictions arose occurred on the same night and are as follows: Around midnight on October 13, 1973, Officer Holdridge of the Florida Fish and Game Commission was parked in a rural area of Flagler County looking for illegal deer hunters. He observed appellants drive down the road and then return 15 minutes later. As appellants returned, they were driving slowly and shining a light on either side of the road. They ultimately stopped their car, got out and Officer Holdridge heard a shot fired. Officer Holdridge testified that the driver of the vehicle, Dobbs, then climbed over the fence and went on the land. Holdridge heard cattle running off. After a five minute search, Dobbs yelled back that he could not find it. He returned to the car and appellants proceeded to drive down the road again shining their light. Officer Hold-ridge attempted to pull them over but they kept on driving and appellant Game threw a gun out of the window. Officer Hold-' ridge finally ran appellants off the road and arrested them for violation of § 372.99, supra. The gun was retrieved by a Deputy Sheriff who came on the scene to take custody of appellants. Officer Holdridge and Mr. Cowart, lessee of the adjoining property, followed a trail of blood through the field but were unable to track down the presumably wounded animal. The following morning Holdridge and Cowart located a wounded calf in a herd of cows near the scene that had a bullet wound in its head. The calf was slaughtered but the bullet could not be found.

The trial judge correctly ruled that the offenses of which appellants were convicted were each separate and distinct crimes although they all occurred on the same night and close together in point of time. There was no violation of appellants’ constitutional right against double jeopardy nor was the conviction sub judice barred by the doctrine of collateral estoppel. The evidence presented in this case supports appellants’ previous guilty pleas to attempting to take deer with a gun and a light at night in the closed season. The appellants do not question their guilt of such crime but pled guilty. The evidence in addition fully supports their conviction in this case of an attempt to enter ranchland of another with the intent to commit larceny of cows and armed with a dangerous weapon. Under the facts above related, appellants departed momentarily from their deer hunt when they saw and shot the calf. Then subsequently appellant Dobbs attempted to elude the game officer, which was a separate crime to which he pled guilty. Each of these several offenses was a separate and distinct crime and although closely related in time sequence, each was committed at a different time. There was, thus, no double jeopardy and no collateral estoppel. The crimes were not facets of a single transaction. See Amerson v. State, Fla.App.(lst), 303 So.2d 377 (1974).

Affirmed.

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


author: McNULTY, Chief Judge.

text:
    Freddie LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1243.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.
    William G. Dayton, of Dayton, Peel & Gibbs, Dade City, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   McNULTY, Chief Judge.

Appellant, a juvenile, appeals his esca,pe conviction. We reverse.

Appellant was incarcerated in the Pasco County Jail to which he had been committed after a guilty plea involving charges of auto theft. It appears that while serving his sentence on those charges he and another prisoner became involved in an apparent escape. The other prisoner succeeded in fully escaping, but appellant climbed up a radio antenna onto the roof of the jail where he was later discovered and charged with the instant offense.

Pre-trial maneuvering has placed this case in an unusual posture; but not one incapable of resolution. First, appellant moved to quash the charge on several grounds, only one of which is meritorious at least as a potential defense at trial. That ground alleges the factual basis for his so-called “escape.” He contends that another inmate, one Bobby Lane, had made sexual advances toward him and threatened him with sexual battery. He had complained to prison authorities, he says, but they did not believe his fears and ordered his return to Lane’s cell. Accordingly, in fear, he attempted to escape for the purpose of reporting the matter to a Circuit Judge Williams and to avoid a possible sexual assault and battery. Next, the state moved to strike all the grounds for the aforesaid motion to quash, including the one predicated on the fear of sexual battery, alleging that each was irrelevant and immaterial. The trial court granted the motion to strike and denied appellant’s motion to dismiss. Appellant then pleaded nolo contendere, reserving the right to appeal the disposition of the pre-trial motions, and the judgment and sentence appealed from ensued.

In the recent case of Helton v. State our sister court in the First District explored the question of intent as being an element of the crime of escape. The court reviewed the conflicting cases throughout the country and sided with the slight numerical minority view that justice and fairness require intent as an essential element of escape. Its conclusion was buttressed by the line of cases which have recognized the “narrow but time honored defense of necessity available to a prisoner whose escape has been motivated by sufficiently perilous circumstances.” That court held, therefore, that there are two elements to the crime of escape: the physical act of leaving custody coupled with the intent to avoid lawful confinement. We agree.

Here, appellant denied a wilful intent to escape, pointing to his having failed to flee completely with his fellow “escapee.” He contended in his motion to quash that he was forced to leave confinement to avoid a sexual assault at the hands of Bobby Lane. He further contended that he was merely trying to reach Circuit Judge Williams to report the matter since the detention officers at the jail disbelieved his fears. If true, we think this could have been a valid defense insofar as it might establish a lack of wilful intent to avoid lawful confinement or at least create a reasonable doubt that there was one.

Such allegations made merely in a motion to quash would not, of course, authorize a dismissal of the charge. But certainly a defendant has a right to establish such a defense, as best he can, at trial. By striking such a defense here, the trial court clearly indicated that he would not permit the interposition of such a defense and appellant was justified in not undertaking a useless gesture by insisting on trial under his not guilty plea. He properly preserved his record for our review by entering his nolo contendere plea.

In view of the foregoing, therefore, the judgment and sentence appealed from should be, and they are hereby, vacated and set aside; the order granting the state’s motion to strike appellant’s defense insofar as it sought to establish lack of intent to commit the crime of escape should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON and BOARDMAN, JJ., concur.

      . (Fla.App. 1st, 1975), 311 So.2d 381.

      . See, 16 Cr.L.Rptr. 2375.


text:
    Robert A. MESLER, Jr., et al., Appellants, v. Elaine J. HOLLY and O. Ray Gussler, Trustees, Appellees.
    No. 74-1099.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Rehearing Denied Sept. 25, 1975.

      Orrin M. Gowen of Fisher, Sauls, Ad-cock, DeLoach & Gowen, St. Petersburg, for appellants.
    John T. Allen, Jr., St. Petersburg, for appellees.
   McNULTY, Chief Judge.

Plaintiffs-appellants seek a declaration of their rights under a certain inter vivos trust created by Frederick L. Way, deceased. Their “amended complaint for declaratory judgment and for other relief connected therewith and for removal of Elaine J. Holly as trustee, for an accounting, and for other relief connected therewith” was dismissed for “failure to state a cause of action.” We reverse.

The facts are these. On April 9, 1970 the settlor, Frederick L. Way, established two inter vivos trusts: A Florida trust, for the joint benefit of himself for life and ap-pellee, Elaine J. Holly, and of which he and Elaine J. Holly were named co-trustees, and a “Massachusetts Fund” trust under which plaintiffs-appellants, the settlor’s great grandchildren, were the principal beneficiaries. The Florida trust instrument provided that upon the death of the settlor the aforesaid Elaine J. Holly would be the sole beneficiary with remainder over to the aforementioned Massachusetts trust. In his will, which he executed the following day, the settlor provided that the residue of his estate pour over into the Florida trust. Appellee O. Ray Gussler is a successor to the decedent as a co-trustee of the Florida trust.

Frederick L. Way died on October 20, 1972, and since that time Elaine J. Holly and the aforesaid O. Ray Gussler have acted as co-trustees under the Florida trust, although it is apparent that Gussler has been acting as such more nominally than actually. Indeed, it appears, at one point he ostensibly resigned but reconsidered and now remains at least a nominal co-trustee.

The dispute herein centers essentially on a provision of the Florida trust which plaintiffs-appellants allege has precipitated an abuse on the part of the co-trustees in the administration thereof, as a consequence of which the remainder is being wrongfully depleted. The critical provision, Paragraph EIGHTEENTH, is as follows :

“A. The CO-TRUSTEES shall hold the trust estate for the use and benefit of ELAINE J. HOLLY under the following provisions:
* * * * * *
2. The CO-TRUSTEES may in their absolute discretion distribute so much of the principal of the trust estate as the CO-TRUSTEES deem necessary to maintain the standard of living to which ELAINE J. HOLLY has become accustomed.
‡ * * ‡ %
4. It is the intent of the SETTLOR to grant a life estate to ELAINE J. HOLLY with right of invasion of principal in order to maintain the standard of living to which ELAINE J. HOLLY has become accustomed.” (Italics ours.)

Alleging that certain purposes for which the principal has already been invaded are unreasonable and excessive, appellants contend that this paragraph does not give unbridled discretion to the co-trustees to determine or establish a standard of living for Elaine J. Holly, but rather that the absolute discretion given relates solely to the manner, mode, and extent of distributing trust assets, including principal, in order to maintain the standard of living to which she had “become accustomed.” This, they contend, is an ascertainable fact which has been exceeded in this case. Appellees, of course, argue that the “absolute discretion” is all inclusive and the trial court agreed with them.

In a lengthy and commendably erudite opinion and order the trial court correctly recognized that the settlor’s intent is the pol estar by which a trust instrument should be interpreted and construed. Accordingly, he concluded that since the settlor vested the co-trustees with absolute discretion to “ . . . distribute so much of the principal of the trust estate as the co-trustees deem necessary to maintain the standard of living to which Elaine J. Holly has become accustomed,” authority was vested solely in the trustees to determine Elaine J. Holly’s standard of living and to distribute such principal as is necessary in their discretion for her to maintain that standard. Further, the trial court held that plaintiffs failed to allege any facts showing the co-trustees have exercised their discretion in bad faith, exercised their discretion dishonestly or not within the settlor’s presumed intentions. Moreover, the court determined that while the allegations that Gus-sler had resigned as co-trustee were insufficient, that assuming, arguendo, he has resigned, that it was the settlor’s intent for Elaine J. Holly to continue to administer the trust as sole trustee. Finally, the trial court found the co-trustees were not required to account to the beneficiaries until time of their eligibility for distribution.

Considered broadly, the threshold question before us is whether the appellants’ amended complaint sufficiently sets forth facts on which plaintiffs could be awarded any relief. We hold that it does.

To begin with, even though a grant of “absolute discretion” to a fiduciary is very broad, it does not relieve a trustee from the exercise of good faith or from being judicious in his administration of the trust, which administration is always subject to review by the court in appropriate instances. Likewise, a trustee is always subject to accountability to remain-dermen where discretion is improperly, arbitrarily or capriciously exercised.

Moreover, the courts recognize that where, as here, a trustee is also the sole lifetime beneficiary, such factor is a viable judicial consideration in determining whether the trustee is properly exercising discretionary powers. Concededly, determination of Elaine J. Holly’s standard of living is, in the first instance, a function and responsibility of the trustees. While perhaps a court should not fix the criteria for exercise of the discretionary power of the trustees to invade the principal, it certainly may review the exercise of such power. We think, too, that when a trustee is peculiarly influential in making such determination for her own benefit, her discretion in the premises becomes particularly vulnerable to a challenge by remaindermen. And, we apprehend the legitimacy of the plaintiffs’ concern where, as here, (1) there is no requirement for the trustees to post a bond for faithful performance of their duties, (2) either trustee may withdraw funds from any bank account in the name of the trust and'(3), as the trial court determined, there is no specific requirement in the trust instrument to furnish any inventory, accounting or other information to the remaindermen beneficiaries until their eligibility for receiving distribution. Clearly, a trustee who is also a beneficiary and who is given a power, or discretion, to invade the trust principal has a fiduciary obligation to the remaindermen to keep her demands within reasonable limits. Even an unlimited power of invasion is subject to implied limitations to protect the remaindermen.

Wdfhold^therefore, that allegations that a trastee is the sole lifetime beneficiary, that she has not furnished any accounts or reports of her administration to the remaindermen and that she is not confining her invasions of principal to reasonable limits, as may be set out in the complaint, give rise to an inference of abuse of discretion by the trustee and are sufficient to require the trustee to respond. Trustees are accountable to the courts and their performance may be controlled by the courts. If the evidence discloses any abuse of discretion on the part of a trustee or co-trustees in distributing principal to a lifetime beneficiary, particularly if such beneficiary is a trustee, then the trial court can order appropriate adjustments to correct any abuses in the past and take steps (e. g., to require bonding of trustees, periodic ac-countings to remaindermen and appropriate supervisory measures) to prevent abuses in the future.

In view whereof, the judgment appealed from should be, and it is hereby, reversed and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON and SCHEB, JJ., concur.

      . 76 Am.Jur.2d Trusts § 182, 183 (1975).

      . See Mahan v. Lummus (1945), 160 Fla. 505, 35 So.2d 725.

      . Vol. Ill, A. Scott, § 187.5 (3 ed. 1967).

      . See In re Rockwell’s Estate (N.Y.Sur.Ct. 1960), 26 Misc.2d 709, 205 N.Y.S.2d 928.

      . 90 C.J.S. Trusts § 349 (1955).

      . See Connecticut Bank and Trust Company v. Lyman (1961), 148 Conn. 273, 170 A.2d 130.

      . See Rosen v. Rosen (Fla.App.3d, 1964), 167 So.2d 70.


author: PEARSON, Judge.

text:
    SALES CAREERS, INC., Appellant, v. ATRIUM OFFICE PARK, INC., et al., Appellees.
    No. 75-85.
    District Court of Appeal of Florida, Third District.
    Sept. 2, 1975.
    Richard Carl Goethel, Coral Gables, for appellant.
    Peters, Maxey, Short & Morgan, Coral Gables, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

This interlocutory appeal is from an order transferring the cause from the circuit court to the county court upon the ground stated in the motion that: “The lease attached to the plaintiff’s complaint sets forth that the plaintiff’s recovery is limited to an abatement of rent of a period not in excess of 17 days, which said abatement under the terms of the lease would in any event be less than the minimum jurisdiction of this Court to wit: $2,500.00.”

The complaint claimed damages for the landlord’s negligent notification to the tenant that the premises were ready for occupancy when, in fact, the premises were not ready for occupancy. The special damages claimed included disruption of business, loss of income and additional expenses. The trial judge accepted the landlord’s argument that all of these claimed damages were, as a matter of law, the end result of the landlord’s being unable to give possession of the leased premises on the date stipulated and that a provision of the lease precluded any claim for damages in excess of an abatement of rent for the period lost. Cf. Harvey Corporation v. Universal Equipment Co., 1947, 158 Fla. 644, 29 So.2d 700.

We hold that the cause of action alleged here sounds in tort and that the special damages alleged and recoverable in tort in this case are not limited by the contract provision. See Holbrook v. City of Sarasota, Fla.1952, 58 So.2d 862; and Banfield v. Addington, 1932, 104 Fla. 661, 140 So. 893.

The order transferring the cause and dismissing the complaint is reversed and the cause remanded with directions to require the defendant to answer the complaint.

Reversed and remanded.

      . The order also grants defendant’s motion to age in view of the transfer order. dismiss. This portion of the order is surplus-


author: SACK, Associate Judge.

text:
    Michael Eric EVANCO, Appellant, v. STATE of Florida, Appellee.
    Nos. X-128 and X-129.
    District Court of Appeal of Florida, First District.
    Aug. 27, 1975.

      Selig I. Goldin, Goldin & Turner, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   SACK, Associate Judge.

These two cases were consolidated for the purpose of appeal.

In X-128 appellant was tried on an information charging him with breaking and entering a building on the property of Sound City, Inc., with intent to commit a misdemeanor, to-wit, petty larceny. The trial court instructed the jury, at the request of the State and over the defendant’s objection, that entering into an enclosed building of another, having been forbidden to enter by the lawful occupant, pursuant to Florida Statutes, Section 821.01(1), was a lesser included offense within the crime charged in the information, and the appellant was convicted of such trespass after warning.

In X-129, appellant, who was under a sentence of probation for a previous, unconnected crime, had his probation revoked and was adjudged guilty and sentenced on the prior offense.

The instruction on the crime of trespass after warning was predicated solely upon the casual testimony of the president of the company which was in possession of the premises claimed to have been entered, in reply to a question as to whether appellant had been given permission to be in the place after closing hours: “No, as a matter of fact, at an incident prior to that, he was told never to come by the store again”, without any explanation of this so-called warning either as to time, place or circumstances, except that at one time appellant was an employee of the occupant of the building.

Apart from the fact that we have grave doubts that the alleged statement was a sufficient warning under Section 821.01(1), we hold that the offense of trespass after warning, pursuant to the above Section, is not a lesser included offense of the crime of breaking and entering with intent to commit the misdemeanor of petty larceny. Clearly, it is not a necessarily included offense in the major offense charged by the accusatory pleading; nor is it an offense which may be included in the offense charged, in view of the accusatory pleading and the evidence at the trial, since the statutory offense of trespass after warning necessarily required a warning, an element which is not essential to the breaking and entering charge. (Brown v. State, 206 So.2d 377 (Fla.1968)). Significantly, the Florida Standard Jury Instructions do not include trespass after warning as a lesser included offense in any burglary or breaking and entering situations.

In the probation and revocation proceedings in Case X-129, the conditions of probation were the conventional ones. The amended affidavit of violation of probation was based solely upon the jury’s finding of guilt of trespass after warning, which, the State asserted: “And that is the basis of the violation against Mr. Evanco.”

Since we hereby reverse the conviction of trespass after warning, the revocation of probation, predicated solely on the trespass conviction, must necessarily fall. Accordingly, the judgment of guilt and sentence in X-128 is hereby set aside, and the judgment and sentence consequent on the revocation of probation is hereby reversed and remanded for further proceedings consistent herewith.

RAWLS, Acting C. J., and SMITH, SAMUEL S., Associate Judge, concur.


text:
    Barbara CHASON, Appellant, v. Fred F. ADAMS et al., Appellees.
    No. 74-1562.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
    Rehearing Denied Sept. 18, 1975.
    Peter S. Penrose, Haines & Penrose, North Palm Beach, for appellant.
    Gerald S. James, Fort Pierce, for appel-lees Fred F. Adams and John P. Hoke, individually, and as all surviving Board of Directors and/or Trustees of H & A Rentals, Inc.
   DOWNEY, Judge.

In October 1969, H & A Rentals, Inc., entered into an Agreement for Deed with appellant which provided for H & A Rentals, Inc., to convey certain real property in St. Lucie County to appellant for the sum of $11,000, payable $100 per month (plus interest). Appellant entered into possession pursuant to said agreement and subsequently the property was conveyed to the appellees.

Appellant made the monthly payments until approximately February 1971. In October 1971, appellees brought suit to foreclose the Agreement for Deed alleging that appellant was in default more than six months in the payment of installments due on the purchase price and for unpaid taxes and insurance. Appellant filed an answer, an affirmative defense, and a counterclaim. Essentially, the affirmative defense and counterclaim alleged appellees were guilty of false representations in that they had warranted to appellant that they would sell the land and building thereon free of encumbrances, but that as a matter of fact a sidewalk and an outside stairway on the building encroached upon neighboring property; that litigation had ensued involving appellant; and that appellees had not rectified the situation. Appellant sought (a) compensatory damages for improvements she had made and for loss of rentals as a result of the aforesaid encroachment and (b) punitive damages for the purported misrepresentations.

After much skirmishing, as indicated by the trial judge, the case was tried by the court. At the conclusion of the trial the court found appellant was in default and that appellees were entitled to a decree of foreclosure. However, in an effort to try to resolve the differences between the parties in an equitable fashion the trial judge offered appellant the following choice. If appellant would pay the past due taxes and the past due installments and dismiss her counterclaim, the court would reinstate the Agreement for Deed. If she would not make the payments and dismiss her counterclaim, the court would proceed with the foreclosure. An order of May 14, 1973, states that after consultation with appellant her attorney announced to the court that appellant would accept reinstatement of the contract and dismiss the counterclaim. The order also (a) directed that the contract be reinstated, (b) adjudicated the amount due thereunder, (c) specified the time when payments should be commenced, (d) dismissed the counterclaim, (e) and provided that if appellant defaulted again the court would enter a final judgment of foreclosure upon notice and proof of such default.

Appellant remained in possession under the foregoing order of reinstatement and paid the monies due for a period of approximately nine months, when she again defaulted. After appellant had been in default for several months, appellees filed a petition asking the court to proceed with the foreclosure pursuant to its previous order. After notice to appellant, the court took testimony and then entered the final judgment of foreclosure dated October 24, 1974.

Appellant poses three points for our consideration on this appeal. The first two points, in sum, assert that appellees Adams and Hoke did not have good title to the property in question (since H & A Rentals, Inc., [appellees’ grantor], was a dissolved corporation when it was named as grantee in a conveyance of the property) and therefore were not entitled to a final judgment of foreclosure because they were not ready, willing, and able to perform the contract. The third point charges the trial court with error in requiring appellant to dismiss her counterclaim as a condition of the interlocutory order of May 14, 1973.

We would dispose of appellant’s third point by pointing out that after a trial on the merits the trial judge sought to resolve the issues on what he considered to be an equitable basis. He gave appellant the election to stand her ground and proceed with the case or to have the contract reinstated on condition she make the delinquent payments and dismiss her counterclaim. After consultation with her lawyer appellant elected to have the contract reinstated. Having consented to the entry of the order and having accepted its benefits, knowing all the facts and circumstances, appellant may not now question its validity. See, e. g., In re Fredcris, Incorporated, Fla.App.1958, 101 So.2d 49.

As to appellant’s first and second points we note that appellant’s affirmative defenses and counterclaim (the pleadings which, together with appellees’ complaint, created the issues to be tried at the first trial of this matter) are based upon appel-lees’ allegedly fraudulent representation of their title as demonstrated by the encroachment problem. The matter went to trial and at the conclusion appellant elected to reinstate the contract. Later she defaulted again and the foreclosure decree was entered. We have no way of knowing how the trial judge arrived at the conclusion appellees were entitled to a judgment of foreclosure on May 14, 1973, or on October 24, 1974. Those decisions were based upon hearings at which testimony was taken, and appellant has failed to include transcripts of those proceedings in the record on appeal. Such failure constitutes grounds for affirmance. See e. g., Davis v. Fountain, Fla.App.1973, 284 So.2d 471.

For the foregoing reasons we affirm the order and judgment under review.

Affirmed.

MAGER, J., and BERANEK, JOHN R„ Associate Judge, concur.


author: RAWLS, Acting Chief Judge.

text:
    Robert J. FRANKLIN et al., Appellants, v. BERI’S, INC., a Florida Corporation, et al., Appellees.
    No. V-7.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1975.
    Hugh M. Davenport, Greene, Greene, Smith & Davenport, Jacksonville, for appellants.
    Frederick L. Rice, Stephen P. Smith, III, and Brent M. Turbow, Jacksonville, for appellees.
   RAWLS, Acting Chief Judge.

The salient point posed by this appeal is: Did the trial judge abuse his discretion when he entered an order dismissing the cause for failure to diligently prosecute same. A subsidiary point is that the trial judge erred by not granting plaintiffs-appellants’ motion to reinstate the cause.

Complaint was filed by plaintiffs (hereafter referred to as appellants) on March 10, 1971. After surviving a barrage of motions filed by defendants (hereafter referred to as appellees), appellants’ second amended complaint was sustained by the trial judge on March 10, 1972. Various and sundry pleadings, including interrogatories propounded by appellees, answers and amended answers of appellees, and motions to strike by appellants, progressed this cause until September 9, 1972. An unexplained lull ensued until January 9, 1973, whereupon the trial judge entered a “Notice of Proposed Dismissal” which advised the attorneys for the parties that “[ujnless affirmative action be taken within ten (10) days from the date hereof . ”, the case would be dismissed. Appellants responded on January 19, 1973, by filing a “Motion to Set for Trial”, which motion was never called up for hearing. Within a short time thereafter, appellees Cury and Felhandler filed motions to fcompel appellants to answer interrogatories. On February 6, 1973, appellee Miller filed a motion to compel discovery and invoke sanctions against appellants, together with notice of hearing on same for February 8, 1973. The motion also objected to appellants’ “Motion to Set for Trial” because: “This cause is not at issue because plaintiffs [appellants], on July 26, 1972, served a motion to strike certain portions of the amendment to the answer of defendant [appellee], Miller. There has been no disposition of that motion.” The record is silent as to any hearing being held. On February 9, 1973, appellee Miller served supplemental interrogatories on appellants and filed a copy of same.

The record is silent as to any action being taken in the cause from February 9, 1973, until September 27, 1973, at which time the trial judge noticed all parties that “[ujnless affirmative action be taken within ten (10) days from the date hereof (as to which action you should inform me), it will be considered that you do not intend to proceed with the case and it will be dismissed by entry of the Order set forth below.” The trial judge on the 17th day of October, 1973 (20 days later) after finding that “more than ten (10) days having elapsed and no action having been taken, . . . ”, dismissed the cause.

Subsequent to entry of the order of dismissal, appellants sought to reinstate the cause, which efforts were ultimately denied by the trial judge. Appellants are guaranteed the right to a remedy by due process of law for any injury done them. However, appellees possess the right to have litigation against them speedily determined in an orderly manner.

After fully reviewing the record in this cause and the extensive briefs of the parties, we conclude that appellants have failed to demonstrate an abuse of discretion on the part of the trial judge in dismissing the cause for failure of the appellants to diligently prosecute.

Affirmed.

MILLS and McCORD, JJ., concur.


text:
    Starr FREEMAN, as guardian of the property of Charles E. Horner, Appellant, v. Ellis RUBIN, Appellee.
    No. 74-1527.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1975.

      Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for appellant.
    Philip Carlton, Jr., and H. Lee Bauman, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from an adverse final judgment entered pursuant to a directed verdict in a legal malpractice action.

In 1960 the appellant, Charles Horner, was arrested and charged with seven separate informations for grand larceny, and subsequently with extortion. Six of the seven larceny informations were dismissed and the remaining larceny conviction was reversed on appeal. Horner was convicted on the charge of extortion and sentenced to 10 years in the state penitentiary. He commenced his sentence in 1962, and in 1967 was released by order of U.S. District Court Judge William A. McRae pursuant to a petition for writ of habeas corpus. The order found, inter alia, that the prosecuting officials in the state’s attorneys office of Dade County, Florida knowingly used perjured testimony to convict Horner. Thereupon, the judge concluded as a matter of law that Horner had been deprived of a fair and impartial trial required by due process of law.

Shortly after the release of Horner, the wife of the defendant-appellee herein, Ellis Rubin, an attorney, contacted Horner’s brother about the possibility of filing a civil rights suit. Ultimately, Rubin, as attorney for Charles Horner, filed a three count complaint in Federal district court in accordance with the Federal civil rights laws (Title 42, United States Code §§ 1983, 1985) based upon Judge McRae’s order of discharge and prayed for damages in excess of $3,000,000.

Subsequently, an order was entered dismissing the suit for failure to prosecute but with the right to apply for reopening within 20 days. Notice thereof was sent to attorney Rubin who took no steps to reopen the lawsuit. Meanwhile, the statute of limitations expired.

Thereafter, Starr E. Freeman, as guardian for plaintiff Charles Horner, instituted the instant malpractice action against Ellis Rubin. Rubin answered and counterclaimed for $5,500 in attorney’s fees allegedly due him from Horner. After pretrial discovery, Horner moved for partial summary judgment on the issue of liability. The motion was granted and the action then proceeded to trial by jury on the issue of damages.

After both parties rested, the trial judge granted Rubin’s motion for directed verdict and final judgment in favor of the defendant was entered. This appeal followed.

Our first concern was directed to the appellant’s contention that the trial judge erred in refusing to allow Judge McRae’s order into evidence and further ordering that no reference be made to said order, where the order established the fact of Horner’s illegal conviction. We find this point well taken.

The adopted law in this jurisdiction is that in a suit against an attorney for negligence, the plaintiff must prove three things in order to recover: (1) the attorney’s employment, (2) his neglect of a reasonable duty, and (3) such negligence resulted in and was the proximate cause of loss to client. Weiner v. Moreno, Fla.App.1973, 271 So.2d 217.

Summary judgment as to liability of the defendant having been entered, it was only necessary for the plaintiff in the case before us to prove the third element above. Plaintiff’s burden includes the task of demonstrating that, but for the negligence complained of, he had a good cause of action in his Federal civil rights suit. See Annot., 45 A.L.R.2d 5 (1956). Judge McRae’s order finding that Charles Horner’s civil rights to due process of the law and fundamental fairness had been violated grossly in that he had been convicted by the use of false and perjured testimony known by the prosecution to be false was without doubt relevant to the issues in the case sub judice, particularly whether appellant had a good cause of action. Cf. Furnari v. Goodman, Fla.App.1970, 242 So.2d 503. The order is all the more relevant as it was entered pursuant to a habeas corpus proceeding and, therefore, was res judicata of all issues of law and facts involved therein. See Crane v. Hayes, Fla.1971, 253 So.2d 435; 15 Fla.Jur. Habeas Corpus § 115 (1957) and cases cited therein.

In addition, we note that the subject order was admissible pursuant to § 92.06, Fla.Stat., F.S.A.

Hence, we find that the trial judge committed reversible error in refusing to admit Judge McRae’s order into evidence and directing that no reference be made thereto, thus denying plaintiff an opportunity to present all his evidence to the element of proximate cause (i. e. whether he lost anything of value when he lost his cause of action due to the negligence of his attorney Rubin) which was within the province of the jury to determine. See Suritz v. Kelner, Fla.App.1963, 155 So.2d 831.

We next considered appellant’s argument that the trial judge erred in directing a verdict in favor of defendant.

It is basic that the trial judge should not direct a verdict for the defendant unless it is clear that there is no evidence whatever adduced that could in law support a verdict for the plaintiff. Whitman v. Red Top Sedan Service, Inc., Fla. App.1969, 218 So.2d 213, 215 and cases cited therein. Indeed, the better practice is to submit the case to the jury, notwithstanding the fact that the trial judge has decided that a motion for directed verdict should be granted. See Ditlow v. Kaplan, Fla.App.1965, 181 So.2d 226.

In the instant case which involves a malpractice action charging that an attorney’s negligence in prosecuting a suit resulted in the loss of the client’s claim, the value of the lost claim (i. e. the amount that would have been recovered by the client except for the attorney’s negligence) is a proper element of damages. See 7 Am.Jur.2d Attorneys at Law § 190 (1963) and cases cited therein and Annot., 45 A.L.R.2d 62 (1956).

With respect thereto, the record contains testimony reflecting plaintiff’s economic losses and the impairment of mental health as a result of his illegal incarceration for five years. In addition, plaintiff introduced evidence to the effect that he had expended approximately $83,000 in appeals to obtain release from the state penitentiary. Thus, we conclude there was sufficient evidence as to damages upon which the jury could have decided in favor of the appellant Horner, and the trial judge committed reversible error in directing a verdict in favor of the defendant.

Appellant also urges as error the trial court permitting defense counsel to refer to plaintiff’s application for V.A. benefits. We agree.

The rule has been established in Florida that juries are not to consider the fact of collateral compensation to the plaintiff and if evidence thereof is admitted inadvertently, the jury immediately should be instructed to disregard same. See Florida Standard Jury Instruction 6.-13 ; Paradis v. Thomas, Fla.App.1963, 150 So.2d 457; Greyhound Corporation v. Ford, Fla.App.1963, 157 So.2d 427.

Defense counsel having made reference to plaintiff’s application for V.A. benefits, we find the trial judge in error in failing to give the collateral source charge to the jury and to sustain objection of plaintiff’s counsel to said reference.

We also find merit in appellant’s contention that the trial court erred in refusing to allow Charles Horner to be present in the courtroom during the trial.

One who institutes an action is entitled to be present when that action is being tried. Florida Greyhound Lines, Inc. v. Jones, Fla.1952, 60 So.2d 396; Talcott v. Holl, Fla.App.1969, 224 So.2d 420.

Further, even though Horner was represented by a guardian, we hold that in the absence of a showing that he was so incapacitated that he could not comprehend the trial proceedings, the trial judge erred in excluding Horner’s physical presence from the courtroom. Cf. Purvis v. Inter-County Telephone & Telegraph Company, Fla.App. 1967, 203 So.2d 508.

In light of our disposition of the above points on appeal, it is not necessary to decide appellant’s remaining contentions.

For the reasons stated hereinabove and upon the authorities cited, we reverse the judgment entered pursuant to a directed verdict and remand the cause to the trial court for a new trial.

Reversed and remanded.

      . Horner v. State of Florida, 312 F.Supp. 1292 (M.D.Fla.1967), affirmed, 398 F.2d 880 (5th Cir. 1968).

      . “92.06 Judgments and decrees of U. S. district courts as evidence in state courts
      “All final judgments and decrees heretofore or hereafter to be rendered and entered in the United States district courts of this state and certified copies thereof are declared to be admissible as prima facie evidence in the several courts of this state of the entry and validity of such judgments and decrees.”

      . “6.13. Collateral Source Rule
      “You should not reduce the amount of compensation to which (claimant) is otherwise entitled on account of [wages] [medical insurance payments] [or other benefits] which (claimant) may have received from his [employer] [insurance company] [or some other source].”


text:
    Joseph Donald WASIL, Appellant, v. STATE of Florida, Appellee.
    No. X-293.
    District Court of Appeal of Florida, First District.
    June 2, 1975.
    On Rehearing Oct. 7, 1975.

      Murray M. Wadsworth, of Thompson, Wadsworth & Messer, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant, defendant in the trial court, was charged by information with possession of a controlled substance (marijuana) and with possession of narcotics paraphernalia. A defense motion to suppress the evidence was denied whereupon defendant entered a plea of nolo contendere. He was adjudicated guilty and sentenced to three-years probation from whence he now appeals.

In the statement of the case contained in appellant’s brief it is stated that “The plea of nolo contendere was entered with appropriate reservation of the right to appeal the court’s failure to suppress the evidence.” There is no reference there nor elsewhere in the brief to any portion of the record-on-appeal to inform us where in the record we might find support for that statement. We have nevertheless carefully examined the entire record and find no such reservation. (See State v. Ashby, Sup.Ct.Fla.1971, 245 So.2d 225; Rule 3.6, subd. b. FAR and Rule 3.7, subd. f(3) FAR)

A nolo contendere plea admits all facts which are well pleaded and waives all formal defects in the proceeding of which the accused could have availed himself by a plea of not guilty or motion to quash. (Peel v. State, Fla.App. 2nd 1963, 150 So.2d 281; Farrell v. State, and Raulerson v. State, Fla.App. 1st 1975, 317 So.2d 142).

Finding that the record fails to reveal a reservation for appellate review (Farrell v. State, supra and Raulerson v. State, supra) the judgment and sentence appealed are

Affirmed.

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

ON REHEARING GRANTED

By per curiam opinion dated June 2, 1975 this Court affirmed the trial court as the record failed to reveal that appellant’s plea of nolo contendere was entered with an appropriate reservation of right to appeal the trial court’s failure to suppress evidence. Appellant has subsequently filed a motion for permission to supplement the record, accompanied by a petition for rehearing, alleging that as a result of clerical error there was omitted from the record-on-appeal that portion of the transcript of the proceedings in the trial court reflecting that the appellant’s nolo contendere plea was conditioned on reservation of right to appeal. Upon granting the motion for permission to supplement the record we find that the right to appeal was appropriately reserved. Accordingly, we grant the petition for rehearing and consider the case on its merits.

Having carefully examined the record-on-appeal, as supplemented, and the briefs filed by able counsel, we fail to find that appellant has demonstrated error in the trial court. On the contrary, we find ample support for the warrantless search giving rise to the motion to suppress, the denial of which is the basis of this appeal. We, accordingly,

Affirm.

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