text:
    Wyatt JOHNSON, Appellant, v. MERCY HOSPITAL, INC., Appellee.
    No. 76-202.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Aug. 31, 1976.
    S. Harold Skolnick, Miami, for appellant.
    Neil, Griffin, Jeffries & Lloyd and Martha C. Warner, Ft. Pierce, Sheldon Simons, Miami, for appellee.
    Before PEARSON and HENDRY, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

The appellant, Wyatt Johnson, seeks review of an order which denied his motion to dismiss counts 5 and 6 of an amended counterclaim brought by appellee Mercy Hospital, Inc. Mercy Hospital as cross-appellant appeals the portion of the same order which dismissed counts 1, 2, 3 and 4 of the amended counterclaim. The interlocutory appeal is brought under authority of FAR 4.2 upon the basis that the court determined a matter of jurisdiction over the plaintiff and counter-defendant Wyatt Johnson when it held that counts 5 and 6 of the amended counterclaim could be brought in this action because these counts seek to assert a counterclaim against one who is an opposing party within the meaning of RCP 1.170(b).

Wyatt Johnson, an attorney at law, sued Mercy Hospital seeking a judgment for fees claimed due him. Mercy Hospital counterclaimed in six separate counts claiming that Johnson had misrepresented factual matters concerning the handling of the legal work and, thereby, had defrauded the Hospital out of substantial sums of money. The parties agree that in the beginning of the representation, Mr. Johnson represented the Hospital as a member of the law firm of Hoffman, Kemper & Johnson, and that after dissolution of the law firm, he continued the representation in his individual capacity. Johnson instituted the suit for fees in his individual capacity. He urged in the trial court by motions to dismiss the counterclaims that any liability that he might have for the matters therein set out arose out of his partnership activity and that, therefore, he could not be sued in the representative or derivative capacity of a partner in an action that he had brought in his individual capacity. He relies upon the holding in Fidelity-Philadelphia Trust Company v. Ball, Fla.App.1968, 208 So.2d 282; and Hall v. McDonough, Fla.App.1968, 216 So.2d 84, for the proposition that a party who sues in an individual capacity may not be counterclaimed against in a representative capacity. In Fidelity-Philadelphia Trust Company v. Ball, supra, this court held that where non-resident trustees brought an action in Florida, these same trustees could not be counterclaimed against in their individual capacity in the same suit. In Hall v. McDonough, supra, the District Court of Appeal, Second District, held that where a plaintiff in her representative capacity as a guardian brought suit against the defendant, a counterclaim by the defendant against her individually would not lie.

We have reviewed the record in the light of the assignments of error and the cross-assignments of error and we think it is clear that all of the counterclaims are brought against Wyatt Johnson individually. The fact that other partners may be liable for some of the claims made against Attorney Johnson does not convert that claim to an action in a representative capacity. For the purpose of this appeal, we need not determine whether an action against a partner for debts due as a member of the partnership is an individual or representative action. It affirmatively appears from the pleadings that the claims are for alleged fraud, conversion, misrepresentation and for money had and received as a consequence thereof. Section 620.62, Florida Statutes, provides that where a partner acting in the ordinary course of business converts or misapplies funds, the owner of the funds may sue the partners or sue the particular partner so acting or omitting to act. Thus, the partner who allegedly committed the wrongful acts may be liable individually.

We, therefore, affirm that portion of the trial court’s order which denied the defendant’s motion to dismiss as to counts 5 and 6 of the counterclaim and reverse that portion of the order which dismisses 1, 2, 3 and 4 of the amended counterclaim, and we remand the cause with directions to proceed in accordance with the views herein stated. Reversed and remanded.

      . A second appearance of the same cause is reported at 241 So.2d 201.

      . “620.62 Partnership bound by partners’ wrongful act. — When loss or injury is caused to a person, not a partner in the partnership, or any penalty is incurred by a wrongful act or omission of a partner acting in the ordinary course of the business of the partnership or with the authority of his copartners, the partnership is liable for it to the same extent as the partner so acting or omitting to act.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roberto Rodriguez DOMEQ, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1232.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Sept. 1, 1976.
    Phillip A. Hubbart, Public Defender, and Lee Weissenborn, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendant-appellant was indicted by a Dade County Grand Jury for first degree murder.

Upon trial he was found guilty by the jury of murder in the second degree. The court entered judgment of conviction and imposed a sentence of twenty years in the State Penitentiary with credit to be given for time served in the Dade County Jail prior to sentencing (279 days).

Appellant’s first point on appeal is whether the trial judge erred in refusing to permit defendant’s counsel to make an in camera inspection of the grand jury testimony of the witnesses who testified before that body regarding the involved killings.

We have carefully considered appellant’s contentions as to this point and have found them to be without merit. See Minton v. State, 113 So.2d 361 (Fla.1959); Jackman v. State, 140 So.2d 627 (Fla.3d DCA 1962); Soloman v. State, 313 So.2d 119 (Fla.4th DCA 1975).

We have also considered the two other points and have concluded that appellant has failed to demonstrate reversible error.

The judgment and sentence are affirmed.

Affirmed.


text:
    Manuel Anthony LOBATO, in re Forfeiture of the following Described Property: 1973 Chevrolet, Serial No. 1087F3N118502, 1976 Colorado License Tag No. W9047, Appellant, v. STATE of Florida, Appellee.
    No. AA-353.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1976.

      Sam E. Barket, Jr., and Norman J. Abood, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   Order Transferring Jurisdiction to the Supreme Court of Florida

PER CURIAM.

Pursuant to the opinion of the Supreme Court of Florida in Florida Real Estate Commission v. McGregor, - So.2d -, opinion Filed July 30, 1976, which held, inter alia:

“ . . . We have jurisdiction of the appeal pursuant to Article V, Section 3(b)(1), Florida Constitution, and Rule 2.1(a)(5)(a), Florida Appellate Rules, in that the circuit court initially and directly passed upon the validity of Section 475.-01(2), Florida Statutes, by holding that such subsection is unconstitutional as applied to the appellees under the particular facts of the instant case.”

and appellant’s first point on appeal in this case being: “The court erred in entering a final order of forfeiture in that F.S. 893.-12(2) was unconstitutionally applied to the case at bar.”, apparently the jurisdiction of this court has been improvidently invoked. Florida App.Rule 2.1, subd. a 5(a).

Therefore, in accordance with Florida App.Rule 2.1, subd. a(5)(d), the cause is transferred to the Supreme Court of Florida.

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

      . See also Golden v. McCarty, Fla., 337 So.2d 388, opinion filed July 30, 1976.


author: PEARSON, Judge.

text:
    Suzanne SCHEINER, Appellant, v. Stanley SCHEINER, Appellee.
    No. 76-252.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.

      Snyder, Young, Stern, Barrett & Tan-nenbaum, North Miami Beach, and William L. Rogers, Miami, for appellant.
    Chonin & Levey, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PEARSON, Judge.

The issue presented by this interlocutory appeal is: May the trial court, upon petition by the father, temporarily enjoin the mother, who has custody of minor children, from removing the children permanently from the state where the final judgment dissolving the marriage contains no such provision. The mother has appealed an order which provides:

♦ * * * * *
“. . . the Court finding that since the date of the Final Judgment the Wife has placed her home up for sale and upon it being sold she is contemplating moving with the children to California, thereby affecting the reasonable visitation rights granted to the Husband, it is thereupon
“ORDERED AND ADJUDGED that the Final Judgment is modified to include the following paragraph:
That the Wife shall not be permitted to remove the children from the State of Florida without Order of the Court approving such removal.”
* * * * * *

The parties obtained a final judgment dissolving their marriage on June 30, 1975. The judgment adopted and approved a settlement agreement. The wife received custody of the children with the husband receiving, “. . . the right to liberal visitation with the children at reasonable times and places after reasonable notice to Petitioner.” It was further provided that the husband would be excused from child support for any period that a child remained with him for more than one month. The wife also received the title to the marital home in exchange for her equity in the husband’s property. The agreement contained the following provision:

* * * * $ *
“The parties shall use all reasonable efforts to maintain free access and to create a feeling of affection between themselves and the children. Neither shall do anything to hamper the natural development of the children’s love and respect for the other party.”
* * * * * *

The judgment contained no requirement that the wife or the children reside in Florida. On December 11, 1975, the father filed a “Motion to Modify Final Judgment” in which he alleged that he had been told that the mother “is planning to sell her home and move to California with the children,” and alleging that he would thereby “lose the right to visit with his children and the children would lose the father-son relationship so vital to their upbringing.” Thereupon, the court heard the testimony of the parties and entered the order appealed.

The appellant mother urges that her contemplated move out of the state is not such a substantial change of conditions as to justify modification of the judgment and that, therefore, the trial judge lacked jurisdiction to amend the judgment by adding the restriction. The mother’s position is strongly supported by the following cases: Bell v. Bell, Fla.App.1959, 112 So.2d 63; McCrillis v. McCrillis, Fla.App.1962, 147 So.2d 584; Millman v. Millman, Fla.App. 1963, 148 So.2d 728; and In re E. R, Fla.App.1966, 186 So.2d 801.

The position of the father is that the facts developed at the hearing on the motion do constitute a substantial change of circumstances because they affect the well-being of the children as well as the rights of the husband, who was granted liberal visitation rights. The record shows:

1. The wife put her home up for sale in September of 1975. This was two and one-half months after the final judgment was entered.

2. The wife had no plans to sell the house at the time of the final hearing.

3. The wife was not contemplating moving from the State of Florida at the time of the final hearing.

4. The wife, at the time of the hearing for modification, was contemplating moving from the State of Florida with the children, but had not yet made definite plans to do so.

An examination of the cases relied upon by the wife, which undoubtedly contain language which supports her position, shows that these cases all were decided under the law existing prior to the Dissolution of Marriage Act of 1971 which substantially increases a father’s rights to custody and visitation. See Fla.Stat. § 61.13(2)(b). Also, in each of these cases except In Re E. P., which was an appeal from an order of the former Juvenile and Domestic Relations Court, the mother had already moved from the county or the state in reliance on a final judgment. In the In Re E. P. case, the opinion carefully reserves the right to make such changes where there is a substantial change of circumstances.

We are convinced that the trial court, upon a showing that a projected change in residence will substantially change the visitation rights of a parent ought to have the right to make an order protecting the best interests and welfare of the children. We note that the Supreme Court of Florida has not spoken on this point and that the cited cases are from this court, except McCrillis v. McCrillis, supra. We find, however, that McCrillis is distinguishable, and we, therefore, recede from any prior statement which seems to hold that a trial court does not have jurisdiction to enter an order in the nature of the one here appealed. See Dinkel v. Dinkel, Fla.1975, 322 So.2d 22; and Green v. Green, Fla.App.1971, 254 So.2d 860. We hold that the evidence in the instant case is sufficient to show that the projected move across the country is a substantial change in the circumstances of this case in which the father was granted liberal visitation rights and the judgment contemplated continued residence of the parties in this state. Based upon this holding, it was not error for the trial judge to enter the order appealed, which restrained the contemplated move, unless a further hearing upon a motion by the mother should show that the best interests of the children would be served by the move.

Affirmed.


author: PER CURIAM. CHARLES CARROLL, Associate Judge

text:
    James L. MANNING, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1329.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.

      Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the defendant below from a judgment entered on a jury verdict finding the defendant guilty of possession of burglary tools, breaking and entering a building, and grand larceny.

The appellant contends the trial court committed reversible error by denying his motions for mistrial, made following the presentation of certain evidence by the prosecutor, at two stages of the trial.

In the first incident which prompted a motion for mistrial, a police officer presented as a witness for the state testified that after the defendant, in custody, was advised of his right to remain silent, he told the officers he did not want to talk to them. The second incident was as follows. The defendant, testifying at the trial, related an exculpatory story as to why he had fled when approached by the officers, which was highly improbable in view of the evidence presented by the state on that feature. On cross examination the prosecutor asked the defendant if he had related that story at his preliminary hearing. The defendant stated he had not testified there. The defendant was asked if he had told that story to any of the officers. He said he had not, and when asked if that story had been stated by him for the first time at the trial, the defendant answered in the affirmative.

With regard to the first incident, following Bennett v. State, Fla.1975, 316 So.2d 41, we hold it was reversible error for the state to present testimony that the accused, while in custody after arrest, and having been advised of his rights to remain silent, announced his election to do so by stating that he did not want to talk to the officers. However, whereas in Bennett the evidence of guilt of the accused was not overwhelming, in this case it was, and, applying the harmless error rule, we hold the above mentioned error does not require reversal and a new trial. No useful purpose would be served by a detailed statement of the evidence presented in this case. On the record, the evidence of the guilt of the accused was such as to meet the standard required for application of the harmless error rule, as referred to in Bennett (316 So.2d at 44) and as prescribed in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

Regarding the second incident, we hold no reversible error occurred. See Willinsky v. State, Fla.App.1976, 328 So.2d 536. Disclosure that the defendant had not testified at a preliminary hearing in the case was not reversible error. The story related by the defendant at his trial, that his flight from the officers was because of his possession of some marijuana, was patently and inherently lacking in credibility in view of the strong contrary testimony and physical evidence. The state had presented testimony of an arresting officer that when the defendant was approached by the officers he discarded a camera case and a suitcase, and fled; that the suitcase was found to contain burglary tools, and property including a large amount of jewelry belonging to the occupants of the residence that had been broken into a short time earlier, and that the defendant, when arrested, had in his pocket a watch belonging to the larceny victim on which the victim’s name was inscribed. The questions put to the defendant, as to whether he had related that story on specific earlier occasions, was laying a predicate for impeachment, such as could have been proceeded with if the defendant’s answer had been in the affirmative. The testimony of the defendant as to his reason for fleeing was so improbable and lacking in credibility in view of the evidence, that any increase in the degree of improbability thereof which may have resulted from the showing by the state on cross-examination that the defendant had produced that story for the first time at trial, could not reasonably be regarded as possibly having contributed to his conviction. The error in that regard, if any, was harmless error under the law.

The judgment is affirmed.

CHARLES CARROLL, Associate Judge

(concurring specially).

I concur in the opinion and judgment of the court. I recognize the need to follow Bennett v. State, Fla.1975, 316 So.2d 41, and hold that reversible error resulted when the state produced testimony that the accused, in custody and aware of his right to remain silent, availed himself of that right and stated he did not want to talk to the officers, even though there was no showing that his election to remain silent was made in face of an accusation, or under other circumstances of such character that to then remain silent would amount to an admission against interest, constituting self-incriminating evidence of guilt. I agree that the harmless error rule here obviates reversal for such error.

However, I take the liberty to state reasons why, in my opinion, the foregoing incident should not be regarded as reversible error. The constitutional rights of an accused in custody, as outlined in Miranda (including the right to have an attorney; to remain silent; to refuse to submit to custodial interrogation unless in presence of his attorney; and to retain his constitutional rights rather than to waive them), are granted to an accused by fundamental law for his benefit and protection, including his protection against self-incrimination.

It would appear that the bare fact that an accused chose to avail himself of the rights thus granted to him, or of any one of such rights, should not be regarded as self-incriminating evidence of his guilt of the offense for which he was arrested. I cannot consider that an accused who informs an officer that he chooses not to submit to custodial interrogation thereby has been “compelled to incriminate himself”, or thereby has furnished evidence of guilt by remaining silent.

It is materially different matter when the exercise of the right (such as the right to remain silent), is made in face of an accusation, or otherwise is made under circumstances which are of such character that to remain silent in face thereof would be tantamount to a self-incriminating admission, and evidence of guilt. That is precisely what occurred in Jones v. State, Fla.App.1967, 200 So.2d 574. In that case, a short time after a purse snatching incident the accused was arrested on the basis of a description given by the victim, and was warned of his rights. He was returned to the scene of the offense in custody of the officers, and there in face of a statement by the victim, made in his presence, that he was the man who took her purse, the accused stood mute. Testimony presented by the state that such had occurred was held to be reversible error under Miranda.

In Bennett, citing Jones as authority, it was held to be reversible error for the state to produce testimony that an accused, after having been arrested and warned of his rights, had refused a request of the officers that he sign a written waiver of his rights. In that case it was not shown that the election of the accused to avail himself of his granted constitutional rights was made in face of an accusation, or under circumstances whereby his election could operate as admission against interest constituting evidence of his guilt.,

In Miranda, after stating it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation, the Supreme Court of the United States said: “[T]he prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in face of accusation”, and further said: “[T]he privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner”. (Emphasis supplied).

The choice of an accused not to waive the rights granted by fundamental law for his protection, including protection against self-incrimination, should not be regarded as an admission of guilt or as being evidence of his guilt. Exercise of his rights by an accused should not operate to bring about any injurious result, for his protection against which the right was granted.

If refusal of an accused to waive his rights or to submit to custodial interrogation is not to be regarded as evidence of his guilt, then testimony that he did so, if presented by the state, would not be a showing of guilt of the accused by self-in-erimination, and should not be ground for reversal. On the other hand, when the exercise of the right is under conditions which may be such that for the accused to have done so in face thereof would amount, under the law, to a self-incriminating admission constituting evidence of guilt, it would be prejudicial, and reversible error for the state to show that such had occurred, since that would be action by the state penalizing the accused for having exercised his Fifth Amendment privilege. It would appear the former would apply to Bennett, and that the latter situation applies to Jones.

To hold otherwise could influence an appellate court to regard it to be reversible error whenever, on trial of an accused, the state should happen to present evidence that an accused while in custody had made known his desire to avail himself of one or more of the constitutional rights granted to him for his use and protection.

      . In Bennett the court said: “[U]nder no stretch of the imagination can it be said that the evidence was overwhelming against defendant”.

      . See Hoffman v. Jones, Fla. 1973, 280 So.2d 431, 434.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

      . For example, as when one co-defendant upon custodial interrogation, in the presence of the other, implicates the other.


author: WILLIS, BEN C., Associate Judge.

text:
    Margaret Elizabeth Johnson STUBBS, as Executrix of the Will of Bella Hicks, Deceased, Appellant, v. J. Paul CUMMINGS and W. A. Struck, Appellees.
    No. BB-188.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1976.

      C. Roger Yinson, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.
    Paul L. Cummings, Pensacola, for appel-lees.
   WILLIS, BEN C., Associate Judge.

The appellant, plaintiff in the trial court, is the niece of Bella Hicks, deceased, and the executrix of her will. At the time of her death on May 9, 1972 Bella Hicks held title to a 4% acre parcel, identified as “Lot 4”, which was one of eight lots laid out in a recorded plat, which were platted in 1936 as a means of partitioning a parcel of about thirty-eight acres which had been the property of the late Grandison Hicks, the father of Bella Hicks. In the partitioning, Lot 4 was acquired by Nellie B. Reeves, sister of Bella Hicks. Mrs. Reeves subsequently died and this property, by operation of law, passed to her husband and sole heir, Sampson M. Reeves. Mr. Reeves died in August 1958 and devised Lot 4 to his sister-in-law, Bella Hicks.

At the time of the partitioning in 1936 Bella Hicks received “Lot 6” which lies adjacent to “Lot 4”. However, “Lot 6” is not involved in this case.

It appears that, notwithstanding the transfer of title from Nellie B. Reeves to her husband and thence to Bella Hicks, “Lot 4” was carried on the county tax rolls in the name of Nellie B. Reeves, and the tax statements were sent each year at all times pertinent to this case to Nellie B. Reeves.

Apparently until 1968 the taxes on Lot 4 were paid but in that year they were unpaid and a tax sale certificate was issued which was purchased by Edsel or Virginia McNiel in February 1970. On September 4, 1972 a tax deed was issued to the defendants.

On September 3, 1968 Bella Hicks was declared to be legally incompetent, but no guardian of her person or property was ever appointed. She lived until May 9,1972 and after her death the plaintiff was appointed executrix of her estate on December 29, 1972. It is significant that Bella Hicks was incompetent during the period when the taxes fell delinquent, and the tax deed issued after her death but before her executrix was appointed. All notices relating to the delinquent taxes and the issuance of the tax deed were sent by the county official involved to Nellie B. Reeves, who had been dead at least fourteen years.

It is not shown that the County Comptroller or any other officer or personnel having any responsibilities in the procedures leading to the issuance of the tax deed had any personal knowledge of the title being vested in Bella Hicks or that she had been adjudged an incompetent.

The proceedings under review were initiated in the trial court by a complaint by the plaintiff executrix against the defendant tax deed holders which sought, among other things, to set aside the tax deed on the ground that the legal owner of the property, Bella Hicks, had been judicially declared incompetent prior to the attachment of the lien for taxes and at all times thereafter until her death, and that the tax deed issued when she was deceased and her estate was without a personal representative. The defendants answered the complaint and the parties stipulated to the facts which were presented to the trial judge on the legal questions involved.

The trial court entered a final judgment dismissing the complaint with prejudice. It was there mentioned that notice of the application for tax deed was given to Nellie B. Reeves, who appeared upon the tax rolls as the owner of record and that this is as is “required by Section 197.505, Florida Statutes, 1971”. It was further stated:

“. . .No question is raised that the statutes at the time of the issuance of the deed or prior thereto were fully and completely followed by the Comptroller. In the absence of exceptions in the taxing statutes, the same rules which apply to other persons apply to incompetents and infants. Fleming v. Hillsborough County, Fla.App., 107 So.2d 162, 166.”

The appellant contends that the procedures followed by which the issuance of the tax deed divested legal ownership of real property from an unprotected incompetent constitutes a taking without due process of law in violation of both federal and state constitutions.

The plaintiff does not contend that there has been any failure to follow the procedures prescribed by applicable statutes for the issuance of the tax deed. However, she does assert that there is an implied exemption to the finality of tax deeds by the language in Section 197.620, Florida Statutes, 1971. This section refers to the application of Section 197.610 and 197.615, each dealing with a 20 year statute of limitations in favor of a tax deed holder so as to bar actions by a former owner. Section 197.620 provides that the other two sections shall apply whether there has or has not been any actual possession of the tax deed premises by the tax deed grantee, his heirs, etc. Such sections are directed to be construed as “Prospective, retroactive, and cumulative of the rights and benefits of grantees under tax deed and those claiming under them; provided, said sections shall not apply to infants, persons non compos mentis, or under other disability to maintain suit until one year after removal of such disability”.

This reference to persons under disability is in connection with the operation of the statute of limitation prescribed in Sections 197.610 and 197.615, and is not pertinent to the procedures for the issuance of tax deeds.

Therefore, the question involved is whether or not due process of law is afforded in the issuance of the tax deed in this case. It is contended that the United States Supreme Court case of Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956) is controlling and compulsive of a reversal here.

The Covey case involved a foreclosure and sale of real property for nonpayment of taxes. The owner was mentally incompetent and notice of the foreclosure was given to her when she was without the protection of a guardian. Subsequently, a committee was appointed for the incompetent, but the state courts denied the committee’s motion to open the default in the foreclosure proceedings. The incompetency of the property owner was actually known to the town officials. The notice of foreclosure was given pursuant to statutes by publication, by posting and by mailing. Such notice is to the effect that, unless the amount of unpaid tax liens together with interest and penalties are paid within 7 weeks, or an answer filed in 20 days, the right of redemption from foreclosure shall be cut off. These provisions purport to be applicable to a,nd valid and effective with regard to all defendants, even though one or more of them be infants, incompetents, absentees, or nonresidents of the state.

The Court observed the established principle that:

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pending of the action and afford them an opportunity to present their objections . . . (W)hen notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”
It was further held:
“Notice to a person known to be an incompetent who is without the protection of a guardian does not measure up to this requirement. Assuming the truth of the uncontradicted assertions, that the taxpayer . . . was wholly unable to understand the nature of the proceedings against her property (from which it must be inferred that she was unable to avail herself of the statutory procedure for redemption or answer) and that the town authorities knew her to be an unprotected incompetent, we must hold that compliance with the statute would not afford notice to the incompetent and that a taking under such circumstances would be without due process of law.”

The Covey case clearly holds that if the public officials charged with following the procedures leading to loss of land for nonpayment of taxes actually know of the owner’s ineompetency and of the absence of guardianship or other responsible protection, then the gesture of issuing the statutory notices would not meet the requirement of due process that notices given shall be reasonably calculated, under all the circumstances, to apprise the interested party of what is pending and what needs to be done. In the case under review there was no actual knowledge by the officials of the incompetency of Bella Hicks or even of her ownership of the property. However, the appellant contends that there was constructive notice because it was a matter of record that Bella Hicks was incompetent as she had been declared so by a proper judicial officer in Escambia County where the property is located, and that the probate records would have revealed the transfer of title from Nellie Reeves to Sampson Reeves and thence to Bella Hicks. The question thus presented is whether or not the revelation of factual circumstances in public records is to be equated with actual knowledge of public officials so as to come within the rule of the Covey case. Stated in another way, the question would be whether or not the county Comptroller or any other official charged with giving notice to owners or other interested parties of procedures which lead to loss of land for nonpayment of taxes has the duty to search all public records available to him to ascertain the actual status of ownership of the property and the incompetency of an interested party, or any other incapacity of such party to comprehend the notices given.

The statute pertaining to notice imposes no such requirement. Section 197.505, Florida Statutes, 1971, requires mailing of notice to owners when an application has been made for a tax deed by a holder other than the county. The copy of the notice is directed to be mailed to the “owner of the property ... if the name and address of such . . [person] . appear on the tax roll for the year in which taxes were last extended on such property or if the name and address of such persons do not appear thereon then the notice shall be mailed to the person last paying taxes upon such lands as shown by the tax collector’s receipt book and in the event no address be shown thereon no notice shall be required . . .. The failure of the owner ... to receive such notice shall not affect the validity of the tax deed issued pursuant to such notice”.

We recognize that a significant hardship arises in the loss of the property here by the issuance of the tax deed and that Bella Hicks was at an extreme handicap to protect her lot from loss through nonpayment of taxes. It is a hardship on any owner to suffer such a loss whether such occurs from financial inability to pay the taxes, from illiteracy and inability to read or understand the prescribed notices, infancy, mental incompetence, or physical incapacity. It is the function of the legislature to prescribe the system of imposing and collecting taxes and in the case of ad valorem real estate taxes the ultimate resort to collecting the taxes is to the land itself regardless of what legal or equitable interests in the land are outstanding. The legislature has not seen fit to impose upon the county officials involved in tax deed procedures a duty to ascertain the status of owners of property by a search of all public records which might reveal same, but rather rely upon the tax rolls or tax collector receipt books or other information that is directly furnished them by interested parties.

In Fleming v. Hillsborough County, Fla., DCA 2nd—1958, 107 So.2d 162, it was observed:

“No provision was made in the tax statutes favorable to infants or incompetents. The same rules which apply to everyone, else apply to parties under disability unless the taxing acts themselves make such exceptions.”

It was further stated in Fleming:

“Plaintiff had the right, within the statutory period, to redeem these properties, but he failed to do so, probably for reasons beyond his control. He has, without doubt, suffered great hardship, but the circuit courts have no authority to alleviate harshness of taxing acts where such relief is not provided for in the statutes of the State.”

We are cited the Opinion of the Attorney General, No. 057-119, dated May 8, 1957 in which it was stated to the State Comptroller that where the owner of property encumbered by the tax lien and tax sale certificate is insane “we doubt that notice to the said owner would be sufficient to authorize the holding of the tax deed sale and the issuance of a tax deed”. Also stated is: “There would probably be a want of due process of law.” This was in reply to the question: “Where an application is made for a tax deed sale, based upon a tax sale certificate and tax liens encumbering lands of an insane person, how should the clerk of the circuit court proceed? ” In answer to the question of procedure, it was advised that notice be served on the insane person and guardian and if no guardian, one should be appointed and qualified.

The above opinion seems to have been given in the light of actual knowledge of the insanity of an owner. In that posture the opinion is fully in line with the Covey case, but is not necessarily pertinent to the case here.

We thus must conclude that there has been no failure of due process here. The statutes provide a method of giving notice by publication and by mailing. Actual receipt of notice is not required, but strict adherence to statutory requirements is essential. The notices required are those deemed by the legislature to be most apt to accomplish the purpose of actual service and meaningful apprisal of pending procedures. In this regard they are somewhat analogous to constructive notice by publication which a state may utilize in matters pertaining to real property. In State, ex rel. Trustees Realty Co. v. Atkinson, 97 Fla. 1032, p. 1045, 122 So. 794, p. 799 (1929) it was stated that where constructive service is authorized and resorted to: “In such case nothing more is required by the law of the land than that the substituted service shall be such as in the exercise of legislative discretion shall be found most apt to accomplish the purpose of actual service.”

For the reasons stated we conclude that the judgment of the trial court be and the same is

Affirmed.

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


text:
    Jerry Bufkin WEBB, Appellant, v. STATE of Florida, Appellee.
    No. 75-1355.
    District Court of Appeal of Florida, Second District.
    July 30, 1976.
    Rehearing Denied Sept. 9, 1976.

      Walter R. Talley, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of sale of marijuana. We hold the court erred in excluding the evidence he proffered to show bias of the chief prosecution witness and further, in denying appellant’s motion for a new trial on the ground of newly discovered evidence. We reverse.

Appellant Webb was charged with sale of marijuana to Officer Carnahan of the Anna Maria Police Department. Carnahan testified the sale occurred in the parking lot of the Anchorage Bar in Anna Maria, at approximately 9:45 P.M., on May 28, 1975. The transaction took no more than two or three minutes, and Webb returned to the bar. Carnahan also met a Mr. Neville outside, talked with him for fifteen or twenty minutes, and returned to the bar with Ne-ville before finally departing.

Appellant denied making the sale. While he acknowledged he had been talking with Carnahan inside the bar, he testified that he left the premises by himself shortly after 9:00 and did not return. The testimony of three other witnesses on behalf of appellant, while varying as to exact times, tended to establish that Webb and Carnahan had both been in the bar throughout the early evening, that Webb left the bar about 45 minutes before Carnahan, and that when Carnahan left, he went with Mr. Neville, not appellant. This testimony came from the bartender and Mr. and Mrs. Klingen-smith, two patrons at the bar. The bartender said that appellant left the bar at 9:45 and Carnahan left with Neville at 10:30. Mrs. Klingensmith said she didn’t see appellant after 9:00 and Carnahan left with Neville between 9:30 and 10:00. Mr. Klingensmith said he did not see appellant leave, but Carnahan left with Neville between 9:30 and 9:45. However, all these . witnesses admitted they did not watch appellant and Carnahan constantly, and two of them conceded that Webb and Carnahan could have exited the bar momentarily,without their knowledge and completed the sale.

Appellant had brought suit against the City of Anna Maria and its Police Chief for false arrest on April 14, 1975, but he was not permitted to testify about this suit. Moreover, the court refused to permit Robert Franklin, formerly Chief Detective of the Anna Maria Police Department, to testify concerning a conversation that Franklin claimed to have had with the Police Chief approximately two weeks before Webb’s arrest. Franklin testified on proffer that he talked to the Police Chief and mentioned Webb’s civil suit and the possibility of arresting Webb on a DWI charge to discourage him from prosecuting that suit. The Chief replied that Franklin should not worry about it because Mr. Webb was “being taken care of.”

We hold that this evidence was improperly excluded. Bias or prejudice of a witness has an important bearing on his credibility, and evidence tending to show such bias is relevant. We make no comment on the merits of appellant’s defense, that he was “framed” by the police department because of his civil suit, but we hold he was entitled to have that evidence presented to the jury. Here, both appellant’s and Franklin’s testimony would have shed light on any bias or interest the Police Chief and his subordinates may have had in the outcome of appellant’s criminal trial. It has frequently been held that the existence of a civil suit by a witness against a criminal defendant is relevant to show such potential bias in the criminal trial. See Bessman v. State, Fla.App.3d 1972, 259 So.2d 776; Annot., 21 A.L.R.2d 1078. We think the situation is not essentially different where, as here, it is the defendant who brought a civil suit prior to being charged with the crime. And, the fact that Carna-han himself was not a party to the civil suit makes no material difference. The city which employed Carnahan and the city’s Police Chief were parties and it is sufficient that they may have had a bias against him. See 81 Am.Jur.2d, Witnesses, § 552. The Police Chief’s alleged statement to Franklin, although hearsay, would fall under the “state of mind” exception insofar as it bears on the question of his bias, motive, and intent. Cf., Allen Morris Co. v. McNally, Fla.App.3d 1974, 305 So.2d 79.

We are well aware of Fla.Stat. § 924.33, the harmless error statute, but we cannot agree that the errors here were harmless. There was no corroboration of the inculpa-tory portions of Carnahan’s testimony, and it was essential that the jury hear any admissible evidence bearing on his credibility. Cf., Roti v. State, Fla.App.2d 1976, 334 So.2d 146. Opinion Filed June 23, 1976; Lee v. State, Fla.App.4th 1975, 318 So.2d 431.

A second ground for reversal is based on the trial court’s refusal to allow appellant to reopen his case to present further testimony, or to grant a new trial based on newly discovered evidence. After the first day of trial, appellant first learned of two new witnesses. The next day, before closing argument, appellant sought leave to reopen his case to present their testimony but this was denied. His later motion for new trial was also denied.

The new witnesses were undercover agents who had been in the bar on assignment with Carnahan until 9:45, and then went to the parking lot without Carnahan and remained there until 10:00. These two agents could testify with certainty that no sale to Carnahan took place in the parking lot during any of that time. True, their testimony, standing by itself, may not have been totally irreconcilable with Carnahan’s, because Carnahan testified that his estimate of the time when the sale took place was not exact. The trial court’s ruling was based in part on this fact. Yet, their testimony would have added greatly to appellant’s case, especially when viewed in combination with that of the other witnesses. When the prosecutor cross-examined the other witnesses, he had undermined the effect of their testimony by implying the sale took place earlier in the evening, when Car-nahan and Webb were both in the bar and could have slipped out for the transaction. These new witnesses could have completely ruled out the possibility of any sale having occurred before 10:00. In addition, the testimony of these new witnesses, in light of their employment by the police department, could have been given considerable weight by the jury. In summary, we think it probable the new testimony could have affected the outcome of the trial.

Furthermore, the names of these witnesses, who obviously were known or should have been known to the state, were not furnished to appellant despite his demand for discovery under RCrP 3.220. However, while these witnesses were' not known to appellant until after the trial began, they were known to Mrs. Klingen-smith who was in turn known to appellant prior to trial. The state suggests that appellant did not use “reasonable diligence” under RCrP 3.600(a)(3) and no new trial should be awarded. We cannot agree. What made these witnesses so essential to appellant’s case was that they were specifically assigned to work with Carnahan and had therefore paid close attention to him throughout the evening. Although counsel could, as the state suggests, have asked Mrs. Klingensmith whether she knew of anyone else who could testify on appellant’s behalf, from counsel’s point of view this question would have led only to cumulative testimony. Under the circumstances of this case, in light of the state’s prior failure to comply with the discovery rules, we find no failure to exercise reasonable diligence.

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

HOBSON, Acting C. J., and BOARD-MAN and SCHEB, JJ., concur.


text:
    Alice MICALIZIO, Appellant, v. Edna J. FLOWERS, as Executrix of the Estate of Joseph W. Kennedy, Appellee.
    No. 75-1588.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.

      Philip J. Coniglio, North Miami, for appellant.
    Stanley M. Ersoff, Miami, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Section 731.051, Florida Statutes. See Talmudical Academy of Baltimore v. Harris, 238 So.2d 161 (Fla.3d DCA 1970).


author: LESTER, M. IGNATIUS, Associate Judge.

text:
    Joe ANON, Appellant, v. CITY OF CORAL GABLES, Appellee.
    No. 75-958.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Sept. 8, 1976.
    Lamar, Arango & Lamar, Coral Gables and Jorge Sanchez-Galarraga, Miami, for appellant.
    Charles H. Spooner, City Atty., and Robert D. Zahner, Asst. City Atty., for appellee.
    Before HENDRY and NATHAN, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   LESTER, M. IGNATIUS, Associate Judge.

The relevant facts concerning the property in this case date back for more than half a century. The record on appeal reveals that the appellant is the fee simple owner of a parcel of land in the City of Coral Gables, which was platted and zoned in 1925 for single family residence, having a frontage of 41.44 feet and a depth of 105.50 feet. In 1937 the City of Coral Gables adopted the zoning restriction requiring that no building designed for residential use may be constructed or erected upon a building site having a street frontage of less than 50 feet. The appellant acquired said lot in 1972 and does not own any adjoining lot, and at the time he bought the lot he was not aware of the street frontage requirements adopted in 1937. Intending to build a single family residence on this lot, the appellant obtained all the necessary approvals from the authorities as far as lot area and architectural plans, but his application for a building permit was denied since his lot did not meet the frontage requirements. The appellant made application for a variance from the street frontage requirements, and his application was accompanied by letters from abutting property owners who approved the proposed variance. However, the zoning board denied the variance requested, and the appellant appealed to the City Commission, which denied the appellant’s application for a variance and upheld the decision of the zoning board.

The case came before the trial judge on a Petition for Writ of Certiorari, and the Court ruled that the restriction of the 50-foot minimum frontage requirement would not work unnecessary and undue hardship on the petitioner-appellant and further found that when the petitioner-appellant purchased the property, he knew or should have known what the zoning regulations were in the City of Coral Gables, and that any hardship was self-inflicted and self-imposed, and cited authority of Elwyn v. City of Miami, Fla.App., 113 So.2d 849.

Appellant urged that the trial court erred in finding that the literal interpretation and application of the 50-foot minimum frontage requirement would not work unnecessary and undue hardship on the appellant and that such hardship was self-inflicted or self-imposed by the appellant.

The record reflects that the appellant has carried the burden of proof, showing that hardship is peculiar and unique to his lot, and that such hardship is not shared by the other property owners in the area. A variance in this case will not alter the character of the locality nor will it interfere with the zoning plan for the area and the rights of owners of other adjacent properties. In denying the appellant the right to use his land on which to build a single family residence, his lot will be totally useless to him since it cannot be used for any other purpose.

“ * * * The authorities seem uniform on the proposition that the difficulties or hardships relied on must be unique to the parcel involved in the application for the variance. They must be peculiar to that particular property, and not general in character, since difficulties or hardships shared with others in the area go to the reasonableness of the zoning generally, and will not support a variance. If the hardship is one which is common to the area the remedy is to seek a change of the zoning for. the neighborhood rather than to seek a change through a variance for an individual owner. Thus some exceptional and undue hardship to the individual land owner, unique to that parcel of property and not shared by property owners in the area, is an essential prerequisite to the granting of such a variance.” Elwyn v. City of Miami, Fla.App., 113 So.2d 849.

Justice Thomas’s concurring opinion in Miami Shores Village v. Ellis, Fla., 53 So.2d 324, simply affirms the appellant’s contentions in this case.

“I have written many opinions upholding zoning restrictions, but I have ever been conscious of the fact that there is a point beyond which such regulations may not reach without bringing into play the constitutional protection of the property owner. As I understand the circumstances peculiar to this case the application of the Zoning Act, F.S.A. § 176.01 et seq., reduces to nothing any legitimate construction by the appellee on his 50-foot lot. It is to me obvious that when the zero mark is thus reached, it follows that the owner’s constitutional guarantees are being invaded, and that the answer to all appropriate questions growing out of this controversy must therefore be favorable to him.”

In Davis v. Sails, Fla.App., 318 So.2d 214, the Court stated as follows:

“It is clearly the duty of the court to determine the validity of zoning ordinances as applied to a specific parcel of property. This proposition was enunciated by the Supreme Court of Florida in a 1949 case, City of Miami Beach v. First Trust Co., 45 So.2d 681. In that case, a parcel of property on Miami Beach had been zoned for single family residences. In due course, adjoining lands were used for multiple family purposes, including hotel and apartment houses. Upon the city refusing to rezone the plaintiff’s property for multi-family residences, suit was commenced, whereupon the chancellor ruled with the city. Appeal was taken to the Supreme Court of Florida, which initially affirmed the chancellor. Upon petition, rehearing was granted, whereupon Justice Terrell stated as follows:
‘When the case was before us initially the proposition that got the ear of the Court was the insistence by appellant [City] that the ordinance was presumptively valid, that if fairly debatable the action of the city in passing it should be upheld and the Court should not substitute its judgment for that of the City Council. * * * but on thorough review of the case on petition for rehearing, I am convinced that our judgment was erroneous. When, as here, the constitutional rights of the citizen are assaulted, I do not think the Court can in the manner shown bypass its duty to adjudicate them. * * * ’ (45 So.2d at page 688)
The court thereupon reversed the lower court, holding that under the circumstances of that particular ease the subject ordinances constituted confiscation, observing:
‘ * * * There is no showing that the zoning plan of the city will be jeopardized or materially affected by removal.' (45 So.2d at page 688)”

In this case there was no question that the adjoining property owners had no objection to the variance, and there is nothing in the record disclosing that the granting of the variance would harm the zoning plan of the City.

“ ‘An ordinance when in force should not in its application deprive the owner of a reasonable use and enjoyment of his own property, thereby depriving him of his property without due process of law or just compensation. The ownership of property is guaranteed by the State and Federal Constitutions. Frequently it becomes necessary for the property and use thereof to yield to constitutional regulations. While a municipality by ordinance may regulate or limit the use of property in behalf of the general welfare of its citizens, such action is authorized only in a constitutional manner.’ ” Davis v. Sails, Fla.App., 318 So.2d 214, at page 219.

The appellees urged that the hardship suffered by the appellant was self-created and self-imposed, and as stated above, the trial court followed that rationale. Again referring to Elwyn v. City of Miami, supra, it is noted in said case that the purchaser of the property was aware of the permitted uses and sought to obtain a variance therefrom before it acquired the property, and the appellee corporation took the conveyance after the City’s zoning board had ruled against its application for variance. The situation in the case under consideration is entirely different, and the property owner should not be precluded from objecting to the zoning ordinance merely because the ordinance was in force when he acquired his lot and had no knowledge of the restriction.

Also, in Josephson v. Autrey, 96 So.2d 784 (Fla.1957), the property owner bought the land, paying a higher price for it, and gambled that the variance would be granted, making the property more valuable. Here, again, in the case under consideration appellant did not buy the property to speculate or gamble on getting a variance in order to use it.

Also, in both the Elwyn decision and in the Josephson decision, the property owners could have other uses for the lands if the variance was denied, but in the case under consideration the unique hardship is not the loss of a better or more profitable use, but rather a complete denial of the use of the owner’s property.

Accordingly, the trial court’s order on Petition for Certiorari is vacated and set aside, and the cause remanded to the trial court for the entry of an appropriate order consistent herewith.

Reversed.

NATHAN, J., dissents.


author: SCHEB, Judge.

text:
    SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Nancy Hagan GARRISON et al., Appellees.
    No. 75-1672.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1976.
    Rehearing Denied Sept. 10, 1976.
    M. David Alexander and Dabney L. Conner, of Boswell, Boswell & Conner, Bartow, for appellant.
    Kenneth L. Connor, of Gibson & Connor, Lake Wales, and Summerlin & Connor, Winter Haven, for appellees.
   SCHEB, Judge.

This appeal is from a judgment entered in favor of the appellees/plaintiffs in a wrongful death action. The question posed is a novel one to Florida law; i. e., Is expert testimony concerning future inflationary trends admissible as a basis to determine the estimated value of loss of future support for a decedent’s survivor?

Elijah Hagan died on August 30, 1974, in a crossing accident between an automobile driven by him and appellant/defendant’s train. Hagan, a truck driver, was 46 years old at the time of the accident. Testimony showed he was a good and reliable employee. The decedent’s estate and his surviving child, Timothy Bankston, age 5, recovered judgments against the appellant Railroad and David Barnaby Bach. We affirm.

Appellant contends that the court erred in permitting the plaintiff’s economist, Dr. Roberts, to give expert testimony to the effect that inflation would probably continue at a minimum annual rate of 5% for the • next thirteen years; i. e., until the decedent’s son attained his majority. This testimony occurred when Roberts was calculating the loss in support money caused by Hagan’s death. Roberts’ calculations were based on the premise that had Hagan lived, the amount of his money available for support and so used would have kept up with inflation. Dr. Roberts, a professor of eco-' nomics at . the University of Tampa, based his testimony upon what he called “reasonable economic probability” which was derived from historical trends. Appellant, relying primarily on Johnson v. Penrod Drilling Co., 5th Cir. 1975, 510 F.2d 234 (a case brought under the Jones Act), says that such testimony as to future rates of inflation is too speculative and should not be permitted.

Neither party has cited us to a Florida case on point, and our own research has not disclosed any. However, while novel to Florida, this question has been frequently decided elsewhere, and numerous recent cases both permit and prohibit such testimony. See Annot., 12 A.L.R.2d 611, § 15. We think that to require the finder of fact to ignore evidence of reasonably predictable inflationary trends is inconsistent with the realities of present day economics. We align ourselves with the courts that permit such testimony.

First, even in the absence of any evidence whatsoever on this matter, we think it likely that juries will consider the impact of future inflation. Inflation has become a fact of life within the experience of everyone. It has continued to a greater or lesser extent throughout most of our lifetimes. Most people have found it necessary to reckon with this in their own financial planning for the future. Certainly juries, which are drawn from citizens from every walk of life, are aware of the effects of inflation. Quite likely they will be prone to consider it in their attempts to fully compensate a plaintiff. On this premise, we think it proper that their judgments be aided by such competent expert testimony as may be relevant to this issue.

Second, the mere fact that the future rate of inflation is uncertain is not a sufficient ground to prohibit the jury from considering expert testimony as to inflationary trends. Juries are constantly called upon to evaluate the effect of future or hypothetical events. As the court stated in United States v. English, 9th Cir. 1975, 521 F.2d 63:

“While predicting future inflationary trends, or extrapolating from present ones, may be speculative, so are most predictions courts make about future incomes, expenses (as, for example, in the case of the wrongful death of an infant). Since it is still more probable that there will in the future be changes in the purchasing power of the dollar, it is better to try as best we can to predict them rather than to ignore them altogether.”

Third, we note that Standard Jury Instruction 6.10 requires Reduction of Damages to Present Value, and failure to instruct the jury on this point is error. Norman v. Mullin, Fla.App.2d 1971, 249 So.2d 733. This instruction is based on the concept that the plaintiff will be able to profitably invest his award, so that less money is required now to compensate him for money which, absent defendant’s negligence, he would not have received until some future time. Yet, the Standard Jury Instruction fails to mention any specific interest rate. The matter is for determination by the jury within reasonable limits. Renuart Lumber Yards, Inc. v. Levine, Fla.1950, 49 So.2d 97. And, expert opinion on the proper discount rate is commonly received for this purpose. 25A C.J.S. Damages § 194; 22 Am.Jur.2d, Damages, § 96 at n. 14.

In the present case, Dr. Roberts used an interest rate of 7% in his calculations, while on cross-examination appellant vigorously attempted to get Dr. Roberts to admit that safe investments were available paying 8% or higher. A higher interest rate would, of course; result in a smaller present value. But, it does not seem fair to us to allow the defendant to argue for the use of a high anticipated interest rate as a basis of discounting an award, without allowing the plaintiff to show that the purchasing power of the money he receives and invests may be substantially offset by increases in the cost of living. To this extent, we disagree with Penrod, supra, in which the Fifth Circuit held that inflation could not be considered and that future damages must be “reduced to present value by the use of an appropriate interest rate prevailing at the time and place of trial.” 510 F.2d at 237. We think fairer results may be obtained by following the procedure used in the instant case; /. e., permitting expert testimony not only on future inflation, but also on the interest rate used in computing the present value of the award. With all the evidence before it, the jury will better fulfill its function of awarding a sum which, when invested, will fairly compensate the plaintiff for future losses caused by the defendant’s negligence.

Finally, while some consideration of probabilities becomes essential to determination of a fair award, we do not intend for our courts to be open to unbridled speculation on the matter of inflation. As was stated in United States v. English, supra:

“Nor do we intend to have our holding of today read as authorizing the court to arbitrarily draw an estimate of inflation out of thin air. As with any other element of damages, we must require the estimate of future inflation to be supported by competent evidence. . By our holding we allow the trier of fact in awarding damages to take into account only such estimates of future changes in the purchasing power of money as are based on sound and substantial economic evidence, and as can be postulated with some reliability.”

Dr. Roberts’ expertise in economics was established. His projections fell within guidelines we have outlined and the trial court was eminently correct in permitting his expert testimony on the subject.

Our examination of the record and briefs persuades us that there is no merit in the appellant’s remaining contention that the trial judge erred in admitting evidence establishing the plaintiff’s decedent as father of the appellee Timothy Bankston.

Accordingly, the judgment of the trial court is affirmed.

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

        .Schnebly v. Baker, Iowa 1974, 217 N.W.2d 708; Loetzerich v. Texas Pacific-Missouri Pacific Terminal R. R., La.App.1976, 325 So.2d 626; Resner v. Northern Pacific Ry., 1973, 161 Mont. 177, 505 P.2d 86; Plourd v. Southern Pacific Transportation Co., 1973, 266 Or. 666, 513 P.2d 1140; United States v. English, 9th Cir. 1975, 521 F.2d 63 (applying Cal. law). Some courts have taken the intermediate view that while juries may generally take inflation into account, evidence should not be permitted which would project a specific rate of inflation years in the future. See, Bach v. Penn Central Trans. Co., 6th Cir. 1974, 502 F.2d 1117; Riha v. Jasper Blackburn Corp., 8th Cir. 1975, 516 F.2d 840 (applying Neb. law); Johnson v. Serra, 8th Cir. 1975, 521 F.2d 1289 (applying Minn. law).

      . In addition to Penrod, supra, see Henderson v. S. C. Loveland Co., N.D.Fla.1975, 396 F.Supp. 658; Sleeman v. Chesapeake and Ohio Ry., 6th Cir. 1969, 414 F.2d 305; Williams v. U. S., 1st Cir. 1970, 435 F.2d 804 (applying R.I. law); Frankel v. Heym, 3d Cir. 1972, 466 F.2d 1226. This view is supported in 2 F. Harper & F. James, Law of Torts, § 25.11 (1956).

      . The problem is' not new. In 1921 the Supreme Court of Vermont in Halloran v. New England Telephone & Telegraph Co., 1921, 95 Vt. 273, 115 A. 143, said:
      “So it is that, at least so far as those elements of damages properly classed as pecuniary losses — like loss of time, loss of earning power, expenses and the like — are concerned, it is proper for the jury to take into consideration the fact, known to everybody, that the purchasing power of money is at present seriously impaired. And it is so held by the courts.”

      . An equivalent approach was utilized in Feldman v. Allegheny Airlines, Inc., D.Conn.1974, 382 F.Supp. 1271, aff'd. in relevant part, 2nd Cir. 1975, 524 F.2d 384. There, instead of computing the effect of inflation on future earnings and then reducing to present value using a high interest rate, the court achieved the same result by using an “inflation adjusted discount rate.” That rate is obtained by subtracting the projected rate of inflation from the projected interest rate. The Connecticut court used an inflation adjusted discount rate of 1.5%, while Dr. Roberts in effect adopted an inflation adjusted discount rate of 2%. We think the approach of the Connecticut court could be beneficial because fewer calculations are involved. This could simplify the burden on the jury, particularly in a case involving conflicting economic testimony.


author: BOYER, Chief Judge.

text:
    Robert Lowe PARKER, Appellant, v. STATE of Florida, Appellee.
    No. AA-75.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1976.
    Michael H. Stauder, Gamot & Stauder, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellant was tried and convicted of rape, and his conviction was affirmed by this Court. (Parker v. State, Fla.App.1st 1974, 295 So.2d 312) He thereupon filed a motion to vacate and set aside judgment and sentence, pursuant to Rule 3.850, RCrP, in which motion he alleges that one of the jurors at his trial voted for a conviction because of an improper reason. The trial court denied the motion, and this appeal followed.

Attached to the motion to vacate was an affidavit of a 70 year old juror, Sadie B. Johnson, who averred that at 10:00 p. m. on the evening that the jury retired to ponder its verdict, the bailiff came with instructions from the judge that if a decision was not reached within five minutes, the jury would be locked up for the night. Not knowing what confinement meant, Mrs. Johnson, according to the affidavit, became fearful, changed her mind, and voted guilty in order to be able to go home that night. However, at a hearing held on the motion to vacate, Mrs. Johnson retracted the pertinent allegations in her affidavit, but instead claimed that she overheard two women jurors saying that it was possible that the jury might have to be locked up for the night. While she stated that the basic reason for her change in vote from not guilty to guilty was the fear of being locked up, she admitted on questioning from the court that she had also become disturbed about the verdict in the case upon learning of the length of the sentence that had been imposed.

The general rule in Florida to be applied when a juror’s testimony is employed to challenge a jury verdict is that such testimony may be used to show matters which do not essentially inhere in the verdict itself. (Russ v. State, Sup.Ct.Fla.1957, 95 So.2d 594) Typical examples of matters which do not inhere in the verdict itself are: A juror being improperly approached by a party, agent, or attorney; witnesses discussing the facts or merits of the case, out of court, and in the presence of jurors; and the verdict being determined by lot or some other device of chance. A matter which does essentially inhere in the verdict itself involves, for instance, a juror not assenting to the verdict, a juror misunderstanding the instructions of the court, a juror being unduly, influenced by the statements of his fellow-jurors, or a juror being mistaken in his calculations or judgments. (Russ v. State, supra at 600)

The matter of which appellant now complains is one which essentially inheres in the verdict. It is a matter which is difficult to verify or even, in this case, to accept at all, given the vacillating nature of the juror’s testimony. Given the nature of the matter raised in appellant’s motion to vacate, the trial court was eminently correct in denying the motion.

We have fully considered appellant’s remaining point raised on appeal and have found it to be without merit.

AFFIRMED.

McCORD, J., and SCHLEGEL, LEW E, Associate Judge, concur.


author: BOARDMAN, Judge.

text:
    Stanley S. MOLES, M.D., P.A. d/b/a Diagnostic Clinic, and Myron W. Wheat, Jr., M.D., Appellants, v. Roger S. WHITE, Individually, and as Executive Director and Administrator of the Morton F. Plant Hospital, et al., Appellees.
    No. 75-1572.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1976.
    Rehearing Denied Sept. 10, 1976.

      Charles F. Robinson and J. Bruce Harper of Robinson, Macpherson, Johnson & Harper, Clearwater, for appellants.
    Emil C. Marquardt, Jr. and James A. Martin, Jr. of McMullen, Everett, Logan, Marquardt & Cline, Clearwater, for appel-lees.
   BOARDMAN, Judge.

Appellants/plaintiffs timely appeal from an order granting appellees’/defendants’ motion to dismiss with prejudice all counts of the amended complaint for failure to state a cause of action.

The appellants are Stanley S. Moles, M.D., P.A., a Florida professional service corporation employing licensed physicians practicing various medical specialities, including those essential to open heart surgery; and Myron W. Wheat, Jr., M.D., a licensed medical doctor, well qualified and specializing in open heart surgery, employed at Stanley S. Moles. The appellees are the Morton F. Plant Hospital, Inc., a nonprofit Florida corporation which owns, operates, and manages The Morton F. Plant Hospital (Hospital) in Clearwater, Florida; Roger S. White, executive director and chief executive officer of the Hospital; and Charles Lasley, M.D., Donald R. Eubanks, M.D., and Javier Ruiz, M.D., medical staff members of the Hospital. The Hospital is the only facility in the Clearwater area authorized to provide open heart surgery and supportive services. In February, 1975, appellant Wheat’s application for appointment to the Hospital was summarily rejected by appellee White, without referral of the application to the Credentials Committee for qualification, or to the medical staff of the Hospital for a recommendation, prompting this action.

Appellants contend that it was error to dismiss the said complaint because the material facts averred in the complaint allege a cause of action for a violation of the state antitrust provisions, denial of due process, restraint of trade or commerce, and breach of a fiduciary trust and public purpose. We cannot agree.

The Florida antitrust statute, entitled “COMBINATIONS RESTRICTING TRADE OR COMMERCE,” is by its very terms applicable solely to business activity characterized as “trade” or “commerce.” Fla.Stat., § 542.01. Florida case law has not yet determined operation of a hospital or the practice of medicine to be within the ambit of this statute, and we are not prepared to hold that such was the intention of the legislature. Consequently, Counts I, II and IV, concerning restraint of trade, must fail. See 54 Am.Jur.2d, Monopolies, Restraints of Trade, and Unfair Trade Practices (1968, Supp.1975); 22 Fla.Jur., Monopolies, Combinations, and Restraints of Trade § 2 (1958, Supp.1975) and Unfair Trade Practices § 487 (1971, Supp.1975); 58 C.J.S. Monopolies § 18 (1948, Supp.1975).

Appellant contends that the trial court could not, as a matter of law, conclude that the Hospital was a private entity immune from adhering to the universally recognized requirements of due process. The trial court relied on a Supreme Court of Florida decision, West Coast Hospital Ass’n. v. Hoare, Fla.1953, 64 So.2d 293, to reach its ruling that the Hospital is a private institution. Coincidentally, that decision concerned the same hospital involved in the instant case. In Hoare, the supreme court said:

Without determining the question, it may be that the Legislature has the power and authority to regulate private hospitals, but it has not attempted to do so. There are sufficient fields of endeavors or activities once considered proper for the exercise of free enterprise, where now the government, by specific legislative enactments, is owning, regulating or controlling such endeavors or activities, without the courts invading the legislative field, by adding other endeavors or activities to the ownership, regulation or control of government, political subdivisions or public officials.

Our hospital licensing laws have not been substantially changed since before the Hoare case. Fla.Stat., Ch. 395. With respect to the effect of a more recent rule promulgated by the Department of Health and Rehabilitative Services under the authority of the hospital licensing law, we concur with the following comment contained in the order entered below:

. It is noted that the rules of the Division of Health, Department of Health and Rehabilitative Services, Hospital Li-censure, 10D-28.08(f) provides for the appointment of members to the medical staff by the governing authority of the hospital and that no action on appointment shall be taken without prior referral to the medical staff for their recommendation, and that the governing body shall only appoint members to the medical staff as recommended by the medical staff. Wherefore, if the alleged refusal to accept and qualify Plaintiffs application constitutes a breach of state agency rules, the agency should be advised so that it may examine the offense.

By the passage of Fla.Stat. §§ 381.493-497, the state has become involved in the planning of new hospital facilities, but this legislation does not suggest a legislative determination to become involved in the day-today management of these facilities.

In the meantime, our Florida courts are continuing to distinguish between public and private hospitals. Cf. North Broward Hospital Dist. v. Mizell, Fla. 1962, 148 So.2d 1; Monyek v. Parkway General Hospital, Inc,, Fla.App.3d, 1973, 273 So.2d 430; Burris v. Morton F. Plant Hospital, Fla.App.2d, 1967, 204 So.2d 521. See 40 Am.Jur.2d, Hospitals and Asylums § 26 (1968, Supp.1975); 41 C.J.S. Hospitals § 3 (1948, Supp.1975). Although the complaint alleges in general terms comprehensive and persuasive regulation by the state and national governments, this is a conclusion by the appellants and does not change the nature of the Hospital from private to public. While the Hospital may receive funds from tax assessments and from the public generally, that is not sufficient to render it a public institution. See West Coast Hospital Ass'n. v. Hoare, supra.

We have read the cases cited in appellants' brief and are aware that there are cases decided in other jurisdictions which hold that acceptance of Hill-Burton funds for hospital construction will establish a sufficient nexus with the state to require adherence to the principles of due process by the recipients. Notwithstanding, we adhere to the view expressed in several other cases that the mere acceptance of these funds does not impose due process requirements upon a private hospital unless it be shown that there is state action supporting the discriminatory activity. Greco v. Orange Memorial Hospital Corporation, 5th Cir.1975, 513 F.2d 873; Jackson v. Norton-Children’s Hospitals, Inc., 6th Cir.1973, 487 F.2d 502; Ward v. St. Anthony Hospital, 10th Cir.1973, 476 F.2d 671. No allegations of racial discrimination are being made in this case. See Greco v. Orange Memorial Hospital Corporation, supra. The requisite state action necessary to bring into play these constitutional principles must encourage rather than discourage the discriminatory practices. Barrett v. United Hospital, D.C.N.Y.1974, 376 F.Supp. 791, aff’d 506 F.2d 1395 (2d Cir.1974). See Annot., 37 A.L.R.3d 645.

Count V alleges a breach of a fiduciary trust perpetrated upon the citizens of the City of Clearwater, not parties to this suit, and violation of public purpose. The allegation that the Hospital has a public purpose does not, in our judgment, make it a public entity. Apropos to this contention is the following statement of the court in Barrett v. United Hospital, supra:

. Even if it may be successfully argued that a private hospital is performing a public function it is clear that the function involved is the admission and treatment of patients, not the hiring and firing of doctors, nurses and other staff personnel. I find no compelling authority for extending the ‘public function’ argument to a private hospital in the absence of a nexus between the governmental function performed and the violative activity alleged.

The conclusionary allegations of this count add nothing to the other portions of the complaint which have previously been held to be insufficient.

For the reasons stated above, we hold-that the trial court’s order dismissing the amended complaint for failure to state a cause of action was proper and should be, and is, hereby

AFFIRMED.

McNULTY, C. J., and GRIMES, J., concur.

      . Count IV of the complaint did not allege a but only alleged an unlawful restraint of trade. violation of Chapter 542 of the Florida Statutes


text:
    Carl WELLER, a/k/a Carl E. Weller, Appellant, v. Thomas F. RYAN and Lorraine Ryan, husband and wife, Appellees.
    No. 75-1429.
    District Court of Appeal of Florida, Second District.
    July 28, 1976.
    Rehearing Denied Sept. 9, 1976.
    Ronald A. Cyril of Nelson, Hesse, Cyril & Weber, Sarasota, for appellant.
    Robert P. Rosin of Rosin, Abel, Band & Rosin, Sarasota, for appellees.
   PER CURIAM.

Appellant/defendant seeks review of the trial court’s corrective final judgment ordering specific performance of contract in favor of appellees/plaintiffs. We have reviewed the record, briefs, and heard the oral arguments of counsel. The written contract from which this controversy arose contained the following provision:

Mr. Weller will pay Mr. and Mrs. Ryan the said figure for their 55 shares of Venice Marine Center, Inc. 10% of the said sum is to be held in escrow for one year to indemnify Venice Marine Center, Inc. and Carl Weller for any claims which Venice Marine Center, Inc. or Carl E. Weller may have, arising out of matters not now known to Venice Marine Center, Inc. and Carl E. Weller by virtue of the said ownership of the said stock, or the operation of Venice Marine Center, Inc. by Thomas Ryan as an officer. The said sum is to be paid to Mr. and Mrs. Ryan at the end of the one year, and the specific claim provisions are to be spelled our [sic] more accurately at the time of the closing-

In fairness to the trial court, we note that it was not requested to rule on this paragraph of the contract. The ruling of the court directed appellant to specifically perform the contract by paying the stipulated purchase price of $98,500 plus interest in the amount of $13,790; and directed appel-lees, upon receipt of said payment, to transfer their interest in the 55 shares of stock owned by appellees in Venice Marine Center, Inc. to appellant.

In view of the findings of the trial court and consistent with the terms of the contract between the parties, we hold that the appellees should be required to comply with the above provision of the contract and deposit 10% of the purchase price in escrow. The one-year period contemplated in the contract will commence from the date of issuance of our mandate.

The cause is remanded with directions to the trial judge to include a provision in the final judgment consistent with this opinion.

As modified, the final judgment herein appealed is

AFFIRMED.

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


text:
    Joe Louis HUMPHRIES, Appellant, v. STATE of Florida, Appellee.
    No. BB-312.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   BOYER, Chief Judge.

Appealing a judgment of guilt and resulting sentence, appellant urges that the trial court erred or abused its discretion in denying appellant’s motion to withdraw his plea of nolo contendere made prior to imposition of sentence. The State denies that the trial court so erred or abused its discretion and further claims that no Florida Rule of Criminal Procedure provides for the withdrawal of a plea of nolo contendere.

Our review of the record reveals that appellant’s plea of nolo contendere was incident to a plea bargaining agreement, that a factual basis for the plea was adduced, that appellant understood the effect of the plea and that the trial court neither erred nor abused its discretion in denying the subsequent motion to withdraw the plea. (See Qualls v. State, Fla.App. 4th 1975, 315 So.2d 482) However, we do not agree with the State’s contention that a plea of nolo contendere is etched in granite and may not be withdrawn. Although this case does not involve a situation in which the trial judge failed to concur in a plea agreement within the contemplation of Rule 3.171(c) RCrP, that rule clearly contemplates situations in which a plea of nolo contendere may be withdrawn. Although Rule 3.170(f) refers only to a plea of guilty we are of the view that a trial court may, in its discretion, for good cause shown at anytime before sentencing, permit a plea of nolo contendere to be withdrawn.

AFFIRMED.

RAWLS and McCORD, JJ., concur.


author: WARREN, LAMAR, Associate Judge. RAWLS, Judge

text:
    GOLCONDA CORPORATION, Appellant, v. James T. NEWTON and Jacque Y. Newton, Appellee.
    No. AA-240.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1976.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for appellant.
    James E. Hertz, Penscola, for appellees.
   WARREN, LAMAR, Associate Judge.

This is an appeal by one of the defendants in the suit below, Golconda Corporation, from a final judgment against it awarding damages to the plaintiffs-appel-lees who were suing for the use and benefit of an insurance company.

A fire occurred at the trailer home of the plaintiffs, a defective pressure regulator in the gas system apparently causing fire damage to a trailer. It was alleged in the complaint that the regulator was manufactured by Bastion-Blessing Company, predecessor corporation of Golconda Corporation.

The two appeal points raise the questions whether the action was barred by the running of the applicable statute of limitations (Section 95.11, Florida Statutes), and whether there was evidence from which the court could conclude that the defendant was guilty of negligence in the manufacture of the regulator.

The complaint was filed on June 24, 1974, against Bastion-Blessing Company, and others, for damages by fire occurring June 29, 1971, which filing was five days before the statute took effect. A stipulated exhibit appearing in the record on appeal indicates that Bastion-Blessing was dissolved before suit was filed, and was consolidated with another corporation into a new entity, which in turn was merged into Golconda Corporation, also before suit. An amended complaint, naming Golconda as a defendant, was filed August 26, 1974, after the limitation period.

Golconda filed its answer, and before responding to the allegations of the complaint it stated that it was “appearing voluntarily since service of process has not been made upon it.” The defense of the statute of limitations was also pleaded. Trawick’s Fla. Prac. and Proc., § 10-8.

Under the first point defendant argued that proper service of process was never made on either Bastion-Blessing or Golconda, although admittedly a copy of the complaint was sent to the latter. Basically, the argument was that service was not completed because plaintiffs failed to file either a return receipt or an affidavit of service as to either Bastion-Blessing or Golconda as required by Section 48.161, Florida Statutes.

A careful examination of the evidence offered appears to bear out that, while the plaintiffs after amending their complaint sent a copy of it to Golconda, a return receipt and an affidavit of compliance were not filed. Service therefore was not completed.

Defendant, also urges under this point that, when the complaint was amended, changing the name of the alleged manufacturer from Bastion-Blessing to Golconda Corporation, the statute of limitations had taken effect, since the amendment was made several months after the statute had run. The exhibit heretofore referred to showed that the former company was dissolved May 6,1969, resulting in a new entity being formed, which in turn was merged September 15,1970, into Golconda, creating still another entity, all of these events occurring before the regulator was installed and some years before suit was filed. The statute clearly barred the action against Golconda, a new party. Cf. Harris Paint Company v. Multicon Properties, Inc., 326 So.2d 43 (Fla. 1st DCA 1976); 51 .Am. Jur.2d, Limitations of Actions, § 294.

The plaintiff, in opposing the assertion that the statute had run, relied on Section 608.24, Florida Statutes, which was in effect at the time the action was brought, dealing with the liability of corporations where consolidation or merger had occurred. An examination of Ch. 28170, Laws of Florida (1953), which adds Chapter 608 to the Florida Statutes, does not indicate that the section applies to the consolidation or merger of solely foreign corporations.

Plaintiff also cited Cabot v. Clearwater Construction Company, 89 So.2d 662 (Fla.1956), where an amendment to the complaint was sought, after the statute of limitations had become effective, changing the description of the defendant from that of a corporation to an individual. In that case the return of the service of process on the corporation showed that the named company was solely owned and not incorporated; the real party-defendant had been served, however, and by his special appearance and participation in the cause he had notice of the proceedings against him. The court held that the erroneous description of the defendant could be amended under the circumstances without the introduction of new parties or the pleading of a new cause of action.

A decision of some interest is that of Galuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA 1970). Therein an action for personal injuries had been filed against Viele Groves, Inc., a Florida corporation, which corporation actively defended the suit. In response to a request for admissions it was discovered by plaintiffs that the true owners of the property were one Viele and his wife, but the statute ran before an amendment was filed, and the cause was dismissed. The court noted that Viele had notice of the plaintiff’s claim and of the suit from the outset, summons having been served upon him as president of the corporation, and that it was obvious that he was aware of plaintiff’s mistake. The court stated, “The pleadings filed and other actions taken by Viele Groves, Inc., in this suit were of a nature calculated to lead the plaintiff to believe that she had sued the correct party. Under these circumstances, we are of the opinion that Charles E. Viele, the party which the plaintiff intended to sue, was in fact before the court, and that the effect of the proposed amendment is merely to correct a misnomer.” The order of dismissal was reversed. Of like effect, see Argenbright v. J. M. Fields Co., 196 So.2d 190 (Fla. 3d DCA 1967).

In view of the above it is unnecessary to go to the second point; it is observed nevertheless that proof was not found in the evidence that Bastion-Blessing supplied the pressure regulator that was installed in the trailer home, even though it was shown that the regulator was manufactured by that company.

Reversed.

BOYER, C. J., concurs.

RAWLS, J., specially concurs.

RAWLS, Judge

(specially concurring).

I concur only in that portion of the majority opinion that holds service of process was not completed.


text:
    Manuel RODRIGUEZ and Margarita Rodriguez, his wife, Appellants, v. Laura Ambler BROWN et al., Appellees.
    No. 75-938.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Harvey Richman, Miami Beach, for appellants.
    David A. Drawbert and Jack R. Blumen-feld, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.


author: MILLS, Judge.

text:
    Jerry Lee FRAZIER, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-286.
    District Court of Appeal of Florida, First District.
    Aug. 20, 1976.

      Richard W. Ervin, III, Public Defender and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard L. Wilson, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury found Frazier guilty of breaking and entering a building with intent to commit a felony and grand larceny. During the trial, the State called a rebuttal witness whose name it had failed to list in response to Frazier’s discovery demand. Frazier timely objected. The trial court summarily overruled the objection without making inquiry into the circumstances. The issues before us are whether this was error, and, if so, whether this case must be reversed or should be remanded for inquiry into the circumstances for the purpose of determining if Frazier was prejudiced.

Violation of a rule of procedure does not require reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice to the defendant. The trial court has discretion to determine whether the non-compliance would result in prejudice. But, the court’s discretion can be exercised only after the court has made adequate inquiry into the circumstances, and the circumstances establishing non-prejudice to the defendant appear affirmatively in the record. Richardson v. State, 246 So.2d 771 (Fla.1971). This the trial court failed to do, thus, committed error.

Although the trial court committed error, it is unnecessary that we vacate the judgment and sentence at this time. We temporarily remand this case to the trial court with directions that it hold a hearing for the purposes of inquiring into the circumstances surrounding the State’s failure to furnish the name of the rebuttal witness in response to Frazier’s discovery demand, and whether the non-compliance with this rule of procedure resulted in prejudice to Frazier. Fowler v. State, 255 So.2d 513 (Fla.1971); State v. Lyles, 316 So.2d 277 (Fla.1975); McDonnell v. State, 336 So.2d 553 (Fla., Opinion filed March 17, 1976).

After the hearing, if the court determines that Frazier was not prejudiced, it is ordered to transmit to this Court the record of the hearing and a copy of its order finding no prejudice. At that time we will reconsider this appeal. If, however, the trial court determines that Frazier was prejudiced, it should vacate the judgment and sentence and grant a new trial to Frazier.

Remanded to the trial court with directions.

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


text:
    John Peter PLANT, Appellant, v. STATE of Florida, Appellee.
    No. BB-300.
    District Court of Appeal of Florida, First District.
    Aug. 20, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

We here review a judgment and sentence by which appellant was adjudicated guilty upon his plea of nolo contendere, expressly reserving his right to appeal the denial of his motion to suppress, and the imposition of a sentence of one year and one day. Our examination of the record reveals that there was sufficient evidence which was apparently believed by the trial judge to sustain his denial of appellant’s motion to suppress based upon the police officers’ testimony that appellant consented to the search giving rise to the evidence sought to be suppressed. However the State candidly agrees that the sentence imposed for a misdemeanor of the first degree exceeds that permitted by law. (See F.S. 893.13(1)(f) and F.S. 775.082(4)(a)). Accordingly, we remand for the purpose of the trial judge correcting the sentence. It shall not be necessary for the appellant to be present at the time the sentence is corrected.

Affirmed in part and reversed in part.

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