text:
    COOPER CITY, a Florida Municipal Corporation, Appellant, v. Howard E. BURGESS, as Trustee for the proposed First Western Bank of Broward County, Appellee.
    No. 75-765.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1976.
    Rehearing Denied Jan. 11, 1977.
    Austin O. Bonidy, Miami, and H. David Faust, of Burns, Middleton, Farrell & Faust, Palm Beach, for appellant.
    A. J. Ryan, Jr., of Ryan & Shahood, Dania, for appellee.
   PER CURIAM.

Upon due consideration we are of the opinion that the trial court erred in directing the rezoning of plaintiff’s property from the classification of P-1 to a classification of B-l. Cf. Orange County v Butler Estates Corporation, Fla.App.4th 1974, 303 So.2d 66.

A review of the record reflects that the plaintiff failed to carry the burden of clearly demonstrating that the existing P-1 classification was not fairly debatable. Rural New Town, Inc. v. Palm Beach County, Fla.App.4th 1975, 315 So.2d 478; see City of St. Petersburg v. Aikin, Fla. 1968, 217 So.2d 315; City of Miami Beach v. Weiss, Fla.1969, 217 So.2d 836; Mayflower Property, Inc. v. Watson, Fla.1970, 233 So.2d 390; Burritt v. Harris, Fla.1965, 172 So.2d 820; see also Davis v. Sails, Fla.App. 1st 1975, 318 So.2d 214.

Accordingly, the final judgment is vacated and set aside and the cause remanded for further proceedings not inconsistent herewith.

Reversed.

MAGER and DOWNEY, JJ., and BAS-KIN, NATALIE, Associate Judge, concur.

      . The fact that it. might appear that the highest and best use of the property in question would be B-l commercial classification for the purpose of constructing a bank does not mandate a rezoning to that classification. Hay flower Property, Inc. v. Watson, Fla. 1970, 233 So.2d 390.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles A. FENNER, Appellant, v. Benjamin D. PIERCE, as Executor of the Estate of Rosa Pierce, a/k/a Mrs. David Pierce, Appellee.
    No. 75-1340.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.
    Rehearing Denied Jan. 11, 1977.
    Thomas Thatcher, Smith, Heath & Smith, Vero Beach, for appellant.
    Chester E. Clem, Jr., Law Offices of Jackson & Clem, Vero Beach, for appellee.
   PER CURIAM.

Appellant-defendant, Charles A. Fenner, appeals a final judgment entered in favor of appellee-plaintiff, Benjamin D. Pierce, as Executor of the Estate of Rosa Pierce, a/k/a Mrs. David Pierce, in an action seeking to establish and foreclose a lien on real property.

Upon review of the record on appeal and after consideration of the briefs and oral arguments of counsel for the respective parties, we determine the appellant has failed to demonstrate reversible error. Accordingly, the final judgment is affirmed.

Affirmed.

CROSS and MAGER, JJ., and WALKER, WILLIAM L., Associate Judge, concur.


text:
    Donnie Slight SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 75-1204.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1976.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Ira N. Loewy, Asst. Atty. Gen., Miami, for appellee.

      . See McGough v. State, 293 So.2d 147 (Fla.2d DCA 1974).

   PER CURIAM.

Appellant-defendant, Donnie Elight Smith, appeals a judgment of guilty and imposition of sentence for the offense of manslaughter. We reverse.

Smith was charged by information with murder in the second degree. Trial by jury was waived. The trial court adjudged Smith guilty of manslaughter. Judgment of guilty was entered and sentence imposed. This appeal followed.

The primary question for our determination is whether the trial court erred in permitting the state prosecutor, over objection, to seek to impeach a defendant’s exculpatory statement, made for the first time at trial, by cross-examining the defendant about his post-arrest silence after Miranda warnings had been given.

This identical question has been answered in the affirmative by the United States Supreme Court in the recent decision of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). It was there determined that the use of a defendant’s post-arrest silence to impeach his exculpatory statement made at trial violated the due process clause of the fourteenth amendment. We adopt this view, and determine that the trial court in the instant case erred in permitting the state prosecutor to cross-examine the defendant at trial about defendant’s post-arrest silence.

Accordingly, the judgment and sentence appealed is reversed, and the cause is remanded for new trial.

Reversed and remanded.

MAGER, C. J., CROSS, J., and CALHOUN, JAMES P., Associate Judge, concur.


author: ALDERMAN, Judge.

text:
    Gerald HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. 75-1592.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1976.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Linda Collins Hertz, Asst. Atty. Gen., and M. Ann Bradley, Legal Intern, South Miami, for appellee.
   ALDERMAN, Judge.

Appellant appeals his convictions for robbery and aggravated assault. The evidence at trial showed that appellant and a companion, wearing masks, entered a motel room and at gunpoint demanded money and valuables from the room’s occupants. The victims were tied up and assaulted when the demand for more money was not satisfied. Police officers arrived and apprehended appellant and his companion while they were still in the motel room. At the jury trial, one of the arresting officers testified concerning the arrest of appellant and his companion. When the prosecutor questioned the officer as to the giving of Miranda warnings, he testified as follows:

“Q. (By the prosecutor) What did you do when this subject was brought out?
A. Well, we advised them that they were under arrest. I read both the subjects their rights, and they were searched.
Q. You read both of the subjects their rights?
A. Yes.
Q. Do you recall what rights you read to them?
A. I have the rights card in my pocket.
Q. Did you read it from the card?
A. Yes, I did.
Q. Would you please take out the card and read exactly what you read to both of the subjects that were brought out of the room?
A. Yes, sir. I read them their rights per Miranda, the Constitution of the United States.
‘1. You have a right to remain silent and refuse to answer questions. Do you understand?’
They both gave no answer.
‘2. Anything you say may be used against you in a court of law. Do you understand?’
They gave no answer.
‘3. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand that?’
They gave no answer.
‘If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand?’
No answer.
‘Knowing and understanding your rights as I explained them to you, are you willing to answer my questions without an attorney present?’ ”

Appellant’s attorney immediately moved for a mistrial on the ground that the witness had commented on appellant’s right to remain silent. The trial court denied the motion.

The sole point on appeal is whether the trial court erred in denying appellant’s motion for a mistrial. Appellant cites Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967), and Bennett v. State, 316 So.2d 41 (Fla.1975), in support of his argument that the comments of the arresting officer in regard to appellant’s silence during the course of the Miranda warnings constitute clear fundamental error.

The present case is factually distinguishable from Jones v. State, Bennett v. State, and other Florida cases such as Farese v. State, 328 So.2d 548 (Fla. 1st DCA 1976); Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976); Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976), which have held that any comment on the defendant’s right to remain silent is reversible error. Here, the witness commented on appellant’s silence during the course of the reading of Miranda warnings. The silence was in response to the question “Do you understand?” which the arresting officer asked the appellant after he read each warning.

In our opinion the trial court properly denied appellant’s motion for mistrial. The questions “Do you understand?” after each Miranda warning were appropriate. Such questions related only to appellant’s understanding of the Miranda warnings. Testimony concerning appellant’s response or lack of response to these questions cannot reasonably be construed as a comment on his right to remain silent. At no point did the officer testify that appellant failed to answer questions or give a statement about the offense for which he had been arrested.

No error having been committed by the trial court, appellant’s convictions are affirmed.

CROSS and DOWNEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Calvin J. BAILEY, Appellant, v. Molly J. BAILEY, Appellee.
    No. 75-1951.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1976.
    Jon S. Rosenberg, Marvin E. Newman & Jon S. Rosenberg, Orlando, for appellant.
    Julius G. Petruska, Rowland, Petruska, Bowen & McDonald, Orlando, for appellee.
   DOWNEY, Judge.

The appellant husband seeks review of a final judgment dissolving the marriage of the parties and awarding the appellee wife lump sum alimony, permanent periodic alimony and attorney’s fees.

Our study of the briefs and record convinces us that the award of the marital domicile as lump sum alimony was not justified under the facts of this case.

Accordingly, we reverse that provision of the final judgment which awards the marital domicile to the appellee as lump sum alimony and affirm the judgment in all other respects.

The cause is remanded to the trial court with instructions to further consider the matter and grant appellee the exclusive possession of the marital domicile for a reasonable period of time as may be required by the circumstances of the parties and the facts of the case.

Appellee’s petition for the allowance of attorney’s fee on appeal is granted and, upon remand, the trial court shall determine a reasonable attorney’s fee for appel-lee’s counsel for these proceedings.

AFFIRMED IN PART; REVERSED IN PART, with directions.

SMITH, ROBERT P., Jr., and SCHWARTZ, ALAN R., Associate Judges, concur.


text:
    SOUTHEASTERN FIDELITY INSURANCE COMPANY, an Insurance Corporation, Appellant, v. Oscar L. STEVENS, Appellee.
    No. 75-2031.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1976.

      Gary L. Dirlam and William E. Johnson, of Hoffman, Hendry, Parker & Smith, Orlando, for appellant.
    Harvey J. Garod of Law Offices of T. G. La Grone, and T. G. La Grone, Orlando, for appellee.
   PER CURIAM.

Upon further review and examination of the record we are of the opinion that the appeal was untimely filed thereby divesting this court of jurisdiction.

Particularly, the record reflects that a final judgment was rendered on September 15, 1975. On September 23, 1975, the defendant-appellant filed a motion to tax costs and attorney’s fees. An amended final judgment was rendered on October 13, 1975. An appeal from the amended final judgment was taken on November 12,1975.

Although the notice of appeal was filed within 30 days from the rendition of the amended final judgment, it was well beyond the rendition of the initial final judgment.

The amended final judgment did not disturb or revise the legal rights and obligations which had already been settled with finality in the initial final judgment and which is the subject matter of this appeal; rather, it merely awarded attorney’s fees and costs in addition to the adjudication theretofore made. See Bonura v. Holloway, 334 So.2d 842 (Fla. 4th DCA 1976). The motion to tax costs and award attorney’s fees did not toll the time within which to seek appellate review because such motion was not a post-trial motion provided for by the rules of civil procedure. State ex rel. Park Towers Assoc, v. District Court of Appeal of Florida, Third District, 221 So.2d 136 (Fla.1969); Lipsius v. Bristol-Myers Company, 269 So.2d 680 (Fla.1972); State ex rel. Shevin v. Mann, 290 So.2d 1 (Fla.1974). Additionally, an order awarding costs and attorney’s fees is separably appealable. Roberts v. Askew, 260 So.2d 492 (Fla.1972).

Accordingly, this cause is dismissed for lack of jurisdiction. It is so ordered.

MAGER, C. J., CROSS, J., and WAD-DELL, TOM, Jr., Associate Judge, concur.

      . It might be gratuitously observed, purely by way of dicta, that the court was initially inclined to affirm had we reached the merits of the cause; however, the jurisdictional difficulty prevents us from doing so.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE, etc., Appellant, v. Fanny NAPOLI and Edward Napoli, Appellees.
    No. 75-2148.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1976.
    Nancy Little Hoffmann, Druck, Grim-mett, Norman, Weaver & Scherer, Fort Lauderdale, for appellant.
    Maurice Fixel, Meyer, Leben, Fixel, Cantor & Engelberg, Hollywood, for appellees.
   PER CURIAM.

Affirmed on the authority of State Farm Mutual Automobile Ins. Co. v. Anderson, 332 So.2d 623 (Fla. 4th DCA 1976); State Farm Mutual Automobile Ins. Co. v. White, 330 So.2d 858 (Fla. 2d DCA 1976), and Government Employees Ins. Co. v. Farmer, 330 So.2d 236 (Fla. 1st DCA 1976).

ALDERMAN, J. and SCHWARTZ, ALAN R., and BERANEK, John R., Associate Judges, concur.


text:
    James Brinton ROBINSON, Appellant, v. Ruth Alene ROBINSON, Appellee.
    No. 75-2160.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1976.

      Jon S. Rosenberg of Marvin E. Newman & Jon S. Rosenberg, Orlando, for appellant.
    Michael L. Marlow of Wombles, Marlow & Appleton, Winter Park, for appellee.
   ALDERMAN, Judge.

This is an appeal and cross-appeal from a final judgment of divorce.

Appellant-husband first contends that the court below erred in finding that the parties had equal interests in the marital home and thereby, upon dissolution of the marriage, became tenants in common. The legal title to the home was in the husband. The trial court’s finding was not based upon an award of lump sum alimony or a determination of a special equity. The trial judge concluded that even though legal title was in the husband the evidence established that the intent of the parties was that the home be owned by them jointly. The issue of ownership was not specifically raised by the pleadings; however, without objection from either party the issue was presented, considered and ruled on by the trial court. When issues not raised by the pleadings are tried by express or implied consent of the parties, they may be treated by the trial court in all respects as if they had been raised in the pleadings. Fla.R.Civ.P. 1.190(b). We have reviewed the record on appeal and conclude that there was sufficient evidence to support the trial court’s finding that the parties had an equal interest in the marital home.

We have considered the other points raised by appellant-husband, and with one exception find them to be without merit. The trial court granted to appellee-wife the possession and occupancy of the marital home until the youngest child of the parties is eighteen years of age. Such an award is proper because it is in the nature of maintenance as an incident of child custody. Sistrunk v. Sistrunk, 235 So.2d 53 (Fla. 4th DCA 1970); Brown v. Brown, 123 So.2d 298 (Fla. 3d DCA 1960).

However, the final judgment further provided:

“The parties are hereby refrained [sic] from encumbering or disposing his or her interest in said property without the prior written consent of the other which will not be unreasonably withheld in the case of necessary repairs.”

We hold that the provision quoted above exceeded the authority of the trial court. Each of the parties, after dissolution of the marriage, owned an undivided one-half interest in the home as tenants in common. The undivided one-half interest of the appellant-husband is restricted by the right of appellee-wife, under the terms of the final judgment, to possession and occupancy of the home until the youngest child of the parties is eighteen. Subject to this restriction, appellant-husband should be able otherwise to encumber or dispose of his interest. Any purchaser of appellant-husband’s undivided interest would have to take title subject to appellee-wife’s right of possession, as provided in the final judgment. Restraining the appellant-husband from encumbering or disposing of his interest in the property without prior written consent of his former wife is not essential to appellee-wife’s right of possession and occupancy during the minority of the children. The parties themselves could agree to such a restriction on their property rights, but in the absence of such an agreement it may not be imposed by the court.

Wife, as cross-appellant, has also appealed the trial court’s denial of her request for alimony. A close question is presented. However, considering all of the factors in this case, we conclude that there has not been a clear showing of an abuse of discretion on the part of the trial judge in denying alimony.

Accordingly, that portion of the final judgment quoted above which prevents each party from encumbering or disposing of his or her interest in the marital home without the prior written consent of the other is reversed; in all other respects the final judgment is affirmed.

MAGER, C. J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


text:
    In the Interest of J. R. M. et al.
    No. 76-220.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellees.
   ALDERMAN, Judge.

The sole point in this appeal by the State of Florida is whether the court below erred in accepting the plans of treatment and conduct presented by appellees pursuant to Fla.R.Juv.P. 8.080(3). Appellees, ages 11 and 12, were alleged to be delinquent children.

The Rule in question provides:
“A child or, where appropriate in a dependency proceeding, the parents or legal custodian of the child may submit in writing prior to the beginning of the adjudicatory hearing a request for the acceptance of a plan. The terms and conditions of the plan shall be formulated in conjunction with the Division of Youth Services or the Division of Family Services. This request, in delinquency proceedings, shall be signed by the child, his parents, or legal custodian, and his counsel when he is represented. In dependency proceedings it shall be signed by the parents or legal custodians and their counsel when they are represented. It is not an admission of delinquency or need of supervision or dependency, but shall submit the parties to the jurisdiction of the Court. It must contain a plan of treatment and conduct to which the parties agree. The Court may accept or reject the plan. The plan shall contain a stipulation that the speedy trial rule is waived. Upon a violation of the plan a petition alleging the violation shall be filed by the authorized agent of the Division of Youth Services or the authorized agent of the Division of Family Services. If the Court, after hearing, finds that a violation has occurred, it shall set the case for hearing on the original petition and proceed thereafter as in any other petition.” Fla.R.Juv.P. 8.080(3).

The primary thrust of the State’s argument is that the Judge of the Juvenile Division of the Circuit Court could not accept the proposed plans of treatment and conduct under Rule 8.080(3) without the agreement of the State Attorney. To support its contention the State relies upon the following language of the Rule: “It must contain a plan of treatment and conduct to which the parties agree.” (Emphasis supplied.)

There is no doubt that the State Attorney has an important function in the proceedings of the Juvenile Court. However we do not believe that the Court’s acceptance of the proposed plan under Rule 8.080(3) is contingent upon the agreement of the State Attorney. An analysis of the Rule shows that in delinquency cases it is the child, not the State Attorney, who may submit a request for acceptance of a plan. The terms and conditions of the plan must be formulated in conjunction with the Division of Youth Services. There is no requirement that the State Attorney participate in the formulation of the plan. The request for acceptance of the plan must be signed by the child, his parents or legal custodian, and his counsel when he is represented. There is no requirement that the State Attorney sign the request. The Rule provides that the child’s request for acceptance of a plan “ . . .is not an admission of delinquency or need of supervision or dependency, but shall submit the parties to the jurisdiction of the Court.” (Emphasis supplied.) The use of the word “parties”, in the context of the sentence quoted above, obviously does not refer to the State Attorney. It could not reasonably be said that the child’s request for acceptance of a plan submits the State Attorney to the jurisdiction of the Court. Clearly what is intended in this context is that the child’s request for acceptance of a plan shall submit the child and the parents or legal custodian of the child to the jurisdiction of the Court.

The word “parties” is used again in the portion of the Rule upon which the State relies. The State argues that it is a “party” and therefore it must agree to the plan of treatment and conduct before the Court may accept the plan. When read in the context of Rule 8.080(3), we think it is clear that the “parties” who must agree to the plan of treatment and conduct are the child and the parents or legal custodian of the child. We do not believe that the intent of the Rule is to give to the State Attorney the right to veto any proposed plan to which he did not agree. It is the Juvenile Court Judge who must ultimately accept or reject the plan.

This is not to say that the State Attorney may not object to any proposed plan. Certainly he has the right to advise the Court why a particular plan proposed by Rule 8.080(3) should be accepted or rejected. The Juvenile Court Judge may then consider all of the factors properly before the Court in making his decision whether to accept or reject the plan.

AFFIRMED.

SMITH, ROBERT P., Jr., and SCHWARTZ, ALAN R., Associate Judges, concur.

      . Compare Fla.R.Juv.P. 8.090(e), which provides in part: “Upon the application of a party, the petitioner or the state attorney, the clerk shall issue, and the Court on its own motion may issue subpoenas . . . ” (Emphasis supplied.) Obviously in this context the word “party” does not include “state attorney” which is listed separately.


text:
    Janet Marie YOUNG et al., Appellants, v. Dale A. BOYLE and Anabelle L. Boyle, Appellees.
    No. 76-1060.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1976.
    Edna L. Caruso, of D’Aiuto, Dean, Anderson, Morgan, Ringers & Walker, Orlando, for appellants.
    James A. Sisserson of Nance & Caccia-tore, Melbourne, for appellees.
   PER CURIAM.

Upon review of the briefs and record in this cause we are of the opinion that the learned trial court erred in entering a partial summary judgment against the defendants on the issue of liability. See DeCleir v. Clark, 269 So.2d 691 (Fla. 4th DCA 1972). As pointed out in DeCleir, supra, whether the defendant driver’s explanation is sufficient to overcome the presumption of negligence (where the defendant driver’s vehicle strikes the rear of another vehicle) is a matter which under the totality of the circumstances in this cause was within the exclusive province of the jury. Accordingly, the order of partial summary judgment is vacated and set aside and the cause remanded for further proceedings consistent herewith.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


text:
    Thomas Walter SAUNDERS, Appellant, v. STATE of Florida, Appellee.
    No. 75-636.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1976.
    Thomas Walter Saunders, in pro. per.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals from an order of the Circuit Court of Brevard County summarily denying his motion to vacate pursuant to Rule 3.850 Fla.R.Crim.P. Summary denial of a motion under Rule 3.850 can be sustained only when the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. Merritt v. State, 165 So.2d 245 (Fla.2d DCA 1964). The allegations of appellant’s motion, if true, would be sufficient to entitle him to post-conviction relief. The trial judge, in his order summarily denying appellant’s motion to vacate judgment, recites that the files and records of the case conclusively show that the prisoner is entitled to no relief.

Appellant in his Directions to the Clerk from making up the record-on-appeal asked that transcripts of all hearings be included. We have reviewed the record-on-appeal. No transcripts of any hearings are included. We must therefore assume that there were no such transcripts in the files and records of this case. Particularly crucial is the record of the proceedings before the trial court when appellant entered his plea of guilty and when he was sentenced. Without these transcripts we cannot say that the files and records of this case conclusively show that appellant is entitled to no relief. Williams v. State, 163 So.2d 767 (Fla.2d DCA 1964).

REVERSED and REMANDED for an ev-identiary hearing on appellant’s motion to vacate.

DOWNEY and ALDERMAN, JJ., concur.

MAGER, C. J., concurs in conclusion only.


text:
    Gerald A. LEWIS, etc., Appellant, v. PLANNED FINANCIAL SERVICES, INC., a Florida Corporation, Appellee. PLANNED FINANCIAL SERVICES, INC., a Florida Corporation, Petitioner, v. STATE of Florida, DEPARTMENT OF BANKING & FINANCE, DIVISION OF FINANCE, Respondent.
    Nos. 75-1989, 75-2307.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1976.
    Fred 0. Drake, III, Asst. Gen. Counsel, Tallahassee, for appellants.
    James R. Lavigne and Jack B. Nichols of Nichols & Tatich, Orlando, for appellee and for petitioner.
    Ryland Terry Rigsby and Philip J. Sny-derburn, Asst. Gen. Counsels, Tallahassee, for respondent.
   MASON, ERNEST E. (Retired), Associate Judge:

The above two cases have been consolidated for purposes of review. Case No. 75-2307 is a petition for certiorari in which the petitioner, Planned Financial Services, Inc., a Florida corporation, seeks review of an order of the respondent, State of Florida, Department of Banking and Finance, Division of Finance, which suspended the mortgage broker’s license of the petitioner for a period of two years. Case No. 75-1989 is an appeal by Gerald A. Lewis, State Comptroller, and Joseph Ehrlich, Deputy Director, Division of Finance, and by the Division of Finance, an agency of the State of Florida, from a peremptory writ of mandamus issued by the Circuit Court of Orange County whereby the appellants in Case No. 75-1989 were commanded and directed to reissue a mortgage broker’s license to the appellee.

We have jurisdiction to review the order of the state officials and agency, respondents in the certiorari proceeding, by virtue of the provisions of Article V, Section 4(b)(2) and of Section 120.68, Florida Statutes (1975), and jurisdiction to review the order of the Circuit Court of Orange County by virtue of the provisions of Article V, Section 4(b)(1).

We conclude from a review of the record in Case No. 75-2307 that there was substantial competent evidence of a clear and convincing nature to support the action of the state officials in suspending petitioner’s mortgage broker’s license and that said action should be affirmed and that the petition for certiorari denied.

As to Case No. 75-1989, we find that the Circuit Court in and for Orange County was not the proper venue for bringing suit against the named state officials but that such veijue is properly laid in the Circuit Court of Leon County, Florida, the official residence of said state officials. We hold that the Circuit Court of Orange County erred in denying the appellants’ motion for change of venue to Leon County, Florida.

The peremptory writ of mandamus issued by the trial court is set aside and declared for naught and this cause is remanded to the trial court with direction to transfer the cause to the Circuit Court of Leon County, Florida, and to take such further action as is necessary to comply with the views herein expressed.

Accordingly, certiorari is denied in Case No. 75-2307; the peremptory writ of mandamus issued in Case No. 75-1989 is vacated and set aside and the causes remanded with directions.

CROSS, J., SMITH, CULVER, Associate Judge, concur.


author: SMITH, ROBERT P., Jr., Associate Judge.

text:
    Edith Maude HENDRY, Appellant, v. Joe B. HENDRY, Jr., Appellee.
    No. 75-2208.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1976.

      William H. Sned, Jr., of Winters, Brack-ett, Lord & Held, West Palm Beach, for appellant.
    C. Robert Burns of Burns, Middleton, Farrell & Faust, Palm Beach, for appellee.
   SMITH, ROBERT P., Jr., Associate Judge.

Ms. Hendry appeals from an order of the Palm Beach County circuit court overruling her exceptions to the report of the special master to whom, by stipulation of the parties, the court referred her petition for modification of the provisions in a 1968 divorce decree. That decree provided, also by consent, that appellee Mr. Hendry pay $500 per month for support of the parties’ daughter. Ms. Hendry’s modification petition sought an increase in support for the child, who was four years of age at the time of the divorce and eleven when the modification petition was filed, on grounds that Mr. Hendry’s ability to pay had increased significantly, the child’s needs had increased with age, “and the purchasing power of the American dollar has decreased.” The ground last stated had reference to facts that Ms. Hendry is a naturalized American, a native of another country, and that she and the child took successive residences in Amsterdam and Beirut in the time between entry of the final decree and the filing of the modification petition.

Section 61.13(1), F.S.1975, provides that the court dissolving a marriage may order payment of such child support as from the circumstances of the parties and the nature of the case is equitable. It further provides:

“The court initially entering an order requiring . . ! . child support payments shall have continuing jurisdiction . to modify the amount of the child support payments . . when such is found to be necessary by the court for the best interests of the child '. , when the child . . . has reached the age of 18 years, or when such is found to be necessary by the court because there has been a substantial change in the circumstances of the parties.”

After receiving evidence, the master found that there had been “a dramatic decrease in the total net worth” of Mr. Hen-dry, as evidenced by financial statements that his net worth was approximately 3.1 million dollars in 1967, approximately 4.9 million dollars in 1972, approximately 5.8 million dollars at year-end 1973 and approximately $2.8 million dollars in mid-1975. Ms. Hendry’s appeal is predicated on her testimony to the effect, as summarized by the master, that

. . the child takes tennis lessons at a cost of $50.00 per month, needs to go to summer camp at a cost of $500.00 to $600.00 per month, should be able to visit her grandmother in Europe and wants to send her to Palm Beach Day School at a cost of $2,050.00 annually because the child speaks four (4) languages and this specialization is not available in the public school system. The child has been attending public schools for the last two (2) years.”

No testimony was presented concerning the child’s existing and anticipated needs when, at age four, support of $500.00 per month was awarded for her benefit.

Although the master’s report contains findings which support the conclusion that Mr. Hendry’s financial position has recently deteriorated, and therefore that increased child support payments cannot be predicated on his increased ability to pay, the master’s report is barren of findings on the issue of “the best interests of the child” as affected by educational and recreational opportunities. Therefore, while the chancellor and we have an obligation to accord the master’s fact findings the same weight as given the verdict of a jury in an action at law, this case comes to us without the benefit of findings on the critical issue.

Given Mr. Hendry’s wealth, it could hardly be argued that he is unable to now make such additional payments as are necessary for his daughter to attend an appropriate school and summer camp. The question, then, is whether it is in her best interests that these advantages be provided. On this issue, we intimate no view except to say that private schools and summer camps exist because many who are able to afford such attentions to their children believe they are necessary or desirable to a child’s proper development. In the particular circumstances of this case, the judgment of the chancellor or the master may be to the contrary; but as yet neither has so found.

Mr. Hendry’s obligation to his daughter in matters of this sort continues unabated through her youth, and that obligation is no less today because, in 1968, $500 per month was thought adequate for her then and future needs. If in 1968 the parties miscalculated their daughter’s future needs, or if inflation here and abroad has now put desirable educational and recreational opportunities beyond reach, or even if Ms. Hendry unwisely spent money during the years in which some part of it could have been accumulated to pay the greater expenses now contemplated, none of those facts would now justify excusing a millionaire from any part of his obligation to provide properly for his daughter’s present educational and recreational needs which cannot be met by the former wife’s financial ability. See Siegel v. Zimmerman, 319 So.2d 187 (Fla. 3d DCA 1975). If it is apprehended that Ms. Hendry has not competently managed support money intended for the benefit of her daughter, or that she cannot do so now, the chancellor may readily require Mr. Hendry’s payments for education and recreation to be paid directly to those providing those services.

The order denying increased child support payments is reversed and the case remanded for further proceedings. Appellant’s motion for allowance of fees for the services of her attorney on appeal is granted, the amount to be determined by the trial court.

REVERSED AND REMANDED.

DOWNEY, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . Sec. 61.14(1), F.S.1967, contained similar provisions. There is no contention here that the criteria for modifying child support payments, as stated in § 61.13(1), F.S.1975, are inapplicable because support payments were ordered under prior statute.

      . Rule 1.490, R.C.P.; Koenig v. Watsco, Inc., 261 So.2d 851, 853-54 (Fla.App.3d 1972); Harmon v. Harmon, 40 So.2d 209, 213 (Fla.1949); Burns v. Burns, 153 Fla. 73, 77, 13 So.2d 599, 602 (1943).


text:
    Ronnie WOULARD, Appellant, v. STATE of Florida, Appellee.
    No. 76-79.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1976.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and Tatjana Ostapoff, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   SMITH, ROBERT P., Jr., Associate Judge.

During examination of one of the arresting officers in the State’s case in chief, the prosecutor elicited the testimony that, after being suitably cautioned as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), appellant was asked by the officer,where he had obtained the envelope containing heroin which was taken from him by a search. The officer testified:

“He wouldn’t say.
“Q. Did he say anything at all?
“A. Not at that time, no sir.”

The prosecutor’s examination constituted fundamental error prejudicing appellant’s Fifth Amendment rights. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Bennett v. State, 316 So.2d 41 (Fla.1975); Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967).

REVERSED AND REMANDED for a new trial.

CROSS, J., and COBB, WARREN, Associate Judge, concur.


author: HENDRY, Judge.

text:
    CENTURY 21 COMMODORE PLAZA, INC., a Florida Corporation (formerly Saul J. Morgan Enterprises, Inc.), Appellant, v. COMMODORE PLAZA AT CENTURY 21 CONDOMINIUM ASSOCIATION, INC., a Florida Corporation, not for profit, et al., Appellees.
    No. 76-148.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Rehearing Denied Jan. 6, 1977.

      Frates, Floyd, Pearson, Stewart, Richman & Greer and Bruce A. Christensen, Miami, for appellant.
    Joseph S. Paglino, Miami, for appellees.
    Before BARKDULL, C. J, and HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant, Century 21 Commodore Plaza, Inc, and 39 Cortlandt Associates, Inc, were plaintiff and intervenor, respectively, below.

Appellees, Commodore Plaza at Century 21 Condominium Association, Inc, (the condominium association at Century 21 Commodore Plaza) and various individuals comprising the board of directors of the association were defendants below.

This appeal is taken from an order and final judgment, entered by the trial court on October 7,1975, which in substance reallocated an assessment made by appellee-as-sociation after holding that the original assessment was ultra vires and illegal. Both appellants and appellees filed assignments • of error and cross-assignments of error, respectively, directed to the above order.

Appellant (plaintiff) was the developer of a condominium complex known as Century 21 Commodore Plaza. The condominium was created in accordance with Chapter 711, Florida Statutes, better known as the “Condominium Act.” At the time of closing, each purchaser of a unit at the condominium was required by contract with the appellant-developer, to “. . . deposit an amount equal to one percent (1%) of the Purchase Price of the Unit into a Condominium Fund for the purpose of paying initial maintenance and capital expenses .” The amount paid was directly related to the purchase price of the condominium unit and was not related to the unit’s percentage interest in the common elements or the common surplus as set forth in the Declaration of Condominium of Century 21 Commodore Plaza.

The appellee-association is the representative body for all condominium units, both sold and unsold, comprising the project known as Century 21 Commodore Plaza. Pursuant to Sections 711.12(6) and 711.15, Florida Statutes (1975), the association has the power to make and collect assessments, as well as the right to lien individual units for any unpaid assessments.

On or about January 12,1973, and pursuant to a vote of appellee-association’s board of directors, a “special assessment” was levied against each condominium unit at Commodore Plaza. The schedule of assessments reflected a variation among the units based upon a “credit” given to each unit owner who had paid the initial one percent “contribution to common surplus” at the time of purchase. The credit was in the amount of the initial contribution to common surplus and was therefore wholly unrelated to the percentage ownership of the common elements attributed to each unit. Appellant-developer did not receive a one percent credit on his seventy-five (75) unsold units and was assessed the full amount. Appellant-intervenor, who owned twenty-nine (29) units, received a smaller credit than individual unit owners for equivalent units.

On January 25, 1973, appellant-developer filed this action seeking declaratory and injunctive relief, as well as damages arising out of (1) a discriminatory and illegal “special assessment;” (2) the liening of the condominium units owned by appellants; and (3) the threatened foreclosure of such liens for failure to pay the “special assessment.” The trial court temporarily enjoined the imposition of further liens and the foreclosure of existing liens.

The court then severed the equitable issues from the legal issues for final hearing. This severance of the issues was affirmed on interlocutory appeal. Commodore Plaza at Century 21 Condominium Association, Inc. v. Century 21 Commodore Plaza, Inc., 290 So.2d 539 (Fla.App.3d DCA 1974). On October 7, 1975, the trial court, made various findings of fact and conclusions of law and entered its “Order and Final Judgment Granting Permanent Injunction and Other Relief.” This appeal follows from the above final judgment.

Based upon the above premises, the able chancellor made the following findings of fact, which in part reads:

O ‡ * *
“4. The only unit owner who had not paid the one per cent contribution since the units had not yet been sold, and was thus not given the one per cent credit, was the plaintiff. It is also undisputed that the intervenor, by reason of a bulk purchase of condominium units, had received a lower purchase price per unit and the one per cent contribution at time of purchase amounted to a lesser sum of money than the individual unit purchasers of units owning the same interest in the common elements had paid. The in-tervenor thus received a smaller credit with reference to the special assessment than did other unit owners whose units had the identical percentage interest in the common elements and common surplus. Similar discrepancies occurred as to other unit owners, who, because of floor location or time of purchase, paid a different price than other unit owners purchasing the same size and type of apartment.
“5. . . . The actual effect of the credit accompanying the assessment was to simultaneously distribute the common surplus to the unit owners given the credit in a manner unrelated to the unit owners’ interest in the common surplus or, in other words, to effectively liquidate the surplus created by the special assessment.
“6. Under the applicable portions of the Condominium Act, funds can only be assessed against unit owners in the proportions or percentages provided in the Declaration, and the common surplus ‘shall be owned by unit owners in the shares provided in the Declaration, Fla. Stat. § 711.14(2)(3). Unless it is otherwise provided in the Declaration, the ‘undivided share in the property owned in common by each unit owner shall be the undivided share previously owned by such unit owner in the common elements.’ Fla.Stat. § 711.16(2).
“7. Section 4.2(a) of the Declaration of Condominium of Century 21 specifically provides that the ‘interest of each apartment unit owner in the funds and assets held by the Association shall be in the same proportion as the liability of each such owner for common expenses.’ The Declaration further provides in Section 6.1 that ‘each apartment owner . shall share in the common surplus, such shares being the same as the undivided share in the common elements appurtenant to the apartment owned by him.’ No other power of distribution is afforded to the Condominium Association in either its Declaration, Articles of Incorporation, or By-Laws. In fact, it is specifically provided in Section 6.1(e) of the Association’s By-Laws that any surplus in the operations fund ‘which shall include gross revenues from the use of common elements and from other sources . shall be used to reduce the assessments for current expenses for the year during which the surplus is realized.
.’ The one per cent contribution paid at the time of purchase is clearly a gross revenue from another ‘source,’ and is in no different category than would be monies received from the use of vending machines or other equipment owned by or programs conducted by the Association.”

The trial court thereupon concluded as a matter of law that, based upon Chapter 711, Florida Statutes, and the By-laws, Articles of Incorporation and Declaration of Condominium of Century 21 Commodore Plaza, the appellee-association could only assess and distribute its common surplus in direct proportion to the percentage of ownership in the common elements and in the common surplus. As such, the association possessed neither the explicit nor implicit authority to provide the credit which took place and the special assessment, as accompanied by the credit, was ultra vires.

In addition, the chancellor held that:
“4. The plaintiff and intervenor had proper standing to bring this action and were not required to request an appearance before the Board of Directors after having been advised by the President of the Association that the assessment would stand, and after the condominium units had already been liened and threatened with foreclosure, following a good faith attempt to meet with the Association’s attorney.
U * * *
“6. The Board had the power to make an assessment without credits and the Court finds that the portion of the assessment without the credits is severable The Board had no power to attempt to refund the one per cent amounts as a credit and that portion is therefore illegal and stricken.
“7. Accordingly, the portion of the assessment remaining after a deduction of the illegal credits from the entire assessment is adjudged to be valid as to all of the condominium units, such amount to be reallocated among each unit in direct proportion to each unit’s share of ownership of the common elements as set forth in the Declaration of Condominium.”

The court thereupon ordered that a permanent injunction be placed upon appellees to prohibit them from both placing any liens upon appellants’ units and foreclosing those liens already placed upon said units based upon the illegal assessment. In addition, the court held that the assessment, made valid by the diminution of the illegal credit, should be paid by appellants within thirty (30) days from request.

Appellants contend that the trial court was correct in holding the original assessment to be invalid, but erred in judicially creating a new assessment. Appellants argue that any new assessment goes beyond the scope of the pleadings and is both improper and inequitable. Appellants base their argument, among other things, on the fact that the assessment was originally made three years ago when the developer owned many more units than it owns today; therefore, monies collected for the assessment based upon ownership three years ago, would be inequitable since the assessment will be used by the association for current expenses.

Appellees’ basic contention is that the court was correct in holding the assessment valid, but erred in eliminating the credit. Appellees claim that the failure of appellants to request an appearance before the Board of Directors of the appellee-association, in order to object to the assessment, was a procedural flaw, and therefore, the original assessment should be levied.

In first examining appellees’ contentions, we do not believe that appellants had to request an appearance before the board of directors as a prerequisite to bringing this law suit. After reviewing the record, we believe there was competent substantial evidence to support the chancellor’s finding that such an appearance, under the circumstances, would have proved useless. (See paragraph four (4) of the trial court’s conclusions of law).

As for the trial court’s ruling on the invalidity of the assessment credit, we hold that once the assessment became part of the common surplus of the condominium, it could only be redistributed to each unit owner in a form evidencing the percentage ownership of the common elements and common surplus of that unit. The following section of the Declaration of Condominium of Century 21 Commodore Plaza are dispositive of the issue and provide in part:

“4.2(a) . . . The interest of each apartment unit owner in the funds and assets held by the Association shall be in the same proportion as the liability of each such owner for common expenses. u * * *
“6.1 Share of Common Expenses. Each apartment owner shall be liable for a proportionate share of the common expenses, and shall share in the common surplus, such shares being the same as the undivided share in the common elements appurtenant to the apartment owned by him.”

The above sections are consistent with Chapter 711, the “Condominium Act,” as a whole and more particularly Section 711.-14(3), Florida Statutes (1975) which provides:

“In a residential condominium, the common surplus shall be owned by unit owners in the proportions or percentages of ownership of the common elements provided in the declaration.”

As for appellants’ contention concerning the trial court’s reallocation of the assessment, we hold that the chancellor, sitting in equity, did not abuse his discretion in holding that the original assessment, minus the credit, was valid. Section 711.-15(1), Florida Statutes (1975), provides in part that:

“A unit owner, regardless of how title is acquired, . . . shall be liable for all assessments coming due while he is the owner of a unit.”

We do not find it either unjust or inequitable for appellants to pay their pro rata share of the assessment, based upon their respective ownership of the common elements, for the period of time they owned each respective unit. In addition, after a careful examination of the record, we do not feel that -the chancellor went beyond the scope of the pleadings in ordering an enforcement of the original assessment minus the credit.

Any other issues raised by either appellants or appellees are without merit and need not be discussed.

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.


author: SMITH, Judge. BOYER, Chief Judge

text:
    Lance Sidney WHEELIS, and William Edward Hawkins, Appellants, v. STATE of Florida, Appellee.
    No. Y-399.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1976.

      George B. Weires, Miami, and Tyce S. Smith, Springfield, Mo., for appellants.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

Wheelis and Hawkins, convicted on a charge of attempted breaking and entering with intent to commit a misdemeanor, complain on this appeal of the trial court’s exclusion of certain evidence offered by the defense and of the court’s jury instruction concerning the weight to be given testimony by an accomplice. Florida Standard Jury Instructions in Criminal Cases, 2.12(d). We reverse on both grounds.

Wheelis and Hawkins were apprehended at an early morning hour on the roof of a Gainesville grocery. They were equipped with burglary tools and had broken a hole in a concrete block wall. Wheel-is was working in the hole when arrested. In the joint trial, Hawkins testified for the defense that he and Wheelis did indeed break into the wall by removing concrete blocks but that “we never did nothing like that before and we decided we didn’t want to go through with it” and so were replacing the blocks when the police arrived. On objection by the State that the crime of attempted breaking and entering was already complete and “[w]hat he attempted afterwards, I believe is irrelevant,” the court excluded the rest of Hawkins’ testimony, stating in the jury’s absence that

“The crime was consummated when they went up there and started to work.”

Wheelis’ similar testimony was proffered and excluded on the same ground.

If the question before the trial court were the sufficiency of the evidence to present a jury question of whether the defendants’ efforts had reached far enough toward the desired result to constitute an attempt to commit breaking and entering, we would unhesitatingly affirm the verdict and judgment. Groneau v. State, 201 So.2d 599, 603 (Fla.App. 4th, 1967), cert. den. 207 So.2d 452 (Fla.1967). See also Crittendon v. State, 338 So.2d 1088 (Fla.App. 1st, 1976). But the question is rather whether Hawkins’ testimony of his decision to abandon the criminal purpose and repair the hole was so remote and irrelevant to the charge that the jury could not properly consider it.

We conceive that the evidence was relevant. The jury, properly charged on the elements of criminal attempt, may with good reason have rejected the defense theory of abandonment. But the trial court would not have had authority to instruct the jury that “[t]he crime was consummated when they went up there and started to work.” For “[i]t is elementary that every element of a criminal offense must be proved sufficiently to satisfy the jury (not the court) of its existence.” Henderson v. State, 155 Fla. 487, 490, 20 So.2d 649, 651 (1945); Art. I, §§ 16, 22, Florida Constitution. Of course, no such charge was given the jury in this case. But pretermitting the defendants’ proof had the same effect.

Had the arresting officer obseryed Hawkins and Wheelis chisel the first chip of concrete from the first block, it might truthfully be said, as the trial court stated, that the attempt offense was complete. Yet it does not follow that the prosecution would thereby be disabled to prove that, as the officer observed, the defendants continued to widen the hole, The evidence would have been admitted to show their acts occurring at the same time and place and which were integral to the conduct for which they were prosecuted. Washington v. State, 118 So.2d 650, 653 (Fla.App.2d, 1960); Powell v. State, 208 So.2d 146 (Fla. App. 4th, 1968); Smith v. State, 311 So.2d 775 (Fla.App.3d, 1975), cert. den. 327 So.2d 35 (Fla.1976); 2 P. Herrick, Underhill Criminal Evidence § 266 (5th ed., 1976 cum. supp.). The same doctrine makes relevant the testimony here excluded. Thin as the defense theory of abandonment was, that was a matter for the jury’s determination.

Hawkins having testified, the trial court charged the jury over objection by both Hawkins and Wheelis:

“When two or more persons take part in the commission of a crime each is an accomplice of all the others. The testimony of an accomplice must be received with great caution and carefully examined by you before a conviction is based upon it. This is particularly true where there is neither direct testimony nor circumstances tending to corroborate the testimony of an accomplice. However, the testimony of an accomplice, even though uncorroborated, is sufficient from which to base a conviction if you are convinced by it of the defendant’s guilt beyond a reasonable doubt.”

The State has referred us to no reported Florida decision approving the quoted charge in connection with defense testimony by an “accomplice” of the accused or by one of two defendants tried jointly. Disapproval is implied in Myers v. State, 43 Fla. 500, 514-15, 31 So. 275, 279 (1901). Properly employed, the charge requires the jury’s careful examination of the accusatory testimony in behalf of the State of an alleged accomplice who may have collateral interests in accusing the defendant on trial. But as here employed, the charge improperly cast doubt and suspicion on testimony given by Hawkins in behalf of himself and Wheelis. See Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972); Presley v. State, 61 Fla. 46, 54 So. 367 (1911). The instruction was harmful to both Hawkins and Wheelis. REVERSED.

MILLS, J., concurs.

BOYER, C. J., concurs in part and dissents in part.

BOYER, Chief Judge

(concurring in part and dissenting in part).

I concur that inasmuch as both Wheelis and Hawkins were being tried simultaneously in a joint trial, the “accomplice instruction” should not have been given and that therefore, as to that point, reversal is required.

I cannot agree that the trial court erred in excluding as irrelevant what might have been attempted by appellants after the crime was consummated. In the majority opinion repeated reference is made to the defense “theory of abandonment”. I am not of the view that a crime, once committed, may be abandoned. As the trial judge observed “the crime was consummated when they went up there and started to work.” That they thereafter changed their mind and sought to undo their destruction by replacing the concrete blocks which had been removed is immaterial. A crime, once committed, cannot be uncommitted. The testimony which was excluded did not seek to establish abandonment of the scheme prior to consummation of the crime. Accordingly, I am of the view that in that regard the trial judge should be affirmed.

      . The court in Henderson, reversing a conviction for assault with intent to have intercourse with a minor female, held it error to charge the jury that evidence of the assault “stands un-contradicted,” that the girl’s previous chaste character had been established “without any contradiction” and that the only issue was Henderson’s intent.

      . “The reasons which have led to this distrust of an accomplice’s testimony are not far to seek. He may expect to save himself from punishment by procuring the conviction of others. It is true that he is also charging himself, and in that respect he has burned his ships. But he can escape the consequences of this acknowledgment, if the prosecuting authorities choose to release him provided he helps them to secure the conviction of his partner in crime . . .7 Wigmore, Evidence § 2057, at 322 (3d ed., 1940).


author: FOGLE, HARRY W., Associate Judge.

text:
    AETNA CASUALTY & SURETY COMPANY, for its own use and benefit and for the use and benefit of Juan E. Roman, and Lidia Ester Roman, Appellant, v. Arthur KELLEY et al., Appellees.
    No. 75-1388.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1976.
    Rehearings Denied Jan. 17, 1977.
    Wagner, Cunningham, Vaughan, Hapner, May & Genders, Tampa, Robert Orseck, of Podhurst, Orseck & Parks, Miami, and Susan Goldman, Miami, for appellant.
    Marjorie D. Gadarian, of Jones, Paine & Foster, West Palm Beach, for appellees.
   FOGLE, HARRY W., Associate Judge.

Plaintiff/appellant appeals from an order granting defendants’/appellees’ motion for a mistrial and, in the alternative, granting appellees’ motion for a new trial.

Juan Roman worked for a landscaping concern and as part of his job, went almost every day to Kelley’s Gardens, a nursery which raised coconut palms. On Sunday, April 23, 1972, Roman went to the nursery and told one Pyles that he was there to get a tree. Pyles was not feeling well and was busy when Roman arrived, so he agreed to Roman’s suggestion that he get the tree himself. Roman got the special boom vehicle which was designed to move through the narrow rows without harming the palm trees. Roman had seen the Kelley employees use the vehicle on many prior occasions, and he had even run it himself twice before. Roman took the Kelley vehicle into the field, dug the tree up, and lifted it with the cable to the boom truck. When he got into the vehicle to drive it back to the shed, the boom fell on Roman’s back and seriously injured him.

Roman received Workmen’s Compensation benefits from his employer who was insured by Aetna. Aetna brought a personal injury action for the use and benefit of Roman and his wife, Lidia E. Roman, against appellees, on the theory that the boom was negligently maintained and that appellees failed to provide proper instruction and warnings regarding its use. The cause proceeded to trial. While the jury was deliberating and after the completion of the three-day trial, the door to the jury room opened and a juror came out of the jury room, unannounced, and copied a number from the blackboard used by plaintiff’s counsel to dramatize damages in closing argument. The juror then returned to the jury room before the bailiff or anyone could do anything. Within a minute or two the jurors announced that they had reached a verdict which later turned out to be the exact figure written by plaintiff’s counsel on the blackboard in closing argument as to the damages suffered by Mr. Roman.

At that point, defendants moved for a mistrial, and a colloquy between the attorneys and the court resulted. The court made an inquiry of the bailiff who stated, “I heard the door click and I approached the door and the gentleman stuck his head out and went back in and jotted down some figures and that is all I observed at the time.” The court then called the juror and asked him for a yes or no answer to the question, “Did you a few moments ago come out of the jury room for the purpose of securing a number off the blackboard?” The juror answered, “Yes.” The court then called the rest of the jurors into the courtroom and asked for their verdict. The jury verdict was for Juan Roman in the amount of $238,272.80, the exact amount on the blackboard and which plaintiff’s counsel had asked for in closing argument, and $26,000 as to Mrs. Roman. The jury found comparative negligence of 38% on the part of plaintiff and 62% on the part of defendants. The trial court then reserved ruling on defendants’ motion for mistrial.

After discharge of the jury, plaintiff’s attorney and defendants’ attorney examined the jury room and found several small slips of paper. On six of the slips were written the following figures: 15%, 10%, 30%, 75%, 50% and 60%. On another slip these figures were totalled and then divided by 6, yielding an average of 43.3%. On six other slips were written the figures $35,000; $5,000; $10,000; $40,000; $5,000 and $60,-000. These figures were added and the result divided by six on another slip, yielding an average of $25,833. All of these slips were immediately given to the trial judge.

Defendants filed timely post-trial motions for new trial and to have the verdicts set aside and judgment entered in accordance with their motions for directed verdicts. After hearing on the motions, the court concluded the actions of the jury were “tantamount to an agreement for a quotient verdict” and granted the motion for mistrial and, in the alternative granted the motion for new trial.

The only issue on this appeal from the trial court’s order granting a new trial is whether or not the grounds for the order were sufficient; i. e., did the verdict of the jury constitute a quotient verdict.

We hold the trial court improperly granted a new trial to appellees on the basis that the rendition of the verdict for Juan Roman in the exact amount of the figure on plaintiff’s/appellant’s blackboard constituted a quotient verdict.

Although a trial judge has broad discretion in granting a new trial, the reason given by the trial court for granting a new trial here is legally insufficient since the verdict for Juan Roman is definitely not a quotient verdict. In stating the actions of the jury were improper and tantamount to an agreement for a quotient verdict, the order concluded, “it is apparent that an agreement had been reached among the jurors to adopt a figure on the blackboard as their verdict; consequently, the verdict rendered was not one arrived at by independent deliberation.”

Marks v. State Road Dept, 69 So.2d 771 (Fla.1954), defined a quotient verdict:

“. . .To constitute a quotient verdict . . . it is essential that there be a preliminary agreement or understanding among the jurors that each will select a figure as representing his opinion of value or damage and that the sum of said amount divided by the number of jurors will be accepted by each as his or her verdict, and is in fact so accepted.”

The trial judge herein has erroneously expanded the meaning of “quotient verdict” to include a situation where the jury adopts the figure presented by plaintiff’s counsel as the total damages sustained. In Braddock v. Seaboard Air Line RR. Co., 80 So.2d 662 (Fla.1955), where the court approved the use of a blackboard during closing argument to demonstrate the damages sought, the Supreme Court held that a jury may properly award damages equal to or in excess of those requested by counsel in closing argument. There was no evidence here that the jury had entered into any preliminary agreement to be bound by any quotient. See Brinson v. Weinstein, 237 So.2d 211 (Fla. 4th DCA 1970), cert. den. Fla., 243 So.2d 159.

Here the jury was polled by the court and each answered affirmatively that the verdict was his own. Further, the slips of paper pertaining to percentage of comparative negligence show division to reach an average of 43.4%, while the verdict was rendered for 38%; thus the percentage of comparative negligence represents more than a minimal discrepancy and does not indicate some slight addition or subtraction or a “rounding off” of a quotient.

The verdict in the amount of $26,000 for Mrs. Roman, however, is close enough to the $25,833 average on the six slips to raise some question as to whether or not a motion for new trial should be granted as to this verdict. In view of the trial court’s ruling, it does not appear from the record that any opportunity was ever afforded for counsel to explore whether or not the verdict for Mrs. Roman was a quotient verdict. This opportunity should be allowed.

The order granting a mistrial and, in the alternative granting a motion for new trial is reversed. Judgment for the use and benefit of Juan E. Roman shall be reinstated by the trial court. Upon remand, the trial court shall determine whether or not the verdict for the use and benefit of Lidia E. Roman was, in fact, a quotient verdict. If so, a new trial on the issue of damages must be awarded as to her claim. If not, the judgment for her use and benefit shall also be reinstated by the trial court.

GRIMES, A. C. J., and SCHEB, J., concur.

      . Appellees’ cross-assignments of error were stricken by this court on the authority of Gulf Coast Title Co. v. Walters, 125 Fla. 427, 170 So. 130 (1936), and Osteen v. Seaboard Coast Line RR. Co., 283 So.2d 379 (Fla. 1st DCA 1973). The most recent Supreme Court case in this area, Bowen v. Willard, 340 So.2d 110 (Fla.1976), has only a prospective effect. We note, however, that the grounds appellees attempted to raise in these cross-assignments would be raisable on an appeal from the reinstated judgment.


text:
    Minnie ROSEN, Appellant, v. Anthony James FIERRO and Josephine Fierro, his wife, Appellees.
    No. 75-1777.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1976.

      Ginsberg & Goldman, North Miami Beach, for appellant.
    Gars & Dixon, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant was the plaintiff in the lower court and appellees were the defendants. Appellant appeals a final judgment entered on October 17, 1975, which declined to establish an equitable lien on appellees’ home in favor of appellant.

The facts of this case are conflicting at best and need not be gone into with any great degree of detail. Suffice it to say that appellees are husband and wife, having been married in 1970. Appellee, husband, was previously married to one Leonare Fi-erro, the daughter of appellant. The marriage lasted twelve and one-half yfears, until Lenore died.

In October of 1974, appellees separated. Appellee-wife filed an action for dissolution of marriage and asserted a claim against the jointly-owned marital home. At this point, the evidence would seem to be in dispute, however, it appears that appellee-husband, in an effort to thwart the attempts of appellee-wife to establish a special equity.in the marital home, entered into some type of clandestine agreement with appellant. The purpose of this agreement was to attempt to create an equitable lien on the home, in favor of appellant, by claiming that appellant had loaned money to appellees in return for a promise to give appellant a note and second mortgage on the property. The evidence is uncontradict-ed that appellant, who, up to the time of this lawsuit, had remained very close to appellee-husband, had loaned substantial sums of money to appellees throughout the years and had even made a mortgage payment on the home for appellees.

Based upon the above, appellant sought an equitable lien on the property in the sum of $65,000.00. In addition to the imposition of the lien, appellant also sought a return of all monies loaned appellees.

At the conclusion of the trial, the chancellor found that appellant had “failed to establish by the greater weight of the believable evidence” that appellees had “represented or promised to give a mortgage on the subject property” and declined to impose an equitable lien on said property. In passing upon this issue, the learned chancellor did not rule on that portion of the complaint which sought a return of the monies loaned appellees and that aspect of the case is still pending in the lower court.

From the order denying the establishment of an equitable lien, this appeal follows.

Generally speaking, an award of an equitable lien based upon unjust enrichment or general consideration of right and justice must be predicated on factors such as mistake or material misrepresentation. Merritt v. Unkefer, 223 So.2d 723 (Fla.1969). In addition, an equitable lien may be declared when one has furnished funds for the improvement of the property of another, with the knowledge and consent of the other. Wagner v. Roberts, 320 So.2d 408 (Fla.2d DCA 1975).

It would appear from the record that there is competent substantial evidence to support the chancellor’s finding that, by the greater weight of the evidence, no representation was made by appellees to appellant that in return for money, appellees would give appellant a security interest in the home. In addition, there appears to be substantial evidence in the record to establish the fact that much of the money loaned appellee-husband was done so long before he ever intended to move to Florida, let alone build a home here. With the above in mind, we do not believe the requisites were met in order to establish an equitable lien on appellees’ home.

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.


author: NATHAN, Judge.

text:
    SUN LIFE INSURANCE COMPANY OF AMERICA, Appellant, v. Robert EVANS, Appellee (two cases).
    Nos. 75-1979, 75-1980.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1976.

      Stephens, Thornton & Schwartz and John Edward Herndon, Jr., Miami, for appellant.
    Koltun & Tobias, Coral Gables, for appel-lee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   NATHAN, Judge.

These are consolidated appeals by the defendant, Sun Life Insurance Company of America, from a final judgment on a directed verdict in favor of the plaintiff, Robert Evans, and an order awarding costs and attorneys fees in favor of the plaintiff, in an action to recover benefits claimed to be due Evans under a policy of disability insurance issued by Sun Life in 1969. The terms of the policy provide that in the event of total disability, Sun Life will pay to the insured $400.00 per month for a period of sixty (60) months.

The record reflects that Evans was and is the owner of an air conditioning duct installation business. Evans previously did all of the duct installation work himself, with one helper to hand him tools and materials. However, in 1972, Evans sustained a serious knee injury in a motorcycle accident, and when he was able to return to work, he could act only in a supervisory capacity. He could no longer bend his left knee fully to perform duct installation work which in large part involves climbing ladders and crawling in attics and small spaces. His former helper now performs all installation work, and a new helper has been hired to assist him.

Sun Life paid benefits to Evans for a number of months, and then refused to continue payments. Evans proceeded to file this suit. A jury trial was held, during which the judge determined that Evans was totally disabled, and at the close of the defendant’s case, directed a verdict for plaintiff Evans and discharged the jury. The judge stated his reasons on the record:

“The insurance policy which is sued upon in this case provides that the insured is entitled to recover for a total disability if he is unable to perform the usual functions of his occupation, or words to that effect.
“The law of Florida is that if an insured cannot perform any material, important or substantial act, which he usually or ordinarily performed in the course of an occupation, then the terms of the policy are fulfilled. In this case, as you heard there was no dispute but that Mr. Evans could not perform probably the predominant portion of his usual occupation after the accident.”

Final judgment was entered on the directed verdict, awarding Evans the full total disability benefits due and owing from the date of the last payment, up to and including the trial date. Six days later, an order was entered taxing costs against Sun Life, and awarding attorneys fees to plaintiff’s attorney.

One of the defendant’s points on appeal is that the trial court erred in directing a verdict in favor of plaintiff Evans on the issue of whether he was totally disabled as defined by the policy. We agree. In granting a motion for directed verdict, the court must determine that there is no evidence to support a jury finding for the party against whom the verdict is sought. Parsons v. Reyes, 238 So.2d 561 (Fla.1970). In order to avoid any encroachment upon the right of a litigant to a jury trial, the authority to direct a verdict should be exercised with great caution; a case should never be withheld from the jury unless, as a matter of law, no proper view of the evidence could possibly sustain a verdict in favor of the non-moving party. Shaw v. Massachusetts Mutual Life Insurance Company, 298 So.2d 183 (Fla. 1st DCA 1974). This is not the situation shown in this case.

In Equitable Life Assurance Society of United States v. Wiggins, 115 Fla. 136, 155 So. 327 (1934), the Florida Supreme Court followed the principle that the phrase “total disability” is a relative term, depending upon the character of the occupation, the capabilities of the insured and the circumstances of the particular case, so that ordinarily, any question involving application of the term total disability, is a question of fact for the jury. In our opinion, the evidence presented at the trial was sufficient to create different inferences on the question of total disability, and should have gone to the jury for determination. For example, the plaintiff’s physician testified at the trial that the plaintiff was unable to perform those functions of his occupation which required his knee to be fully bent; but that no disability was present for those functions which did not require this movement, such as purchasing supplies, contracting jobs, driving a truck or supervising the work of his employees.

It is necessary to look to the insured’s occupation as a whole in order to determine whether the insured can no longer perform his occupational duties; total disability does not mean absolute helplessness, but contemplates a disability to perform all the substantial and material acts necessary to his usual occupation in a customary and usual manner. Lorber v. Aetna Insurance Company, 207 So.2d 305 (Fla.3rd DCA 1968).

Based on the circumstances of this case, in the context of the applicable rules of law, we reverse both the final judgment on the directed verdict, and the order awarding attorneys fees and costs, and remand the cause to the trial court for a new trial. In view of the holding in this case, we need not pass on the other points raised on appeal by the defendant-appellant, Sun Life.

Reversed and remanded.


text:
    Leon F. SIMKOVITZ and Joyce Simkovitz, Petitioners, v. The STATE of Florida, Respondent.
    No. 76-779.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1976.

      Hirschhorn & Freeman, Miami, for petitioners.
    Richard E. Gerstein, State Atty. and John P. Durant, Asst. State Atty., for respondent.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Petitioners, Leon F. Simkovitz and Joyce Simkovitz, his wife, seek issuance of a writ of certiorari to review two orders of the Circuit Court dated October 30, 1974, and April 14, 1976, respectively.

The first order affirmed petitioner Leon’s conviction for shoplifting in violation of Section 811.022, Florida Statutes (1973), and affirmed petitioner Joyce’s conviction for contempt of court. The second order denied petitioners’ petition for rehearing. Pursuant to F.A.R. 4.5(c), petitioners filed their consolidated petition for writ of cer-tiorari in this court.

On April 24, 1973, petitioner Leon was arrested and charged with the crime of shoplifting. A non-jury trial was commenced in the County Court on July 30, 1973. At the end of the state’s case petitioner moved for judgment of acquittal, based upon the fact that the state had alleged in its pleadings that the goods were owned by “Jordan Marsh, Inc. as owner or custodian,” where in reality, Allied Stores, Inc., was the true owner. The court, however, denied said motion.

Petitioner Leon thereupon commenced the presentation of his defense. Firstly, petitioner called his wife Joyce to the stand as a witness in his behalf. Joyce testified as to facts which were material to her husband’s defense and introduced into evidence what purported to be a sales receipt which designated payment for the stolen merchandise.

Petitioner Leon then took the stand and testified, expressing an exculpatory version of events. The court, dissatisfied with the veracity of the testimony and evidence, found petitioner Leon guilty, as charged. Sentencing was withheld pending a presen-tence investigation.

On August 13, 1973, Joyce and Leon filed affidavits wherein they admitted giving false testimony at Leon’s trial. In addition, they admitted presenting a false document into evidence (the alleged sales receipt for the stolen merchandise). A motion to recant was filed requesting the trial judge to allow petitioners to testify as to the true facts which had occurred.

On September 17, 1973, a hearing was held and testimony taken. The trial judge sentenced petitioner Leon to six months in jail and Five Hundred Dollars ($500.00) fine for the crime of shoplifting (petit larceny). Petitioner Joyce was summarily found to be in contempt of court for her participation in the aforementioned deception and sentenced to an equal time of six months incarceration.

Both convictions were affirmed by the Circuit Court, sitting as a reviewing body, and this petition for common law writ of certiorari follows.

Petitioner Joyce contends that her conviction for contempt of court violated Rule 3.830, Fla.R.Crim.P. (Direct Criminal Contempt), in that the trial judge failed to comply with the procedures set forth in said rule before his adjudication of contempt was pronounced.

Rule 3.830, Fla.R.Crim.P. provides, in part, that:

“. . . The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show whyt| he should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances . 34 Fla.Stat.Ann. 320 (1975)

After carefully examining the record, we find that the trial court failed to comply with the above procedures and as such we must hold that it was error for the trial court to hold petitioner Joyce in contempt. Jacobs v. State, 327 So.2d 896 (Fla.3d DCA 1976).

Petitioner Leon contends that the Circuit Court departed from the essential requirements of law in affirming his conviction. It would appear from the record that petitioner’s only real argument of merit is based upon the state’s allegation in the complaint that the stolen property belonged to “Jordan Marsh, Inc., as owner or custodian.” As previously mentioned, testimony showed ownership to be in Allied Stores, Inc., of which Jordan Marsh is a member thereof. Based upon the above disparity, petitioner argues that an essential element of the crime of larceny has not been proved and therefore, it was error to deny his motion for judgment of acquittal made at the end of the state’s case.

It is clear, that an essential element of the crime of larceny (be it petit or grand) is that the property stolen must have been the property of'one other than the thief. Gaynor v. State, 196 So.2d 19 (Fla. 4th DCA 1967); Wilcox v. State, 183 So.2d 555 (Fla. 3d DCA 1966). We believe, however, that by alleging and proving the custodial interest of Jordan Marsh, Inc., the State adequately fulfilled its requirement of establishing ownership or superior possession in one other than the thief. Johnson v. State, 190 So.2d 601 (Fla. 3d DCA 1966). As such, we hold that the trial court correctly denied petitioner Leon’s motion for judgment of acquittal and the circuit court rightly affirmed his conviction.

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 the circuit court, sitting as a reviewing body, did not depart from the essential requirements of law in affirming petitioner, Leon Simko-vitz’s, conviction. Therefore, for the reasons stated and upon the authorities cited, his petition for certiorari is denied.

As for petitioner Joyce Simkovitz, we conclude that in affirming her conviction for contempt of court, the circuit court did in fact depart from the essential requirements of law. Therefore, the order affirming her conviction for contempt of court is quashed and certiorari is granted.

Petition granted as to Joyce Simkovitz and denied as to Leon Simkovitz.


text:
    Willie Frank James WATSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-539.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1976.

      Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant appeals from judgments and prison sentences entered and imposed for breaking and entering a motor vehicle and for grand larceny. The one point meriting discussion relates to his entitlement to credit for jail time.

The record reflects that appellant was incarcerated in the Polk County Jail for 171 days as of the date of his judgments and sentence. Expressly, no credit for this time was allowed by the learned trial judge, who stated at appellant’s sentencing that, as a parole, violator, appellant was not entitled to credit for time served. The record does not reflect, however, whether this time was otherwise credited to the offense for which he was previously placed on parole. While he is not entitled to a multiple credit, appellant is entitled to credit if he has not already received it otherwise.

Accordingly, the judgments and sentences appealed from should be and they are hereby affirmed. But the cause is remanded with directions to determine if credit was applied to the sentence under which appellant was paroled. If not, then credit shall be applied to the instant sentences. If the latter be the case, the trial court may merely enter an order amending the sentence so as to reflect jail time credit and appellant need not be returned to the court for this purpose.

Affirmed, but remanded with directions.

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

      . See Sec. 921.161, Fla.Stat. (1975); Dixon v. State, 339 So.2d 688 (Fla.2d DCA 1976); Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974).


author: PEARSON, Judge.

text:
    Larry Eugene VITT and Carol J. Vitt, Ms wife, Appellants, v. RYDER TRUCK RENTALS, INC., et al., Appellees.
    No. 75-1590.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Rehearing Denied Jan. 6, 1977.

      Schwartz & Klein, North Miami Beach, Podhurst, Orseck & Parks, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PEARSON, Judge.

The appellants are Larry Eugene Vitt and Carol J. Vitt, his wife; they were the plaintiffs in the trial court and received a final judgment awarding damages of $125,-000 to Mr. Vitt and $35,000 to Mrs. Vitt. The judgment was pursuant to jury verdicts in an action for damages as a result of defendant’s negligence in a collision between a tractor-trailer truck owned, operated and driven by the defendants and a motorcycle driven by Mr. Vitt. Comparative negligence was an issue in the trial and upon return of the jury verdicts, the plaintiffs moved for a new trial urging inadequacy of those verdicts and errors in the trial procedure.

The case was well-tried over a period of several days. Our review of the record in the light of the briefs and arguments convinces us that no reversible error appears, and we affirm.

The plaintiffs have presented six points on appeal. They are as follows: (1) The court erred in admitting into evidence the results of two experiments designed to show the stopping distance and the ability of a motorcycle to negotiate the corner where the accident occurred. (2) The court erred in admitting the testimony of two doctors concerning possible surgical procedures for further treatment of the plaintiff, Mr. Vitt. (3) The court erred in that it rebuked counsel for Mr. Vitt in the presence of the jury. (4) The court erred in allowing the testimony of three rebuttal witnesses whose identity had not been disclosed in the answers to interrogatories. (5) The court erred in failing to reinstruct the jury on comparative negligence when the jury returned with a question on negligence. (6) The court erred in failing to grant a new trial because the verdict was grossly inadequate for the serious injuries incurred.

Plaintiff Vitt was a police officer for the City of Miami Shores. He was proceeding north on N.E. 6th Avenue near its intersection with N.E. 95th Street in Dade County. The defendant truck made a left hand turn from N.E. 6th Avenue to go east on N.E. 95th Street as the plaintiff approached the intersection. The plaintiff applied his brakes and then, rather than hit the truck head-on, laid his motorcycle on its side and tried to skid underneath the truck. The plaintiff struck a part of the truck and was seriously injured in the pelvic region. He suffered permanent anatomical abnormalities of the pelvis and at the time of the trial, suffered from constant leaking of urine and impotence, as well as other claimed associated injuries.

The greatest emphasis on this appeal is placed upon the first point urging that the admission of testimony concerning the results of the two tests was improper. Defendant’s witness, C. W. Morrison, testified as an accident reconstruction expert. Over plaintiffs objection, he was allowed to testify that using his son as a rider and using a Harley Davidson motorcycle, which was the make of motorcycle used by the plaintiff, he had conducted 3 tests: two stopping-distance tests and a vehicle control ability test. The two stopping-distance tests were conducted at 32 miles per hour and at 35 miles per hour respectively. The tests were conducted at the site of the accident and attempted to show that a motorcycle of the same general type could be stopped from the point where the plaintiff’s skid marks started before the point of impact. The third test was performed at a speed of 35 miles per hour and was designed to show that a Harley Davidson motorcycle could negotiate the corner at that speed without reaching the point of impact. Appellant urges that the following dissimilarities between the tests and the accident should have prevented the tests from being presented to the jury: (1) the point of impact was not properly established; (2) the weight of the driver was not shown to approximate that of the plaintiff; (3) the motorcycle was not shown to have been similar except as to make; (4) the truck was not present during the experiment; and (5) there was no traffic, therefore, no emergency condition.

The appellants urge that under Florida’s restrictive policy with regard to admissibility of experiment results, the court erred in admitting the testimony. He relies upon the principle set forth in Morton v. Hardwick Stove Company, 138 So.2d 807 (Fla.2d DCA 1961). See also Burgin v. Merritt, 311 So.2d 688 (Fla.3d DCA 1975), and several opinions in criminal appeals including Hisler v. State, 52 Fla. 30, 42 So. 692 (1906); McLendon v. State, 90 Fla. 272, 105 So. 406 (1925); Roberts v. State, 189 So.2d 543 (Fla.lst DCA 1966). Our reading of these cases and those cited by the appellee convinces us that the best stated rule for the admissibility of evidence of an experiment and its subsequent appellate review is set forth in Huff v. Belcastro, 127 So.2d 476, 479 (Fla.3d DCA 1961), where Chief Judge Horton, speaking for the court, in reversing a judgment based upon a directed verdict for the defendants, stated the basis for the admission of experiment evidence as follows:

ije % sfc sfc sk sk
“However, as indicated in 13 Fla.Jur., Evidence, § 301: ‘Experimental evidence should be received with caution, however, and should be admitted only when it is obvious to the court from the nature of the experiments that the jury will be enlightened rather than confused.’ As a prerequisite to the admission of this evidence, it must be shown that the experiment was made under conditions substantially similar to those which prevailed at the time of the accident and the determination of the similarity of the circumstances and conditions must be left to the sound discretion of the trial court, subject to review only for abuse.”
ifc ‡

In considering whether or not the trial court abused its discretion so as to deprive the plaintiff of a fair trial in this case, we must consider the purpose for which the evidence was admitted and its possible prejudicial effect. The purpose of the experiments was to determine whether a man on a motorcycle at a given speed (which was testified to by the plaintiff and other witnesses) could effectively stop prior to, or otherwise avoid, the place of contact at the accident scene. We hold that in consideration of the nature of the test and the substantial similarity of the operation of the vehicle, the evidence was relevant for the purpose for which it was tendered. Further, the nature of the tests was such as to enlighten rather than to confuse the jury. The dissimilarity between the test conditions and the conditions surrounding the collision was not such as to destroy the validity of the conclusions which could be drawn by the jury from the evidence of the tests. We, therefore, hold that the trial judge did not abuse the discretion that the law gives him in determining the admissibility of this type of evidence.

Plaintiffs’ position upon their second point is that, to be admissible, medical testimony concerning procedures which may improve plaintiff’s condition must show that there is a reasonable medical certainty that the medical procedures will, in fact, improve plaintiff’s condition. We find that this position is not supported by the rules of evidence. It is well-established that evidence of future possible conditions and circumstances may be admitted in evaluating a plaintiff’s present condition. See Metropolitan Dade County v. Dillon, 305 So.2d 36 (Fla.3d DCA 1974). See also “ ‘Reasonable Medical Certainty’ in Florida,” 30 Florida Bar Journal 327. While the probative value of such evidence is not great, it is information the jury should have in the difficult task of trying to give plaintiff’s condition a dollar value. We hold no error has been shown.

Appellants’ point directed to a claimed rebuke of plaintiffs’ counsel before the jury is not supported by the record of the trial of this cause.

Each of the remaining points concerns rulings which are peculiarly within the discretion of the trial judge. An appellate court will reverse a judgment for an abuse of discretion only where the trial court’s ruling is not supported by any reasonable view of the issue before him. Cf. Castlewood International Corporation v. LaFJeur, 322 So.2d 520 (Fla.1975). Our review of the record of this trial does not show such an abuse in any of the rulings for which error is assigned.

Affirmed.


text:
    Linda BARKER, Appellant, v. Michael OSMAN et al., Appellees.
    No. 75-2003.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.

      Mamber, Gopman, Epstein & Foosaner and Craig D. Savage, North Miami Beach, for appellant.
    Dixon, Dixon, Lane & Mitchell and Frank A. Lane, Miami, for appellees.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Linda Barker, plaintiff in the trial court, appeals from an adverse summary final judgment granted in favor of the Osmans and their insurance carrier, Liberty Mutual Insurance Company.

Linda Barker, who was employed by the Osmans as a “nanny” and as a domestic servant, brought an action for damages for her personal injuries suffered when she fell off an antique dining room table while helping Mrs. Osman repaint the ceiling in the Osman home. The incident occurred during the second day that Linda Barker and Mrs. Osman were using the table.

In her deposition, the appellant-plaintiff stated that without warning one of the legs of the table gave way and both she and Mrs. Osman fell to the floor. There is no evidence in the record as to what caused the leg to give way nor whether or not the leg was defective. Upon the Osmans’ motion for summary judgment, the court reviewed the depositions, affidavits, and the photographs of the table in question, and entered final judgment in favor of the Osmans and their insurance carrier.

The appellant contends the trial court erred in entering final summary judgment in favor of the Osmans because there are questions of fact to be determined by the jury: first, whether or not a reasonable inspection would have revealed the table was defective and second, if so, whether the inspection which was made by the Osmans was reasonable under the circumstances. American Box & Lumber Company v. Chandler, 122 Fla. 169, 165 So. 382 (1935); C. F. Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694 (1937); Kenan v. Walker, 127 Fla. 275, 173 So. 836 (1936); Schneider v. K.S.B. Realty & Investing Corp., 128 So.2d 398 (Fla. 3rd D.C.A.1961); Pierson v. Seale, 128 So.2d 887 (Fla. 3rd D.C.A.1961); Beebe v. Kaplan, 177 So.2d 869 (Fla. 3rd D.C.A. 1965); Sonnenborn v. Gartrell, 179 So.2d 385 (Fla. 3rd D.C.A.1965).

It was for a jury to determine whether, under the circumstances, there was a reasonable inspection of the antique table prior to using it as a platform to support two adult females in an enterprise of painting the dining room ceiling. Therefore, the summary judgment is reversed and the cause is returned to the trial court for a trial on the issues as made by the pleadings.

Reversed and remanded, with directions.