text:
    John H. MARTIN and Joe Hicks, Appellants, v. CLYDE KNOWLES GENERAL CONTRACTORS, INC., a corporation, Appellees.
    No. Y-465.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    John R. Forbes, Jacksonville, for appellants.
    John F. Rodenborn, of Parsons & Ro-denborn, Jacksonville, for appellees.
   MELVIN, WOODROW M., Sr., Associate Judge.

Appellants appeal from a final summary judgment entered against them in a suit brought against them by appellee, Clyde Knowles General Contractors, Inc., a corporation. The parties will be referred to as they were positioned in the trial court.

Plaintiff sued the Defendants on an oral contract to renovate their building and the complaint was on account stated for a claimed balance due. The Defendants answered, denying the complaint, and followed through with their counterclaim for breach of the oral contract for Plaintiff’s failure to complete the renovation, with the result that it was necessary for Defendants to employ another contractor to complete the work, all to Defendants’ alleged damage.

Various depositions, affidavits, requests for admissions and answers were considered by the Court in entering the final summary judgment complained of.

An examination of the record reveals genuine issues of fact as to the aprp.ed construction costs, and as to the purpose of Plaintiff’s letter to the Defendant relating to construction costs.

It is well settled that summary judgment may not be the vehicle for disposition of conflicting issues based upon colliding material claims and counterclaims that are supported on the one hand and opposed on the other day by depositions and affidavits. 30 Florida Jurisprudence “Summary Judgments”, Section 11.

The learned trial judge erred in the entry of the summary final judgment, and we reverse.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    M. C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1548.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    M. C., a juvenile, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Jerry Lee GRIFFIN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. 2-306.
    District Court of Appeal of Florida, First District.
    March 4, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

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


text:
    Renate K. BRANDAL, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellee.
    No. Y-524.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellant.
    John M. McNatt, Jr., of Mathews, Osborne, Ehrlich, McNatt, Govelman & Cobb, Jacksonville, for appellee.
   MELVIN, WOODROW M., Sr., Associate Judge.

The Appellant was the unsuccessful Plaintiff in the trial court. The parties will be referred to as they were in the trial court.

The Plaintiff was riding as a passenger on a motorcycle when the same collided with a vehicle with the result that Plaintiff sustained certain personal injuries. At all times material Plaintiff had an automobile covered by the standard no-fault coverage required by the Florida Automobile Reparations Reform Act issued by the Defendant. Defendant denied coverage and Plaintiff filed her complaint. The trial court granted Defendant’s motion to dismiss the complaint with leave to amend. Upon failure of the Plaintiff to plead further, final judgment was entered in favor of the Defendant and Plaintiff appeals therefrom.

The controlling question in this cause is whether the trial court erred in ruling that the provisions of Section 627.-736(4) (d), Florida Automobile Reparations Reform Act, does not provide coverage for Plaintiff while riding as a passenger of a motorcycle. The trial court ruled that such Section does not provide coverage, and we agree.

The applicable provisions of the law relating to the term “motor vehicle” are found in Section 627.732(1) F.S.A. wherein it is provided:

“As used in §§ 627.730m527.741 :
(1) “Motor vehicle” means a sedan, station wagon, or jeep type vehicle not used as a public livery conveyance for passengers and includes any other four-wheel motor vehicle used as a utility automobile and a pickup or panel truck which is not used primarily in the occupation, profession, or business of the insured.”

And Section 627.736(4) (d) (1), F.S.A. relating to personal injury coverage provides :

“(d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
1. Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a motor vehicle or motorcycle if the injury is caused by physical contact with a motor vehicle.” (Emphasis supplied.)

If the legislature intended such coverages to embrace a motor vehicle with less than four wheels, such purpose is not stated or implied. To the contrary, the language employed to set forth the legislative intent leaves no doubt that, as to an occupant of a two-wheel motorcycle, coverage for personal injury protection does not apply. That is the only issue that we determine here.

Appellant strongly urges that Negron v. Travelers Insurance Company, Fla.App., 282 So.2d 28, is dispositive of the issue here presented. A motorcycle was not involved.

Appellant urges that a strict construction of the Statute will visit unjust results upon those injured while riding a motorcycle. That well may be. However, it is not the proper function of this or any other court to amend a law by judicial decree. The legislature will soon convene and, if in its wisdom, the Statute should be restructured, it is the constitutional body authorized so to do.

The Judgment appealed from is affirmed.

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


text:
    Timothy TRIBBLE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-982.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Timothy Tribble, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred- ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


author: BOYER, Chief Judge.

text:
    Central BELL and Freddy Leggett, Appellants, v. STATE of Florida, Appellee.
    No. Z-97.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

The sole issue involved in this appeal is whether the State’s admitted failure to fulfill its discovery obligations was so prejudicial to appellants, defendants below, as to require reversal of their convictions.

Appellants were charged in a two-count information with grand larceny, and with breaking and entering with the intent to commit a felony, to-wit: grand larceny. Prior to trial, counsel for appellants filed a demand for discovery which included discovery of any written or recorded statements and the substance of any oral statements made by appellants and known to the prosecutor. See Rule 3.220(a), RCrP. In its response, the State answered that appellants told Officers Zimmerman and Ullrich (the arresting officers) that they (appellants) were “hired by some dude to move the stuff out.”

At trial, however, the State attempted to introduce into evidence other statements of appellants made at the scene of the crime to another witness, Mr. Martinez Baker. Mr. Baker, an employee of Florida Junior College at Jacksonville, stated that in the early evening of March 21, 1975, he and security officer John Stone met at Baker’s office on the fifteenth floor of the Universal Marion Building. They took an elevator to the sixteenth floor and saw two black men with warehouse floats loaded with equipment standing outside of a normally locked door which opened onto the college office area. Messrs. Baker and Stone immediately confronted the two black men. When the prosecutor a.sked Mr. Baker what the two individuals said at that time, appellant’s counsel objected on the ground that the prosecutor had not furnished that statement in response to the discovery demand. The State’s proffer of Mr. Baker’s testimony revealed that appellants told him that they worked for the college, that their supervisor’s name was Mr. Johns, and that Mr. Johns was short with a sportshirt. In allowing that testimony, the learned trial judge found that appellants had been furnished with the name of Mr. Baker as a witness by the State and could have taken his deposition, and that the statement made by Mr. Baker was the same in substance as that made to the officers which was furnished to appellants in discovery. The trial judge called a recess to give appellants’ counsel an opportunity to interview the witness, after which Mr. Baker was allowed to testify. Mr. Baker revealed that the supervisor’s name was Bob Bell, not Mr. Johns, and that Mr. Bell was the individual described by appellants. When the State called security officer Stone as a witness, the trial judge ruled that any statements made by appellants to him would not be permitted. One of the arresting officers, Officer Zimmerman, was also called by the State. Before Officer Zimmerman testified, the State announced that the statement made to the arresting officers by appellants would not be introduced into evidence.

Testifying on their own behalf, appellants denied participating in a burglary on the evening in question. Appellant Leggett stated that, in fact, a white gentleman offered him $10 if he and another person would help him load a truck located at the Universal Marion Building. Appellant Leggett located appellant Bell, and the two proceeded to the sixteenth floor of the Universal Marion Building to earn their $10. During closing argument, the prosecutor claimed that appellants told Mr. Baker that their alleged supervisor was a short black male but that now, in court, appellants were claiming that the supervisor was a white male. The prosecutor further argued that appellants had changed their story, and that by their own admission, the first story was not true.

The State in its brief admits that it violated the discovery rule but urges that it did so only in a technical sense in that it failed to supply the name and address of each witness to the statements. The State also insists that there can be no finding of reversible error unless prejudice or harm to the defendant is shown, citing Richardson v. State, Sup.Ct.Fla.1971, 246 So.2d 771. We agree that the Richardson case is controlling. However, examination of the record leads to the inescapable conclusion that the actions of the State did, in fact, prejudice appellants, entitling them to a new trial.

The testimony of Mr. Baker concerning what appellants told him at the scene of the crime was crucial to the State’s case. Particularly damaging was Mr. Baker’s statement that the supervisor mentioned by appellants to him was Mr. Bell, not Mr. Johns, and that Mr. Bell was the individual described to him by appellants. The prosecutor in his closing argument emphasized alleged discrepancies between what appellants had told Mr. Baker and what they said in court. Clearly, Mr. Baker’s testimony prejudiced appellants’ case by casting grave doubts on their credibility.

The learned and capable trial judge attempted, as best she could, to lessen the prejudicial effect of appellants’ statements. She called a recess to give appellants’ counsel an opportunity to interview Mr. Baker. She further ruled that any statements made by appellants to security officer Stone would not be permitted. In view of those actions, it is likely that the trial judge would have excluded the objectionable testimony of Mr. Baker had she not found that the statements made to Mr. Baker by appellants were the same in substance as those made to the arresting officers which was furnished to appellants in discovery. Had the prosecutor utilized those statements in essentially the same manner, the trial court’s finding would have been accurate. According to the State’s response to discovery demand, the arresting officers were told by appellants that they were “hired by some dude to move the stuff out.” Mr. Baker likewise testified that appellants told him that someone had hired them to move the stuff out, but Mr. Baker elaborated and described the “dude” in some detail. Had the State not exploited the difference in statements in an attempt to attack appellants’ credibility, we would have little difficulty in agreeing that the statements made by appellants to Mr. Baker and to the arresting officers were substantially the same. However, the State chose to emphasize rather than ignore the differences in the statements. In hindsight, we can perfectly understand the ruling of the trial court, which had no idea that the State would so use Mr. Baker’s testimony.

In prior opinions, we have expressed our disapproval of the State’s failure to comply with the rules relative to discovery in criminal proceedings. (Farrell v. State, Fla.App. 1st 1975, 317 So.2d 142; Hawkins v. State, Fla.App. 1st 1975, 312 So.2d 229 (Judge Boyer, specially concurring)) Because of the prejudicial effect of the failure to adequately respond to discovery, when coupled with the statements made by the prosecutor during closing arguments, we find it necessary to reverse and remand for a new trial.

Reversed and remanded.

RAWLS and McCORD, JJ., concur.


author: SMITH, Judge.

text:
    Don H. STAFFORD, Appellant, v. John HAYES and Tim Smith, Individually and as employees of WKY Television System, Inc. d/b/a WTVT, Channel 13, Appellees.
    No. Z-301.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    Thomas F. Woods, of Woods & Johnston, Tallahassee, for appellant.
    William F. McGowan, Jr., and Eurich Z. Griffin of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellees.
   SMITH, Judge.

Appellant, a public relations representative concerned with his client’s legislative interests, visited the Hilton Hotel’s bar in Tallahassee when the Capitol was evacuated after a bomb threat. He was there photographed by the appellee television crew who entered the bar with cameras and floodlights to examine and record the convivial alternative to work which had thus become available to State employees temporarily displaced from their desks. The lights hurt appellant’s sensitive eyes and he was offended and embarrassed by his appearance on television that evening. The trial court correctly determined on motion for summary judgment that the injury to appellant’s eyes was not foreseeable by the television crew as a substantially certain result of their camera lights and, consequently, that appellant’s claim of assault and battery was unfounded. Spivey v. Battaglia, 258 So.2d 815 (Fla.1972). The trial court also correctly determined that appellant was an actor in a newsworthy occurrence of public interest and that appellees were privileged to telecast pictures of the group which included appellant. Jacova v. Southern Radio and Tele. Co., 83 So.2d 34 (Fla.1955).

Affirmed.

McCORD, Acting C. J., and FULLER, RICHARD S., Associate Judge, concur.


text:
    A. S. W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 75-1828.
    District Court of Appeal of Florida, Second District.
    March 10, 1976.
    Robert E. Jagger, Public Defender, and Richard M. Robbins, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
    Mary Clark, State of Florida Department of Health and Rehabilitative Services, Tallahassee, as amicus curiae.
   PER CURIAM.

Following the entry of guilty pleas, an order was properly entered committing the juvenile appellant to the Division of Youth Services for an indeterminate period until legally discharged, but not to extend beyond his twenty-first birthday. However, that portion of the order which went on to provide that appellant was “committed to the Arthur Dozier School for Boys for an indeterminate sentence, and must get prior approval from this Court prior to release from training school” is hereby vacated upon the authority of Interest of J. N., Fla.App.4th, 1973, 279 So.2d 50.

HOBSON, A. C. J., and BOARDMAN and GRIMES, JJ., concur.


text:
    W. D. J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 75-1829.
    District Court of Appeal of Florida, Second District.
    March 10, 1976.
    Robert E. Jagger, Public Defender, and Richard M. Robbins, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

      Mary Clark, State of Florida Department of Health and Rehabilitative Services, Tallahassee, as amicus curiae.
   PER CURIAM.

Following the entry of a guilty plea, an order was properly entered committing the juvenile appellant to the Division of Youth Services for an indeterminate period until legally discharged, but not to extend beyond his twenty-first birthday. However, that portion of the order, as amended, which went on to provide that appellant was “committed to the Arthur Dozier School for Boys for an indeterminate period of time” is hereby vacated upon the authority of Interest of J. N., Fla.App.4th, 1973,279 So.2d 50.

HOBSON, A. C. J., and BOARDMAN and GRIMES, JJ., concur.


text:
    Johnny GAINER, Appellant, v. STATE of Florida, Appellee.
    No. Y-433.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    Robert B. Staats, Staats & Nabors, Panama City, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

We have carefully considered the entire record and the briefs and argument of counsel. There was evidence justifying the jury’s verdict that appellant is guilty of manslaughter notwithstanding the evidence tending to support his claim that he acted in self-defense. Considered in its totality, the court’s charge did not erroneously emphasize the accused’s duty to take measures available to him to avoid an encounter with one threatening attack. The judgment of conviction is

AFFIRMED.

McCORD, Acting C. J., and FULLER, RICHARD S., Associate Judge, concur.


author: SCHEB, Judge.

text:
    Steve Stacey BROWN, Petitioner, v. Gall BRIDGES and State Farm Fire and Casualty Company, Respondents.
    No. 75-1428.
    District Court of Appeal of Florida, Second District.
    March 3, 1976.
    John Edwin Fisher, of Akerman, Senter-fitt, Eidson & Wharton, Orlando, for petitioner.
    Edward E. Fessenden, Jr., of Langston, Lane, Massey, Trohn, Clarke & Bertrand, Lakeland, Kenneth Luke Connor, of Gibson & Connor, Lake Wales, for respondents.
   SCHEB, Judge.

Petitioner seeks a writ of certiorari contending the trial court’s order compelling him to demonstrate certain karate maneuvers for a videotape deposition represents a departure from the essential requirements of the law. We deny the petition.

Janet Lynn Hall filed suit against various defendants claiming damages for injuries she sustained in a karate class at the Bartow Civic Center on November 17, 1973. The petitioner here is Steve Stacey Brown, one of the defendants in that action by virtue of having been the karate instructor in charge of the class where Miss Hall was injured. Plaintiff Hall’s complaint against the various defendants included allegations that petitioner Brown was not a qualified karate instructor, that he failed to properly demonstrate a particular karate maneuver referred to as a “block and take-down” and further that this particular maneuver involved an unacceptable degree of risk for such inexperienced students as the plaintiff Hall. Brown, along with all other defendants, denied these and other allegations of negligence.

Initially the trial court denied the plaintiff’s motion to require the petitioner Brown to demonstrate his instructional method for filming. Then, a third party complaint was filed against respondent Bridges, one of the other students involved in the maneuver at the time Miss Hall was injured. Thereafter, the third party defendants moved for leave to take a videotape deposition of the petitioner Brown with the requirement to be imposed that he demonstrate the manner and method of execution of the karate maneuvers in question. This motion was granted and the order . as entered prohibited any alteration and editing of the videotape without further order of the court. Petitioner now seeks a writ of common law certiorari from the trial court’s order.

Prior to the court’s order Brown had been deposed and had verbally described his methods. But, respondents assert that due to the technical nature of Brown’s description, they are unable to understand the techniques employed on the day of the accident. Also, respondents note they feel it necessary to their case to submit the videotape to karate experts for evaluation of the competency of Brown’s method of instruction.

We recognize that the use of videotape is not uncommon in modern trials. But, we emphasize that the question of admissibility at trial is not presented here, and we express no opinion thereon. Here we are only addressing means of discovery and the rules of discovery must be liberally construed to accomplish their intended purposes. Jones v. Seaboard Coast Line Railroad Co., Fla.App.2d 1974, 297 So.2d 861. Considerable discretion is vested in the trial judge to determine their applicability in each case. Kennedy v. Kennedy, Fla. App.2d 1974, 298 So.2d 525. RCP 1.280(b) (1)permits liberal discovery of “any matter, not privileged, that is relevant to the subject matter of the pending action . ” (Emphasis supplied). It should be noted that there is no dispute as to the relevancy of petitioner’s method of instruction. Also, RCP 1.310(b)(4) allows recording of a deposition “by other than stenographic means,” and petitioner concedes that videotape is authorized by this rule. Rather, petitioner’s arguments are directed to the requirement of demonstration; he contends that he could never reproduce his actions on the day of the accident with complete accuracy, and therefore, any scrutiny of the tapes will be unfair. He also objects to being compelled to perform against his will a physical action not expressly' mandated by the Rules of Civil Procedure.

Before we issue a writ of common law certiorari, it is essential the petitioner establish that:

(1) The ruling, if erroneous, constitutes a departure from the essential requirements of law;
(2) It will cause injury to the petitioner throughout the remainder of the proceeding; and
(3) The injury is one for which there will be no adequate remedy by appeal after the final judgment.

Gulf Cities Gas Corp. v. Cihak, Fla.App.2d 1967, 201 So.2d 250.

We hold that petitioner has failed to meet these requirements. Surely the petitioner could be required to illustrate a part of the maneuver, for example showing how he moved his hands or his feet. The compulsion here is not significantly increased by requiring a more involved demonstration. And, while it is true that the demonstration process may not precisely reenact petitioner’s instructional techniques, that argument is more properly related to use of the deposition at trial than to the limited uses which respondents can make of the videotape prior to trial. Therefore, since at this stage of the proceedings only discovery of the petitioner’s methods is being sought and no material injury to petitioner is demonstrated, we find no departure from the essential requirements of the law and no basis for issuance of a common law writ of certiorari.

Petitioner Brown raised a question in his brief as to whether the trial court should have imposed any stipulations to assure the maneuvers and surrounding conditions duplicate the actual event. It is unclear what sort of conditions petitioner desires, however, because he also contends that if the videotape too closely attempts to duplicate the actual event, it would be “staged” and therefore even more offensive to him. In view, however, of the novelty of the proceedings, denial of the petition for the writ sought is without prejudice to petitioner’s further application to the trial judge for imposition of additional safeguards, if any, which the trial court may find to be necessary and proper.

Certiorari denied.

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

      . While there is little case law on the subject, the use of videotapes in legal proceedings has been the subject of several recent articles. See, e. g., Benowitz, Legal Applications of Videotape, 48 Fla.Bar J. 86 (Feb. 1974) ; Brakel, Videotape in Trial Proceedings: A Technological Obsession? 61 A.B.A.J. 956 (August 1975). Cf., Annot., Use of Motion Pictures as Evidence, 62 A.L.R.2d 686 (1958).


text:
    Stephen P. SCHELLER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1468.
    District Court of Appeal of Florida, Second District.
    March 3, 1976.
    Jack O. Johnson, Public Defender, and Dan P. Brawley, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevm, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

In this appeal appellant/defendant contends the trial judge erred in failing to inquire into the voluntariness of his plea as required by Rule 3.170(j) RCrP.

The appellant’s point on appeal is well taken in that we find this record is completely devoid of any colloquy whatsoever on the question of voluntariness of the appellant’s plea. A guilty plea, to be accepted, requires an affirmative showing that it was entered intelligently and voluntarily. This is fundamental to the validity of any such plea since after it has been accepted, nothing remains but to enter judgment and sentence. See, Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Williams v. State, Fla. 1975, 316 So.2d 267. And, although we have held on various occasions that the Boykin requirement does not require the trial judge to follow any particular litany in making a determination of voluntariness and understanding; nevertheless, it is essential that the record affirmatively disclose a colloquy sufficient to meet the requirement of RCrP 3.170 (j). Williamson v. State, Fla.App.2d 1973, 273 So.2d 784; Smith v. State, Fla.App.2d 1976, 326 So.2d 236.

Accordingly, we remand the case to the trial judge with instruction to determine whether the appellant’s plea was voluntarily and understandingly tendered.

HOBSON, Acting C. J., and GRIMES, J., concur.


text:
    Marie A. CONNORS, Appellant, v. Joseph L. CONNORS, Appellee.
    No. 75-882.
    District Court of Appeal of Florida, Second District.
    March 5, 1976.
    William P. Levens of Barrs, Melendi & Williamson, Tampa, for appellant.
    Joseph L. Connors, pro se.
   SCHEB, Judge.

The trial court awarded permanent custody of the parties’ child to the appellee father. Appellant, Marie A. Connors, contends the trial court erred in determining the issue of permanent custody of her son without giving her adequate notice. We agree and reverse.

The Connors’ marriage was dissolved by final judgment on February 24, 1969, with custody of their son, Kevin, now age 12, being given to the mother. A temporary order issued October 30, 1974, granting temporary custody of Kevin to the appellee father. Both parties subsequently filed petitions for permanent custody of their child. Counsel for appellant mother served appellee’s counsel with a notice of hearing for May 22, 1975, on the mother’s petition for modification. Prior to that time, however, counsel for the parties stipulated between themselves “that the court at this hearing would only hear the defendant’s [husband’s] request to remove the child [temporarily] from the state.” At the hearing, over appellant’s objection, the court announced its intention to settle the issue of permanent custody, although in his later written order, from which this appeal is taken, the trial judge recognized the parties had stipulated that the hearing would be devoted to the limited purpose recited above.

Though justifiably interested m expediting this delicate, yet protracted matter, the trial judge erred in going beyond the scope of the stipulation entered into between the parties, who were not on notice to prepare for a hearing on issues pertinent to permanent custody. Basic elements of due process in any judicial proceeding are notice and opportunity to be heard. Cavalier v. Ignas, Fla. 1974, 290 So.2d 20. These requirements are especially applicable to a proceeding to modify the custody provisions of a divorce decree since there must, in such instances, be a showing of substantial change in circumstances for entry of the decree. Hutchins v. Hutchins, Fla.App.2d 1969, 220 So.2d 438. See, Grant v. Corbitt, Fla.1957, 95 So.2d 25; Schraner v. Schraner, Fla.App. 1st 1959, 110 So.2d 33. Here, the appellant was denied the opportunity to prepare and present evidence relevant to the issue of permanent custody and thereby was not afforded the opportunity for a meaningful hearing on the custody issue.

Accordingly, the order is reversed and the cause is remanded for further proceedings consistent with this opinion.

McNULTY, C. J„ and HOBSON, J., concur.

      . At oral argument before this court, appel-lee m pro per acknowledged that he too was surprised that the judge determined the matter of permanent custody at the hearing, since he only anticipated a ruling on the question of removal of the child temporarily and resolve of a request by both counsel for a report from the Division of Family Services.


text:
    Lennon JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1124.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Lennon Jones, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 385 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having filed his response thereto, on consideration thereof, upon full examination of the proceedings, we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Jack STEWART and Flora Stewart, Appellants, v. Sheldon GOLDING et al., Appellees.
    No. 75-1238.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Shalle Stephen Fine, Miami, for appellants.
    Richard L. Wagenheim, Fort Lauder-dale, for appellees.
    ' Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The defendants appeal an order of the trial court denying their motion to dismiss the complaint in an action in which the plaintiff claimed the right to possession of a condominium. Appellants contend that the court erred in denying the motion, which simply stated that the complaint “fails to state a cause of action and a claim upon which relief can be granted.” Reviewing the complaint in the light of the bare bones motion to dismiss, we find that no error has been demonstrated in the order denying the motion to dismiss. See RCP 1.100(b).

Appellants have filed a motion for stay of proceedings in the trial court. From the record submitted therewith, it is apparent that the trial judge has proceeded to a final judgment in this cause during the time jurisdiction of the matters covered by the interlocutory appeal was in this court. Accordingly, we hold that the trial court was without jurisdiction to proceed to final judgment while the question of the sufficiency of the complaint to withstand a motion to dismiss was pending in this court. See De La Portilla v. De La Portilla, Fla.1974, 304 So.2d 116. Therefore, this cause will be remanded with directions to enter an order striking the final judgment heretofore entered in this cause.

It is also apparent from the record submitted that a default has been entered against the appellants for their failure to plead to the complaint as required by the order denying their motion to dismiss. Appellants urge that the entry of the default is beyond the power of the trial court inasmuch as they had appealed the order requiring them to plead. This position is not well-taken because the trial court has the right to proceed in a suit even though an interlocutory appeal has been taken to test the correctness of an interlocutory order. See Hirsch v. Hirsch, Fla.App.1975, 309 So.2d 47; and see FAR 5.1.

Therefore, the order appealed is affirmed and the cause remanded with directions to strike the final judgment entered by the trial court during the pendency of this cause and to proceed regularly upon the default heretofore entered.

Affirmed in part and remanded with directions.


author: PER CURIAM

text:
    A. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1422.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    A. M., a juvenile, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    P. J. CARROLL, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1429.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Horton, Perse & Ginsberg, Miami, for appellant.
    Richard E. Gerstein, State Atty., and Carey, Dwyer, Austin, Cole & Selwood, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, P. J. Carroll, Esq., seeks reversal of a judgment of direct criminal contempt and fine of $25.

The Sheraton Beach Resort and its liability insurer, Consolidated Mutual Insurance Company, were named as defendants in a personal injury action and retained Mr. Carroll to represent them. At trial voir dire of the jury began and after questioning by the trial court and the plaintiffs’ attorney, Mr. Carroll commenced to ask the jurors such questions as whether they wanted to sock it to the insurance company and whether they had dealings with people who were trying to get money to which they were not entitled. Plaintiffs’ objections to these inquiries were sustained. Finally, Mr. Carroll asked one juror whether she wore glasses and whether she was a tripper or faller. At that point the trial judge stopped the voir dire examination and ordered Mr. Carroll and plaintiffs’ counsel to his chambers where he asked Mr. Carroll if he could show cause why he should not be held in contempt of court. Mr. Carroll responded that he did not think his questions were improper. Thereupon, the judge found Mr. Carroll in contempt, fined him $25 and declared a mistrial with taxable costs to be assessed against the defendants.

Although a trial court possesses the inherent power to punish for contempt, this power should be exercised cautiously and sparingly. Olds v. State, Fla.App.1974, 302 So.2d 787.

We find that during appellant’s voir dire of the jury he was not cautioned or warned by the trial judge that if he continued with the same manner of questioning he would be cited for criminal contempt. See Kleinfeld v. State, Fla.App. 1972, 270 So.2d 22. Thus, we reverse that part of the judgment finding appellant to be in contempt. We point out, however, that the trial judge, in the exercise of his discretion and control over the voir dire examination of the jury, did not err in terminating the proceedings as a result of appellant’s conduct and affirm that portion of the judgment granting a mistrial and assessing costs.

Affirmed in part and reversed in part.


text:
    Phillip ROUNDTREE, Petitioner, v. HARTFORD ACCIDENT AND INDEMNITY, Respondent.
    No. 75-1524.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Weissenborn, Burr & Hyman and Gary Carman, Miami, for petitioner.
    Walton, Lantaff, Schroeder, Carson & Wahl and George W. Chesrow, Miami, for respondent.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is a petition for writ of certiorari in which the petitioner, plaintiff in the trial court, seeks review of an order granting respondent-defendant’s motion to tax costs and to stay further proceedings until such costs are paid by the plaintiff.

Plaintiff’s suit for personal injuries, arising from an automobile accident, was dismissed without prejudice for failure to meet the jurisdictional thresholds required to maintain a suit against a tort feasor under the Florida Automobile Reparations Reform Act (No Fault Insurance Act). No costs were assessed and no appeal was taken from this order of dismissal. On June 27, 1975, plaintiff filed another suit against appellees growing out of the same accident. On September 5, 1975, the trial court entered an order in this cause taxing costs against the plaintiff for expenses in the action previously dismissed. Rule 1.420(d), RCP, provides:

“(d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed a claim in any court of this State commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.” (emphasis added)

Plaintiff contends that the rule provides that costs arising out of the first action cannot be assessed in the later action and further that the mandatory language of the statute that the court shall order payment of costs and shall stay the proceedings in the action thereafter commenced, is only applicable to voluntary dismissals.

Rule 1.420(d) provides that costs in any case dismissed thereunder shall be assessed and judgment for costs entered in that action. It is clear that the costs assessed were those incurred in the original action, and the order thereon was entered in the second action. Therefore, such order before us for review on certiorari was improperly entered. We need not reach and pass upon the question as to whether or not Rule 1..420(d) applies only to voluntary dismissals.

The order of the trial court is quashed.


author: HENDRY, Judge.

text:
    MOUNT SINAI HOSPITAL OF GREATER MIAMI, INC., a Florida Corporation, Petitioner, v. Richard S. WOLFSON, as Executor of the Estate of Julia Wolfson, Deceased, Respondent.
    No. 75-1617.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Adams, George, Wood, Lee & Schulte, Miami, for petitioner.

      Wolfson, Diamond, Logan & Edge and Laurence M. Hatfield, Miami Beach, for respondent.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   HENDRY, Judge.

This is a petition for certiorari brought by petitioner, defendant below, to review an order denying its motion to dismiss respondent executor’s, plaintiff below, amended complaint.

The amended complaint charged that petitioner caused injuries to its patient, Mrs. Julia Wolfson, deceased, by one or more of the following acts:

Petitioner failed to maintain a properly operating warning system whereby a patient in distress could get the attention of its hospital agents, servants or employees; petitioner failed to adequately maintain whafsignal devices were present for the use of Mrs. Wolfson and other patients in the same or similar class; petitioner failed to maintain proper surveillance of Mrs. Wolf-son as required by her seriously ill condition and failed to provide her with the standard of maintenance required of a patient in the same or similar condition; petitioner failed to provide proper and adequate bedrails to insure the protection of its patients against the happening of such incidents as the one sued upon herein; and petitioner by and through its agents, servants and employees negligently and carelessly failed to diagnose the injuries to Mrs. Wolfson within adequate time to prevent her from suffering pain and distress as a result of the injuries.

Petitioner moved to dismiss respondent’s amended complaint on the ground it appears from the face of the complaint that it does not conform to The Medical Malpractice Reform Act of 1975, Chapter 75-9, Fla.Laws 1975 (hereinafter referred to as the “Act”). The pertinent provision of the Act reads as follows:

“§ 768.133. Medical liability mediation panel.—
“(2) Any person or his representative claiming damages by reason of injury, death or monetary loss on account of the alleged malpractice by any medical or osteopathic physician, hospital, or health maintenance organization and against whom he believes there is a reasonable basis for a claim shall submit such claim to the appropriate panel [medical liability mediation panel] before that claim may be filed in any court of this state.

After a hearing, the trial court entered an order, dated October 10, 1975, denying petitioner’s motion on the ground the allegations of the amended complaint demonstrate that as a matter of law the case does not fall within the purview of § 768.133, Fla.Stat. This order was predicated on respondent’s argument to the trial court that the acts complained of in his amended complaint were acts constituting common law negligence and were not the types of acts contemplated in the Act.

By its petition for a writ of certiorari, petitioner seeks to quash the order denying its motion to dismiss the amended complaint on the grounds that the trial court acted without and in excess of its jurisdiction and departed from the essential requirements of the law. Petitioner also contends that, unless the order is quashed, it will have no adequate remedy by appeal if a final judgment is entered in the case.

We have carefully considered the allegations of the amended complaint in the light of the Act, especially § 768.133(2) thereof, and have concluded that the trial court erred in denying petitioner’s motion to dismiss the amended complaint. It appears to us that respondent’s suit is controlled by the Act and can not be maintained in a court of law in this state until it has been shown that the claim was first submitted to a medical liability mediation panel as required by § 768.133(2), Fla.Stat. Therefore, for the reasons stated the writ of cer-tiorari is granted and the order under review is quashed.

Certiorari granted and order quashed.


author: NATHAN, Judge.

text:
    SECURITY MUTUAL CASUALTY COMPANY, a Foreign Corporation for profit, and Roberto Rigal, Appellants, v. Debra Jo BLEEMER, Appellee.
    No. 75-542.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Rehearing Denied March 3, 1976.

      Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellants.
    Horton, Perse & Ginsberg, George P. Telepas, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

Security Mutual Casualty Company and Roberto Rigal, defendants in the trial court, appeal from a final judgment on jury verdict awarding $10,000 to Debra Jo Bleemer, the plaintiff, for auto accident injuries.

The plaintiff filed a complaint for damages alleging in the first count that on June 28, 1972, she was injured in an accident with a car driven by David Pizer and owned by Frances Kuzud, and in the second count, that on July 10, 1972, she was injured in another accident with a car owned and operated by Roberto Rigal. The plaintiff’s theory throughout the proceedings, as alleged in the pleadings and proved by the testimony, including that of the doctors, was that the injuries sustained in the first and second accidents could not be apportioned. During the joint trial, the plaintiff settled with defendants Kuzud, Pizer and Allstate Insurance Company in the amount of $7,000 for injuries resulting from the first accident. After settlement was announced, the trial proceeded against Rigal and Security Mutual, defendants in the second accident. At the conclusion of the presentation of all of the evidence and the arguments of counsel, the judge instructed the jury on the applicable law, and gave the following instruction with reference to damages:

“Any aggravation of an existing disease or physical defect, resulting from such injury.
If you find that there was such an aggravation, you should determine, if you can, what portion of Debbie’s condition resulted from the aggravation and make allowance in your verdict only for the aggravation.
However, if you cannot make that determination or if it cannot be said that the condition would have existed apart from the injury, you should consider and make allowance in your verdict for the entire condition.”

Neither plaintiff nor defendant objected to the instruction, and neither requested that the jury be instructed to specify whether its verdict reflected apportioned or total damages. The jury rendered a verdict awarding Debra Jo Bleemer $10,000 against Rigal and Security Mutual Casualty Company. Final judgment was entered on the verdict and this appeal ensued.

The sole point presented on appeal by defendants Rigal and Security Mutual is that the trial court erred in refusing to set off the $7,000 received by the plaintiff in the settlement on the first accident, against the $10,000 jury verdict against them for the second accident. They contend that due to the plaintiff’s allegations, as proved by the evidence, that the damages could not be apportioned, the $10,000 verdict reflects the total amount of damages for injuries sustained by the plaintiff in both accidents. Thus, they seek to have the judgment reversed and the cause remanded with directions to set off the $7,000 settlement against the $10,000 verdict and enter a judgment against them in the amount of $3,000.

It is obvious that there is no way to determine whether in reaching the amount of $10,000 as its verdict for the plaintiff, the jury did so by apportioning or not apportioning her damages because the instruction given by the trial court was inconsistent with the pleadings and the testimony adduced thereon, and the jury was not requested to make such a finding by special interrogatory.

As previously noted, no objection to the instruction was made by either party. It is well settled that in order to reverse a trial court it is ordinarily necessary for the trial court to have passed upon the issue which is raised in the appellate court. Walker v. Hampton, Fla.App.1970, 235 So. 2d 325. However, there is an exception to the requirement for an objection. That is where the record viewed as a whole demonstrates that the error complained of may be considered a fundamental error. Frankowitz v. Beck, Fla.App.1972, 257 So.2d 918. The harmless error doctrine is applicable to jury instructions. Ashland Oil, Inc. v. Pickard, Fla.App.1972, 269 So.2d 714, 722.

We must consider, then, on the record presented in this case, including the plaintiff’s pleadings and the evidence which showed that the damages were not appor-tionable, whether or not it was fundamental error for the court to instruct the jury to apportion the damages, if possible, and if not, to make an award for the plaintiff’s total damages, without submitting a special interrogatory to determine whether the verdict represented total or apportioned damages.

Settled law requires that the trial judge fully and fairly instruct the jury on the issues in the cause. Ashland Oil, Inc. v. Pickard, Supra. As stated in Crosby v. Stubblebine, Fla.App.1962, 142 So.2d 358, instructions given by a trial court generally should be considered in the light of the evidence before reversible error can be ascertained, and if the jury does not appear to have been misled or confused, and no other prejudice or harm has resulted, the judgment must be affirmed. Winthrop v. Carinhas, 1940, 142 Fla. 588, 195 So. 399. In determining whether the court erred in giving a certain instruction, the appellate court is to interpret the charges with reference to the evidence, pleadings, and all other instructions. Winfield v. Truitt, 1916, 71 Fla. 38, 70 So. 775; Staicer v. Hall, Fla.App.1961, 130 So.2d 113.

Applying the foregoing rules to the question presented in this case, we determine that giving the instruction without a special interrogatory to determine whether the jury apportioned the damages, constituted reversible error. Therefore, the final judgment is affirmed as to liability and reversed as to damages. The cause is remanded for a new trial to be limited to the issues of the plaintiff’s damages.

Affirmed in part and reversed in part with directions.

      . Compare Crosby v. Ashley, Fla.App.1974, 291 So.2d 12.


text:
    FLORIDA DEVELOPMENT & SALES CORPORATION, Appellant, v. Harry BRANNON, Jr., Appellee.
    No. 75-1024.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Rehearing Denied March 23, 1976.
    Lawrence I. Hollander, Miami, for appellant.

      Albert George Siegel, Miami Beach, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Ross v. Florida Sun Life Insurance Company, Fla. App.1960, 124 So.2d 892; Light v. King, Fla.App.1965, 179 So.2d 398; Nissinoff v. Harper, Fla.App.1968, 212 So.2d 666; Bosem v. Bosem, Fla.App.1972, 269 So.2d 758.


text:
    Clay W. KEITH, Individually, and as Director, Department of Highway Safety & Motor Vehicles, Division of Driver’s Licenses, and Florida Highway Patrol, Appellant, v. James SZABO, Appellee.
    Nos. Z-283, Z-307.
    District Court of Appeal of Florida, First District.
    March 4, 1976.
    Edwin E. Strickland, Gen. Counsel, and Enoch J. Whitney, Asst. Gen. Counsel, Tallahassee, for appellant.
    Stanley Ray Gill, Ocala, for appellee.
   PER CURIAM.

Affirmed. See Mitchell v. Orr, 268 Cal.App.2d 813, 74 Cal.Rptr. 407 (1969).

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


text:
    CITY OF MIAMI, a Municipal Corporation of the State of Florida, Appellant, v. Leonard v. OLSON, Jr., Deceased, and Betty Jane Olson, Appellee.
    No. 75-513.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Rehearing Denied March 23, 1976.

      John S. Lloyd, City Atty., and Ronald A. Silver, Asst. City Atty., Miami, for appellant.
    Williams & Tomlinson, Coral Gables, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The City of Miami, respondent, seeks review of an order directing it to pay petitioner dependency benefits from September 1, 1972 to November 1, 1973 at a compensation rate of $56.00 per week plus interest pursuant to the September 5, 1974 order of the Judge of Industrial Claims in this action on petitioner’s application for rule nisi enforcement of this September compensation order. The salient facts are as follows.

Petitioner’s husband, Leonard Olson, while in the employ of the City of Miami was moving a heavy cabinet when he suffered a heart attack resulting in his death shortly thereafter. Leonard’s widow, Betty Jane Olson, filed a claim for workmen’s compensation benefits against the City. The parties settled the claim and the settlement, ratified by the Judge of Industrial Claims on May 15, 1972, reads in pertinent part:

“6. That in order to resolve the claimant widow’s entitlement to dependency benefits, both monetarily, as well as the period of time she is legally entitled to receive such benefits, and, additionally, ■in order to avoid further litigation, with its attendant costs, the parties do hereby stipulate and agree that $13,500.00 is the fair and reasonable present value of the claimant widow’s entitlement to dependency benefits under the provisions of Section 440.16, Florida Statutes.
“9. In addition to the $13,500.00 the employer has stipulated to pay the claimant widow as compensation lump sum in the amount of $4,377.13 without the right of set-off, discount or reimbursement from any other source or fund

Mrs. Olson also was entitled to her husband’s pension payable to her on his demise. Appellant City, in spite of the stipulation, took the position that pursuant to § 440.09(4), Fla.Stat. and local municipal ordinance, it was entitled to deduct and, in fact, did deduct from the pension benefits the workmen’s compensation benefits being paid to Mrs. Olson who, contending that the City wrongfully suspended benefits payable pursuant to the stipulation, complained to the Judge of Industrial Claims. After a hearing, at which the City defended its position of being entitled to a set-off for workmen’s compensation from pension benefits, the Judge of Industrial Claims on January 8, 1973 entered an order finding that the City had agreed by the terms of the stipulation not to claim a set-off of' workmen’s compensation benefits and, therefore, was not entitled to such a set-off. The order further directed the City to pay Mrs. Olson $56 per week and not to take a credit from pension benefits being paid to her. The City filed an application for review to the Industrial Relations Commis-ion, which, by order of June 21, affirmed the January 8 order of the Judge of Industrial Claims. The City petitioned the Florida Supreme Court for a writ of certiorari to review the June 21 order and for the first time raised the issue of whether a judge of Industrial Claims has jurisdiction over the City’s pension fund. The Supreme Court denied the petition. The City still refused to comply with the January 8 order. On May 8, 1974 the parties again appeared before the Judge of Industrial Claims on the question of the City’s non-compliance. The Judge on September 5- enteréd an order directing the City to pay Mrs. Olson the workmen’s compensation benefits plus interest and attorney’s fees without taking a credit or set-off from pension fund payments. The City resisted and Mrs. Olson filed application for rule nisi to enforce the September 5 compensation order. The trial judge found that the denial of certio-rari by the Florida Supreme Court constituted a finding that the Industrial Relations Commission had acted strictly in accordance with law in affirming the January 8, 1973 order of the Judge of Industrial Claims and entered final judgment granting rule nisi. The City appeals the judgment and basically contends the denial of certiorari by the Supreme Court was not an adjudication on the merits, and the administrative agencies had no jurisdiction over the' issue of whether it could deduct workmen’s compensation benefits from a municipal pension.

It is now established that in reviewing workmen’s compensation orders, a denial of certiorari by the Florida Supreme Court constitutes a finding that the Industrial Relations Commission has acted strictly in accordance with law or has not departed from the essential requirements of law. See Knight v. Munday Plastering Company, Fla.1969, 220 So.2d 357; Scholastic Systems, Inc. v. LeLoup, Fla. 1974, 307 So. 2d 166; Colvin v. State, Department of Transportation, Fla.1975, 311 So.2d 366.

Implicit in the denial by the Florida Supreme Court of the City’s petition for writ of certiorari was the finding that the Industrial Relations Commission acted strictly in accordance with the law. In other words, the Supreme Court determined that the Industrial Relations Commission had not exceeded its jurisdiction and was correct in entering its June 21, 1973 order affirming the January 8 order of the Judge of Industrial Claims.

Accordingly, we affirm the final judgment granting rule nisi.

Affirmed.

      . Payable at the rate of $56 per week commencing on June 4, 1&71 and to continue until such time as the entire $13,500 amount is paid in full.

      . “(4) When any employee of the state or of any political subdivision thereof or of any public or quasi-public corporation therein, or any person entitled thereto on account of dependency upon such employee, receives compensation under the provisions of this chapter by reason of the disability or death of such employee resulting from an injury arising out of and in the course of employment with such employer, and such employee or dependent is entitled to receive any sum from any pension or other benefit fund to which the same employer may contribute, the amount of any payment from such pension or benefit fund allocable to any week with respect to which such employee or dependent receives compensation under this chapter shall be reduced by the amount of the compensation for such week; provided that if the amount of the payment from such pension or benefit fund allocable to any week is less than the amount of such compensation for such week only the amount of the pensior *>r benefit payment allocable to such week shall be affected and the amount of the difference between the compensation and the pension or benefit payment al-locable to one week shall not reduce the pension or benefit payment allocable to any subsequent week.”


text:
    NORFOLK & DEDHAM MUTUAL FIRE INSURANCE COMPANY, Appellant, v. W. R. SCHLEHUBER, Appellee.
    No. 75-145.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.
    Rehearing Denied March 23, 1976.
    George J. Baya, Miami, for appellant.
    Alfred D. Bieley, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The defendant insurance company appeals a final judgment enforcing its fire insurance policy and assessing damages thereon. The principal question presented is whether the trial court followed this court’s mandate in the opinion which is reported as Schlehuber v. Norfolk & Dedham Mutual Fire Ins. Co., Fla.App.1973, 281 So.2d 373. In that opinion, we held:

“Accordingly, the summary final judgment entered in this cause is affirmed as to the denial of the equitable remedy of reformation and is reversed as to the denial of appellant’s prayer for a declaratory judgment directing the appellee to make payment under the mortgagee payment clause. The cause is remanded to the trial court with directions to enter a judgment in accordance with the holdings contained herein and with the further provision that the court may take additional evidence upon any fact which it may find disputed.”
* * * * * *
Acting upon our mandate, the trial court in its judgment found:
* * * * * *
“4. That there were two mortgagees whose interests preceded the Plaintiff’s as first and second mortgagees-loss payees and these were one Ernest H. Guise and Frances G. Guise, his wife, second mortgagees, and Jack Sivin, which said mortgage was later assigned by the Estate of Jack Sivin to Norman Sivin, Lillian Eddy and Molly D. Brophy, which said mortgage was collected by the City National Bank of Miami and at the time of Trial, the balance still owing to the first mortgagees by the Plaintiff Schlehuber, was in the sum of $1,524.98 and the second mortgage heretofore owing Guises’ had been satisfied in full by the Plaintiff subsequent to the fire loss.”
* * * * * *

The court further found that the building was totally destroyed by a fire which occurred on April 1, 1968. The judgment awarded to the plaintiff in trust for Norman Sivin, Lillian Eddy and Molly D. Bro-phy, the sum of $1,524.98 which it found to be the balance due on that mortgage at the time of the trial. The court-found that the second mortgage held by Ernest H. Guise and Frances G. Guise, his wife, had been satisfied in full by the plaintiff subsequent to the fire loss.

Thereupon, the court made an additional award to the plaintiff as follows:

“5. That by virtue of the failure and refusal of the Defendant to pay this fire loss, the Plaintiff is entitled to be paid the full amount of the loss, plus lawful interest from the time of said loss to date, less the balance due and owing the first mortgagees, as herein noted, plus Court costs and attorney's fees; and that the interest computed to date from the time of the fire loss equals $2,841.60 which when added to the total loss of $7,300.00, comes to a total sum of $10,141.60. From this sum, $1,524.98 shall be deducted and shall be paid to the mortgagees herein.”
******

The defendant urges that the trial court misconstrued the legal effect of our holding in the opinion cited above. We agree. We held simply that because the plaintiff was trying to enforce the insurance policy issued by the defendant on property that the plaintiff had purchased, the plaintiff was not entitled to enforce the policy as to its own interest thereon. We held, however, that the plaintiff, as a third party beneficiary, could enforce the mortgagee payment clause and, in so holding, stated that the plaintiff could enforce the promise of the insurance company to “pay to the mortgagees the extent of their loss as their interests appear.”

The rights of a loss-payable mortgagee are determined as of the time of the loss. See Rosenbaum v. Funcannon, 308 F.2d 680 (9th Cir. 1962); and Whitestone Savings & Loan Ass’n v. Allstate Ins. Co., 28 N.Y.2d 332, 321 N.Y.S.2d 862, 270 N.E.2d 694 (1971). It is apparent, therefore, that the trial court erred in determining that the plaintiff’s rights to recover on the first mortgage were limited to the amount due at the time of the trial, that is, limited to the $1,524.98 for which judgment was entered. The amount to be recovered by the plaintiff because of the first mortgage is the amount due upon that mortgage at the time of the loss, together with the interest allowed by law.

The amount to be recovered by the plaintiffs because of the second mortgage should be determined under the same principles. The fact that the mortgage has been satisfied in no way affects the right to recovery. That right was fixed as of the date of the loss.

That portion of the judgment which holds that plaintiff is entitled to be paid the full amount of his loss is without basis in our prior decision and is, therefore, reversed.

Accordingly, the cause is remanded with directions to take such additional testimony and evidence as the trial judge shall find necessary .and proper and for the entry of a judgment for plaintiff in the amounts due on the first arid second mortgages as of the date of the loss, together with interest, costs and attorney’s fees.

Reversed and remanded with directions.


text:
    Robert CURRY, Jr., and Frances McCants Curry, Appellants, v. CARVER HOMES, INC., Appellee.
    No. Z-399.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1976.
    Rehearing Denied March 26, 1976.
    Frederick B. Tygart, Law Offices of Tygart & Tygart, Jacksonville, for appellants.
    Herbert R. Fanning, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
   PER CURIAM.

This interlocutory appeal having been found to be without substantial merit is dismissed pursuant to Florida Appellate Rule 4.2(c).

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


text:
    Lizann McDANiEL, Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Appellee.
    No. 75-419.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.
    Rehearing Denied March 3, 1976.

      Wolfson, Diamond & Logan, and Elliott H. Lucas, Miami Beach, for appellant.
    Adams, George, Wood, Lee & Schulte, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Appellant, plaintiff below, appeals from a final judgment and order of the trial court granting appellee’s, defendant below, motion for a directed verdict and denying appellant’s motions to set aside the verdict, for a new trial, and objections to the proposed final judgment.

Appellant filed an amended complaint against appellee seeking damages for personal injuries caused by a fall on the premises of appellee’s grocery store. The case was brought to trial on February 24, 1975, and at the close of appellee’s case, the trial court granted its motion for a directed verdict. On February 28, 1975, the trial court entered its final judgment directing a verdict in favor of appellees. Thereafter, at a hearing held on March 13, 1975, the trial court denied appellant’s motions to set aside the verdict, for a new trial, and objections to the proposed final judgment. On March 17, 1975, the trial court entered its order denying appellant’s motions. From the final judgment and order, appellant brings this appeal.

Appellant contends that the trial .court erred in entering the final judgment and order and raises the following points on appeal: (1) whether there was introduced at the trial sufficient evidence, or sufficient reasonable inferences which may be drawn from the evidence, which would support a jury verdict in favor of appellant, (2) whether a witness may specifically describe an area he has directly observed, and (3) whether the trial court erred in striking out that part of appellant’s testimony which it appears to have stricken on page 446 of the transcript.

Appellee contends that the trial court did not err in directing a verdict in its favor because appellant failed to show how the liquid, in which appellant slipped and fell, came to be on the floor or how long it had been on the floor before her accident.

This court in Marlowe v. Food Fair Stores of Florida, Inc., Fla.App.1973, 284 So.2d 490, set forth at page 492 the basic rule concerning the duty of a food store to one of its patrons as follows:

“The established rule in this state is that if the dangerous condition of the premises is created by a servant or agent of the owner, or even if created by an outsider, and the condition is one which has existed for a sufficient length of time that the owner should have known of it, then under those circumstances the owner may be held liable for ensuing injuries.”

See also Montgomery v. Florida Jitney Jungle Stores, Inc., Fla.1973, 281 So.2d 302; and Winn Dixie Stores, Inc. v. Williams, Fla.App.1972, 264 So.2d 862. Based upon the rule set forth in Marlowe, supra, an essential element of the gravamen of appellant’s cause of action, in the appeal sub judice, was to show whether the liquid, on which appellant alleges she slipped, was put on the floor of appellee’s store by its agent or servant, or if it had been on the floor for a sufficient period of time to charge appellee with constructive knowledge of its presence.

In considering the propriety of a directed verdict for a defendant the trial court is required to evaluate the testimony in the light most favorable to the plaintiff and every reasonable intendment deducible from the evidence must be indulged in the plaintiff’s favor. Jacobs v. Harlem Cab, Inc., Fla.App.1966, 183 So.2d 552; and McKenzie v. Atlantic Manor, Inc., Fla. App.1965, 181 So.2d 554. Applying this standard to the appeal, sub judice, we hold that the trial court did not err in granting a directed verdict in favor of appellee because appellant neither showed proof that the liquid in which she slipped was put on the floor of appellee’s store by its agent or servant nor if it was on the floor long enough to charge appellee with constructive knowledge of its presence at the time of her accident. Absent such proof, appellant failed to establish an essential element of the gravamen of her cause of action.Further, we hold that the other points raised on appeal by appellant are without merit.

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

Affirmed.


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    John Dennis ROHNER, Appellant (Respondent), v. Barri Lynn ROHNER, Appellee (Petitioner).
    No. X-200.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1976.
    Rehearing Denied March 26, 1976.
    Calvin W. Wilson, Pensacola, for appellant.
    Kenneth M. Abagis and Jack S. Graff, of Levin, Warfield, Middlebrooks, Graff, Mabie & Rosenbloum, Pensacola, for ap-pellee.
   PER CURIAM.

Upon considering the briefs, the record, and oral argument, we find no reversible error on authority of Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975).

Accordingly, the final judgment is affirmed.

RAWLS, Acting C. J., MILLS, J., and SPEAR, MERCER P., Associate Judge, concur.


text:
    Jack M. JACOBS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-421.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.
    Phillip A. Hubbart, Public Defender, and Karen Gottlieb, Asst. Public Defender, and John Charles Coleman, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Carl B. Schwait, Legal Intern, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant, defendant below, appeals a judgment of the trial court finding him guilty of direct criminal contempt of court and sentencing him to confinement in the Dade County Jail for one year.

At a hearing held on February 25, 1975, after appellant had waived his right to a jury trial and pleaded guilty, a judgment was entered by the trial court finding appellant guilty of unlawfully obtaining services, goods, wares, or other things of value by means of a worthless check or draft in the amount of $227.00, and sentencing him for a term of three years confinement at hard labor in the Florida State Penitentiary with credit to be given for time already served in the Dade County Jail. After the judgment was pronounced, appellant made the following remarks:

“THE DEFENDANT: The man [referring to the trial judge] is an asshole. Three years.
“THE COURT: All right.
“MR. FATH: Jack-
“THE COURT: Mr. Jacobs, the Court is going to hold you in contempt.
“THE DEFENDANT: You have an ego so big, I don’t know how you fit in the chair.
“THE COURT: The Court will find you in contempt of Court and sentence you to an additional year in jail.”

Thereafter, the trial court entered another judgment, also dated February 25, 1975, finding appellant guilty of direct criminal contempt of court for his abusive language and open disrespect to the court and sentencing him to confinement at hard labor in the Dade County Jail for a term of one year which was to begin at the expiration of his confinement in the State Penitentiary. From the judgment holding him in contempt, appellant brings this appeal.

Appellant raises the following three points on appeal: the trial court failed to follow the procedures set forth in Rule 3.830 R.Cr.P. for direct criminal contempt, (2) the trial court denied him due process of law by imposing the serious sentence of one year imprisonment without affording him his constitutional right to a trial by jury, and (3) the trial court denied defendant due process of law by failing to afford him a trial before an impartial tribunal.

Rule 3.830, Florida Rules of Criminal Procedure, F.S.A., sets forth the procedures a trial court must observe in punishing a defendant for direct criminal contempt. Among other things, the rule requires that, prior to an adjudication of guilt for such contempt, the trial court must inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the court. Further, the rule requires that the defendant be given the opportunity to present evidence of any excusing or mitigating circumstances.

In the instant appeal, our review of the record reveals that, although appellant clearly acted in a reprehensible and insolent manner, the trial court in entering its judgment punishing him for his contumacious conduct failed to comply with the procedures set forth in Rule 3.830, supra, as follows: it did not inform appellant of the accusation against him; it did not inquire as to whether appellant had any cause to show why he should not be adjudged guilty of contempt; and it did not give appellant an opportunity to present evidence of any excusing or mitigating circumstances. Based upon this noncompliance, we conclude that it was error for the trial court to hold appellant in contempt. See Krathen v. State, Fla.App.1975, 310 So.2d 381; Speller v. State, Fla.App. 1974, 305 So.2d 231; Berman v. State, Fla.App. 1971, 253 So.2d 144 and Manning v. State, Fla.App.1970, 234 So.2d 16. Due to this determination it is unnecessary at this time for us to rule on the other points raised on appeal by appellant, however, we feel that the following points should be considered upon remand of the cause.

The judgment dated February 25, 1975, finding appellant guilty of direct criminal contempt of court sentenced him to be imprisoned by confinement “at hard labor” in the Dade County Jail for a period of one year. It has been held that, since the repeal of § 922.05(2) Fla.Stat., F.S.A., by Ch. 70-339, § 180 Laws of Fla.1970, there is no authority for imposing upon con-temnors a sentence “at hard labor.” See Speller v. State, Fla.App.1974, 305 So.2d 231.

Further, we note the case of Aaron v. State, Fla.1973, 284 So.2d 673, involving Rule 3.840, Florida Rules of Criminal Procedure, F.S.A., indirect criminal contempt, which sets forth the caveat that if, upon conviction, the trial court intends to impose a sentence for contempt in excess of six months, it should afford a defendant an opportunity to opt for a jury trial. See also Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538; Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522; 33A Modern Federal Practice Digest, Jury §§ 22(1) and 22(2) ; and 6 Fla.Jur., Contempt § 51.1.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment appealed is reversed and the cause is remanded to the trial court for further action not inconsistent with this opinion.

Reversed and remanded.


text:
    Edward HEINEMAN and James Lehman, Appellants, v. The STATE of Florida, Appellee.
    No. 75-482.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.
    Rehearing Denied March 23, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Miami, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty.Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellants, defendants below, appeal their adjudications of guilty and concomitant sentences for buying, receiving, or concealing stolen property and possessing more than five grams of marijuana.

A nonjury trial was held on March 23, 1973, at which time appellants were found guilty of the offense stated above. On May 4, 1973, the trial court adjudicated appellants guilty as charged and sentenced each of them to three years in the state penitentiary. On March 31, 1975, a petition for writ of habeas corpus was filed in this court by which appellant sought a belated direct appeal of their convictions and sentences. On April 1, 1975, this court granted the relief requested in the petition and ordered that it be treated as a notice of appeal.

Appellants contend that the trial court erred in finding them guilty of buying, receiving, or concealing stolen property because no evidence was adduced at trial to establish that they knew the subject property was stolen, thereby violating their constitutional right to due process of law. Appellants also contend that the trial court erred in finding them guilty of the possession of marijuana because appellee failed to establish an essential element of the crime, i. e., their knowledge of the presence of the contraband.

Knowledge is an elusive quality. Like intent, since it is a state of mind, it is often not subject to direct proof and can only be inferred from the circumstances of the case by the trier of fact. Skold v. State, Fla.App.1972, 263 So.2d 627; Jones v. State, Fla.App.1966, 192 So.2d 285; and Scott v. State, Fla.App.1962, 137 So.2d 625. Where, as in the instant appeal, a case is tried nonjury before a judge his factual findings are entitled to the weight of a jury verdict. We must assume that he drew from the facts established those reasonable conclusions most unfavorable to appellants. Jefferson v. State, Fla.App.1974, 298 So.2d 465; Skold v. State, Fla.App. 1972, 263 So.2d 627; and Parrish v. State, Fla.App.1957, 97 So.2d 356. On appeal, this court can not substitute its judgment of such matters for that of the trier of fact. Jefferson v. State, supra; and Loprince v. State, Fla.App.1969, 218 So.2d 212.

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

Affirmed.


text:
    MODERN WOOD INDUSTRIES, INC., a Florida Corporation, Appellant, v. VILLAGE ROYALE, INC., a Florida Corporation, Appellee.
    No. 75-583.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.
    Rehearing Denied March 23, 1976.
    Hylan H. Kout, Miami Beach, for appellant.
    Richard & Richard, Miami Beach, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from an order granting defendant’s motion for judgment on pleadings to recover for work done and materials furnished by plaintiff to defendant.

On February 10, 1972 plaintiff, Modern Wood Industries, Inc., filed a complaint in circuit court to recover $1,868.15 for the installation and cost of kitchen cabinets, counter-tops, sink-rims and vanities installed in four model apartments of the defendant, Village Royale, Inc., pursuant to an alleged written contract entered into between the parties. Plaintiff also sought $97,250 in lost profits for defendant’s refusal to honor the contract and permit plaintiff to furnish and install kitchen cabinets, etc. for the remaining 1116 apartment units. Defendant answered that (1) there was no firm or final contract, and (2) plaintiff’s workmanship and materials were so poor and inferior that the cabinets, etc. had to be removed and replaced. Defendant then filed a counterclaim seeking damages in an amount in excess of the difference defendant was required to pay for such installation to another firm over and above the price in the contract with the plaintiff. Defendant moved for summary judgment and the trial judge, finding that there was no contract on February 7, 1973, entered summary judgment, which reads in pertinent part:

“2. That summary final judgment be and the same is hereby entered against the plaintiff and in favor of the defendant on plaintiff’s claim as set forth in the complaint herein.
“3. That this summary final judgment is without prejudice to the right of the plaintiff to seek recovery as to the fabrication and installation of kitchen cabinets, counter tops, sink rims and vanity cabinets in the four model apartments.”

This court affirmed the summary judgment (287 So.2d 160). Subsequently, the trial judge entered summary judgment in favor of plaintiff on defendant’s counterclaim.

On February 21, 1974 plaintiff filed the instant suit in county court seeking to recover $1,868.15 for the furnishing and installation of the kitchen cabinets, etc. Defendant filed an answer raising as a defense that plaintiff was barred by the doctrine of election of remedies on his claim by virtue of his prior suit in circuit court, and also counterclaimed for damages in excess of $2,500 for the loss of condominium sales as a result of the inferior and defective kitchen cabinets furnished by plaintiff. In November the cause was transferred to circuit court on the ground that defendant’s counterclaim for damages exceeded the jurisdiction of the county court. On December 13, 1974 defendant filed its motion for judgment on the pleadings and the trial judge entered the herein appealed order entering judgment on the pleadings against the plaintiff on its claim and judgment on the pleadings against defendant’s counterclaim. We reverse.

The February 1973 summary judgment granting plaintiff the right to seek recovery as to the fabrication and installation of kitchen cabinets, etc. having been affirmed by this court in the previous appeal thereby becoming the law of the case, we find that the trial judge erred in entering judgment on the pleadings against plaintiff’s claim and defendant’s counterclaim. Accordingly, the order is reversed and the cause remanded to the trial court for further proceedings.

      . See Modern Wood Industries, Inc. v. Village Royale, Inc., Fla.App.1973, 287 So.2d 160.


text:
    Charles MOBLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-600.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.
    Rehearing Denied March 23, 1976.

      Phillip A. Hubbart, Public Defender, Elliot H. Scherker, Asst. Public Defender and Thomas G. Murray, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Stephen V. Rosin, Asst. Atty. Gen., and Steven D. Ginsburg, Legal Intern, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ. ,
   PER CURIAM.

Appellant, defendant below, appeals his adjudication of guilt and sentence for breaking and entering with intent to commit a misdemeanor.

After a trial on February 18, 1975, the jury found appellant guilty as charged of breaking and entering with intent to commit a misdemeanor. After a pre-sentence investigation, the trial court sentenced appellant to five years imprisonment, three years to be withheld, and the period of imprisonment to be followed by three years probation. Subsequently, appellant’s motion for a new trial was denied.

On appeal, appellant contends that the trial court erred as follows: first, in denying appellant’s motions to exclude a witness for appellee and for a continuance where appellee failed to include the name of the witness in its response to appellant’s demand for reciprocal discovery, and, second, in denying appellant’s request to instruct the jury of the lesser included offense of trespass where he was charged with breaking and entering.

In regard to appellant’s first point on appeal, the violation of a rule of procedure (appellant invoked reciprocal discovery pursuant to Local Rule Four, Circuit Court of Dade County) does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant. See Richardson v. State, Fla.1971, 246 So.2d 771; Ramirez v. State, Fla.App.1970, 241 So.2d 744; Buttler v. State, Fla.App. 1970, 238 So.2d 313; and Rhome v. State, Fla.App.1969, 222 So.2d 431. Furthermore, a trial judge is vested with broad discretion in matters of requested continuances and, by virtue of his closeness and intimacy with the circumstances of the case, he will not be reversed on appeal unless there is a clear showing of a palpable abuse of this discretion. Sikes v. State, Fla.App.1973, 280 So.2d 17; and Mills v. State, Fla.App.1973, 280 So.2d 35.

In the instant appeal, the record shows that the trial court properly inquired into the surrounding circumstances of ap-pellee’s failure to provide appellant with the name of a witness pursuant to his request for reciprocal discovery. Further, the record shows that appellant was given an opportunity during the course of the proceedings to speak with the witness and that he availed himself of the opportunity. Further still, the record shows that the name of the witness was listed in at least three places on appellant’s arrest report, and appellant’s counsel admitted that he had a copy of the report prior to appellant’s trial.

Based on the record, we hold in regard to appellant’s first point on appeal that, because neither prejudicial or harmful error nor an abuse of discretion has been demonstrated, the trial court did not err in denying appellant’s motions to exclude the name of a witness and for a continuance.

In regard to appellant’s second point on appeal, we are unaware of any authority holding that trespass is a necessarily included offense in the offense of breaking and entering. The word “necessarily” is underscored because Florida case law, following the Supreme Court’s pronouncement in Brown v. State, Fla.1968, 206 So.2d 377, has recognized the distinction between those lesser offenses which may be included and those which are necessarily included. Only the latter require instructions in accordance with Rule 3.510, Florida Rules of Criminal Procedure, 34 F.S.A., while the former are discretionary depending upon the evidence presented at trial. See DeLaine v. State, Fla.1972, 262 So.2d 655; Jones v. State, Fla.App.1971, 256 So.2d 46; and Sadler v. State, Fla. App.1969, 222 So.2d 797.

In the instant appeal, appellant requested the trial court to give a jury instruction for breaking and entering which included the lesser offense of trespass. This request was based upon the Florida Standard Jury Instructions §§ 205 and 206. However, in response to the trial court’s request for appellant to base his request upon one of the specific trespass statutes, he never cited the trial court to such a statute and in addition requested the deletion of various phrases from the standard jury instruction.

Based on the record before us, we hold that appellant has failed to show the trial court abused its discretion in failing to give the jury instruction requested by him. See Rivers v. State, Fla.App.1975, 307 So.2d 826.

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

Affirmed.


text:
    Blas U. RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 75-675.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.
    Rehearing Denied March 23, 1976.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for ap-pellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The jury found defendant guily of second degree murder under Counts I and II of the indictment, and aggravated assault under Counts III and IV and intent to commit murder in the first degree under Count V. The jury reached its verdict after hearing extensive testimony concerning the defendant’s mental state at the time the acts were committed. The defense witnesses were two psychiatrists, Dr. Charles Mutter and Dr. Paul Jarrett, both of whom testified in substance that the defendant was suffering from a major medical disorder which was sufficient in nature to prevent him from knowing the nature and consequences of his acts.

The state’s witnesses called in rebuttal of the defense of insanity were three psychiatrists Dr. Sanford Jacobson, Dr. Carolyn Sherin and Dr. Anastasia Costiello, whose testimony was to the effect that the defendant was not suffering from schizophrenia and that he knew the difference between right and wrong and the nature of the consequences of his acts.

He was sentenced to life imprisonment under each of the murder counts, five years in prison under each of the other counts. Sentences under Counts II and IV were to run concurrently.

The sole point raised by appellant on appeal is whether the trial court committed reversible error in wholly excluding all evidence of statements made by the defendant to Dr. Mutter, while the defendant was under hypnosis, and barring Dr. Mutter from testifying as a fact that he placed the defendant under hypnosis.

The only material issue involved at trial was the defendant’s sanity. He had entered a plea of not guilty and had given notice that insanity would be interposed as a defense. The defense was attempting to use Dr.. Mutter’s testimony to show the state of mind of the defendant at the time he did the shooting and that it formed, in part, the basis of the doctor’s opinion that the defendant was suffering from paranoid schizophrenia which prevented him from knowing and understanding the nature and consequences of his acts.

The state objected to the admissibility of the testimony and argued that the statements made under hypnosis may be given undue credence by the jury. It was further argued by the prosecutor that statements made while under hypnosis were inadmissible for the same reasons that statements made under the influence of sodium pentothal, commonly known as truth serum, are not admissible. The trial judge sustained the state’s objection to the statements made by the defendant while under hypnosis and any reference by the doctor to the use of that procedure. We hold that the trial judges did not commit reversible error in refusing to admit that portion of Dr. Mutter’s testimony objected to by the state.

It is a well settled rule in Florida that the trial judge enjoys wide discretion in areas concerning the admission of evidence and that his ruling on the admissibility of evidence will not be disturbed unless an abuse of discretion is shown. None has been shown here.

In Coppolino v. State, Fla.App. 1968, 223 So.2d 68 the court quoted the general rule regarding admissibility of evidence. The rule is:

“Where the evidence is based solely upon scientific tests and experiments, it is essential that the reliability of the tests and results thereof shall be recognized and accepted by scientists or that the demonstration shall have passed from the stage of experimentation and uncertainty to that of reasonable demonstrability.”

At this time, we are of the view that the evidence objected to was properly excluded because this court remains unconvinced of the reliability of statements procured by way of hypnosis.

For the reasons stated, the judgment appealed is affirmed.

Affirmed.


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    F. J. L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-679.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.
    Rehearing Denied March 23, 1976.

      Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Arthur Joel Berger, Asst. Atty. Gen., and Mitchell Luber, Legal Intern, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

A petition for delinquency was filed in the Circuit Court of Dade County, Juvenile —Family Division, charging the defendant with two counts of robbery and one count of unlawful use of a firearm in the commission of a felony. The state filed a motion for order waiving jurisdiction. It was admitted that there was probable cause to believe that the defendant committed the crimes charged in the petition. A hearing was held on the waiver motion which re-suited in an order by the court granting the motion.

The defendant has appealed the order of waiver and argues that the court committed reversible error in ruling that it was in the best interest of the public to waive jurisdiction over the defendant as a juvenile on the grounds that there were no rehabilitative programs available in the juvenile justice system suitable for the defendant when the testimony demonstrated that such programs were available.

The court made its findings and order of waiver after a full hearing. Our review of the record leads us to the conclusion that the court’s ruling is fully supported by substantial competent evidence and arrived at in accordance with the requirements of Florida Statute 39.09(2)(d), Rule 8.110 Rules of Juvenile Procedure and the guidelines set forth in Davis v. State, Fla.1974, 297 So.2d 289.

No reversible error having been demonstrated, the order appealed is affirmed.

Affirmed.