text:
    J. A. JONES CONSTRUCTION COMPANY, Petitioner, v. STATE of Florida, DEPARTMENT OF GENERAL SERVICES, Respondent.
    No. JJ-180.
    District Court of Appeal of Florida, First District.
    March 17, 1978.

      Robert R. Feagin, III, of Holland & Knight, Tallahassee, for petitioner.
    No appearance for respondent.
   PER CURIAM.

A building contractor’s petition for writ of prohibition to prevent the Department of General Services from liquidating certain interest-bearing certificates of deposit placed as security by the contractor.

The petition for writ of prohibition is treated as a petition for review of agency action determining petitioner’s substantial interests in the interest-bearing certificates of deposit referred to in the petition, and for a stay of agency action pending review. The petition does not exhibit an agency order or otherwise indicate that proceedings under Section 120.57(1) or (2) have been had by the agency leading to such an order, or that such proceedings have been denied. Proceedings complying with Section 120.57 and an order complying with Section 120.59 being essential to any lawful action by the agency, it appears that the petition is premature. See State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), and McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

If an order for the threatened action has been or is hereafter entered upon appropriate proceedings, a motion to stay it pending judicial review will be entertained by the agency and, if otherwise denied, will be granted to the extent necessary for this court to entertain a renewed petition for review and a renewed motion to stay.

The petition for review and motion to stay are

DENIED.

SMITH, Acting C. J., and MELVIN and BOOTH, JJ., concur.


source: Caselaw Access Project

author: MASON, ERNEST E.

license: Public Domain

text:
    Forrest ADAMS, d/b/a Crown of Jacksonville, Appellant, v. Edward L. McDONALD and Juanita McDonald, Appellees.
    No. GG-370.
    District Court of Appeal of Florida, First District.
    March 20, 1978.
    Rehearing Denied April 18, 1978.

      Edward Siegel of Adams, Rothstein & Siegel, Jacksonville, for appellant.
    C. Wayne Alford of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for appellees.
   MASON, ERNEST E.

(Circuit Judge, Retired), Associate Judge.

Appellant, Adams, d/b/a Crown of Jacksonville, hereinafter referred to as “Crown”, filed this timely appeal for review of an adverse final judgment entered against him in the Circuit Court of Duval County.

The facts are undisputed. Appellees, Mc-Donalds, are the owners of a home in Jacksonville and in July of 1976 they entered into a contract with “Mr. Exteriors” to remove rotted wood from the exterior of their home in Jacksonville and to replace the same with aluminum siding.

“Mr. Exteriors” picked up certain aluminum building products from Crown, a wholesale dealer in such products, on July 30th, August 4th and August 6th, 1976. “Mr. Exteriors” began work on the McDonald house on August 2nd, and completed their project on Friday, August 6th, 1976, at which time the McDonalds paid “Mr. Exteriors” in full.

Crown concedes that at the time full payment was made the McDonalds had no knowledge of Crown, did not know where the aluminum siding came from and did not know that Crown was unpaid.

The McDonalds did not file or record a notice of commencement of work on their premises in connection with the improvements and did not ask for nor receive from “Mr. Exteriors” a contractor’s affidavit that all labor and materials had been paid, or listing what persons and lienors were unpaid.

On August 12, 1976, the McDonalds received the statutory “Notice to Owner” from Crown notifying the McDonalds that it had furnished materials to the job. This was the first knowledge that the Mc-Donalds had of the materialman’s bill owed by “Mr. Exteriors” to Crown.

On October 20th, 1976, the McDonalds received a copy of Crown’s claim of lien, which had been recorded the previous day.

On October 28th, 1976, the McDonalds filed suit praying that Crown’s lien against their property be vacated or cancelled. Crown answered and counterclaimed to enforce its lien for materials furnished to the McDonald’s home. The McDonalds answered the counterclaim asserting that Crown had no valid lien.

On May 24th, 1977, after trial, final judgment was entered for the McDonalds, holding that Crown’s lien was not valid. Hence this appeal.

We reverse, impelled as we are by the express provisions of the Mechanics’ Lien Law (F.S. Chapter 713), and prior decisions of the appellate courts of this state interpreting the rights of homeowners and ma-terialmen and laborers furnishing materials or labor in connection with the construction of improvements on real property. In so doing we suggest to the Legislature that it may desire to prevent in the future such harsh results as will occur to these homeowners in this case, by proper amendments to the Mechanics’ Lien Law.

The sole point raised by appellant’s assignment of errors for discussion by us is whether a materialman’s lien is enforceable against the owner of real property where the owner, without knowledge of unpaid materials, pays a contractor in full upon completion of the contract and the owner has fulfilled neither of the following requirements of the lien law, viz: (1) filed a notice of commencement nor (2) obtained a contractor’s affidavit, even though the preliminary “Notice to Owner” required of the materialman is not filed after the owner has paid the contractor in full.

We answer in the affirmative. We recognize our obligation not to substitute our judgment for that of the trial court where such judgment is supported by substantial evidence and is based upon a proper view of the applicable law. However, where the judgment is not supported by substantial evidence and is contrary to the law of this state as pronounced by our appellate courts, we have no other alternative but to reverse. Jurney v. Jurney, 110 So.2d 49 (Fla. 3d DCA 1959).

The key to this case is that the ap-pellees’ payments to the contractor, “Mr. Exteriors”, were improper under the Mechanics’ Lien Law. This is true because of their failure to file a notice of commencement and their failure to obtain a contractor’s affidavit from the contractor listing any unpaid materialmen or asserting that all such had been paid.

Section 713.13, Florida Statutes- (1975) requires an owner before commencing to improve his real property to record a notice of commencement in the Circuit Clerk’s office, and to post a certified copy of same, containing a description of the property to be improved, the street address of same, if available (and if not available such information as will describe its physical location), a general description of the improvement, the name and address of the owner, the name and address of the contractor, and certain other information.

Section 713.06(3)(a) provides:

“(a) The owner shall not pay any money on account of a direct contract prior to recording of the notice provided in s. 713.-13, and any amount so paid shall be improperly paid. . . ”

Subsection 713.06(3)(h) provides that when the owner has made improper payments his real property shall be held liable to all laborers, subcontractors and material-men complying with Chapter 713 to the extent of such improper payments.

Subsection 713.06(3)(d)l provides that when the final payment under a direct contract becomes due the contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwise, listing the name of each lienor who has not been paid in full, and the amount due or to become due to any such lienor. This affidavit is a prerequisite to the contractor’s lien or right of action against the owner.

Subsection 713.06(3)(d)5 provides that the owner shall retain the last payment due under a contract or ten percent of the original contract price, whichever is larger, and shall not disburse the same until the contractor’s affidavit has been delivered to the owner.

These various sections and subsections of the Mechanics’ Lien Law have been construed by the several appellate courts of this state and the sum and substance of their holdings is to the effect that an owner pays the contractor at his peril when he does not file the notice of commencement or demand and receive from the contractor the affidavit above referred to. All State Pipe Supply Co. v. McNair, 89 So.2d 774 (Fla.1956); Stone Arts v. Dwyer, 99 So.2d 880 (Fla. 2d DCA 1958); Daly Aluminum Products, Inc. v. Stockslager, 244 So.2d 528 (Fla. 2d DCA 1970); Bryan v. Owsley Lumber Company, 201 So.2d 246 (Fla. 1st DCA 1967).

Appellees complain that appellant did not give notice to appellees of his claim until after the owners had paid the contractor in full. There are two reasons why this is not a valid argument to defeat appellant’s claim. First, there is no evidence in the record that the lienor knew that the job was completed and that the owners were about or ready to pay the contractor. Secondly, under the express provisions of Section 713.06(2)(a), the lienor has forty-five days from the date of his commencing to furnish materials to the contractor to serve upon the owners a notice of his claim, or at least at a time prior to the contractor’s giving of his affidavit as to the status of the lienors, if any. As we have noted, no such affidavit was ever given to the owners, although they, at their peril, paid the contractor in full without ascertaining from him that there were no outstanding claims of lien. The notice of claim of lien was given to the owners well within the forty-five day requirement. Thus appellant is not estopped to enforce his lien.

Reversed and remanded for further proceedings in accordance with the views herein expressed.

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


author: MOORE, Judge.

text:
    Jimmy Lee WAGNER, Appellant, v. STATE of Florida, Appellee.
    No. 76-910.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1978.

      Richard L. Jorandby, Public Defender and Stuart A. Young, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Richard P. Zaretsky, and Glenn H. Mitchell, Asst. Attys. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellant appeals his conviction and life sentence for involuntary sexual battery on the grounds that trial court failed to instruct the jury on lesser included offenses, including attempted involuntary sexual battery, involuntary sexual battery which is a first degree felony, involuntary sexual battery which is a second degree felony, and assault and battery. We agree and reverse.

The victim was assaulted in the early hours of morning by an individual wearing a face mask and carrying a long object which at first appeared to be a gun, but turned out to be a piece of pipe. She testified that the assaulter performed vaginal and anal intercourse after which she was released. As a result of his constant threats to hit her on the side of the head with the pipe she submitted to his advances without struggle, but in fear of his carrying out his alleged threats. Upon her release, she immediately went to the police who took a statement from her and had her submit to a medical examination which discovered the presence of sperm and pubic hairs matching those of the appellant.

The trial court, in accordance with Section 794.011(3), Florida Statutes (1975), instructed the jury as follows:

“A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent; in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a violation of the Florida Criminal Law.”

The court refused appellant’s requested instructions on attempted involuntary sexual battery, Section 777.04, Florida Statutes (1975); the first degree felony of involuntary sexual battery, Section 794.011(4)(b), Florida Statutes (1975); the second degree felony of involuntary sexual battery, Section 794.011(5), Florida Statutes (1975); and assault and battery.

To say the least, the question of when it is necessary to give instructions on lesser included offenses is a persistent, agonizing problem to the trial bench. Seemingly, to put the matter at rest, the Florida Supreme Court held in Hand v. State, 199 So.2d 100 (Fla.1967) that it was error for the trial court to refuse to instruct on lesser included offenses when such instructions were required. Nevertheless, as Justice Sundberg stated in Lomax v. State, 345 So.2d 719, 721 (Fla.1977):

“. . . this did not preclude the evolution of a subsequent line of authority that held the error to be harmless if, again, there exists overwhelming evidence that the defendant committed the crime charged.”

The Supreme Court went on to hold that the harmless error doctrine will not be invoked when there is a failure to instruct on a lesser included offense.

Fla.R.Cr.P. 3.510 requires the court to instruct on an attempt to commit the crime charged as a lesser included offense, regardless of whether the evidence is consistent with such an instruction. Surprisingly, appellee has not addressed this specific question in its brief. In DeLaine v. State, 262 So.2d 655 (Fla.1972) the Supreme Court utilized the harmless error doctrine in affirming a conviction for rape where the trial court had failed to instruct on the lesser included offense of assault and battery. In that case, however, the trial court did instruct on the lesser included offense of assault with intent to commit rape and the jury convicted the defendant of the greater crime of rape. In affirming, the Supreme Court stated:

“As a matter of common sense and logic, if the jury did not convict the petitioners of assault with intent to commit rape, the same jury would not convict them of assault and battery, which is two steps removed from the crime of which petitioners were convicted.”

In the instant case, the jury had no opportunity whatsoever to convict of a lesser included offense as they were not so instructed. Notwithstanding, we feel the Supreme Court has impliedly overruled its decision in DeLaine, supra, by its decision in Lomax, supra, and we are bound by the latter.

This court has previously held that the first degree felony offense under Section 794.011(4)(b), Florida Statutes (1975), and the second degree felony offense under Section 794.011(5), Florida Statutes (1975) are “category four” lesser included offenses of Section 794.011(3), Florida Statutes (1975). Smith v. State, 340 So.2d 1216 (Fla. 4th DCA 1976); see also, Brown v. State, 206 So.2d 377 (Fla.1968). If the accusatory pleading and the evidence would support a jury finding of guilty of one of the lesser offenses, then instructions on such lesser included offenses must be given. In the instant case, the jury could have believed that appellant only used threats of force or violence likely to cause serious personal injury, thus a violation of the first degree felony. The jury could also have determined that the appellant used only physical force and violence not likely to cause serious personal injury, thus a violation of the second degree felony. Although there was substantial evidence of intercourse, the jury could have refused to believe this evidence and determined that a mere assault and battery had occurred. The failure to give all of these instructions on lesser included offenses was error for which the harmless error doctrine is not available.

Accordingly, the conviction and sentence is REVERSED and REMANDED with instructions to grant appellant a new trial.

ALDERMAN, C. J., and CROSS, J., concur.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Michael B. SMALL and Ann S. Small, his wife, Appellants, v. TOMASELLO, INC., Appellee.
    No. 76-1276.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1978.
    Philip J. Gouze of Law Offices of Michael B. Small, West Palm Beach, for appellants.

      Larry Klein, and George S. Okell, Jr., West Palm Beach, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

The appellants-homeowners’ terrazzo floor was allegedly cracked and damaged immediately upon the appellee-exterminator’s activity in drilling holes to inject poison in a concrete slab adjacent to the home. The only significant point on this appeal from a judgment entered after a jury verdict for the exterminator challenges the trial judge’s refusal to give the standard jury instruction, 4.6, on res ipsa loquitur. We have determined that the charge was properly declined and therefore affirm the judgment below on the basis of our conclusion that the circumstances of the incident in question do not reflect that “the occasion would not [in the ordinary course of events] have occurred in the absence of negligence, “Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 336 So.2d 1221, 1223 (Fla. 4th DCA 1976), and that the res ipsa doctrine is therefore inapplicable. Cf. Stanolind Oil & Gas Co. v. Lambert, 222 S.W.2d 125, 126 (Tex.Civ.App.1949); V. N. Green & Co. v. Thomas, 205 Va. 903, 140 S.E.2d 635 (1965); Coalite, Inc. v. Aldridge, 285 Ala. 137, 229 So.2d 539 (1969).

Affirmed.

ANSTEAD and MOORE, JJ., concur.


text:
    Ralph L. MULDER, Appellant, v. STATE of Florida, Appellee.
    No. 76-2317.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1978.
    Richard L. Jorandby, Public Defender, and Larry S. Weaver, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This is an appeal from a revocation of probation on which appellant was placed subsequent to pleading guilty to a charge of uttering a forged instrument, a third degree felony proscribed by Section 831.02, Florida Statutes (1975). Upon revocation of probation, appellant was sentenced to three years incarceration.

Appellant contends that because the court was limited to a two year maximum sentence under the terms of his negotiated plea that the trial court cannot exceed that sentence upon revocation of probation. The trial court accepted the plea negotiations and, without objection, placed the defendant on probation for a period of three years.

After probation has been revoked, the trial court can “impose any sentence which it might have originally imposed before placing the probationer on probation.” Section 948.06(1), Florida Statutes (1975). Appellant contends the plea negotiations were a restriction on this Statute. We disagree.

We hold that after probation has been revoked a trial court is free to impose any sentence up to the maximum sentence for the crime of which the defendant stands convicted. In this case the appellant was convicted of a third degree felony for which the maximum sentence was five years. Section 775.082(3)(d), Florida Statutes (1975).

Accepting appellant’s contentions would lead to absurd results. If the original plea negotiations including an understanding that a defendant would be placed on probation, and the court agreed, the court would then be unable to impose any prison sentence in the event probation was subsequently revoked. It cannot be said that the legislature intended to leave society without any recourse against those defendants who receive the benefit of the court’s mercy by being placed on probation and, subsequently, violate the terms thereof.

Appellant, having violated the terms of his probation, cannot now be heard to argue that the State is bound by the terms of an agreement which resulted in the initial imposition of probation.

Appellant’s remaining point having no merit, the conviction and sentence appealed from is accordingly

AFFIRMED.

ALDERMAN, C. J., and CROSS, J., concur.


author: DAUKSCH, Judge.

text:
    In the Interest of R. L. R., a child.
    No. 77-9.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1978.
    Rehearing Denied April 10, 1978.

      Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and Joseph R. Atterbury, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

In this interlocutory appeal Appellant challenges the order transferring jurisdiction of his case from the Juvenile Division to the Criminal Division of the Circuit Court. Because there is no record of any summons having been served in compliance with Fla.R.Juv.P. 8.090(d) we must reverse the order of transfer and remand the matter for a new hearing on the petition for transfer. The order was entered before the effective date of the new Rules, July 1, 1977. Upon rehearing the court shall serve a summons as required by Fla.R.Juv.P. 8.120 (1977). The service should be upon a parent having custody of the Petitioner or a legal custodian, or, if there is no legal custodian then the actual custodian or in the absence of all of the above, a guardian ad litem.

We are aware of the fact that juvenile counsellor testified he called Petitioner’s mother the night before the transfer hearing was to be held, a week after the petition for delinquency adjudication was filed and six days after the petition for transfer was filed. This is not sufficient notice nor does it comply with the letter or spirit of the former and newer rules.

REVERSED and REMANDED.

ALDERMAN, C. J., and CROSS, J., concur.


author: PER CURIAM. STETTIN, HERBERT, Associate Judge,

text:
    Aizell Tyrone KITTLES, Appellant, v. STATE of Florida, Appellee.
    No. 77-264.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1978.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review this court is of the opinion that the appellant was entitled to the disclosure of the identity of the confidential informant involved herein on the authority of Woods v. State, Case No. 76-836, 355 So.2d 437, Opinion issued February 7, 1978 (Fla. 4th DCA 1978). Accordingly, this cause is hereby reversed for a new trial and other proceedings consistent with this opinion.

DOWNEY and ANSTEAD, JJ., concur.

STETTIN, HERBERT, Associate Judge, concurs specially.

STETTIN, HERBERT, Associate Judge,

concurring specially:

While I agree with the decision of the Court, I believe some.further discussion is required concerning a reversal of the conviction on Count II. The defendant was charged by information in two counts with two separate sales of narcotics to the same undercover policeman. From the testimony at trial, it appears the first sale took place as a result of an introduction by a confidential informant. The second sale took place four days later but without the presence of the confidential informant. Woods v. State, supra, does clearly require reversal as to Count I, and, it seems to me, would also carry over so as to require reversal of the conviction under Count II because 1) the offenses were tried together, and 2) the State’s case rested entirely on the credibility of the undercover police-buyer in both transactions.

I therefore concur in the reversal of both convictions.


author: DOWNEY, Judge.

text:
    Frederick DUKES, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-541, 77-854.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1978.
    Rehearing Denied April 18, 1978.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler and Joseph Stuart Karp, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was convicted of delivery of heroin, adjudged an Habitual Felony Offender and sentenced to twenty years in prison at hard labor.

The alleged criminal episode giving rise to this prosecution began when a female confidential informant, Adrianne Jackson, went to the apartment of a female acquaintance, Jewell Blakley, for the purpose of purchasing heroin. Upon arrival Jackson informed Blakley of her mission; whereupon Blakley called to a man upstairs and advised him that she had a customer who wanted to cop one bag right then. A man appeared, identified himself as “Scoop” and sold Jackson one packet of heroin for ten dollars. Jackson observed the man for approximately one minute.

Appellant contends the trial court erred: 1) in allowing the prosecutor to improperly impeach both the appellant and his key witness, 2) in allowing the prosecutor to make improper prejudicial statements during closing argument and 3) in refusing to allow appellant’s wife to testify to corroborate appellant’s alibi defense, and 4) in not allowing defendant to interview the jurors. While we might be persuaded to overlook any one of the errors about which appellant complains, the totality of the circumstances in this case leads us to believe the appellant was not afforded a fair trial.

A reversal of this case is made more difficult because of the failure of the Public Defender to timely object to many of the improprieties now charged against the prosecutor. However, if the errors complained of destroy the essential fairness of a criminal trial, they cannot be countenanced regardless of the lack of objection.

Appellant’s first assertion of error has to do with the prosecutor’s cross-examination of the appellant. Without quoting the entire dialogue between the prosecutor and appellant, suffice to say that the prosecutor asked appellant “ . . . how many crimes have you been convicted of? ”, to which the appellant answered, “To my recollection, one.” The prosecutor then asked again, “How many times? ” and appellant continued to answer, “One.” Finally, the prosecutor directed appellant’s attention to a guilty plea he entered before The Honorable John Reed and asked how many Counts he had been convicted of. Appellant said, “One.” However, the prosecutor persisted and asked again, “Didn’t you plead guilty to both counts? ” Appellant said, “No, I didn’t. If I did, I didn’t understand it like that.” Finally, the prosecutor said, “ . . . tell us unequivocally if you can whether you were convicted of one or two counts. You understand you’re under oath now, don’t you? ” Defendant responded, “ . . . it’s possible that I could have been convicted of two, without understanding it.”

At a sidebar conference during this interrogation, the prosecutor advised the court and appellant’s counsel that appellant had been convicted in the Federal District Court on two separate and different deliveries of heroin, that he pleaded guilty to both counts and, therefore, he had been convicted of two separate crimes. When appellant’s counsel suggested the proper way to impeach appellant on this point was to bring in the record, the prosecutor made the not so veiled threat that, if appellant persisted, he would likely be up for, per jury next.

During the State’s closing argument the prosecutor used the foregoing colloquy in the following fashion:

“Now, he got on the stand, first of all, and he told you — well, first of all, he said he’d just been convicted of a crime one time. And then after a little cross examination he says; ‘Well, I’m not sure. Maybe it could have been two crimes. I was charged with two crimes. I might have been convicted of two crimes.’
“He hedged. He was not frank when he was asked the question. His demean- or, I suggest to you, was less than that of a credible witness . . . .” (Tr. 189-190)

The problem with this interrogation and argument is that the truth of the matter is appellant had only been convicted of one crime. When the State finally obtained a copy of the appropriate record in order to furnish it to the court at appellant’s sentencing, it became quite apparent the prosecutor had (no doubt in good faith, but improperly) forced appellant to incorrectly concede he may have been convicted twice. It seems to us that before a prosecutor sets about to aggressively cross-examine a witness about his criminal record, implying as was done here, that the defendant had additional convictions, he must be prepared to produce the record to back up the implication and not leave the jury with innuendoes or worse which improperly prejudice the defendant. As the First District Court of Appeal said in Thorpe v. State, 350 So.2d 552 (Fla. 1st DCA 1977):

“ . . . But the prosecutor who so cross-examines should be prepared to prove the facts concerning prior convictions. Houston v. State, 337 So.2d 852 (Fla. 1st DCA 1976). And when the prosecutor frames his questions to suggest as a fact that the accused was previously convicted of a certain offense, and the inference is false, the trial court must at least emphatically charge the jury to dispel the inference. Other remedies may be necessary if a corrective instruction is ineffective or if a prosecutor knowingly or recklessly plants a false inference.”

Adverting once again to the factual situation, appellant’s position was that he was not the person who sold the heroin to Jackson, the confidential informant. Appellant’s eyewitness, Blakley, corroborated that story. When the prosecutor commenced his cross-examination of Blakley, he asked her if she had sold Jackson some heroin. That question can serve no purpose but to attack the character of the witness and impeach her credibility. Yet the cases are legion which recognize the rule that evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness. Fulton v. State, 335 So.2d 280 (Fla.1976). Having set witness Blakley up with the foregoing question about selling heroin, the prosecutor then attempted to make her admit it by calling her attention to a plea she entered before another judge. As if that were not enough, having painted the witness as a heroin pusher, the prosecutor then asked Mrs. Blakley if that was how she made her living. Upon receiving a negative answer, the prosecutor asked, “You’re a prostitute, aren’t you? ” When she denied that, she was asked, “But do you deny that you have been convicted of prostitution? ” Appellant’s counsel finally objected, but the court overruled the objection. The prosecutor continued and asked Blakley if she had been convicted of prostitution so many times she could not remember. The question was never answered. Surely by now, with the numerous Florida cases delineating the parameters of impeachment of a witness for conviction of a crime, all trial lawyers should be familiar with the limitations on such interrogation. Here, the situation was aggravated because Blakley was not just an ordinary witness; she was an eyewitness to the entire criminal transaction.

The prejudice occurring from the State’s improper cross-examination of appellant and his eyewitness was further compounded in the prosecutor’s closing argument relative to witness Blakley:

“Now, he brought in this Jewell Blak-ley, admittedly a prostitute, admittedly a woman who has sold heroin to the same agent, A. W. Jackson, at the same location, 524 West Jackson Street, here in Orange County, and a woman who has admittedly been convicted of crimes so many times that she can’t even remember. And I tell you, ladies and gentlemen, that she is an incredible witness, and she is not worthy of your belief. She is a liar, clear and simple.” (T. 192-193)

The prosecutor’s parting shot on the question of the credibility of the State’s witnesses versus the appellant’s was:

“Now, you heard our case, and then you heard his case. You heard his witnesses, his prostitute, heroin pusher, convicted so many times she cannot count; who would think nothing of getting up on that stand and telling a lie for her buddy, Fred Dukes.
“You heard his testimony, and you heard his criminal convictions. . . . ”
(T. 227)

Thus, the State clearly violated the rules relative to the impeachment of witnesses for prior criminal convictions and then laced its closing argument with stinging comment based upon the improper evidence so adduced.

Finally, the State’s closing argument was also subject to criticism in that it violated Canon 7, DR7-106 of the Code of Professional Responsibility. In several instances the prosecutor asserted his personal opinion as to the credibility of witnesses.

We need not resolve appellant’s assertion of error in refusing to allow his wife to testify as an alibi witness because it is not likely to recur upon a new trial. Also we find no error in the court’s refusal to allow appellant to interview the jurors.

In view of the foregoing, we feel the ends of justice require that appellant be granted a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

ANSTEAD and LETTS, JJ., concur.


author: PER CURIAM.

text:
    Donald Joseph BARRON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1636.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1978.
    Sheldon M. Schapiro, Hollywood, and Raymond M. Windsor, Plantation, of Stone & Schapiro, Hollywood, for appellant.
    Robert L. Shevin, Atty, Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of possession of more than five grams of marijuana, which was located in a shed on a ranch owned by A. Douda & Sons. The evidence is entirely circumstantial and it is not inconsistent with appellant’s innocence. Thus, there is insufficient evidence upon which to support the conviction.

Accordingly, the other points raised need not be considered because our determination requires a reversal of the judgment and sentence appealed from and appellant’s discharge.

REVERSED AND REMANDED with directions to discharge appellant.

DOWNEY, ANSTEAD and LETTS, JJ., concur.


text:
    Roosevelt GREEN, Petitioner, v. BROWARD GENERAL MEDICAL CENTER and Dr. C. L. Reid, Respondents.
    No. 78-202.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1978.
    Linda Koenigsberg of Cohen & Kokus, Miami, for petitioner.
    Carey M. Fischer of Ferrero, Middle-brooks & Strickland, Fort Lauderdale, for respondent-Dr. C. L. Reid.
    Ellen Mills Gibbs, Fort Lauderdale, for respondent-Broward General Medical Center.
   DAUKSCH, Judge.

The issue raised by this Petition for Writ of Certiorari is whether the jurisdiction of a medical mediation panel terminates if a hearing is not held within 120 days from the date the claim was filed with the clerk and if no order extending the time of the hearing has been entered within that same 120 day period. Certiorari is granted.

We find it unnecessary to reach this’ issue because the record shows that no hearing on the claim was held within six months of the date the claim was filed as mandated by Section 768.44(3), Florida Statutes (1976 Supp.). Since the medical mediation procedure enacted by Part II, Chapter 768 is in derogation of the common law, and is an impediment to the constitutional guarantee of access to the courts of this state, strict compliance with the statutory provisions of Chapter 768 is required. Carter v. Sparkman, 335 So.2d 802 (Fla.1976); Mercy Hospital, Inc. v. Badia, 348 So.2d 631 (Fla. 3 DCA 1977).

No hearing on the claim having been held within six months from the date the claim was filed, Petitioner is now entitled to pursue his cause of action in the circuit court without further delay. But see, State ex rel. Love v. Jacobson, 343 So.2d 1328 (Fla. 3 DCA 1977).

The order extending the jurisdiction of the medical mediation panel to hold a hearing on the claim more than six months after the claim was filed is quashed and the cause remanded to the medical mediation panel with directions to enter a certificate of termination of jurisdiction.

QUASHED AND REMANDED.

ALDERMAN, C. J., and MOORE, J., concur.

      . Petitioner filed his claim prior to the effective date of the new Florida Rules of Medical Mediation Procedure.

      . “The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the claim is filed. If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.” F.S. 768.44(3).


text:
    William Earl DODSON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-2135 and 77-158.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before KEHOE, J., and BOYD, JOSEPH A., JR., Associate Judge and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By appeal No. 76-2135, the defendant below seeks reversal of his conviction of grand larceny, the theft of a privately-owned automobile. On the trial which was before a jury, the State produced evidence in support of the charge, including testimony of an arresting officer that the defendant had admitted to him the theft of the car. The defendant testified. On direct examination his attorney questioned him regarding a conviction for auto theft twelve years previous, which the defendant admitted. His attorney then asked the defendant if he had been convicted of “other crimes” and of “other felonies”, to which the defendant answered in the affirmative.

On cross-examination the prosecutor interrogated the defendant as to such “other crimes”, bringing out that they included another car theft, and thefts of property on breaking and entering.

Appellant contends the allowance of such cross-examination, over objection, deprived the defendant of a fair trial. We cannot agree. No reversible error was thereby committed. Defendant’s attorney opened the door. Shea v. State, 167 So.2d 796 (Fla. 3d DCA 1964); Martin v. United States, 404 F.2d 640, 642-643 (10th Cir. 1968).

By questions on direct examination of the defendant his attorney had created basis for an inference that there was one prior conviction for auto theft and that there were other crimes, i. e., crimes other than theft. The prosecutor, by cross-examination, sought to and did establish that such other crimes included auto theft and theft of other properties. Crimes of that kind, as distinguished from acts of violence, “are universally regarded as conduct which reflects adversely on a man’s honesty and integrity”. Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967). That gave that evidence of other crimes materiality. Williams v. State, 110 So.2d 654 (Fla.1959). Accordingly, the judgment appealed from is affirmed.

Appeal No. 77-158 is from an order revoking the defendant’s probation based on his above conviction. The contention on this other appeal is that the revocation order should be reversed if the judgment of conviction above referred to is reversed. That did not occur, and the order revoking probation is affirmed.


text:
    Rosalina R. MIRAYA and Matilda A. Pons, Appellants, v. BICHACHI ORIGINALS, INC., Appellee.
    No. 77-35.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Miller & Russell, Miami, for appellants.
    Krongold, Bass & Rosen, Coral Gables, for appellee.

      Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellants/plaintiffs (purchasers) appeal from an order dismissing their amended complaint with prejudice.

The amended complaint alleged, in essence, that appellants and appellee/defend-ant (seller) entered into a deposit receipt agreement for the purchase of an apartment house. The agreement provided that:

“Seller to provide a certificate of inspection of termites and roof.”
“No prior or present agreement or representations shall be binding upon any of the- parties hereto unless incorporated in this contract. No modification or change in this contract shall be valid or binding upon the parties unless in writing executed by the parties to be bound thereby.”

The transaction was closed, but appellee did not provide any certificate of inspection. Prior to closing, however, appellee’s representative advised appellants that he would furnish them with an inspection report indicating that the roof was in good condition. This report was to be provided after the closing, however, no such report was ever furnished.

The transaction was closed by appellants, in reliance upon appellee’s promise to provide the certificate following the closing. After the closing, appellants had the roof inspected and found it to be in such a poor condition that a new roof was required, at a cost of $13,000.00. Demands were made upon appellee to repair the roof, pay for repairs, or alternatively, to refund appellants their purchase price and rescind the entire transaction. Appellee, however, failed to respond to any of these demands.

Subsequent to the filing of an amended complaint which sought rescission, appellee moved to dismiss on the grounds that said amended complaint failed to state a cause of action upon which relief could be granted. More particularly, the motion stated that it was apparent from the face of the amended complaint that the transaction was consummated and therefore, according to the terms of the purchase agreement and the law, prior oral representations ceased and merged with the conveyed deed. It was further asserted in the motion that a mere promise to do something in the future, though subsequently broken, is not fraud in the “legal” sense, so as to be grounds for rescission.

The trial court granted the motion to dismiss with prejudice and this appeal follows.

The sole point on appeal is whether the trial court erred in dismissing appellants’ amended complaint with prejudice.

Upon consideration of the pleadings, briefs and arguments of counsel, we have concluded that the trial court did not err in dismissing the amended complaint, however, the amended complaint should not have been dismissed with prejudice as to all claims for relief. Appellants should have been given leave to amend their complaint to seek damages based upon breach of contract and/or fraud. The trial court was correct, however, in ruling that appellants had no cause of action for rescission. Milu, Inc. v. Duke, 204 So.2d 31 (Fla. 3d DCA 1967).

Accordingly, the judgment appealed from is affirmed in part and reversed in part, and the cause is remanded for further proceedings.

Affirmed in part, reversed in part and remanded for further proceedings.


author: KEHOE, Judge.

text:
    Karen GRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 77-302.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Norman Francis Haft, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before KEHOE, J., and BOYD, JOSEPH A. JR., and CHARLES CARROLL (Ret.), Associate Judges.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction entered pursuant to a jury verdict on the charge of second degree murder.

We have carefully considered each of the points raised by appellant on appeal and find them to be without merit. See Johnsen v. State, 332 So.2d 69 (Fla.1976); McDole v. State, 283 So.2d 553 (Fla.1973); Williams v. State, 110 So.2d 654 (Fla.1959); Redditt v. State, 84 So.2d 317 (Fla.1955); Louette v. State, 152 Fla. 495, 12 So.2d 168 (1943); Davis v. State, 349 So.2d 205 (Fla. 1st DCA 1977); Shapiro v. State, 345 So.2d 361 (Fla.3d DCA 1977); Frierson v. State, 339 So.2d 312 (Fla.3d DCA 1976); Wilson v. State, 305 So.2d 50 (Fla.3d DCA 1974); Lawson v. State, 304 So.2d 522 (Fla.3d DCA 1974); Foster v. State, 266 So.2d 97 (Fla.3d DCA 1972); Rodriquez v. State, 189 So.2d 656 (Fla.3d DCA 1966); Section 924.33, Florida Statutes (1975); and Fla.R.Crim.P. 3.153(a). Accordingly, the judgment appealed is affirmed.

Affirmed.


text:
    BEACH ROUNDHOUSE TOWN CORP., and Jenjayjon Corp., Appellants, v. William SKINNER, Appellee.
    No. 77-322.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Burns & Arnovitz and Jerold H. Reichler, Miami Beach, for appellants.
    Lionel Barnet, Miami Beach, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

By this appeal, we are asked to review a final order dismissing two counts of amended complaint brought by the corporate plaintiffs herein Beach Roundhouse Town Corp. and Jenjayjon Corp. against the defendant William Skinner before the Circuit Court for the Eleventh Judicial Circuit of Florida. It is urged that these counts were properly dismissed because the said corporations had no authority from their respective boards of directors or corporate officers to bring this suit. This may very well be true, but there is nothing within the four corners of the complaint which alleges such a fact. Therefore, the said counts in the complaint which otherwise state good causes of action were improperly dismissed. Flye v. Jeffords, 106 So.2d 229 (Fla. 1st DCA 1958); Stone v. Stone, 97 So.2d 352 (Fla. 3d DCA 1957); Section 607.011(1)(b), Florida Statutes (1975).

The order appealed from is reversed and the cause remanded for further proceedings.


text:
    TRAVEL SYSTEMS CORPORATION, Appellant, v. Robert A. KASKY et al., Appellees.
    No. 77-365.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Mac Mermell and Marc A. Kuperman, Coral Gables, for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Kenneth J. Weil and Bruce A. Christensen, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Pickard v. Maritime Holdings Corp., 161 So.2d 239, 241 (Fla. 3d DCA 1964).


text:
    Anthony WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-558.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.

      Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Anthony White was charged in a two-count information with rape and with breaking and entering a dwelling and unlawfully assaulting a person therein. This appeal is from a judgment of conviction on a jury verdict finding White guilty as charged on both counts of the information and a sentence thereon to two 99 year terms in the state penitentiary. The sole point on appeal concerns a remark by the prosecutor which is alleged to be a comment on the defendant’s failure to testify. On the facts of this case, no error has been demonstrated.

The record reflects that White’s defense at trial was insanity. He advised his attorney that he wished to take the stand and testify in his own behalf. Defense counsel, outside jury presence, announced to the court that the defendant asked to take the stand against advice of counsel. Anthony White was then called to the stand by his attorney, but he remained seated at the counsel table with his head hung low and his hands at his side. The court asked White whether he needed help getting to the stand. White did not answer, and remained seated in the same position. At this time, the prosecutor made the statement now being asserted as error, that “ . it must be obvious that the defendant does not wish to take the stand.” The court inquired as to whether White wished to take the stand. White remained seated and silent for a few seconds and then stood up, pushed the counsel table into the air, removed his shirt and proceeded to scream vituperous remarks. White was subdued as he backed up toward the jury panel with his hands together in the position of one hand carrying an imaginary firearm aimed at the jury, stating that he was going to kill all of them. After he was subdued, the jury was excused to the jury room, and White was handcuffed and removed from the courtroom to the holding cell. It is to be noted that defense counsel failed to make an objection to the prosecutor’s statement and in fact, twice refused an offer by the court to give a curative instruction to the jury. However, he did make a motion for mistrial on the grounds that White was not competent to aid in his defense, which was denied.

The defendant contends that the trial court committed fundamental error in failing to declare a mistrial when the prosecutor made the allegedly improper comment. We do not agree. Under the facts in this case, the remark by the prosecutor was not a comment on the failure of White to take the stand and testify in his own behalf. Rather, it was a remark which was induced, if not invited, by the defendant’s behavior in the courtroom, and it does not warrant reversal.

Affirmed.


text:
    M. S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-635.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.

      Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Wilson v. State, 304 So.2d 119 (Fla.1974); Tiller v. State, 330 So.2d 792 (Fla. 1st DCA 1976); Von Horn v. State, 334 So.2d 43 (Fla. 3rd DCA 1976); Brown v. State, 355 So.2d 138 (Fla. 3rd DCA 1978).


author: PEARSON, Judge.

text:
    W. B. and G. B. F., juveniles, Appellants, v. The STATE of Florida, Appellee.
    No. 77-709.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for W. B.
    Mark King Leban, Sp. Asst. Public Defender, for G.B.F.
    Robert L. Shevin, Atty. Gen. and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PEARSON, Judge.

Each of these juvenile respondents appeals from an adjudication of delinquency entered at the conclusion of a joint hearing. The petitions for delinquency grew out of the same incident.

An individual operating a concession on school grounds discovered that the day’s receipts were missing from her purse. School authorities had reason to suspect the two respondents, G. B. F. and W. B., because they had been observed in the school building at approximately 7:10 p. m. when they had no known reason to be there. An assistant principal interviewed G. B. F., who admitted that he and W. B. had taken the money and, in fact, money 'was recovered from both G. B. F. and W. B., as well as from a third party.

At the hearing, the only evidence presented to connect W. B. to the crime was the testimony of the assistant principal concerning the oral confession of G. B. F. When the State rested its case, W. B. moved for a judgment of acquittal on the ground of insufficiency of the evidence. Also, during the progress of the hearing, G. B. F. objected to the admissibility of his oral confession on the ground that the assistant principal “. . . occupies the same status as School Security.”

On this appeal, G. B. F. urges (1) that the trial court erred in ruling that the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), do not apply to an assistant principal of a school and (2) that the admission of the oral confession without Miranda warnings violated the juvenile’s constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16, of the Florida Constitution.

Respondent W. B.

We agree that the evidence against W. B. was insufficient to support the adjudication of delinquency. As announced by the Supreme Court of the United States in Bruton v. U. S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the admission of a codefendant’s confession which implicates the defendant in a form not subject to cross-examination deprives the defendant of his right to confront and cross-examine the witness against him. This same rule has been applied in Florida case law. See State v. Hamilton, 240 So.2d 509 (Fla. 3d DCA 1970).

Respondent G. B. F.

We cannot agree with G. B. F.’s contention that he was entitled to Miranda warnings. The decision of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), clearly limits the requirements therein to questioning by law enforcement officers. It is forcibly argued that a school official may be an agent of the police and, thereby, become liable to the same restrictions in the questioning of suspects as the police themselves. However, there is nothing in this record to support even a suspicion that the assistant principal who took the statement of G. B. F. was acting in the place of the police or as a police agent. It was simply the job of the assistant principal to investigate complaints originating out of the activities of students on school grounds. As such, he was a school official and not a police official. Therefore, the necessity for Miranda warnings did not exist. We have been cited to no case holding otherwise and the State has cited two cases supporting this position. See Doe v. State, 88 N.M. 347, 540 P.2d 827 (N.Mex.App.1975), and People v. Shipp, 96 Ill.App.2d 364, 239 N.E.2d 296 (Ill.App.1968).

Therefore, the adjudication of delinquency against the juvenile W. B. is reversed and the adjudication of delinquency against the juvenile G. B. F. is affirmed.


text:
    George KNOWLES, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1095.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.

      Eugene P. Spellman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Appealing from an order of the trial court which was rendered after an eviden-tiary hearing, and which denied his Rule 3.850 motion to vacate his sentence, appellant urges that he was not aware of the mandatory three year sentence under Section 775.087, Florida Statutes (1975), when he pled nolo contendere to the charge of attempted murder in violation of Sections 777.04(1) and 782.04, Florida Statutes (1975).

On April 29, 1976, appellant, through negotiations with the public defender, who was his counsel, the state attorney and the court, withdrew his not guilty plea and entered a plea of nolo contendere. This plea was entered with the understanding that a pre-sentence investigation would be ordered and that in addition, the court would give appellant the opportunity to present factual matters regarding the case in mitigation only, and that depending on such facts and investigation, the court might sentence him “to anything up to ten years.” Appellant contends that his attorney advised him that he possibly could get probation, and that since he did not understand the significance of his plea when entered, it is mandatory that this court vacate his plea of nolo contendere. Appellant relies on Norris v. State, 343 So.2d 964 (Fla. 1st DCA 1977), as authority for his position.

The record of the evidentiary hearing reflects that appellant’s trial attorney, after speaking with the court and the state attorney, and prior to the nolo contendere plea, told appellant,

“That a pre-sentence investigation would be ordered and that further, we would be given an opportunity at the time of sentencing to present witnesses in our behalf as to the factual allegations concerning the charge.
That if certain representations, which were made to me by Mr. Knowles, were shown by the testimony of these witnesses, that although a ten year cap was placed on the no contest plea, the Court would consider sentencing Mr. Knowles to something less. Even possibly probation. However, if that testimony was not forthcoming, then he was just about assured that he would be sentenced to ten years.
Q Did you, at any time, indicate to him, or did he indicate to you, that he felt that that testimony would not be forthcoming?
A No. He assured me that the testimony would be forthcoming.
* * * * * *
A If.-the testimony were what he said it would be, that that representation having been made to the Court, the Court indicated the possibility of probation.”

In Norris v. State, supra, appellant’s averment that she had the impression that probation was a possibility in her case, sufficiently alleged for the purpose of Florida Ruie of Criminal Procedure 3.170(j), that she was not apprised of the significance of her plea, to show that the plea was not voluntarily entered. As a result, an eviden-tiary hearing was required. As stated on page 964,

“. . If in fact she did not understand the significance of pleading guilty to an offense involving use of a firearm, she must be afforded the opportunity to withdraw her plea of guilty.”

Unlike Norris, an evidentiary hearing was had in the instant case, wherein the trial judge stated,

. . the Court will observe that even where the Norris case is a correct statement of the law, it would have no applicability in this situation because . the only possibility upon which Mr. Knowles would not receive up to ten years in the State Prison, and, in fact, ten years in the State Prison, would be if the testimony would be forthcoming and in accordance with his version of the incident in question.
In fact, that was not the case. In fact, the evidence was directly to the contrary. The Court did not impose the eight-year sentence because of the requirements of the statute, but because the conditions upon which I would not impose a ten-year sentence had not, in fact, been met in the sentencing proceeding which occurred subsequent to April 29th.
As a matter of fact, the only reason that the Court did not impose the ten-year sentence was that Mr. Knowles was very contrite at the sentencing. In fact, he was apparently eager to begin his prison sentence and was looking forward to a return to Raiford, as I understand it, where he had been twice before on similar charges.
Otherwise, the Court would have imposed the ten-year sentence because the condition of that not being imposed was not met.
So, the three-year minimum mandatory or the possibility of probation, assuming that such existed, neither one of those entered into the sentencing which was, in fact, imposed upon Mr. Knowles.”

There is no requirement under Florida law that the defendant be advised of any mandatory minimum sentence. Gonzalez v. State, 300 So.2d 691 (Fla. 2d DCA 1974). The test in this case is whether the plea had been voluntarily entered with a full understanding of its consequences. From the facts and circumstances of this case, we so find.

Affirmed.


author: PER CURIAM. HUBBART, Judge

text:
    Robert G. WILCOX, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1239.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The defendant appeals from conviction of grand larceny, armed burglary, and resisting arrest with violence, of which offenses he was found guilty on a jury trial. Adjudication of guilt was withheld on the convictions of grand larceny and resisting arrest. The defendant was adjudged guilty of the burglary offense, and was sentenced to imprisonment for a term of 15 years.

Based on fingerprint evidence, the defendant was arrested. At trial one of the arresting officers testified that when the defendant was informed he was under arrest, in resisting arrest, he stated: “I’m not going to jail again. I’m not going to jail again”.

The defense had requested discovery, under Fla.R.Crim.P. 3.220(a)(l)(iii), of any oral statements made by the defendant which were known to the prosecution. The response of the State thereto had not disclosed the above statement of the defendant. For that reason and other stated grounds, including prejudicial effect thereof, the defense attorney moved the court for an order of mistrial. The motion was denied, and the court instructed the jury to disregard the said testimony.

In contending for reversal, appellant argues first that it was reversible error for the court to fail to conduct an inquiry into the circumstances of the State’s failure to comply with the discovery rule in the respect above noted, citing: Cumbie v. State, 345 So.2d 1061 (Fla.1977), and Richardson v. State, 246 So.2d 771 (Fla.1971). Those cited cases are not applicable to the situation here. This was not an instance of where the court, after being informed of non-compliance with such discovery, is required to make an inquiry as to whether evidence to be introduced will be prejudicial, so as to preclude its introduction. Here the evidence, to the extent that it was prejudicial, had already been brought out in the testimony before the jury. In that circumstance, the question for the court was to determine the degree of prejudice thereof, and as to whether a mistrial, as requested, should be granted.

That leads to the second contention of the appellant, which is that the denial of defendant’s motion for mistrial was reversible error. We hold that contention is without merit, on authority of Perry v. State, 146 Fla. 187, 200 So. 525 (1941), and Williams v. State, 354 So.2d 112 (Fla. 3d DCA 1978).

A third error claimed by the appellant was refusal of the court to give a jury charge requested by the defendant relating to the standard of proof applicable when the State relies on fingerprint evidence, in conformity with the law relating thereto as pronounced in Ivey v. State, 176 So.2d 611 (Fla. 3d DCA 1965), and Tirko v. State, 138 So.2d 388 (Fla. 3d DCA 1962), in which it was held that where fingerprint evidence is relied on to establish that the defendant is the perpetrator of a crime it must meet the requirement that the circumstances are such that the print could have been made only at the time the crime was committed. Those cases, which stated the law but did not deal with the question of giving or refusing to give a separate charge on that feature, were decided prior to the approval by the Supreme Court of Florida on February 4, 1976 of the Standard Jury Instructions in Criminal Cases. The trial court charged the jury on circumstantial evidence, as set forth in Standard Charge 2.14. We hold no error was committed in refusing to give the requested charge in addition to the charge thus given.

For the reasons stated, the judgment is affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. In my view, the trial court committed reversible error in failing to conduct a Richardson inquiry into the state’s admitted discovery violation.

It is the established law of this state that once a violation of the state’s obligation to make discovery under Fla.R.Crim.P. 3.220 is brought to the attention of the trial court, it is the court’s responsibility to conduct an inquiry into the surrounding circumstances concerning the discovery violation to determine whether the defendant has been thereby prejudiced and what sanctions, if any, should be imposed. This inquiry at a minimum must include whether the state’s failure to make discovery was inadvertent or willful, whether the discovery violation was trivial or substantial, and most importantly, what effect, if any, the said discovery violation had on the ability of the defendant to properly prepare for trial. In such inquiry, the state has the burden of showing that the defendant was not prejudiced by the state’s discovery violation. The failure of the trial court to conduct such an inquiry once the discovery violation is brought to its attention is reversible error without regard to the harmless error doctrine. Cumbie v. State, 345 So.2d 1061 (Fla.1977); Richardson v. State, 246 So.2d 771 (Fla.1971); Lavigne v. State, 349 So.2d 178 (Fla. 1st DCA 1977); Allen v. State, 346 So.2d 1241 (Fla. 1st DCA 1977); Hardison v. State, 341 So.2d 270 (Fla. 2d DCA 1977); Kruglak v. State, 300 So.2d 315, 316 (Fla. 3d DCA 1974); Rembert v. State, 284 So.2d 428 (Fla. 3d DCA 1973); Carnivale v. State, 271 So.2d 793 (Fla. 3d DCA 1973); Garcia v. State, 268 So.2d 575 (Fla. 3d DCA 1972); Salamone v. State, 247 So.2d 780 (Fla. 3d DCA 1971).

The state does not contest any of the above well-settled principles of criminal discovery law. Nor does the state deny that it violated its responsibility under the criminal discovery rules when in response to a defense demand for discovery it falsely stated that it had no statements made by the defendant to the police and failed to disclose to the defendant the oral statement made by the defendant to the arresting officer herein in violation of Fla.R.Crim.P. 3.220(a)(1)(iii). Cumbie v. State, 345 So.2d 1061 (Fla.1977). Instead, the state’s sole argument on appeal as to this issue is that its admitted discovery violation was not brought to the attention of the trial court by defense counsel in his motion for mistrial made immediately after the undisclosed statement was testified to by the arresting officer before the jury. This argument has no merit. The court in its opinion herein has impliedly rejected this contention by accurately concluding that the state’s nondisclosure of the defendant’s statement was one of the reasons given by defense counsel for the said motion for mistrial. Since the required inquiry into the discovery violation was not thereafter conducted by the trial judge, a reversal of the conviction herein is clearly mandated by the applicable law of this state.

The court in its opinion, however, distinguishes the Richardson inquiry cases on the ground that the undisclosed statement herein was already introduced in evidence before the discovery violation was brought to the court’s attention and, therefore,- no inquiry as to prejudice was required. I find no such exception stated or implied in the Richardson line of cases, nor do I feel that such a distinction is warranted. Otherwise, the state could escape trial court inquiry into its discovery violations by the device of surreptitiously slipping into evidence previously undisclosed discovery evidence before the defendant has a chance to object. Obviously, such a procedure if approved would undermine the Richardson inquiry requirement.

In the instant case, defense counsel promptly brought the discovery violation to the court’s attention as soon as he learned of it. The police witness blurted out the previously undisclosed statement herein and immediately thereafter defense counsel moved for a mistrial and complained of the state’s discovery violation. This circumstance in no way constitutes a waiver of the trial court’s responsibility to conduct thereafter an inquiry into the discovery violation herein and the cases fail to recognize any such exception.

Moreover, the court does not address the question of whether the defendant was prejudiced by the discovery violation in his ability to prepare his case for trial. Nor is there any discussion as to whether the state’s discovery violation was willful or inadvertent, substantial or trivial. These are the critical issues which should have been determined by the trial court in an inquiry required by the Richardson line of cases. It is not our function to decide these questions on appeal in the absence of a trial court inquiry into the subject. The Supreme Court of Florida in Cumbie v. State, 345 So.2d 1061 (Fla.1977), has so held particularly where, as here, the state has given a false response on discovery.

As to the defendant’s contention that the court erred in failing to give a special instruction with respect to fingerprints as circumstantial evidence, I entirely agree with the court’s disposition of this point based on the authority of Jones v. State, 336 So.2d 672 (Fla. 1st DCA 1976).

I would reverse the conviction herein and remand the cause for a new trial.

      . The testimony of the arresting officer on direct examination by the state and defense counsel’s motion for mistrial based thereon occurred at trial as follows:
      “Q. Did you have an occasion to actually come in contact and meet Robert Wilcox to effectuate the arrest?
      A. Yes, I did.
      Q. Where was that?
      A. In his house.
      Q. Okay. Did you tell Mr. Wilcox he was under arrest?
      A. Yes, we did.
      Q. Did he go with you?
      A. Not willingly at first.
      Q. What happened?
      A. We advised him he would have to go down to the station. He said that in various words, I believe his exact words were, ‘Quit fucking with me, I’m not going to jail again. I’m not going to jail again.’ [Emphasis added]
      MR. FLYNN [DEFENSE COUNSEL]: Objection. Ask for a sidebar.
      THE COURT: Let’s excuse the jury for a minute.
      MR. FLYNN [DEFENSE COUNSEL]: May the witness, likewise, be excused for argument?
      THE COURT: Sure.
      [Thereupon, the jury retired from the courtroom and the following proceedings were had:]
      MR. FLYNN [DEFENSE COUNSEL]: Your Honor, at this point, I would move for a mistrial based on the statements of the officer concerning what the defendant said. I have before me the State’s response for discovery, it indicates there are no statements of the defendant. We now have, contrary to the State’s discovery, a statement before the jury which is, number one, of extremely questionable relevance; number two, reflects that the defendant, a juvenile, has been in jail on prior occasions, and accordingly has been arrested in the past and possibly even convicted of crimes in the past. There was no need for this testimony. It’s irrelevant.” [Emphasis added]

      . “A review of the cold record is not an adequate substitute for a trial judge’s determined inquiry into all aspects of the state’s breach of the rules, as Richardson indicates. Especially is this so in cases such as this, where a false response is given to a request for discovery.” 345 So.2d at 1062.


text:
    Earsel REASER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1515.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Bennett H. Brummer, Public Defendant and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Appellant, defendant below, appeals his conviction of grand larceny pursuant to a jury verdict, contending that the prosecutor’s comment on his post-arrest silence requires reversal.

A careful review of the record reveals that the comment at issue did not refer to defendant’s silence after he was placed in custody, but to his failure to voluntarily go to the police when he knew he was likely to be charged with a crime, and offer them the defense he later asserted at trial, viz., that someone else stole the property at issue.

Several days had elapsed between the incident and the defendant’s arrest. Defendant had scuffled with the complainant prior to fleeing the scene on foot, leaving his automobile behind. The car was easily traceable to him since it contained several identifying documents, and complainant could readily recognize him. Defendant should have known he was likely to be charged with a crime, and it is reasonable to believe that one who fears he is about to be charged with a crime committed by another would seek to exonerate himself as quickly as possible by volunteering exculpatory information to the police.

A defendant’s silence in such circumstances can be used at trial to impeach him after he has voluntarily taken the stand and offered testimony which is inconsistent with his earlier silence. The prosecutor’s comment was legitimate impeachment based on pre-arrest silence, not a comment on post-arrest silence, and therefore we find no error in the judgment below. Lebowitz v. State, 343 So.2d 666 (Fla.3d DCA 1977); United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3d Cir. 1973).

Affirmed.


text:
    Arthur J. SCHATZ, Appellant, v. Elinore K. SCHATZ, Appellee.
    No. 76-2360.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.

      Keith, Mack, Lewis & Allison, Miami, for appellant.
    Eleanor Levingston Schockett, Miami, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PEARSON, Judge.

Arthur J. Schatz, petitioner for dissolution of marriage to Elinore K. Schatz, brings this appeal challenging two provisions of the final judgment. The respondent wife cross-appeals and assigns as error the amount of attorney’s fees allowed her attorney.

The husband’s first point claims error in the following provisions of the final judgment.

“19. At such time as the Wife vacates the home, or her right of occupancy terminates by operation of this Order, the home shall be sold on the open market and the proceeds divided, with the Wife to receive credit to the extent of one-half of the payments made pursuant to Paragraph 20 below.
“20. The Wife shall pay all mortgage payments, taxes, insurance and maintenance on said home so long as she occupies the home.”

The husband’s position is that inasmuch as the amount of the rehabilitative alimony and child support was set by the trial judge after hearing testimony from the wife on the expenses necessary for keeping the home, accordingly, the amount of the monthly mortgage payment was included in the alimony and child support provisions. Having reached this conclusion, he then argues that the principles set forth in Hendricks v. Hendricks, 312 So.2d 792 (Fla. 3d DCA 1975), would require that as a co-tenant, the former wife should not “. receive credit to the extent of one-half of the payments made pursuant to Paragraph 20 . . .”

We find this proposition to be untenable in view of the fact that upon the payment of alimony and child support, the money becomes the property of the former wife. See Section 61.11, Florida Statutes (1975). It is apparent from a reading of the final judgment dissolving the marriage that the trial judge gave detailed consideration to each of the provisions in the judgment. The specific provision for the wife to be responsible for the payments on the home is independent of the provisions for payment of rehabilitative alimony. In addition, it is clear that rehabilitative alimony is given for the specific purpose of allowing a spouse to attain financial independence during a specified time. See Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973). As for the wisdom of the court’s provision, it is not the province of this court to substitute its judgment for that of the trial judge. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

The second point presented by the husband urges the impropriety of the following provision of the final judgment.

“11. As and for additional child support, the Husband shall:
“B. Pay for the religious education of both children, including Sunday School and Hebrew School and expenses related thereto. The Husband shall pay the statements for these services within thirty (30) days after they are rendered, or reimburse the Wife within thirty (30) days after notice for such fees as she has had to advance.”

The husband urges that this provision is improper because it is in violation of the First Amendment of the United States Constitution. Article I, Section 3, of the Florida Constitution is based upon this amendment and the Florida Supreme Court has declared that the Florida Constitution requires complete separation of church and state except where public health and morals are involved. See Henderson v. Antonacci, 62 So.2d 5 (Fla.1952). The point cannot present reversible error because the husband failed to raise the question in the trial court. See Caldwell v. People’s Bank of Sanford, 73 Fla. 1165, 75 So. 848 (1917); and Ballen v. Plaza del Prado Condominium Association, Inc., 319 So.2d 90 (Fla. 3d DCA 1975). It is clear from this record that both the mother and father were of the Jewish faith and, further, that no objection has been raised in this court for the provision of a particular faith in the final judgment. It is clear that if a provision is to be made for the moral education of the children, the parties intended, and led the judge to believe, that such provision should provide for training in a Jewish, religious school. Essentially, the only question presented is whether the court ever has the right to make a provision for religious education in a final judgment for dissolution of marriage. As pointed out in Justice v. Van Eepoel, 132 So.2d 407 (Fla.1961), the trial court must . . take into consideration . . . the age, health,- sex and moral surroundings of the children, [and] the benefits of education and development. . ."

We, therefore, conclude that no error has been shown in the provision for the husband to pay for the children’s religious education, which both of the parties tacitly represented to the court to be a proper subject for the payment of money for the welfare of the children.

Turning to the cross-appeal of the wife concerning the amount of attorney’s fees, we hold that no error is demonstrated on this record. See Chaachou v. Chaachou, 135 So.2d 206, 223 (Fla.1961), and Oncay v. Oncay, 183 So.2d 878 (Fla. 3d DCA 1966).

Having considered the appeal and cross-appeal, and finding no error in the final judgment, the final judgment is affirmed.

      . In a subsequent “Order on Wife’s Motion for Clarification,” the court
      “ORDERED AND ADJUDGED:

      “3. In Paragraph 11B of the Final Judgment entered on September 15, 1976, this Court provided, in pertinent part:
      ‘B. Pay for the religious education of both children, including Sunday School and Hebrew School and expenses related thereto. . ."
      “4. It was and is the Court’s intention that the foregoing language encompassed a synagogue or temple membership, such being necessarily related to the children’s religious education.”

      . Henderson v. Antonacci arises under the provisions of Declaration of Rights, § 5, of the 1885 Constitution. However, the difference between this provision and Art. I, § 3, of the present Florida Constitution of 1968 is one of wording and not intent.


author: McCORD, Chief Judge. BOYER, Judge, McCORD, Chief Judge.

text:
    Harry W. FERRISS, Appellant, v. Mary Frances Ray FERRISS, Appellee.
    No. GG-450.
    District Court of Appeal of Florida, First District.
    March 22, 1978.
    Rehearing Denied May 8, 1978.
    Calvin W. Wilson, Pensacola, for appellant.
    James D. Swearingen of Harrell, Wilt-shire, Stone & Swearingen, Pensacola, for appellee.
   McCORD, Chief Judge.

This is an appeal from a final judgment in a dissolution of marriage action. Appellant husband contends that the court erred in awarding appellee wife as rehabilitative or lump sum alimony the husband’s interest in the marital home of the parties owned as tenants by the entirety. We affirm.

The parties were married in 1947. At the time of the dissolution, the husband was 62 years of age and the wife 51. No children were born of the marriage. Neither does it appear that either party initially took appreciable assets into the marriage relationship. For the first 15 years, the husband and wife both worked together in the husband’s automotive supply business. When that business was dissolved in 1962, the husband, who suffered from a disability resulting from a mild form of epilepsy, retired. In 1965, he commenced receiving social security benefits. The wife took a part-time job after the business dissolved working two afternoons per week at $4 per hour. In 1972, she took a second job, and between the two jobs, worked a standard 40 hour week. When the business was dissolved, a judgment in the sum of $250,000 was obtained by a third party against both the husband and the wife. That judgment was later compromised and satisfied by the payment of $35,000 obtained from the sale of the marital home. At that time, the parties owned only modest assets. Thereafter, the husband inherited from his mother a Vs interest in 26 acres of property. Three acres of that property was subsequently condemned by the Department of Transportation, and the husband received $100,000 therefor. With part of this money he purchased property and had a home built for himself and his wife. Title was taken as tenants by the entirety. With the remainder of the money, together with some of the money left over from the sale of the marital home, the husband purchased stock. He obtained a release from the wife for $20,000 which had been put in an open account in her name in order to purchase this stock for which he spent $58,000. The stock declined in value and at the time of the hearing in this cause was worth only $5,000.

The parties had discussed the possibility of dissolution of their marriage for about one year prior to the husband’s filing the dissolution petition. Around the time of the initial discussions, the husband put his Vs interest in the property left to him by his mother in a trust to his children. This property is worth between $100,000 and $150,000. The trust agreement provides that the husband will receive the income from the trust and as much as the trustees determine is necessary for his health, support and maintenance. The husband’s financial affidavit reflected that he received $276.60 per month in social security benefits, $325 per month from a mortgage on the parties’ original marital home (which will last for six more years), half interest in the stocks, half interest in a savings account (approximately $1,000) and his interest in the trust property. The wife’s affidavit reflected a savings account of $2,400, a half interest in the mortgage ($325 per month for six years) and $360 per month in earnings from her two jobs). She also had a one-half interest in the stocks and the joint savings account of the parties. The second marital home of the parties was being sold at the time of the hearing below, and it was expected that the total equity in the home would be approximately $19,000.

The trial court awarded wife (1) all the furniture and fixtures in the marital home, (2) a diamond ring given to her by the husband, with a stipulation that she return the ring to the family at her death, (3) a one-half interest in the mortgage ($325 per month for six years), (4) a 1974 Plymouth automobile, (5) a one-half interest in the stocks, (6) a one-half interest in the joint savings account, and (7) all of the net proceeds received from the sale of the marital home, to be awarded as aforesaid as “rehabilitative or lump sum alimony.” The wife also received an award of $500 for her attorney’s fees. She was not awarded any part of the husband’s Vs interest in the property left to him by his mother. The husband was awarded a Honda automobile, one-half of the mortgage interest, one-half interest in the stocks, one-half interest in the joint savings account, and the total trust created by his inheritance from his mother.

As above stated, the sole bone of contention here is the award to the wife of the husband’s one-half interest in the approximately $19,000 value of the marital home. As can be readily seen, the husband is left with substantially greater assets than the wife. This was a 30-year marriage throughout which the wife worked continuously while the husband retired in 1962. Also, the wife prepared special diets for the husband and gave him special care throughout the marriage because of his illness. Although disabled through the last half of the parties’ marriage, the husband has managed to play golf several times a week, read books and imprudently invest large sums of money once maintained in the parties’ joint and individual savings accounts. The wife must continue to work at employment which pays her only $360 per month for a 40-hour week. The husband, on the other hand, has the income from a $100,000 to $150,000 trust, and the right to receive any principal that may be necessary for his support and maintenance. While it was not proper to award the wife the husband’s interest in the marital home as rehabilitative alimony since she has been constantly working throughout the marriage and is continuing to work, we find no error or abuse of discretion in the trial court’s award of such interest as lump sum alimony. Compare Brown v. Brown, 300 So.2d 719 (Fla. 1 DCA 1974); Maroun v. Maroun, 277 So.2d 572 (Fla. 3 DCA 1973); Linares v. Linares, 292 So.2d 63 (Fla. 3 DCA 1974); Baker v. Baker, 299 So.2d 138 (Fla. 3 DCA 1974); Keller v. Keller, 302 So.2d 795 (Fla. 3 DCA 1974); Walton v. Walton, 290 So.2d 110 (Fla. 3 DCA 1974); Collazo v. Collazo, 318 So.2d 164 (Fla. 3 DCA 1975).

AFFIRMED.

McLANE, RALPH M., Associate Judge, concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

As is noted from the factual recitation in the foregoing opinion, the assets acquired during coverture, except the marital home and furniture and fixtures, were fairly well divided. The husband makes no issue of the award to the wife of the furniture and fixtures. But there is no basis in the record for awarding the wife the husband’s equity in the marital home. She established no special equity beyond her own V2 interest nor do the facts demonstrate the need for alimony. Indeed, the wife is in a better position to maintain herself than is the husband.

Although sought, the wife can find no solace in this court’s opinion in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974). While I dissented in that case it was endorsed by the majority of a panel of this court and must therefore be recognized as precedent. (See Goldman v. Goldman, 333 So.2d 120 (Fla. 1st DCA 1976)) However, our Brown decision is only authority for that which was there held. It is factually distinguishable from the ease sub judice. In that case, in the words of the writer: “While the husband accumulated material wealth, the wife dutifully kept house and assumed the primary responsibility for raising and caring for the four male children born of this marriage.” Sub judice, there were no children of the marriage and there is no evidence of the wife’s participation in the marriage venture other than her participation in the business and her subsequent employment which clearly entitles her to her interest in the marital assets but there is nothing to establish her entitlement to the husband’s interests.

In addition, the author of the Brown opinion stated:

“ * * * In addition, we have before us a factual situation which is still prevalent even in this modern day of women’s liberation, i. e., a wife who has foregone pursuing a professional career and the accumulation of a personal estate in order to be a fulltime mother and homemaker while the husband remains in the market place providing for the material needs of his family and accumulating a sizeable personal estate. * * * ” (300 So.2d 722)

Such are not the facts sub judice.

Another material fact in the Brown decision was the husband’s admitted efforts and motivation to accumulate wealth in his own name in order to prepare for a long desired divorce. No such facts are here present. Indeed, a substantial majority of the assets of the parties which were held in both names were acquired with funds derived from the husband’s inheritance. Certainly there was no scheme nor motivation as reflected in the Brown opinion.

Closely analyzed, the Brown decision is authority for the position of appellant. There it was held:

“ * * * Lump sum alimony is no longer frowned upon in adjusting the material wealth of the parties at the time of dissolution of the marriage. * * * Husband and wife are now truly partners in the marital venture sharing equal rights and obligations.
“The ultimate question is now reached. How shall the material wealth of a marriage which is being dissolved be divided when one partner, the wife, has contributed her time to the marital home and the children of the parties while the husband has pursued the accumulation of material goods. The evolution of the law of alimony that we have reviewed in length shows that today the contributions of each party to the accumulation of material assets must be considered in dissolving the marital partnership. * * ” (300 So.2d 725-726) (Emphasis added)

Sub judice the learned trial judge went beyond the equal division of the partnership assets and awarded to the wife, without need being shown, the husband’s interest in the equity in the marital home. That he was not authorized to do. (See, for example, Baker v. Baker, 315 So.2d 217 (Fla. 1st DCA 1975) authored by the same judge who authored the Brown opinion)

Numerous cases have held that the award to a self-supporting wife the husband’s interest in the marital home is an abuse of discretion. (See, for example, Woodland v. Woodland, 293 So.2d 370 (Fla. 4th DCA 1974); DeLones v. DeLones, 297 So.2d 585 (Fla. 3rd DCA 1974); Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974); Venzer v. Venzer, 308 So.2d 544 (Fla. 3rd DCA 1975); Cannon v. Cannon, 323 So.2d 9 (Fla. 1st DCA 1975); Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976) and Bailey v. Bailey, 340 So.2d 933 (Fla. 4th DCA 1976). See also Canakaris v. Canakaris, 356 So.2d 858 (Fla. 1st DCA 1978) Case no. FF-265, Opinion filed March 17, 1978.

I would reverse.

ON PETITION FOR REHEARING

McCORD, Chief Judge.

Appellant’s petition for rehearing points out that the foregoing opinion erroneously states the year appellee took a second job to have been 1972 when in fact it was 1975. We acknowledge that the record shows such year to have been 1975. We point out, however, that the Court was led into this error by appellant’s brief which states the year appellee began the second job was 1972. We have considered the other points raised by the petition for rehearing and find them to be without merit.

Rehearing denied.

BOYER, J., and McLANE, RALPH M., Associate Judge, CONCUR.


text:
    Willard D. DARBY, Appellant, v. Ella Mae DARBY, Appellee.
    No. 77-1376.
    District Court of Appeal of Florida, Second District.
    March 22, 1978.
    Marie Alice Crano, Lake Wales, for appellant.
    Ella Mae Darby, pro se.
   PER CURIAM.

Appellant, Willard D. Darby, appeals the final judgment of dissolution of marriage awarding appellee, Ella Mae Darby, alimony. His sole point on appeal is that the trial court erred in fixing an alimony award. We agree and reverse.

Appellee filed a petition for dissolution of the marriage alleging that the marriage was irretrievably broken. She did not request alimony or any relief other than dissolution. Appellant filed a counterpetition for dissolution requesting, among other things, “other and further relief as may be just. . . . ” The parties subsequently entered into a written stipulation providing in pertinent part that the “[hjusband agrees that the marital home of the parties is the separate property of wife and he makes no claim to it or any part of it.” The stipulation did not provide for the payment of alimony.

Neither appellant nor his attorney of record was present at the final hearing.

The final judgment provided that:

The Court has considered the stipulation of the parties and the same is not approved insofar as it is silent as to permanent alimony. This has been a long term marriage and wife is unemployed and without funds while husband’s income is approximately $150.00 per week, and the Court is somewhat troubled by these facts and therefore awards to wife temporary alimony of $36.00 per week, the first payment to be due on July 8, 1977 and on each Friday thereafter continuing through October 28,1977, and the Court further awards wife permanent alimony of $21.00 per week, the first payment to be due November 4, 1977 and subsequent payments to be due on each Friday thereafter until wife remarries or dies.

There is no question that the trial court had the authority to make an award of alimony even though it was not specified in the stipulation. However, such an award should not have been made without first affording appellant the opportunity to an adversary hearing at which evidence would be introduced as to the ability of appellant to pay and the needs of appellee.

Accordingly, the award of alimony is reversed and the case is remanded for further proceedings on that issue. In all other respects the judgment is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

BOARDMAN, C. J., and GRIMES and' OTT, JJ., concur.


author: OTT, Judge.

text:
    SUMTER COUNTY, Florida, Appellant, v. H. E. DAVIS, Appellee.
    No. 77-1408.
    District Court of Appeal of Florida, Second District.
    March 22, 1978.
    Randall N. Thornton, Lake Panasoffkee, and Julian E. Harrison, Bushnell, for appellant.
    No appearance for appellee.
   OTT, Judge.

In this appeal the appellant complains of an order of the trial court denying its motion to dismiss the appellee’s complaint. We agree and therefore reverse.

The plaintiff/appellee filed a complaint for declaratory relief. After the necessary party identifications and jurisdictional allegations, the complaint charged that the appellant (Sumter County) had unlawfully enacted two zoning ordinances which were not in compliance with certain statutory formalities prescribed in Chapter 163, Florida Statutes (1976).

The only fact alleged in the complaint concerning the status of the appellee was that he “is the owner of certain real property located in the unincorporated area of Sumter County.” There is no suggestion anywhere in the complaint that any right of the appellee has been invaded or affected by the ordinance. The complaint is therefore lacking in an essential requirement for standing to secure declaratory relief, namely, “a right or need on the part of the complaining party to receive the declaration requested.” Reid v. Kirk, 245 So.2d 877, 879 (Fla.1st DCA 1971). See McNevin v. Baker, 170 So.2d 66 (Fla.2d DCA 1964).

In Florida State Board of Dispensing Opticians v. Bayne, 204 So.2d 34, 37 (Fla.2d DCA 1967) the court held:

In an action for declaratory relief, the complaining party must demonstrate that it has a judicially cognizable, bona fide, and direct interest in the result sought by the action.

In addition, the dispute must be justiciable in the sense that it be based upon some definite assertion of right. 9A Fla.Jur., Declaratory Actions § 13 (1972). In Smith v. City of Pinellas Park, 336 So.2d 1255 (Fla.2d DCA 1976) the court held that plaintiffs had no standing to seek a declaratory judgment attacking the validity of an ordinance where no justiciable controversy existed. The court held that plaintiffs/appellants “have no real, immediate legal interest in such a declaration nor a present bona fide practical need therefor.” 336 So.2d at 1256. Cf., Williams v. Howard, 329 So.2d 277 (Fla.1976).

Judge Pierce, writing for the majority in Bayne, held:

The test of the sufficiency of a complaint for declaratory judgment is not whether the plaintiff will succeed in obtaining such a declaratory decree of rights in accordance with his theory, but whether he is entitled to a declaration of rights at all. 204 So.2d at 36.

Having failed to meet one of the essential requirements of standing to seek or secure declaratory relief the motion to dismiss the complaint should have been granted. The order of the trial court denying the motion to dismiss is therefore reversed and the cause remanded for further proceedings consistent herewith.

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


text:
    TOWN OF REDINGTON SHORES, a Florida Municipal Corporation, Appellant, v. SHORE MARINER, LTD., etc., Appellee.
    No. 77-1613.
    District Court of Appeal of Florida, Second District.
    March 22, 1978.
    William H. Fleece of Fleece, Rhoades & Werly, St. Petersburg, for appellant.
    Russell L. Forkey of Forkey & Kirsch, Fort Lauderdale, for appellee.
   PER CURIAM.

This appeal has been previously consolidated with Town of Redington Shores v. Redington Towers, Case No. 76-909, upon the motion of counsel for Redington Shores. This court rendered its opinion in Case No. 76-909 on February 3, 1978, 354 So.2d 942 and the parties were ordered to notify the court in writing as to the effect of that decision on this appeal. The responses have been received, and the parties agreed that the opinion of this court in Case No. 76-909 totally disposed of the issues in this appeal. Accordingly, the order appealed in Case No. 77-1613 is reversed on authority of Town of Redington Shores v. Redington Towers, 354 So.2d 942 (Fla. 2d DCA 1978).

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


text:
    STATE of Florida, Appellant, v. Johnny WARDLOW, Appellee.
    No. 77-2066.
    District Court of Appeal of Florida, Second District.
    March 22, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Chief Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Appellant, the State of Florida, contends that the trial court erred in granting the motion to dismiss filed by appellee/defend-ant, Johnny Wardlow. We agree.

After appellee filed a motion to dismiss a one-count information charging him with making a false statement for the purpose of obtaining food stamps, in violation of Section 409.325, Florida Statutes (Supp.1976), the state filed a sworn traverse which specifically denied the factual allegations contained in the motion. Fla.R.Crim.P. 3.190(d) states in pertinent part: “A motion to dismiss under paragraph (c)(4) of this rule shall be denied if the state files a traverse which denies under oath a material fact alleged in the motion to dismiss.” Accordingly, the trial court should have denied the motion, and it was error to dismiss the information. See State v. News-Press Publishing Co., 338 So.2d 1313 (Fla. 2d DCA 1976).

We reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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