text:
    STATE of Florida, Appellant, v. Johnny WARDLOW, Appellee.
    No. 78-1511.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1979.

      Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   OTT, Judge.

The state filed an information charging appellee, Johnny Wardlow, with a felony violation of § 409.325, Fla.Stat. (1977) which prohibits food stamp fraud. Appellee filed a motion to dismiss the information and the trial court granted the motion. We reverse.

Section 409.325 provides that if a person fraudulently seeks or receives less than $200 worth of food stamps in a one year period, he is guilty of a misdemeanor, but if he fraudulently seeks or receives $200 or more worth of food stamps within one year he is guilty of a felony. Based upon a stipulated statement of facts the lower court decided that appellee had sought or received only $198 worth of food stamps and so could not be charged with a felony violation of § 409.325.

The pertinent portion of the stipulated statement of facts was as follows:

On February 9, 1977 the defendant went to the Food Stamp Office in Fort Myers, Lee County, Florida and filed for and signed an application for Emergency Food Stamp Benefits. The application is numbered E192 and a certified copy is attached hereto and made part of the record as Exhibit A.
The Emergency Food Stamp application E192 shows the defendant’s address as 348 Michigan Court, Fort Myers; the defendant as the head of the household that includes four dependents in addition to his wife, Latricia; and that he or his family members were not certified regular food stamp clients. The application shows it was approved. According to testimony of witnesses, the defendant was eligible for a total of $198.00 in benefits. These funds were never issued. Another Emergency Food Stamp worker, Kathy McQue had another Emergency Food Stamp claimant who filed for and signed an application for Emergency Food Stamps listing the same address as the defendant, 348 Michigan Court. - Ms. McQue relayed this information to Bernadette McDaniell, the Emergency Food Stamp Worker on the defendant’s Emergency Food Stamp application. Ms. McDaniell took application E192 from the defendant. The next day, February 10, 1977, the defendant again returned to the Food Stamp Office in Fort Myers and filed for and signed an application for Emergency Food Stamp Benefits. The application is numbered E450, a certified copy which is attached and made a part hereof as Exhibit B. On this application, the defendant’s address is listed as 633 Michigan Court and the defendant is listed as the head of the household with no dependants. The defendant was issued $50.00 from the cashier.

This statement of facts allows the conclusion that application E450 on February 10 (under which $50 worth of food stamps was received) was neither a part of nor in lieu of application E192 for $198 worth of stamps on February 9. The two applications would thereupon be separate and distinct applications in every way and the $198 sought and the $50 received become separate amounts which must be added together.

Accordingly, we hold that the stipulated facts established a prima facie case that appellee fraudulently sought or received $248 worth of food stamps, and so the trial court should not have granted the motion to dismiss. Fla.R.Crim.P. 3.190(c)(4).

We therefore reverse the order dismissing the information and remand the case for further proceedings consistent herewith.

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

      . This was appellee’s second motion to dismiss. The trial court also granted the first motion, but we reversed. State v. Wardlow, 356 So.2d 901 (Fla.2d DCA 1978).

      . Section 409.325 Fraud.—
      (5)(a) If the value of the assistance or identification wrongfully received, retained, misappropriated, sought, or used is less than an aggregate value of $200 in any 12 consecutive months, such person is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
      (b) If the value of the assistance or identification wrongfully received, retained, misappropriated, sought, or used is of an aggregate value of $200 or more in any 12 consecutive months, such person is guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083 or s. 775.084.


source: Caselaw Access Project

author: OTT, Acting Chief Judge.

license: Public Domain

text:
    Dominick BISACCIO, Appellant, v. Lonnie BROWN and Government Employees Insurance Company, Appellees.
    No. 78-1039.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1979.

      Jeffrey R. Fuller of Williams, Brasfield & Wertz, St. Petersburg, for appellant.
    James C. Hadaway and Mark E. Hungate of Fowler, White, Gillen,-Boggs, Villareal & Banker, St. Petersburg, for appellees.
   OTT, Acting Chief Judge.

Appellant, Dominick Bisaccio, appeals an adverse summary judgment terminating his third party claim for contribution against appellees/Lonnie Brown and GEICO, Brown’s liability insurer.

Appellee/Lonnie Brown was the owner and operator of a motor vehicle involved in an intersection collision with a motor vehicle owned and operated by the appellant. Appellee’s wife was a passenger in appel-lee’s vehicle at the time of the collision,

Appellee/GEICO secured a general release from appellant which read in pertinent part as follows:

RELEASE
IN FULL OF ALL CLAIMS
In consideration of the payment of One Thousand Three Hundred Ten and no/100 dollars to me in hand paid by GEICO I do hereby release and forever discharge said Lonnie Brown and GEICO from any and all actions, causes of actions, claims and demands for, upon or by reason of any damages, loss or injury which heretofore have been or which hereafter may be sustained by me in consequence of accident on 12-29-76 at 1st Ave. S. and 22nd St. S. in St. Petersburg, Fla.

Thereafter appellee’s wife instituted a suit against appellant for personal injuries she sustained in the accident. Appellant promptly filed a third party complaint against the appellees for contribution. Ap-pellees set up the release as a bar to appellant’s third party complaint, then moved for and accordingly was granted a final summary judgment.

The fundamental question is whether a general release in the above language extends to a claim or cause of action for contribution between joint tortfeasors as to damages sustained by a third party.

The question presented is apparently one of first impression in Florida. It has, however, been treated by various other state courts with differing results. Not all of the “general releases” addressed in these decisions are identical in language to that set forth above. Based upon such differences we could, perhaps, rationalize distinctions.

As with any other contract there must be a meeting of the minds of the parties as to fairly contemplated subject matter and intention. We feel that justice is best served by requiring the general release to employ some language that is sufficient notice to the unsophisticated that the subject matter involves not only the claims of the releasing party for injury to himself or his property, but also, any losses he might sustain because of the claims of a third party for injury to such third party or his property.

Releases are generally prepared and employed by the insurance industry and should not become a trap to waylay the innocent and unsuspecting by artful or overly broad wording. Neither should it become an impediment to the speedy settlement of the normal claims of an injured party against the responsible party. Neither party — in the normal context — is concerned or “contemplating” some possible claim by a third party. In short it is hardly presumed to be a part of the subject of their bargain. In the absence of appropriate language within the release indicative of such intent we hold that a “general release” of the type employed in this case does not absolve either of the parties from their respective or proportionate liabilities to a third party.

There was no right to contribution from a joint tortfeasor in Florida prior to the 1975 enactment of the Uniform Contribution Among Tortfeasors Act, § 768.31, Fla.Stat. The release form which Bisaccio signed was in common use before the right of contribution came into being and was not designed to apply to contribution.

We have not overlooked appellee’s argument that § 768.31(5)(b) applies to discharge Brown from liability, but we fail to see where that section provides any comfort to the appellee under the circumstances involved herein. That section is directed to the protection or preservation of the totality or finality intended and expected when a responsible party buys his peace from an injured party as to the personal injuries or property damage sustained by that particular injured party.

Nothing we have said is intended to prohibit the parties from specifically contracting as to their proportionate liability to a third party.

Reversed and remanded for further proceedings consistent with this opinion.

RYDER and DANAHY, JJ., concur.

      . See Annotation, and authorities therein cited, “Tortfeasors General Release of Co-Tortfeasor as Affecting Former’s Right to Contribution Against Co-Tortfeasor,” 34 A.L.R.3d 1374 (1970).


author: PER CURIAM.

text:
    Patricia Anne PETERS, Appellant, v. Albert Ezekiel PETERS, Appellee.
    No. 78-1129.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1979.
    Kenneth D. Chapman of Chapman, Chapman & Chapman, Sarasota, for appellant.
    Jack Wm. Windt, Sarasota, for appellee.
   PER CURIAM.

Appellant appeals an order reducing rehabilitative alimony and although we might have reached a different result, nonetheless, there exists competent and substantial evidence to support the decision of the trial judge and, thus we must affirm.

However, there is also evidence in the record showing that the parties stipulated that in the event the trial judge awarded appellant an attorney’s fee, that fee would be in the amount of $200.00. The record further reveals that appellant had virtually no money to pay an attorney’s fee, but that appellee had approximately $2,000.00 in cash.

We believe the trial judge erred in not awarding appellant an attorney’s fee and in not requiring appellee to pay same. Therefore, although the order reducing rehabilitative alimony is affirmed, it is hereby modified awarding appellant an attorney’s fee of $200.00 and appellee is ordered to pay same within thirty days from the date this opinion becomes final.

Affirmed, but modified.

GRIMES, C. J., and SCHEB and RYDER, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Melvin Isaac EMMANUEL, Petitioner, v. STATE of Florida, Respondent.
    No. 78-1563.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1979.
    Michael H. Hatfield, Umatilla, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for respondent.
   BOARDMAN, Acting Chief Judge.

Melvin Isaac Emmanuel petitions for writ of certiorari to review an order of the trial court revoking his bail for his failure to appear at pretrial conference as ordered. Petitioner by and through his attorney had filed a waiver of his right to attend the pretrial conference. After full consideration of the record and briefs and for the reasons hereafter stated, we hold that the trial court’s action constituted a departure from the essential requirements of the law, and we grant the writ, quash the order, and remand with directions.

Petitioner was charged with &■ felony and released on bond. Thereafter the state filed a motion for pretrial conference and the trial court set the case for pretrial conference pursuant to Rule 3.220(7), Florida Rules of Criminal Procedure, and commanded petitioner to appear at the conference. Prior to the date set for the conference, a written waiver of petitioner’s right to attend the pretrial conference, signed by petitioner’s attorney, was filed. Petitioner did not appear on the date set for the conference. The trial court ruled that the waiver filed by counsel was ineffective; that it had to be signed by petitioner himself. Accordingly, petitioner’s bond was es-treated and a warrant was issued for his arrest.

On the following day defense counsel filed a motion to quash the arrest warrant and set aside the bond estreature. Attached to the motion was an affidavit (un-sworn) signed by petitioner waiving his right to be present at the pretrial conference. The trial court refused to consider the affidavit or to quash the warrant.

The legal issue now before this court, as the trial court readily perceived, is: Must a waiver of a defendant’s presence at pretrial conference be signed by the defendant personally or may it be signed by the defendant’s attorney?

Rule 3.220(7) provides that the accused shall be present at any pretrial conference “unless he waives this in writing.” We find nothing in this rule that requires that the waiver be personally signed by the defendant, and we are aware of no case law, and none has been cited to us, that has construed Rule 3.220(7) to require that a waiver of the defendant’s right to be present at pretrial conference be personally signed by the defendant. Additionally, Rule 3.080, Florida Rules of Criminal Procedure, provides: “Every written pleading or paper of a party represented by an attorney shall be signed in his individual name by such attorney” (emphasis added).

We therefore conclude that petitioner was not required to personally sign the waiver. See State ex rel. Schmidt v. Justice, 237 So.2d 827 (Fla.2d DCA 1970). The waiver was in writing, as required, and was properly filed prior to the scheduled date of the pretrial conference.-

Petitioner having waived his right to be present at the pretrial conference, the trial court’s order estreating his bond and issuing a warrant for his arrest for failure to appear was error. We grant certiorari and quash the order. The cause is remanded for further proceedings consistent herewith.

OTT and RYDER, JJ., concur.


text:
    Freddie McCASKILL, Appellant, v. STATE of Florida, Appellee.
    No. JJ-500.
    District Court of Appeal of Florida, First District.
    Jan. 23, 1979.
    Michael J. Minerva, Public Defender, and Charles J. Kahn, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove and Carolyn M. Snurkowski, Asst. Attys. Gen., for appellee.
   PER CURIAM.

McCaskilPs judgment and conviction for aggravated battery is affirmed but the words “hard labor” are stricken from the sentence. Massey v. State, 351 So.2d 376 (Fla. 1st DCA 1977).

MILLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


text:
    Larry P. SHIELDS, Appellant, v. STATE of Florida, Appellee.
    No. JJ-466.
    District Court of Appeal of Florida, First District.
    Jan. 23, 1979.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    No appearance for appellee.
   PER CURIAM.

Shields’ judgment and conviction for burglary and grand larceny is affirmed but the words “hard labor” are stricken from the sentence. Massey v. State, 351 So.2d 376 (Fla. 1st DCA 1977).

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


author: BOYER, Acting Chief Judge. ERVIN, Judge,

text:
    Morry S. FOX, Petitioner, v. FLORIDA STATE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS, Respondent.
    No. JJ-391.
    District Court of Appeal of Florida, First District.
    Jan. 23, 1979.
    Rehearing Denied Feb. 2, 1979.
    Harold B. Haimowitz, of Haimowitz & Dubray, Jacksonville, Stephen Marc Slepin, Tallahassee, for petitioner.

      Robert L. Shevin, Atty. Gen., and Joseph W. Lawrence, II, Asst. Atty. Gen., and Ronald D. LaFace of Roberts, Miller, Baggett & LaFace, Tallahassee, for respondent.
   BOYER, Acting Chief Judge.

Shorn of excess verbiage and semantics the real issue here involved is whether the respondent, Florida State Board of Osteopathic Medical Examiners, may proceed under an administrative complaint to revoke the license, or otherwise discipline, petitioner, Morry S. Fox, a licensed doctor of Osteopathic medicine. Stated another way, the basic issue is whether the administrative complaint filed by respondent and dated June 21, 1977 contains sufficient recitals to permit the action sought to be taken by respondent which is, as recited in the administrative complaint, “to revoke, annul, withdraw or suspend the referenced license and the licensee’s right to practice thereupon * * * ”. (See Lester v. Dept. of Prof. & Occ. Regulations, 348 So.2d 923 (Fla. 1st DCA 1977))

The administrative complaint is couched in seventeen separate counts. The allegations of each count are identical except as to date of the alleged offense and the person or persons relative to whom the alleged offense was committed. Count I is representative of all of the counts and contains all allegations necessary for our discussion here. It alleges, in material part, that:

“1) On or about [date], at Miami, Dade County, for the purpose of executing a scheme and artifice to defraud and for obtaining money and property by means of false and fraudulent pretenses, representations and promises, and attempting to do so, you MORRY S. FOX, along with others, knowingly caused to be delivered by mail, * * * a demand letter * * * such demand based in part on your representations that you had rendered medical services in your office to the said * * * in violation of Title 18, United States Code, Sections 1341 and 1342.
“2) The doing of the above act constitutes a violation of Section 459.-14(2)(h)(k)(m) and (n) in that you MOR-RY S. FOX violated Rule 21R-3.12 of the Florida Administrative Code which is a part of the Code of Ethics of the Florida State Board of Osteopathic Medical Examiners; that you committed an act contrary to honesty and as such are guilty of unprofessional conduct; and that you violated the laws of the United States which constitutes unprofessional conduct.”

A careful reading leads us to wonder exactly what charge is intended to be made by the above quoted language. Paragraph 1) alleges a violation of a federal law “for the purpose of executing a scheme and artifice to defraud and for obtaining money and property by means of false and fraudulent pretenses, representations and promises, and attempting to do so”. However, it is well settled that violation of a federal law does not authorize a punishment under state law unless the conduct which constituted a violation of the federal law is also proscribed by state law. (See In re Weathers, 159 Fla. 390, 31 So.2d 543, (1947)). Apparently being mindful of that principle the scrivener of the administrative complaint sought to relate the alleged violation of federal law to a statute of the State of Florida by alleging in paragraph 2) that “[t]he doing of the above act constitutes a violation of section 459.14(2)(h)(k)(m) and (n)”. However, the scrivener did not stop there, but alleged that violation of the just mentioned statutes was accomplished by violation of Rule 21R-3.12 of the Florida Administrative Code which is a part of the Code of Ethics of the Florida State Board of Osteopathic Medical Examiners. The language employed in paragraph 2), above quoted, does not allege a violation of the mentioned statutes and a violation of the mentioned rule, but instead alleges that the statutes were violated “in that you Morry S. Fox violated Rule 21R-3.12 of the Florida Administrative Code * * * ”. It is apparent, therefore, that the complaint is sought to be based upon a violation of the mentioned rule of the Florida Administrative Code. That rule provides as follows:

“21R-3.12 Compliance with Law. The physician shall cooperate fully in complying with all laws and regulations pertaining to practice of the healing arts and protection of the public health.” (emphasis added)

We arrive, therefore, in exactly the same situation as the court found itself in Lester v. Dept. of Prof. & Occ. Regulations, supra.

In the Lester case the doctor was charged with “unprofessional conduct within the meaning of * * * section 458.-1201(l)(m).” By virtue of the verbiage employed by the legislature in the promulgation of that statute (F.S. 458.1201(l)(m)) this court held that the “unprofessional conduct” condemned by the legislature in that particular statute “was conduct by a practicing physician in the practice of medicine which did not conform to the prevailing standards of practice exercised by other practitioners in the same area of practice or expertise.” The author of the opinion explained:

“ * * * The proscription is against poor medical practice as measured by the prevailing standards of good practitioners. It would take a strained construction indeed to say that the underscored language [the concluding sentence of the statute] in the statute condemns anything else.” (348 So.2d at page 926)

Sub judice, respondent correctly calls to our attention that the statutes mentioned in the administrative complaint contain no equivalent language to that emphasized by the Lester court in the statute there involved. However, the rule of the Florida Administrative Code under which petitioner is charged sub judice does contain similar or equivalent language. It is clear that that rule (21R-3.12) is restricted in its application to “all laws and regulations pertaining to practice of the healing arts and protection of the public health”. There is not the slightest suggestion in the seventeen counts of the administrative complaint involved sub judice that the laws allegedly violated by petitioner pertained in any manner “to practice of the healing arts and protection of the public health”.

Notwithstanding the holding by this court in the Lester case that statutes such as those here involved must be strictly construed and any ambiguities must be construed in favor of the licensee and further that the individual physician has “the right to know in advance from a reading of the language what conduct is proscribed” (348 So.2d page 925), respondent urges that we should look not only to the quoted rule of the Florida Administrative Code, but also at the various subsections of the statute referred to in the administrative complaint. However, no help appears to there be forthcoming. As noted, the administrative complaint refers to paragraphs (h), (k), (m) and (n) of F.S. 459.14(2).

Paragraphs (h) and (k) proscribe violation of the Code of Ethics of Osteopathic physicians and surgeons promulgated under the rules and regulations of the Board of Osteopathic Medical Examiners and violation of the rules and regulations of the Board of Osteopathic Medical Examiners filed with the Department of State. As to those paragraphs no violation is alleged except as to Rule 21R-3.12, above quoted, which, for the reasons already explained, has no applicability here. We are precluded from considering any other of the mentioned rules for the reason that they are not within the purview of the charge preferred against petitioner nor are they issues made by the pleadings nor briefs. (Lester v. Dept. of Prof. & Occ. Regulations, supra)

On first blush paragraph (m) would appear to be applicable by virtue of the concluding clauses which provide that unprofessional conduct shall include “the committing of any act contrary to honesty, whether the same is committed in the course of practice or not.” However, a close reading of that paragraph reveals that it is bottomed upon “a finding by the Board that the individual is guilty of immoral or unprofessional conduct”. The administrative complaint sub judice alleges no such finding.

Paragraph (n) is restricted in its application to the violation of a statute or law which “relates to the practice of medicine.” Here, as in In Re Weathers, supra, and Lester v. Dept. of Prof. & Occ. Regulations, supra, there is no allegation nor even inference that the federal law alleged to have been violated by petitioner “relates to the practice of medicine”.

We conclude, therefore, as we did in the Lester case, that the seventeen count administrative complaint filed against petitioner fails to allege a basis for the actions sought to be taken by respondent against petitioner.

By this opinion we should not be interpreted as condoning the conduct of which petitioner is alleged to be guilty. Neither do we decide whether under existing statutory law and the Florida Administrative Code petitioner may be disciplined for the conduct alleged. We only hold that as the administrative complaint is framed no charge has been made against petitioner.

Pursuant to F.S. 120.68 this case is remanded for further proceedings not inconsistent herewith.

Motion for rehearing or clarification, if filed, shall be filed within 8 days from the date hereof.

IT IS SO ORDERED.

MELVIN, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

This case is before us as a petition for intermediate administrative review pursuant to Fla.R.App.P. 9.100(a). The basis for such review is that final administrative action would not provide an adequate remedy to a petitioner. Fla.R.App.P. 9.100(f) and § 120.68(1), Fla.Stat. (1977). In my opinion, there is hardly any administrative action to review. There has been no hearing and the only agency action taken thus far is the denial by the hearing examiner of a second motion for continuance. Although a motion to dismiss the administrative complaint was filed below, the hearing officer has never ruled upon its propriety, and I consider it premature for us to do so now.

In my opinion, this case is controlled by Nelson v. State Board of Accountancy, 355 So.2d 216 (Fla. 1st DCA 1978), where the Board filed a complaint against Nelson alleging that he had violated certain rules and statutes of the board. Prior to any decision by the hearing officer on the propriety of the complaint, Nelson petitioned for review in this court, contending that the Board had “failed to comply with requirements of law essential to probable cause findings . . . .” Id. We dismissed the petition for review stating, “It appears that petitioners have raised before the hearing officer the question which they now raise here, and the hearing officer has not ruled upon such question.” Id. We concluded that the hearing officer had the power to rule on the question and that ultimate review of final agency action would provide an adequate remedy to petitioner.

Here, petitioner is in essence seeking a de novo determination by us as to whether the complaint should be dismissed. As in Nelson, there is no reason why review of final administrative action would not provide an adequate remedy to petitioner. I would therefore remand this cause for appropriate agency action, and accord first to the hearing officer and the agency their interpretation of the charges.


author: HUBBART, Judge. CHARLES CARROLL (Ret.), Associate Judge

text:
    Linda WELSH, as surviving spouse of Jeffrey Allan Welsh, Linda Welsh as personal representative of the Estate of Jeffrey Allan Welsh, Deceased, and for the benefit of Kimberly Welsh, a minor, Appellants, v. METROPOLITAN DADE COUNTY, a metropolitan subdivision of the State of Florida and George Feller and Lois T. Feller, his wife, and Robert J. Major and Anne Major, his wife, Appellees.
    No. 78-174.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.

      Horton, Perse & Ginsberg, Francis O’Donnell, Miami, for appellants.
    Knight, Peters, Pickle, Niemoeller & Flynn and Stephen A. Stieglitz, Miami, for appellees.
    Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is a wrongful death action which the trial court dismissed with prejudice in the Circuit Court for the Eleventh Judicial Circuit of Florida. The plaintiff appeals.

The first issue presented for review is whether a negligence action against a county based on the alleged improper maintenance of the county’s roads and streets is barred by the doctrine of sovereign immunity. If not, a second issue is presented as to whether such a tort action is subject to dismissal for failure to state a valid cause of action against the county. We hold that as to tort actions arising after January 1, 1975, such a lawsuit states a valid cause of action against a county which is not barred by the doctrine of sovereign immunity. Accordingly, we reverse.

In the instant case, the plaintiff [appellant herein] Linda Welsh brought a wrongful death action arising from the death of her husband against several defendants including the defendant [appellee herein] Dade County, Florida. The plaintiff’s third amended complaint alleged that on August 28, 1976, the plaintiff’s decedent met his death by drowning when a vehicle in which he was riding crashed through a barricade on a dead-end public street maintained by Dade County, Florida, and went into a nearby canal. It was alleged that the death of the plaintiff’s decedent was proximately caused by the negligence of Dade County in maintaining the dead-end street in question. Specifically, the complaint alleged the following as to the nature of Dade County’s negligence:

“The defendant, METROPOLITAN DADE COUNTY: failed to properly design and maintain the street, intersection, and dead end in question; failed to keep such street, intersection and dead end in a reasonably safe condition; failed to warn persons using said street and intersection of what it knew or should have known was an extremely dangerous condition; failed to install a barricade with strength enough to stop cars from going through same; failed to obtain and set up proper lighting facilities in the area commensurate with the risk involved; allowed adjoining landowners MAJOR to plant and maintain trees on the county right-of-way in such a manner so as to obstruct the vision of vehicular traffic in the area as to danger and warning signs; allowed and encouraged adjoining landowners FELLER and adjacent landowners MAJOR and others, to pile trash and debris in the roadway in front of the barricade, thereby obstructing the view of traffic approaching the barricade and depriving them of any warning of danger; and in failing to inspect or remove any of the dangers aforesaid, all of which were known to said defendant within a reasonable time, and thereby jeopardizing and endangering persons using the roadway for vehicular traffic.”

The case in no way involves the alleged negligent maintenance of a traffic control signal, such as a traffic light or stop sign. Compare: Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977); Commercial Carrier Corp. v. Indian River County, 342 So.2d 1047 (Fla. 3d DCA 1977).

The trial court dismissed the above complaint as to Dade County with prejudice. The plaintiff appeals.

I

The first issue presented for review is whether the complaint herein was barred by the doctrine of sovereign immunity. Clearly, it was not.

The county’s tort immunity, save for certain exclusions and limitations not relevant here, has been specifically waived by statute for all tort incidents occurring after January 1, 1975. Circuit Court of Twelfth Judicial Circuit v. Dept. of Natural Resources, 339 So.2d 1113, 1116 (Fla.1976); §§ 768.28(1), (2), (5), (6), (13), 768.30 Fla. Stat. (1977). Prior to the enactment of the above statutes, counties as subdivisions of the state generally enjoyed the state’s sovereign immunity as to tort liability. Kaulakis v. Boyd, 138 So.2d 505 (Fla.1962); Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 (1916). As the accident in the instant case allegedly occurred after January 1, 1975, Dade County may no longer rely on the defense of sovereign immunity as to the tort action herein.

II

The second issue involved in this case is whether the complaint herein states a valid cause of action against Dade County. Clearly, it does.

It is self-evident that to substantially abolish the defense of sovereign immunity in a tort action against the county is not to expose the county to automatic tort liability in all such suits. Section 768.28(1), Florida Statutes (1975), merely renders the county liable in tort for damages caused by the act or omission of one of its employees while acting within the scope of his office or employment “under circumstances in which [the county], if a private person, would be liable to the claimant in accordance with the general laws of this state . ” This clearly means that the plaintiff must still plead and prove a recognized cause of action against the county under the state’s established principles of tort law in order to recover. Absent such pleading or proof, the county like a private person, is entitled to a judgment in its favor.

In the instant case, we deal with Dade County’s alleged negligence in maintaining its streets at an intersection which, it is charged, proximately caused the death of the plaintiff’s decedent. To sustain any cause of action predicated on negligence, as here, the plaintiff must plead and prove the following three elements: (1) the existence of a duty on the part of the defendant to protect the plaintiff from the injury or damage of which he complains; (2) the failure of the defendant to perform that duty; and (3) an injury or damage to the plaintiff proximately caused by such failure. The absence of or failure to prove any of them, is fatal to recovery. Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976); Smiley v. Court, 243 So.2d 643 (Fla. 4th DCA 1971).

In order to maintain a cause of action sounding in negligence against a government entity, such as a municipality or county, it is essential that the plaintiff plead and prove that the governmental entity breached a special duty of due care which it owed to the plaintiff in particular rather than to the public in general. Although no simple talismanic test exists in determining what constitutes a special duty as opposed to a general duty, the cases appear to turn on certain policy considerations. Among such policy considerations is the public importance of the duty in question when balanced against the probable economic exposure to the governmental entity in question which recognition of a special duty would entail. Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967); Pitts v. Dade County (Fla. 3d DCA 1978) (case No. 77-1091, opinion filed October 17,1978).

It has long been the established law of this state that a municipality has a duty to a person using its streets to keep those streets in a reasonably safe condition and to warn persons using the streets of known dangerous conditions. Town of Palm Beach v. Hovey, 115 Fla. 644, 155 So. 808 (1934); Trumpe v. City of Coral Springs, 326 So.2d 192 (Fla. 4th DCA 1976); City of Hialeah v. Revels, 123 So.2d 400 (Fla. 3d DCA 1960). We see no reason why this line of cases should not apply to a county as to post-waiver of sovereign immunity cases. Just as a municipality is responsible to a person who uses its streets to properly maintain its streets and to warn such a person of known dangerous conditions, a similar special duty should also be recognized with reference to a county in the maintenance of its streets. There is no valid basis for treating the two differently in this respect. In balancing the policy considerations between the public importance of performing the above-stated duty as against the probable economic exposure to the governmental entity in question, it is our view that the former outweighs the latter.

Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977) and Commercial Carrier Corp. v. Indian River County, 342 So.2d 1047 (Fla. 3d DCA 1977) do not compel a contrary result. In those cases, this court held that a county owes no special duty to a person using its streets to properly maintain its traffic control signals, i. e. traffic lights and stop signs. Those cases were not concerned with the duty of a county, as herein involved, to properly maintain its streets and to warn persons using same as to known dangerous conditions. Accordingly, these decisions do not control the instant case. Although a strong argument can be made for treating the two duties the same for tort liability purposes, we nonetheless decline to so extend the Cheney and Commercial Carrier cases.

The order dismissing the plaintiff’s complaint with prejudice as to the defendant Dade County is reversed and the cause remanded for further proceedings.

CHARLES CARROLL (Ret.), Associate Judge

(concurring specially).

I concur in the court’s opinion and judgment. By reason of the statutory waiver of immunity of counties, the failure of a county to maintain its streets in reasonably safe condition and to give due warning of dangerous conditions therein, may subject the county to liability in tort to one who, as a proximate result thereof, suffers injury or loss. The basis and function of this duty of the county is to afford protection to the public who use the streets.

In my view it would be quixotic to regard this duty to the public as one that is owed by the county to all members of the public except those who may be injured by a breach of the duty.

      . The writer of this opinion adheres to this view and would recede from Cheney and Commercial Carrier. Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977) (Hubbart, J. dissenting). That view, however, has not prevailed although Cheney is presently on certio-rari review before the Florida Supreme Court upon this court’s certificate of great public interest.


text:
    The CRICKET CLUB, INC., a Florida Corporation, Appellant, v. Burton D. DUNN a/k/a Burt Dunn, Appellee.
    No. 77-2161.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, Stephen J. Avrach, Miami Beach, for appellant.

      Lionel Barnet, Miami Beach, for appellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The Cricket Club, Inc., defendant in the trial court, appeals a final judgment for appellee which was entered following a jury trial in an action for breach of contract. Appellee/purchaser had brought the action based on the allegation that the Cricket Club, Inc. had wrongfully terminated the contract for purchase of one of its apartment units. The contract had been entered into in March of 1973 and was terminated by appellant without explanation in July of 1975.

At jury trial in 1977 appellee’s duly qualified real estate expert testified as to the then-current 1977 fair market value, the 1975 and 1977 asking prices for similar units, and the general rate of appreciation of similar units at The Cricket Club from 1973 to 1977.

The crux of appellant’s argument is that there was no substantial competent evidence to support the jury award in that the evidence as to market value at a time long subsequent to the breach and the evidence as to rate of appreciation from 1973 to 1977 gave rise to an improper measure of damages. Appellant asserts that there had to have been clear evidence of fair market value at the time of the breach of contract in 1975 to justify the award of damages by the jury.

After careful examination of the record and the relevant law, we affirm the trial court. The record contains competent evidence of expert testimony, which was essentially uncontroverted by the appellant, with regard to the value of the land at the time of the breach and upon which the jury had based its verdict; the verdict was the apparent result of the jury’s attempt to find the difference in respective values in consideration of the contract price plus an annual increase in value per year for the years intervening between the contract date and the breach by appellant.

Under the facts of the case sub judice, the jury properly approximated a measure of the value of the apartment unit at the time of the breach upon a reasonable basis of computation, and we find no reason to disturb the judgment of the trial court. See holding in Edelstein v. Medow, 211 So.2d 223 (Fla.3d DCA 1968).

Appellant raises other points dealing with the requirements of a finding of “bad faith” by the jury in order for it to have made an award for appellee. Appellant points out that the trial judge did not define the term “bad faith”; however, the record reveals that this was not necessary for the jury had sufficient evidence to believe that appellant refused to grant the appellee the courtesy of a response, written or oral, after appellant had unilaterally terminated the purchase contract two years and four months after it had been given the deposit monies and appellee had fully complied with all terms and promises of the contract for purchase. See the principles enunciated in Key v. Alexander, at 885:

“If the person selling is in default, — if he knew or should have known that he could not comply with his undertaking: . or if he has title and refused to convey, or disables himself from doing so by conveyance to another person — in all such cases he is beyond the reach of the principles of Flureau v. Thornhill, 2 W. Black (Eng.) 1078, and is liable to full compensatory damages, including those for the loss of the bargain.”

The judgment appealed is affirmed.

      . 91 Fla. 975, 108 So. 883 (1926).


author: HUBBART, Judge.

text:
    June FINNK and Bertram Finnk, her husband, Petitioners, v. John R. TANNER, M. D. and Drs. Mitchell & Tanner, P. A., a professional association, Respondents.
    No. 78-1290.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Cohen & Cohen, Miami Beach, for petitioners.
    Thornton, Conroy & Herndon and John Edward Herndon, Jr., Miami, George V. Lanza, Coral Gables, for respondents.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   HUBBART, Judge.

This is a petition for writ of certio-rari seeking review of an order entered by the judicial referee in a medical mediation proceeding, under Section 768.44, Florida Statutes (1977). As this order dismisses the medical claimants’ claim prior to a final hearing, the order directly touches upon jurisdiction of the mediation panel to hear such claim. We therefore have jurisdiction to review the order by certiorari. Hubacher v. Landry, 360 So.2d 42 (Fla. 3d DCA 1978).

The central issue presented for review is whether a judicial referee in a medical mediation proceeding under Section 768.44, Florida Statutes (1977), may dismiss the medical mediation claim on the ground that the claim is baseless because the claimant’s testimony is not credible or worthy of belief. We hold that the judicial referee has no such authority and quash the order under review.

In the instant case, the claimants [petitioners herein] June and Bertram Finnk filed a medical mediation claim against the defendants [respondents herein] Dr. John R. Tanner and Drs. Mitchell & Tanner, P. A., pursuant to Section 768.44, Florida Statutes (1977). Timely answers were filed and the cause proceeded to discovery. The defendants thereafter filed a motion for the judicial referee to enter a finding of no actionable negligence prior to a full hearing by the medical mediation panel. The motion was based on the prior discovery in the case and alleged that the medical claim herein had no substance in that the medical claimant June Finnk had committed perjury. The latter subsequently filed an affidavit denying the suggestion of perjury.

The above motion came on for a hearing before the judicial referee at which testimony was taken. Following the hearing, the judicial referee entered an order dismissing the medical claim herein based on a finding that there was “no credibility to the claim as the [claimants’ testimony is in no way credible or worthy of belief.” The claimants now seek certiorari review of this order.

The law is well-settled that a judicial referee in a medical mediation proceeding under Section 768.44, Florida Statutes (1977), has no authority to terminate the mediation proceedings by entering a summary judgment or a judgment on the pleadings. Hubacher v. Landry, 360 So.2d 42, 44 (Fla. 3d DCA 1978); Floyd v. Goss, 352 So.2d 1189 (Fla. 4th DCA 1977); Drs. Howarth & Scott, P. A. v. Edwards, 353 So.2d 175 (Fla. 4th DCA 1977). If the referee’s order of dismissal herein be interpreted as a summary judgment for the defendant, it was therefore plain error. On the other hand, if the order be interpreted as a finding for the defendant based on disputed issues of fact, it was equally erroneous as only the full medical mediation panel is entitled to make such a determination after a full hearing. § 768.44(6), (7), Fla.Stat. (1977). As such, the order under review must be quashed.

We do not deal here with a dismissal or default of a medical mediation claim based on the claimant’s disobedience of orders entered by the judicial referee in the proceeding. Taylor v. Munroe Memorial Hospital, 362 So.2d 142 (Fla. 1st DCA 1978). Nor are we concerned, contrary to the defendants’ contention herein, with the power of the judicial referee to dismiss a medical mediation claim based on fraud, pretense, collusion or other similar wrongdoing. See Young v. Curgil, 358 So.2d 58, 59 (Fla. 3d DCA 1978). Even if the judicial referee possesses such authority, an issue we need not decide here, he made no finding to that effect and, indeed, the record before him would not have supported such a finding in any event.

The order under review is quashed and the cause remanded to the judicial referee with directions to resume the medical mediation proceeding in accord with the statute.


author: KEHOE, Judge.

text:
    Elizabeth JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1212.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.

      Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY and KEHOE, JJ., and EZELL, BOYCE F., Jr., Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from her judgment of conviction and sentence for bribery. We reverse.

The sole question presented by this appeal is whether the trial court erred in denying appellant’s motion to dismiss pursuant to the speedy trial rule, Florida Rule Criminal Procedure 3.191(d)(3), because her trial commenced more than 90 days after a State continuance, which period was uninterrupted by any defense motions, and after the requisite 180 days had run from the arrest date.

The facts pertinent to this cause may be summarized as follows: Appellant was arrested on July 8, 1976. On October 21, 1976, appellant moved for a continuance which was granted by the trial court. Trial was set for December 6, 1976. , However, trial was not held on December 6, 1976, because of a crowded court calendar. Upon its own initiative, the trial court set the trial for February 14, 1977. At this latter date, appellant indicated she was ready for trial; however, the trial court continued the case to March 7, 1977. On March 8, 1977, the trial court heard appellant’s motion to dismiss pursuant to the speedy trial rule, Florida Rule Criminal Procedure 3.191(d)(3). The ground for appellant’s motion was that more than 90 days had elapsed after a State, i. e., the trial court, requested continuance and that more than 180 days had elapsed after her arrest. The motion was denied by the trial court. Appellant was subsequently convicted of two counts of bribery.

Although seemingly simple, Rule 3.191 is compound in its complexities. However, predicated upon the facts in the instant cause, in our opinion the Florida Supreme Court in Negron v. State, 306 So.2d 104 (Fla.1974), has supplied us with the answer to the instant problem. The Court in Neg-ron has applied the 90 day provision from Florida Rule Criminal Procedure 3.191(d)(3) by adopting its time provision for use as the standard for when a defendant must be brought to trial after a State continuance. We perceive no difference, nor have the appellant and appellee urged one, between a State continuance and continuance em-nating from the trial court, as was the case herein. In the recent case of State v. Reese, 359 So.2d 33 (Fla. 4th DCA 1978), which followed Negron, the principle was instructively set-forth as follows:

“. . .in the event of a State continuance, whether or not it follows an earlier defense continuance, the basic constitutional time limit, for the commencement of trial, is no more than 90 days after any State continuance, which is uninterrupted by any further defense motions for continuance or waivers, providing the requisite 180 days has also run under Fla.R.Crim.P. 3.191(a)(1).” Id. at 34.

But cf. Coppola v. State, 318 So.2d 181 (Fla. 2d DCA 1975) (90 day rule applies after motion for discharge is filed).

In the instant case, appellant moved to dismiss pursuant to Florida Rule Criminal Procedure 3.191(d)(3), 243 days after her arrest and 92 days after a State requested continuance. The State requested continuance was uninterrupted by any defense motions for continuance; however, appellee contends that, as found by the trial court in its denial of appellant’s motion to dismiss for breach of the speedy trial rule, appellant “acquiesced” in the resetting of her trial. Our review of the record reflects that appellant announced she was ready for trial, but did not specifically object to the resetting of her trial by the trial court on any speedy trial ground. At the time the trial court made its determination that appellant had “acquiesced” in the resetting of her trial, the trial court did not have the benefit of the Florida Supreme Court’s opinion in Stuart v. State, 360 So.2d 406 (Fla.1978), which held that a defendant is under no obligation to continuously object to the setting of a trial date beyond the speedy trial limits where the defendant is continuously available for trial. Based on the principle set forth in Stuart and the facts herein, appellant did not waive her right to a speedy trial.

Accordingly, based upon the authorities set forth above, appellant is entitled to a discharge. Therefore, the cause is remanded to the trial court with directions to discharge appellant.

Reversed and remanded with directions.


author: SCHWARTZ, Judge.

text:
    Walker FLORANCE, as Surviving Trustee under the Will of Lind Lawrence, Deceased, Robert C. Johnson, as Surviving Co-Trustee under the Will of Lind Lawrence, Deceased, and Joan Etz and Marion R. Davis, as surviving Heirs-at-Law of J. J. Redmond, Deceased, Appellants, v. Mary JOHNSON, formerly known as Mary Johnson Mitchell, Appellee.
    No. 78-760.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.

      Therrel, Baisden, Stanton, Stillman, Brown & Wood, Miami Beach, Fogle, Con-nelly & Cook and Lewis H. Fogle, Jr., Miami, for appellants.
    Morrow & Morrow, Miami, for appellee.
    Before BARKDULL, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The final judgment in this case foreclosed a mortgage which secured her home and which had been executed by Mary Johnson on April 29,1963. The judgment disallowed interest on the note and mortgage from that date until a written and specific demand for payment was made on May 16, 1973, and between the time Ms. Johnson was served with the complaint on April 23, 1976 and the date of the final judgment. In addition, the court applied $1,500.00 in sporadic partial payments which had been made to the reduction of principal rather than to accrued interest, as the note and mortgage provided. Both sides appeal.

As did the trial judge, we reject Ms. Johnson’s contention that the action is barred by laches. Any delay in enforcing the mortgagee’s rights acted only to her benefit in permitting her to remain in her home; plainly, there was no showing of a detriment or disadvantage to the defendant occasioned by that delay, which is indispensible to a finding of laches. Marshall v. C. S. Young Construction Co., 94 Fla. 11, 113 So. 565 (1927). Furthermore, the trial judge’s rejection of the affirmative defense of payment was fully supported by the evidence. We conclude, therefore, that Ms. Johnson’s cross-appeal lacks merit.

Despite the lower court’s obviously well-intentioned efforts to achieve a sort of rough justice, there thus remains no legal basis for the judgment’s disallowance of interest for the two periods to which we have referred, see Tech Corp. v. Permutit Co., 321 So.2d 562 (Fla. 4th DCA 1975), nor for its application of payments to principal despite the contrary provisions of the agreement. Both of these aspects of the judgment represent no more than an impermissible attempt to rewrite the contract of the parties. E. g., Florida East Coast R. Co. v. Atlantic Coast Line R. Co., 193 So.2d 666, 668 (Fla. 1st DCA 1966), cert. denied, 201 So.2d 557 (Fla.1967). Consequently, to this extent, the judgment must be reversed and the cause remanded with directions to redetermine the amount of the judgment, allowing interest for the entire period during which the debt remained unpaid and applying the $1,500.00 in accordance with the terms of the note and mortgage. Moreover, since the agreement provides for attorney’s fees to be fixed at 15% of the total sum due, the amount of fees must also be recomputed on the basis of that now-increased amount.

Affirmed in part, reversed in part, and remanded.


text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Victor QUINTANA and Olga Gonzalez, Appellees.
    No. 77-2651.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Robert K. Tucker, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Bernard H. Butts, Hialeah, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Lumbermens Mutual Casualty Company appeals an award of $20,000 in attorney’s fees to the insureds’ attorney' on the ground that the amount of the award is excessive.

Lumbermens Mutual Casualty Company filed a complaint for declaratory judgment seeking a determination as to whether defendant Victor Quintana was a member of the household of co-defendant Olga Gonzalez to whom Lumbermens had issued an automobile liability insurance policy which provided uninsured motorist coverage for a relative of the name insured who is a resident of the same household as the insured. Lumbermens took the position that Victor Quintana was not a resident of the household of Olga Gonzalez, its insured, on the date Quintana was struck by an uninsured motorist and, therefore, was not entitled to such benefits under the policy issued to Gonzalez. Quintana counterclaimed seeking a determination that he was entitled to both the uninsured motorist and no-fault provisions of the policy. Quintana also prayed that the court compel arbitration and award attorney’s fees. The uninsured motorist provision provided up to $10,000 in coverage, and the no-fault or personal injury protection provided a maximum of $5,000. At the conclusion of the trial the court granted the motion for directed verdict of Quintana and Gonzalez and a final declaratory judgment was entered in their favor. They then moved to assess costs and attorney’s fees. After a hearing, the court awarded Quintana and Gonzalez $20,000 in attorney’s fees. We reverse.

One of the factors to be considered as a guide in determining the reasonableness of an attorney’s fee award is the beneficial results, if any, of the services. Provus v. Provus, 44 So.2d 656 (Fla.1950). The fee awarded must bear a reasonable relationship to the results obtained. Ruwitch v. First National Bank of Miami, 327 So.2d 833 (Fla. 3d DCA 1976). The amount of the award should square with fairness and justice to all alike under similar conditions and circumstances. Donner v. Donner, 281 So.2d 399, 401 (Fla. 3d DCA 1973). In the case at bar the total liability of Lumbermens was $15,000 and under the record presented the $20,000 attorney’s fee award does not bear a reasonable relationship to the result obtained (i. e. a judgment determining that Quintana was entitled to the uninsured motorist and personal injury protection benefits) which at the maximum could only total- $15,000. Cf. Ruwitch, supra, and Allstate Insurance Company v. Baer, 334 So.2d 135 (Fla. 3d DCA 1976).

We further note that the “time affidavit” relied upon by the attorney for Quin-tana and Gonzalez and their expert witness included time spent by an investigator, secretary and law associate. In addition, some of the time included in the affidavit had to do with filing insolvency forms pertaining to another insurance company.

We find that under the standards set out in the above cited cases and Baruch v. Giblen, 122 Fla. 59, 164 So. 831 (1936) the record is insufficient to support the $20,000 award. Accordingly, the award is reversed and the cause remanded to the trial court for further hearing on the motion to assess attorney’s fees.

Reversed and remanded.

      . Personal injury protection benefits.

      . This “time affidavit” was not introduced into evidence.


text:
    Ricky Ellis PARRISH, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1239.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Bennett H. Brummer, Public Defender and Mark King Leban, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The appellant, who was convicted of burglary, complains of the trial judge’s action in declining to eliminate the date and place of taking from the fingerprint standard card introduced into evidence. His theory is that since the date was before the offense involved in the trial, and the place of taking was the police department, the information may have improperly led the jury to believe that the defendant had some prior criminal involvement. Since nothing on the card indicated that this was the case, or that the standards had been taken for any reason other than mere non-criminal identification, it is clear that no error, much less harmful error, has been demonstrated on this point. See Jackson v. State, 328 So.2d 576 (Fla. 3d DCA 1976); Henderson v. State, 304 So.2d 537 (Fla. 3d DCA 1974); Jenkins v. State, 208 So.2d 276 (Fla. 3d DCA 1968) cert. denied, 212 So.2d 878 (Fla.1968); § 924.33, Fla.Stat. (1977).

We likewise reject the defendant’s contention that the fingerprint evidence against him was insufficient to sustain his conviction. Roberts v. State, 268 So.2d 578 (Fla. 3d DCA 1972). Therefore, the judgment below is

Affirmed.


text:
    Jackelyn BARRERA, Appellant, v. DADE COUNTY SCHOOL BOARD, Appellee.
    No. 78-631.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    A. Koss, Coral Gables, and Alex R. Sierra, Miami, for appellant.
    Knight, Peters, Pickle, Niemoeller & Flynn and Joseph W. Downs, III, Miami, for appellee.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The eight-year-old plaintiff, Jackelyn Barrera, was injured during a third grade physical education class at the Auburndale Elementary School. The accident occurred when a classmate with the intriguing name of Scarlett Rodriguez — who had displayed some prior rambunctiousness — pushed another little girl named Sara from a balance beam onto Jackelyn and broke her leg. The 30 children in the class were, at the time, divided into three approximately equal groups. One such group was apparently tumbling on mats on the gymnasium floor, another was using parallel bars, and the third was playing at the balance beam. The entire class was being supervised by a single teacher who was helping a girl at the parallel bars when the accident occurred and did not see it take place.

Jackelyn and her parents sued the Dade County Board of Public Instruction for her injuries, but the trial judge granted a summary judgment in the defendant’s favor. We find that the defendant did not, as required, conclusively demonstrate that, under all the circumstances, it had provided adequate supervision of the plaintiff and her classmates at the time of the accident. McGahee v. Dade County Board of Public Instruction, 279 So.2d 87 (Fla. 3d DCA 1973); Booker v. Okaloosa Board of Public Instruction, 323 So.2d 619 (Fla. 1st DCA 1975); Cirillo v. City of Milwaukee, 34 Wis.2d 705, 150 N.W.2d 460 (1967); Armlin v. Board of Education of Middleburgh Central School District, 36 A.D.2d 877, 320 N.Y.S.2d 402 (1971); Beck v. San Francisco Unified School District, 225 Cal.App.2d 503, 37 Cal.Rptr. 471 (1964); cf. King v. Dade County Board of Public Instruction, 286 So.2d 256 (Fla. 3d DCA 1973) cert. denied, 294 So.2d 89 (Fla.1974); compare Solomon v. City of North Miami Beach, 256 So.2d 399 (Fla. 3d DCA 1972). The issues of negligence and legal cause in this case were not properly susceptible of summary disposition. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Visingardi v. Tirone, 193 So.2d 601 (Fla.1966); Holl v. Talcott, 191 So.2d 40 (Fla.1966). Accordingly, the summary judgment is reversed and the cause remanded for a jury trial.

Reversed and remanded.

CHARLES CARROLL (Ret.), Associate Judge, dissents.


text:
    ALEXANDER MUSS AND SONS, INC., etc., Appellant, v. Theodore R. NELSON et al., Appellees.
    No. 78-561.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Shafmaster & Katz and Harold A. Lass-man and Marc L. Faust, Miami, for appellant.
    Hersh & Bernstein and Brian R. Hersh, Miami, for appellees.

      Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The plaintiff landlord sued for the rent on an apartment for the balance of the term after the death of the tenants. The personal representative proved a settlement agreement entered into prior to the institution of this suit. Although the existence of the settlement was controverted, the court found that the settlement was, in fact, made and that it acted as a novation of the contract. The final judgment for the plaintiff was for the amount specified in the settlement agreement. In addition, the court allowed the plaintiff an attorney’s fee ' pursuant to an agreement in the lease. The plaintiff appealed and urged as error the refusal of the trial court to apply the Florida Rules of Probate and Guardianship Procedure to the trial of the cause. We find no error and affirm the judgment upon the merits.

The defendant has cross-appealed and urges as error that portion of the final judgment allowing an attorney’s fee to the plaintiff. Without reaching the question of the plaintiff’s entitlement to an attorney’s fee, we hold that the award must be reversed upon authority of the rule set forth in Flournoy v. Smith, 84 Fla. 553, 94 So. 503 (1922); Lee v. Gilbert, Silverstein and Hellman, 350 So.2d 1147 (Fla. 3d DCA 1977); and Lyle v. Lyle, 167 So.2d 256 (Fla. 2d DCA 1964).

The judgment is affirmed except for that portion allowing an attorney’s fee to the plaintiff, which is reversed.

Affirmed in part and reversed in part.


text:
    BANK OF PERRINE, Appellant, v. N.V. CORPORATION, James E. Foley, Edna F. Foley, Charles H. Netter, Fleta Netter, Winston J. Churchill, Mary E. Churchill, Al Lange, Lee Lane, Herbert R. Savage, Emily G. Savage, Roger D. Stake and Betty L. Stake, Appellees.
    No. 78-609.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Helliwell, Melrose & DeWolf and William E. Sadowski, Miami, for appellant.
    Cypen & Nevins and Stephen H. Cypen, Charles H. Netter, Miami Beach, for appel-lees.
    Before HENDRY and HUBBART, JJ., and EZELL, BOYCE F., Jr., Associate Judge.
   PER CURIAM.

Affirmed. Taylor v. Prine, 101 Fla. 967, 132 So. 464 (1931). See also Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Symon v. Charleston Capital Corp., 242 So.2d 765 (Fla. 4th DCA 1970).


text:
    The SENG COMPANY et al., Appellants, v. Edmund BURKE et ux., et al., Appellees.
    Nos. 78-945, 78-950.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.

      Joe N. Unger; Richard M. Welsh & Associates, Miami, for appellants.
    Ress, Gomez, Rosenberg & Howland, North Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

The Seng Company and its liability insurer, third-party defendants, appeal an order denying their motion to dismiss the third party complaint for indemnity for lack of personal jurisdiction.

Plaintiff Edmund Burke was injured when he fell backwards out of an office chair which was manufactured by defendant Inter Royal Corporation. He filed a suit for damages against Inter Royal and alleged in his complaint that the tilt control mechanism was faulty causing him to fall to the floor when the chair tilted backwards. Thereafter Inter Royal filed a third party complaint against The Seng Company and its insurer, Michigan Mutual Insurance Company, for indemnity and alleged in the complaint that Seng was the manufacturer of the tilt control mechanism. Service of process was effected on The Seng Company, a foreign corporation, by serving the Secretary of State pursuant to Section 48.161-48.19, Florida Statutes (1977). The Seng Company and Michigan Mutual filed motions to dismiss the third party complaint for, inter alia, a failure to allege sufficient facts to support personal jurisdiction over a nonresident defendant under Section 48.181, Florida Statutes (1977). The motions were denied and this appeal followed. We reverse.

The Seng Company is an Illinois Corporation which does not have a corporate agent in the State of Florida. The tilt control mechanisms were manufactured in Chicago, Illinois and shipped to Inter Royal in Michigan City, Indiana. Inter Royal manufactured the chairs which were shipped directly from its factory to the purchaser here in Dade County. The Seng Company does not sell the chairs manufactured by Inter Royal. Clearly under these facts the connexity requirement to confer personal jurisdiction over The Seng Company has not been met. See John Blue Company v. Roper Pump Company, 324 So.2d 147 (Fla.3d DCA 1976); Hyco Mfg. Co. v. Rotex Intern. Corp., 355 So.2d 471 (Fla.3d DCA 1978). Accordingly, the orders denying the motions to dismiss are reversed and the cause remanded to the trial court with directions to dismiss the third party complaint.

Reversed and remanded.


text:
    Nellie QUINONES, as Administratrix and personal representative of the Estate of Pedro Luis Quinones, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 78-516.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Joe N. Unger, Rodriguez & Meroni, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellee.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

In this wrongful death action filed against Metropolitan Dade County, the plaintiff appeals from a summary judgment entered for the defendant.

On August 5, 1974, the day following arrest of the plaintiff’s decedent on the charge of aggravated assault, at a bond hearing the court denied bond upon viewing the accused to be a danger to the public and to himself, and ordered that the accused be given a psychiatric evaluation. Five days later, on August 10,1974, before any action was taken on the order for his examination, the accused committed suicide, by hanging himself, while incarcerated in the Dade County Jail in a cell which contained 19 other men. The complaint in the subsequent wrongful death action charged the defendant with negligence by failing to properly safeguard the accused, after being informed of his unstable mental condition, proximately resulting in the death of the decedent.

On consideration of the record, briefs and arguments, we hold the pleadings and evidence before the court presented genuine issues of material fact bearing on the alleged negligence of the defendant which properly could not be disposed of by summary judgment. Since the cause is to be remanded for trial, we refrain from making a statement of the facts disclosed.

The summary judgment for the defendant is reversed, and the Cause is remanded for further proceedings.


text:
    Larry B. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1109.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

The sentence imposed upon a conviction of possession of a firearm while engaged in a criminal offense be and the same is hereby vacated and set aside upon the authority of Johnson v. State, 366 So.2d 418 (Fla.1978).

This cause is remanded to the trial court to vacate the sentence imposed upon said conviction, and to discharge the appellant from service thereof.

Reversed and remanded with directions.


text:
    Irwin BRENNER and Daniel Thomas Akins, Appellants, v. The STATE of Florida, Appellee.
    Nos. 78-119, 78-120.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Albert J. Krieger and Neal R. Lewis, Miami, for appellants.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., and Sharon Langer, Legal Intern, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967); Humphries v. State, 232 So.2d 23 (Fla. 1st DCA 1970); Everett v. State, 161 So.2d 714 (Fla.3d DCA 1964); See also Belton v. State, 217 So.2d 97 (Fla.1968); United States v. Williams, 429 F.2d 158 (8th Cir. 1970).


author: BOOTH, Judge.

text:
    Timothy DAWSON, a minor, etc., Appellant, v. BLUE CROSS ASSOCIATION et al., Appellee.
    No. JJ-200.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1979.

      Paul R. Stern of Stern, LaRue & Wells, Daytona Beach, for appellant.
    Richard S. Graham of Landis, Graham, French, Husgeld, Sherman & Ford, DeLand, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the final judgment of the Circuit Court, Volusia County, in a suit by an insured under a medical insurance policy to recover hospital costs incurred by the insured’s • minor son. We affirm the holding of the trial court that the expenses are covered under the policy issued by appellee and that the insured is not entitled to recover for that portion of the expenses paid by Gulf Life Insurance Company, pursuant to a group policy carried by appellant’s former wife. The basis for our affirmance of the latter holding of the trial court is Florida Statute § 627.4235(2), which allows coordination of benefits between group medical policies so long as the policy provisions do not “operate to reduce the total benefits payable under these policies and plans below an amount equal to 100 percent of the total allowable expenses actually incurred.”

However, the order of the trial court also disallows recovery from appellee Blue Cross of $271.60 of an admittedly yalid hospital bill incurred by the son of the insured, on the basis that the former wife of appellant, and mother of the hospitalized boy, personally paid that sum, so that the insured no longer owes the $271.60. That portion of the judgment below is reversed.

In Dorfman v. Aetna Life Insurance Policy, 342 So.2d 91 (Fla.3d DCA 1977), the major medical policy provided that the company would pay medical expenses which the insured “is required to pay.” The insured’s wife incurred medical expenses for which the insured became liable. The company brought suit to rescind the policy and the insured counterclaimed for the medical expenses. During the pendency of the suit, both the insured and his wife died and the insurer discovered that all the medical expenses had been paid. On that basis the company filed for summary judgment on the claim stating that it was not liable because “the bills had been paid by other individuals or insurance companies, Meyer was no longer required to pay them.” In rejecting that contention the court held (342 So.2d 91, 93):

“We are in agreement with the appellant that the words ‘required to pay’ in the provisions of the policy set out above should be construed to mean ‘obligated to pay.’ Therefore, under the subject policy, Aetna is required to reimburse Meyer Dorfman for the medical expenses which he paid or was obligated to pay. When Meyer’s wife, Doris, incurred medical expenses for which Meyer became liable, Aetna in turn then became obligated to pay Meyer . . . ”

The fact that a relative or friend pays a bill for an insured and does not seek to demand-reimbursement does not relieve the insurer of its obligation to pay. Here the father was responsible under the divorce decree to provide medical care for his son. The fact that the former wife assisted with that responsibility does not relieve the insurer.

. The time required to litigate insurance claims, as in the Dorfman case, means that as a practical matter an insured may be forced to obtain assistance from friends or relatives during the pendency of the litigation to pay the bills. Nonetheless, the insured has paid a premium for medical coverage and is entitled to demand that the company pay expenses which are incurred and substantiated as required in the policy.

Accordingly, the judgment below is AFFIRMED IN PART and REVERSED IN PART and the cause remanded for entry of a judgment consistent herewith.

SMITH, Acting C. J., and KLEIN, HERBERT M., Associate Judge, concur.


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    J. E. S., a child, Appellant, v. STATE of Florida, Appellee.
    No. KK-345.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1979.

      Leo A. Thomas of Levin, Warfield, Mid-dlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

This is an appeal from a judgment and sentence for manslaughter. Appellant juvenile contends that his statement was obtained in violation of his rights and the motion to suppress the statement should have been granted. We agree and reverse.

Appellant lacked eight days of having reached his fifteenth birthday when he cut another juvenile with a knife during an argument; the victim subsequently died. Appellant and all the witnesses to the incident were taken to the Juvenile Justice Center for questioning. Before the police officers left the house where the incident occurred, they informed his father that he was being taken for questioning. The father stated that he wanted to be present during the questioning and that he would get there as soon as he could; he needed to stay and calm his wife down first. The testimony shows that appellant was taken from the house about 4:30 p. m. His statement was taken by one of the police officers out of the presence of either parent at 6:03 p. m. The father had arrived at the Juvenile Justice Center at 6 p. m. but was detained by a receptionist who said he needed to fill out some forms.

At the hearing on the motion to suppress the statement, appellant stated that the officer said he was waiting for appellant’s father because the father wanted to be there, but that the officer waited only three or four minutes and then said, “I can’t wait on him and he went ahead and started.” The officer did not testify at the hearing on the motion to suppress. At trial, however, the officer did testify that he waited for other parents and that at least one parent of every other individual interviewed relative to this case was present before the interview took place.

Section 39.03(3)(a), Florida Statutes (1977), requires that when a person determines that a child should be detained, he must immediately notify the parents or legal guardian. In this case, there is no question but that the parents were notified. We believe, however, that the purpose of the statute is not only notice to the parents or legal guardians, but also a reasonable opportunity for them to confer with the juvenile. Just as we held in Dowst v. State, 336 So.2d 375 (Fla. 1st DCA 1976), that where the child requested to speak to his parents and was denied, any confession given by him was inadmissible because his request constituted a continuous assertion of his privilege against self-incrimination, we now hold that where a parent or legal guardian requests to be present and makes himself or herself reasonably accessible, it is error to proceed in questioning the juvenile. Under facts such as those in this case, the parent or legal guardian must be given a reasonable opportunity to confer with the juvenile. The statute is not satisfied by a race of diligence between the parent and the officer.

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

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


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    Jo Ann BISHOP, Appellant, v. STATE of Florida, Appellee.
    No. KK-212.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1979.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Charles A. Stampelos, Asst. Atty. Gen. for appellee.
   PER CURIAM.

Having reviewed the record and briefs, we find no error in the revocation of probation. We note, however, that the judgment entered on the original charge of receiving stolen property did not recite the material element of knowledge that the property was stolen. Brinson v. State, 345 So.2d 780 (Fla. 4th DCA 1977). The judgment is hereby amended to show a judgment and conviction of receiving stolen property with knowledge that the property was stolen and the judgment as amended is affirmed.

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


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    Cleveland EANS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-660.
    District of Appeal of Florida, Third District.
    Jan. 23, 1979.

      Buchbinder & Black and Melvin S. Black, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ. .
   SCHWARTZ, Judge.

A jury found Eans guilty of the robbery and aggravated battery of a derelict named James Clark, on April 13, 1977. He appeals the judgment and sentence against him. We affirm.

After 10:00 P.M. on the night in question, Clark was sleeping under a downtown Miami expressway when he was attacked, robbed and beaten by four young black males. All escaped from the scene Two nights later, on April 15, 1977, and two blocks away, Ambrose Harrison was asleep under the same expressway when he was surrounded by four young black males who began to search his person in order to rob him. The youths were interrupted by two police officers and abandoned the apparent robbery attempt. They were chased from the scene by the officers, one of whom caught Eans, then 15 years of age, a short distance away. Although Harrison could not identify Eans as one of his assailants, Clark could and picked him out of a live lineup at Youth Hall on April 20,1977. The state, however, probably believing that the Harrison case was the stronger one because Eans was caught in the act, proceeded against Eans for that offense. In the course of time, however, Harrison drifted on and could not be found; for want of a victim, that case against Eans was eventually dismissed under the speedy trial rule. Apparently because of this fact, the state then began prosecuting Eans for the Clark case, the one now before us, by arresting him on those charges on December 2, 1977.

At the trial which followed, the state, over objection, introduced evidence under the Williams rule through the arresting police officer that Eans had been involved in the Harrison incident. When Clark took the stand to testify, an interesting, perhaps unique, series of events took place. On direct examination, Clark directly and positively identified Eans as one of those involved; on redirect, however, he withdrew that identification, stating finally:

“Q. All right. Well, is he [the Defendant] the person who was in front of you that night?
A. I don’t think so, honestly.”
* * * * * *
Q. You say now you don’t think he was the person who was in front of you?
A. No, sir.
Q. For what reason, sir?
A. He’s too tall, and he’s too fat in the face and — -now, I made a mistake.”

Thus faced with what the trial judge aptly called “almost a classical case of surprise,” the prosecution was permitted, again over vigorous objection, to elicit testimony both from Clark himself, and from a police officer witness, that the victim had identified Eans at the lineup a week after the crime.

On this appeal, the defendant does not contend that the evidence was insufficient to convict and that he was therefore entitled to a directed judgment of acquittal. He seeks a new trial based upon claims of error in the admission of (a) the “other crime” evidence involving the Harrison incident and (b) the testimony concerning the victim’s pretrial lineup identification of the defendant. He also contends that the trial judge should have granted his motion for discharge based upon the pre-arrest delay in the commencement of the prosecution against him. None of the points has merit.

As to the first, we think it clear that evidence of the Harrison crime was properly admitted under the Williams rule “[since] it demonstrated a plan or pattern followed by the accused in committing the type of crime [charged] . . . ” Williams v. State, 110 So.2d 654, 663 (Fla.1959). The trivial distinctions which the defendant points out between the two incidents do not overcome the obvious and telling similarities: the proximity of date, time, and location, the type of victim, the number of offenders, the type of offense. These similarities are so strong as to compel the conclusion, which is the basis of the “Williams rule,” that the fact that Eans was involved in the Harrison incident is persuasive evidence that he also committed the crimes with which he was charged. In accord with this determination are several cases, of which the Williams case itself is the primary example, in which much more attenuated factual similarities were nevertheless held to justify admission of “other crime” evidence. Hutchins v. State, 334 So.2d 112 (Fla. 3rd DCA 1976), cert. denied, 341 So.2d 291 (Fla.1976); Bush v. State, 341 So.2d 534 (Fla. 3rd DCA 1977); cf. Blackburn v. State, 208 So.2d 625 (Fla. 3rd DCA 1968).

Concerning the defendant’s second point, it need only be said that the Supreme Court has very recently held that a prior out-of-court identification is admissible as substantive evidence of guilt when the victim testifies at the trial even though, unlike the situation here, he can no longer make any identification of the defendant at all. State v. Freber, 366 So.2d 426 (Fla.1978). Moreover, it is apparent that the trial judge correctly characterized Clark’s statement that Eans was not the man as a textbook “surprise.” It is therefore clear that evidence of his prior out-of-court identification of the defendant was also properly admitted, as a prior inconsistent statement, to impeach the recantation. It is well-recognized that cross-examination and impeachment in this manner is authorized when a witness gives testimony which is both surprising and affirmatively prejudicial to the party calling him. Hernandez v. State, 156 Fla. 356, 22 So.2d 781 (1945); Foremost Dairies, Inc. of South v. Cutler, 212 So.2d 37 (Fla. 4th DCA 1968); Johnson v. State, 178 So.2d 724 (Fla. 2d DCA 1965); § 90.09, Fla.Stat. (1975). That rule surely applies to this set of circumstances.

Insofar as the defendant complains separately of the testimony of the police officer who witnessed the lineup and Clark’s identification of Eans, the contention is answered not only by the Freber case, supra, but even by the Supreme Court’s pre-Freber approval in Willis v. State, 217 So.2d 106, 107 (Fla.1968) of the following language of the First District in Willis v. State, 208 So.2d 458 (Fla. 1st DCA 1968):

“Such testimony is direct evidence of facts that are within the personal knowledge of the witness who observes the victim make an identification of the accused from photographs or a police lineup, and is admissible when the identifying witness is present and testifies at the trial, and is subject to cross-examination by the accused. Such testimony has always been considered admissible in rebuttal of testimony tending to impeach or discredit the testimony of the identifying witness, or to rebut a charge, imputation, or suggestion of falsity.” [emphasis supplied]

Finally, we hold that the defendant was not entitled to a discharge because of the eight month delay involved between his apprehension in the Harrison incident and his arrest on the Clark charges. This is so because he did not, as is required to justify a dismissal of the charges, demonstrate that his defense was in any way prejudiced by that delay. State v. Griffin, 347 So.2d 692, 695 (Fla. 1st DCA 1977), cert. dismissed, 358 So.2d 134 (Fla.1978). The defendant argues that he was harmed by the fact that, during the intervening period, Harrison disappeared and was not available to testify that he could not identify Eans. The record shows, however, both that Harrison’s testimony could not really have helped Eans, who was caught at the scene, and that, in any case, the jury was actually told by the investigating officer that Harrison had not been able to make an identification.

Affirmed.

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

      . A point which challenged the denial of a special requested instruction on the jury’s consideration of fingerprint evidence introduced against Eans was (correctly) withdrawn at the oral argument in the light of Jones v. State, 336 So.2d 672 (Fla. 1st DCA 1976), cert. denied, 341 So.2d 1083 (Fla.1976).

      . Almost all of the alleged dissimilarities are attributable to the facts that Harrison did not, while Clark did, testify at the trial, and that, unlike the one involving Clark, the Harrison incident was interrupted before it could be completed.

      . Unlike the situation in State v. Ciongoli, 313 So.2d 41 (Fla. 4th DCA 1975), cert. disch., 337 So.2d 780 (Fla.1976), the defendant does not contend that the lineup itself was impermissi-bly suggestive.

      .The Freber case eliminated that portion of the holding in Willis which restricted the use of such testimony to corroboration and rebuttal.