text:
    George HIDALGO, Appellant, v. HOUSING INVESTMENT CORPORATION et al., Appellees.
    No. 78-176.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Adolfo Del Castillo, Coral Gables, for appellant.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Lewis M. Kanner, Miami, for appellees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971); Graham v. Clyde, 61 So.2d 656 (Fla.1952); Penmont Enterprises, Inc. v. Dysart, 340 So.2d 1285 (Fla. 3d DCA 1977); Davis v. Hagin, 330 So.2d 42 (Fla. 1st DCA 1976); Bernstein v. Dwork, 320 So.2d 472, 474 (Fla. 3d DCA 1975); Tiffany Realty, Inc. v. Alvin, 311 So.2d 832 (Fla. 3d DCA 1975); Commodore Plaza at Century 21 Condominium Ass’n v. Century 21 Commodore Plaza, Inc., 290 So.2d 539, 540 (Fla. 3d DCA 1974); Grenell v. Scott, 134 So.2d 866, 868 (Fla. 2d DCA 1961).


source: Caselaw Access Project

author: PEARSON, Judge.

license: Public Domain

text:
    Ilene KIRSHNER, Appellant, v. Louis SHERNOW, Appellee.
    No. 78-444.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Jerold H. Reichler, Miami Beach, for appellant.
    William H. Pierce, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

The plaintiff, llene Kirshner, appeals an order of the trial court entitled “Order Granting Motion in Abatement.” In this order, the court finds:

“1. That the court does not have jurisdiction of the person of Louis Shernow, named as defendant herein, because (a) said defendant was not served personally and (b) process was served on Lila Sher-now, defendant’s spouse, at her place of business rather than at defendant’s place of abode, as by statute required; and
“2. That defendant is entitled to abatement of the action, pending proper service, with leave to answer or otherwise to defend, de novo.”

The plaintiff contends that the court erred in granting defendant’s motion to abate the proceedings because the defendant had already appeared generally in the cause and filed his answer prior to seeking to abate the action because of failure to serve process in accordance with the statute. The record shows that a complaint was filed by llene Kirshner on August 10, 1977, claiming damages for personal injuries received as a passenger in an automobile owned by the defendant and operated by another person with permission of the owner. It was claimed that her injuries were caused by the negligent operation of the automobile. Thereafter, on August 23, 1977, the defendant filed with the clerk of the circuit court a handwritten letter in which he denied the allegation that the automobile was operated with his permission and asked that the letter be filed in the cause. Thereafter, on January 20, 1978, attorney for the defendant filed a motion to abate the cause alleging that personal service was not made on the defendant in accordance with the statute and the order appealed was entered thereon.

The defendant, having entered a general appearance by filing an answer without filing therewith a motion attacking the jurisdiction of the court over his person, has waived the service of process. See Florida Rule of Civil Procedure 1.140; Krasnosky v. Krasnosky, 282 So.2d 186 (Fla. 1st DCA 1973).

Reversed and remanded with directions to deny the motion to abate and for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

      . The defendant has not favored this court with a brief.


author: PER CURIAM. PEARSON, Judge

text:
    Jerome SHARP and Muriel Sharp, Appellants, v. Saul Benjamin LEWIS, Leonard Lewis, Myrth Lewis and Travelers Insurance Company, Appellees.
    No. 78-461.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Tobin & Thomson and Arthur M. Handel, Coral Gables, for appellants.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellees.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Jerome and Muriel Sharp, plaintiffs and third party defendants, appeal a final judgment upon a jury verdict by which the Sharps, as plaintiffs, were denied recovery and the third party plaintiff, Leonard Lewis, recovered from the Sharps the sum of $5,000.

Eight points are presented on appeal, all of which deal with rulings by the trial judge made during the course of the trial. Points one and two claim error in denying a motion for a mistrial. Points three, four, five, six and eight claim error in the denial of the motion for a new trial. Point seven claims a mistrial or, in the alternative, a new trial. We have examined the record in the light of the claim of error for the denial of the motion for a mistrial and find that in each instance, no reversible error is shown under the rule stated in American Express Company v. Juhasz, 281 So.2d 244 (Fla. 3d DCA 1973). See also Dukes v. Pinder, 211 So.2d 575 (Fla. 3d DCA 1968).

The errors complained of as a basis for a new trial do not present reversible error because the questioned remarks were either a result of invited error, see Compania Dominicana de Aviacion v. Caribbean Mercantile Export Corporation, 218 So.2d 523 (Fla. 3d DCA 1969), or were not of sufficient import in the trial of this case to constitute grounds for a new trial.

Appellants’ objection to remarks of opposing counsel in closing argument that are alleged to constitute a Golden Rule argument have been examined and found not to constitute such a forbidden argument. Denial of objections to other remarks does not constitute reversible error under Watkins v. Sims, 81 Fla. 730, 88 So. 764, 767 (1921).

We have considered the cumulative effect of the various errors charged. It appears to this court that counsel for the parties were responsible for many improper references made before the jury to non-evidentiary matters. However, the court required the parties to try the issues presented and fully instructed the jury on the applicable law. The verdict is supported by the evidence and does not appear to have been induced by passion or prejudice.

Although we find that the jury was not unduly influenced by the cumulative effect of the various comments of counsel, we are, nonetheless, always mindful of the dangers of cumulative error and, accordingly, we are disposed to discuss briefly some of the factors that appellate courts consider when such allegations are raised on appeal. In general, reversible error from comments of counsel may appear in various ways. Among these are: (1) Comments of counsel that, per se, give rise to reversible error. See Clark v. State, 363 So.2d 331, 334 (Fla.1978). (2) Comments of counsel that give rise to reversible error because their very utterance has such a profound effect upon the trial, under the circumstances of the case, that an appellate court is unable to find an adequate basis in the record to assure itself that there was a fair trial. See Pait v. State, 112 So.2d 380, 384 (Fla.1959); and Tampa Transit Lines, Inc. v. Corbin, 62 So.2d 10 (Fla.1952). (3) Cumulative comments of counsel which, when viewed together in light of the record, give rise to reversible error. See Seaboard Air Line Railroad Company v. Ford, 92 So.2d 160, 165 (Fla.1956); Seaboard Air Line Railroad Company v. Strickland, 88 So.2d 519, 523 (Fla.1956); Noeling v. State, 40 So.2d 120 (Fla.1949); and Glantz v. State, 343 So.2d 88 (Fla. 3d DCA 1977). However, a review of the record in the present case does not bring the questioned comments within any of these categories.

We, therefore, hold that the appellants have not shown the absence of a fair trial under the doctrine stated in Seaboard Air Line Railroad Company v. Strickland, 88 So.2d 519 (Fla.1956). And see Noeling v. State, 40 So.2d 120 (Fla.1949).

Affirmed.

PEARSON, Judge

(concurring specially).

I fully concur with everything stated in the court’s opinion. However, with regard to the categories of reversible error based on comments of counsel, I would elaborate on the cumulative error category.

There are, I believe, at least two sub-categories of error arising under the cumulative error heading that are worthy of discussion and which may be referred to as: (a) “shot gun” cumulative, reversible error and (b) “machine gun” cumulative, reversible error. The first of these, “shot gun” error, is simply a series of errors that may be of various types or concern various aspects of the trial, but which (for the most part) take place within a short period of time and which, like the simultaneously-fired pellets from a shot gun, cause their damage not necessarily from the effect of any one pellet but from the combined effect of all the pellets over one specific area of the target. See Barnes v. State, 58 So.2d 157 (Fla.1951); and Groebner v. State, 342 So.2d 94 (Fla.3d DCA 1977). In this case, however, the allegedly cumulative errors, as a whole, took place at various times throughout the four-day trial and were not concentrated in any one time period. The second sub-category, “machine gun” error, is simply a series of errors that may well have taken place over a long period of time but which, when viewed from afar, vis-a-vis one another, provide a picture or design, much like the perforated design of the bullets of a machine gun on its target. See Chapman v. California, 386 U.S. 18, 24-26, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Groebner v. State, 342 So.2d 94 (Fla.3d DCA 1977). In this regard, reversible error may arise where the objectionable comments, though dispersed throughout a long trial, are so strategically placed that their cumulative effect upon the jury can be seen from a reading of the entire record. However, no such reversible error exists in the present case, where the allegedly cumulative errors, in the context of the record, are no more than randomly-shot bullets providing no particular design.

      . Note the somewhat variant use of the expression “machine gun” at 386 U.S. 26, 87 S.Ct. 824.

      . Note the examples of both “shot gun” and “machine gun” error in this case.


author: SCHWARTZ, Judge.

text:
    AMERICAN SALVAGE AND JOBBING COMPANY, INC., a Florida Corporation, Appellant, v. Jacque SALOMON, formerly d/b/a Sun Village Motel, and Sadie Salomon, Appellees.
    Nos. 78-473, 78-1586.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.

      Klein, Oshinsky & Solomon and Michael B. Solomon, Hallandale, for appellant.
    Saks & Salomon and Warren M. Salomon, Miami, for appellees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

On December 22, 1977, the trial judge granted the defendants’ motion, filed on November 1, 1977, to dismiss the cause for lack of prosecution. The case was dismissed despite the fact that the plaintiff had filed and served interrogatories and had filed and noticed a hearing on a motion to compel answers to those interrogatories notwithstanding defendants’ objections, all within one year prior to the filing of the motion to dismiss. The plaintiff appeals and we reverse.

We have examined the “record activity” represented by the interrogatories and the plaintiff’s attempts to compel answers to them and find that the activity was constructively related to a good faith prosecution of the plaintiff’s case. That activity therefore could not properly have been stricken or disregarded in the consideration of the contention that the action had not been diligently prosecuted. See Eastern Elevator, Inc. v. Page, 263 So.2d 218 (Fla.1972); Bay Colony Office Building Joint Venture v. Wachovia Mortgage Co., 342 So.2d 1005 (Fla. 4th DCA 1977); Citizens and Southern Realty Investors v. Lastition, 332 So.2d 357 (Fla. 4th DCA 1976); Slatko v. Virgin, 328 So.2d 499 (Fla. 3d DCA 1976). Because this is the case, the trial court lacked authority to dismiss the case for lack of prosecution under the provisions of F.R.Civ.P. 1.420(e) as amended by the addition of the underscored language, effective January 1, 1977:

“(e) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.”

The committee note to the amendment states:

“Subdivision (e) has been amended to prevent the dismissal of an action for inactivity alone unless one year has elapsed since the occurrence of activity of record. Non-record activity will not toll the one year time period.”

It is obvious that the effect of the amendment is to preclude a trial court from exercising its supposed inherent, discretionary power to dismiss a case for failure to prosecute, when, as in this case, there is activity of record within one year prior to the dismissal. The amendment thus overrules such cases as Reddish v. Forlines, 207 So.2d 703, 705-706 (Fla. 1st DCA 1968). See Hahn v. First National Bank of Delray Beach, 345 So.2d 345, 346 (Fla. 4th DCA 1977). In accordance with the clear terms of the rule, the final order of dismissal is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . The proceedings below followed our reversal of a judgment on the pleadings for the defendants in American Salvage and Jobbing Co., Inc. v. Salomon, 295 So.2d 710 (Fla. 3d DCA 1974).


author: PER CURIAM.

text:
    Robert WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-669.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    George & McQuade and Walter F. McQuade, North Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed. Fuller v. State, 159 Fla. 200, 31 So.2d 259 (1947); Chaudoin v. State, 118 So.2d 569 (Fla. 2d DCA 1960); Richardson v. State, 246 So.2d 771 (Fla.1971); Lynch v. State, 293 So.2d 44 (Fla.1974); Pickrell v. State, 301 So.2d 473 (Fla. 2d DCA 1974); Spinkellink v. State, 313 So.2d 666 (Fla. 1975); Holley v. State, 328 So.2d 224 (Fla. 2d DCA 1976); Vazquez v. State, 350 So.2d 1094 (Fla. 3d DCA 1977); Section 92.36(2), Florida Statutes (1977); Section 400.162, Florida Statutes (1972).


text:
    Don Evans CIOETA, Appellant, v. The STATE of Florida, Appellee.
    No. 78-992.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.

      Stanley M. Goldstein, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., PEARSON, J. and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant, Don Evans Cioeta, was charged with possession and sale of marijuana and pled guilty to the sale. He was sentenced to eighteen months probation. Thereafter, an affidavit of violation of probation was filed and a hearing was held before the trial court. The court found that the appellant had violated his probation by the possession of a short-barrel shotgun. He was thereupon adjudged guilty on his guilty plea and sentenced to two years in prison. This appeal is from the revocation of probation.

Each of appellant’s points urges that the trial court violated his right to due process in the conduct of the hearing. As has often been pointed out, the purpose of a violation of probation hearing is to satisfy the conscience of the trial court concerning whether the allowed probation has been violated. See Bernhardt v. State, 288 So.2d 490 (Fla.1974); and Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975). Such a hearing must accord to the petitioner some due process rights, but these rights are not the same as those accorded to a defendant upon trial. See State v. Heath, 343 So.2d 13 (Fla.1977); and Croteau v. State, 334 So.2d 577 (Fla.1976).

On this appeal, the appellant claims that the court erred in refusing to enforce his right to pretrial discovery and by taking into consideration an inculpatory statement he had made. If a probationer needs additional information in order properly to prepare a defense to the charges, the various methods of discovery under the rules are available to him. Hines v. State, 358 So.2d 183, 185 (Fla.1978). Therefore, the appellant’s point directed to the claimed denial of discovery requires an examination of the record to see whether he was given a full opportunity to explain away the accusations against him. See Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975). Our review of the record convinces us that the appellant was given every opportunity to present any evidence that he might have to show his innocence of the charged violation.

Appellant’s point directed to the consideration of the inculpatory statement to police officers at the time of his arrest for the second crime is also without merit. See State v. Allen, 335 So.2d 823 (Fla.1976).

We have considered the other contentions advanced by the appellant and find that they do not present reversible error.

Affirmed.


author: KEHOE, Judge.

text:
    Eloise TAYLOR and William McCray, Appellants, v. FLORIDA CRIMES COMPENSATION COMMISSION, Appellee.
    Nos. 78-1113, 78-1114.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Elliott Heywood Lucas, Miami, for appellants.
    Jim Smith, Atty. Gen. and David K. Miller, Asst. Atty. Gen. (Tallahassee), for ap-pellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellants, petitioners below, bring these consolidated appeals from a final order of the Crimes Compensation Commission, ap-pellee herein, denying their petitions for benefits under the Florida Crimes Compensation Act. We affirm.

Appellants, Eloise Taylor and William McCray, were the victims of certain crimes which occurred, respectively, on July 9, 1977, and November 4, 1977, and each suffered injuries from the crimes. Appellants Taylor and McCray filed applications for benefits under the Florida Crimes Compensation Act, Chapter 960, Florida Statutes (1977), [hereinafter referred to as the Act] on March 1, 1978, and February 20, 1978, respectively, to the Florida Crimes Compensation Commission [hereinafter referred to as the Commission]. The Commission was created by the 1977 Session of the Legislature and commenced operations on January 1,1978. Appellants’ claims were consolidated with the claim of Gloria Jackson [not a party herein] who was also the injured victim of a 1977 crime. In accordance with the procedure set forth in the Act, the three claims were assigned to a single commissioner of the Commission for investigation and determination. The single commissioner ruled appellants’ claims were invalid on their face, because they sought compensation for crimes which occurred prior to the effective date, i. e., January 1, 1978, of the sections of the Act creating the remedies under the Act. Stated another way, appellants claims were denied because the incidents giving rise to them did not occur subsequent to January 1, 1978. These denials were predicated upon a 1977 Opinion of the Attorney General of Florida 078-22 (February 21, 1978). Appellants then sought review, in accordance with Sections 120.57 and 960.10, Florida Statutes (1977), before the full Commission. Thereafter, on May 23,1978, the Commission issued a final order denying appellants’ claims on the grounds that they arose prior to the effective date, i. e., January 1, 1978, of the statutes creating the remedies sought.

Appellants contend in their first point on appeal that persons who were injured as a result of being victims of crimes, and who are otherwise qualified for benefits under the Act, are eligible to receive benefits under the Act if they were injured in 1977 and filed their claims with the Commission within one year of the date of their injury and subsequent to January 1, 1978.

Neither counsel for appellants and appel-lee cite, nor has our research disclosed, any cases decided in Florida on the primary point raised by this appeal. Therefore, we will be determining this matter as a case of the first impression. To resolve appellants’ first point on appeal, it is necessary to determine at what point the remedial provisions of the Act became effective. Section 8, Chapter 77-452, Laws of Florida (1977) provided that Chapter 897, Florida Statutes (1977) [now reassigned as Chapter 960, Florida Statutes (1977)] would become effective as follows:

“This act shall take effect January 1, 1978; provided, however, that §§ 897.17, 897.20, 897.21, Florida Statutes, as created by this act, and sections 2, 3, 4, 5, and 6 of this act shall take effect upon becoming a law.”

Chapter 77-452 became law on June 30, 1977.

In our opinion, by phrasing Section 8 as it did, the Legislature intended the remedy or right to claim an award of compensation under the Act to take effect on January 1, 1978. Section 1 of the Act contained the essence of the Act; it provided for, among other things, provisions regarding the establishment of the Commission, and the rights, remedies, and responsibilities of the prospective claimants. Whereas, Sections 2 through 6 and Sections 897.17, 897.20, 897.-21, Florida Laws (1977), which took effect upon becoming law, i. e. June 30, 1977, merely supplement the Act and do not create the essential rights or remedies created by the Act. These latter Sections pertain to, among other things, the establishment and funding of the Crimes Compensation Trust Fund. The Legislature apparently deemed it necessary to provide a reserve of funds to implement the compensation remedy established under Section 1 of the Act. We do not believe that such provisions made the remedy itself retroactive. We note that Section 8, by its plain language, does not make the remedy provisions in Section 1 effective as law until January 1, 1978. Also, it would seem that the Legislature, as a fiscally responsible body, cannot be presumed to have intended a result which might have led to the insolvency of the Trust Fund established by the Act, i. e., it is possible that the Trust Fund would be inadequate to cover the costs of any required payments, including administrative costs, incurred in implementing the Act. It does seem reasonable to assume that the Legislature intended to provide for a start-up capitalization of the Trust Fund by staggering the effective dates for the establishment and funding of the Trust Fund and for the payment of claims from that Fund.

We are further persuaded in this belief by those cases which stand for the proposition that statutes will not be given retroactive application unless such application is required in clear and explicit terms. Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521 (Fla.1973). This rule applies to statutes which create new rights and liabilities. See, e. g., Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla.1975); and Gordon v. John Deere Co., 264 So.2d 419 (Fla.1972). In this case, we do not feel that the mere establishment of the Trust Fund prior to January 1, 1978, in any way required a retroactive application of the entire Act. Further, we do not feel that Section 897.07(2), which requires claims to be filed not later than one year from the occurrence of the crime upon which the claim is based, alters this result. Although the question is not before us, it appears that this Section is intended to act as a statute of limitations and to bar stale claims.

For the reasons set forth above, we do not believe that the Act permits the payment of claims for compensation arising out of crimes committed prior to January 1, 1978, the effective date of the remedial provisions of the Act. Accordingly, the Commission’s final order denying appellants’ claims was correct and should be affirmed.

Affirmed.

      . Gloria Jackson (through her next friend) are residents of Broward County and has appealed the Commission’s final order denying her benefits under the Act to the Fourth District Court of Appeal in a case styled Jackson v. Florida Crimes Compensation Commission, Case No. 78-1225 (Fla. 4th DCA, pending).


text:
    PUBLIX SUPER MARKETS, INC., and the Hartford Insurance Group, Appellants, v. Jacobo GOMIS and David S. Gold and Travelers Insurance Company, a foreign corporation, Appellees.
    No. 78-1339.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Williams & Tomlinson, Coral Gables, for appellants.
    Stabinski, Funt, Levine & Vega, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The plaintiff did not, as Section 440-39(3)(a), Florida Statutes (1975) requires, sustain his burden of proof or “demonstrate to the court” that he “did not recover the full value of damages sustained” in his action against a third-party tortfeasor. Nevertheless, the trial judge awarded the appellants, who are the plaintiff’s employer and workmen’s compensation carrier, only 15% of the compensation benefits paid and payable, rather than the 50% “pro rata” share of the plaintiff’s benefits then required by the statute in the absence of such a showing. This was error. Ramar-Dooley Construction Co. v. Norris, 341 So.2d 546 (Fla.2d DCA 1977). The order on petition for equitable distribution now under review is therefore reversed and the cause remanded with directions to conduct a new hearing on the plaintiff’s petition.

Reversed and remanded.

      . A subsequent amendment to F.S. § 440.39(3)(a), effective July 1, 1977, changed the 50% figure to 100%.


text:
    SAPP BROTHERS CONSTRUCTION CO., INC., Edward Ryan and Barbara Ryan, his wife, Appellants, v. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION OF HOLLYWOOD, and A. M. Grobard, Appellees.
    No. 78-1739.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Perlstein & Poller, Miami, for appellants.
    Salter, Yeslow & Burnstein and Jerrold Knee, Hollywood, for appellees.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The appellants were the defendants in an action to foreclose the second mortgage they had given the plaintiff below, A. M. Grobard. They asserted a third-party action against Home Federal Savings and Loan Association, the first mortgagee, claiming that it had interfered with the defendants’ relationship with Grobard, thus resulting in their failure to pay the second mortgage and the consequent default. In the order now on appeal, the trial judge dismissed the third party complaint on the ground that Home Federal “is not a proper or necessary party to this action.” We affirm.

Home Federal was not, as Fla.R.Civ.P. 1.180(a) requires for the impleading of a third party defendant:

“. . . a person not a party to the action who is or may be liable to [the original defendant] for all or part of the plaintiff’s claim against him.” [emphasis supplied]

It seems plain that Home could not be liable to the second mortgagees for full or partial payment of the second mortgage obligation which Grobard originally sued upon. Any liability owed by Home to the original defendants may therefore be asserted only in a separate action. See Touche Ross & Co. v. Sun Bank of Riverside, 366 So.2d 465 (Fla. 3d DCA 1979); VTN Consolidated, Inc. v. Coastal Engineering Associates, Inc., 341 So.2d 226 (Fla. 2d DCA 1976), cert. denied, 345 So.2d 428 (Fla.1977); Southeast Mortgage Co. v. Mullins, 514 F.2d 747 (5th Cir. 1975).

Affirmed.


text:
    Gino BIRONI, Jr., Appellant, v. Sally HENDERSON, Appellee.
    No. 78-1926.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Lewis W. Miles II, Miami, for appellant.
    No appearance, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Appellant, Gino Bironi, Jr., was sued by appellee, Sally Henderson, upon a promissory note in the Circuit Court of Dade County, Florida, during a time he was confined in a criminal correctional institution in Bro-ward County, Florida.

Appellee’s attorney filed an affidavit for service by publication stating that he had personal knowledge of the action; that Bironi could not be found within the state of Florida for service of the summons; and that his residence was unknown. At the same time appellee filed a renotice of action regarding the promissory note. Default was entered against appellant for failure to answer. Final judgment was later entered for Five Thousand ($5,000.00) Dollars plus costs and attorney fees. Appellant became aware of the suit and judgment against him when he was served with a subpoena duces tecum in aid of execution. Whereupon he filed a motion to vacate the default and final judgment supported by an affidavit of appellant stating that the promissory note sued upon was given consideration of moneys paid an attorney by the appellee for appellant’s defense of criminal charges and that appellant was confined to a criminal correctional institution in Broward County, Florida.

The trial court denied the motion to vacate and this appeal followed.

One of the grounds urged by appellant for reversal is that appellee failed to reasonably employ knowledge at her command and make diligent inquiry appropriate to the circumstances to enable her to make personal service upon appellant. We find merit in appellant’s contention and reverse. See Gmaz v. King, 238 So.2d 511 (Fla.2d DCA 1970); Mayo v. Mayo, 344 So.2d 933 (Fla.2d DCA 1977).

Reversed.


text:
    Dr. Theodore S. BRANDWEIN, Appellant, v. Paul M. GUSTMAN, Appellee.
    No. 78-1471.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Rehearing Denied March 9, 1979.
    Theodore S. Brandwein, in pro. per.
    Paul & Thomson and Jon W. Zeder, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

The appellant is a medical doctor who was the plaintiff in a suit for defamation brought against the appellee who is also a medical doctor. Both doctors were members of the staff of the Miami-Dade General Hospital. The appellee was the chairman of a sub-committee of the hospital staff. The committee was charged with certain duties in acting upon complaints against members of the staff. After action by the appellee as the chairman of the committee, the appellant was granted a hearing before the Medical Executive Committee of the hospital and was suspended from privileges. Thereafter, the Governing Board of the hospital, acting after a hearing, affirmed the action of the Medical Executive Committee.

The appellant’s complaint in the circuit court sought damages against the appellee upon the ground that the appellee’s committee report was libelous. The appellee moved to dismiss the complaint on the ground that the report enjoyed a qualified privilege under Section 768.40(2), Florida Statutes (1977). The motion to dismiss was granted but appellant was afforded an opportunity to amend his complaint to state facts which, if proven, would show actual “malice or fraud.”

Appellant declined to amend, final judgment was entered and this appeal followed.

Appellant has presented us with four points and two sub-points on appeal. Nevertheless, we think that the single controlling question is whether the cited statute was applicable to the facts alleged in appellant’s complaint. We hold that the statute is applicable and that the trial judge properly dismissed the complaint with leave to amend. For the principles involved, see Abram v. Odham, 89 So.2d 334 (Fla.1956).

Affirmed.

      . “(2) There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a duly appointed medical review committee for any act or proceeding undertaken or performed within the scope of the functions of any such committee if the committee member acts without malice or fraud. This immunity shall apply only to actions by providers of health services, and in no way shall this section render any medical review committee immune from any action in tort or contract brought by a patient or his successors or assigns. The provisions of this section do not affect the official immunity of an officer or employee of a public corporation.”


author: LETTS, Judge.

text:
    Norman HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 77-546.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

In a violation of probation proceeding the required affidavit setting forth the violation named only one count. Apparently not noticing this clerical oversight, the Judge revoked the probation as to a second count for an identical offense. The Public Defender appeals this latter revocation. We reverse in part.

We are tempted to label this harmless error, but as the State itself admits in its brief:

This fact arguably would not excuse the State for apparently not following a necessary procedure. Certainly, this Court should affirm the sentence as to Count I and ... a vacation of the sentence as to Count II should be done without prejudice so that the State may properly file a new affidavit.

So be it. The sentence as to Count II is hereby set aside without prejudice to the State to properly re-file its affidavit as to Count II.

REVERSED IN PART IN ACCORDANCE HEREWITH.

DOWNEY, C. J., and MOORE, J., concur.

      . Note: the State does not appeal the substance of the revocation proceedings as to probation violation.


author: DAUKSCH, Judge.

text:
    Douglas Robert HOTCHKISS, Appellant, v. STATE of Florida, Appellee.
    No. 77-872.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    Richard L. Jorandby, Public Defender, John Conway and Tatjana Ostapoff, Asst. Public Defenders and Kathleen Kroll, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

A conviction for possession of narcotics paraphernalia is appealed because the trial judge ruled a defense witness could not testify. Florida Rule of Criminal Procedure 3.220 requires an accused to provide a list of his witnesses if he demands and receives from the state a list of the prosecution witnesses. Here defense counsel failed to disclose to the state the name of a witness known to the defendant. On the trial date defense counsel said he was going to call the witness and asked the court to delay the trial long enough to allow the state to depose the witness and investigate her story. The trial judge was disturbed by this and because this same lawyer had upon other occasions caused problems because of lack of preparation and in this very ease had received a continuance to investigate further, the judge felt the best sanction would be the exclusion of the witness. We agree the conduct, past and present, of trial counsel was reprehensible and the lawyer deserved to be dealt with harshly, but we cannot visit the punishment on the defendant, in this case. There was no prejudice to the state shown and it is quite possible the exclusion of the witness’ testimony resulted in prejudice to the appellant. Richardson v. State, 246 So.2d 771 (Fla.1971).

The conviction for possession of paraphernalia is reversed and this cause is remanded for new trial on that count. The conviction and sentence on Count I is affirmed.

REVERSED and REMANDED.

DOWNEY, C. J., and ANSTEAD, J., concur.

      . Counsel on appeal were not trial counsel.


author: BERANEK, Judge.

text:
    AETNA LIFE & CASUALTY CO., a Foreign Corporation, Appellant, v. Jane M. STANGER, Appellee.
    No. 77-1145.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    Robert F. Jordan of Grimmett, Scherer & James, Fort Lauderdale, for appellant.
    Wilton L. Strickland of Ferrero, Middle-brooks & Strickland, Fort Lauderdale, for appellee.
   BERANEK, Judge.

This is an appeal by an automobile insurer from a final judgment determining available uninsured risk coverage and awarding attorneys’ fees. The action below was for declaratory decree and is based on stipulated facts. Appellant raises three points.

Under Point I appellant contends the trial court erroneously stacked coverages. We have reviewed the evidence and the judgment below and find the court’s disposition of this point to be without error. The coverages in question were provided under policies under which appellee was in fact an insured. These policies provided a total of $40,000 uninsured motorists coverage.

Appellant’s second point challenges the computation of the total insurance fund available to appellee. The trial court found the total uninsured fund available to be $40,000. Appellant claims that the amount of $25,000 which was paid by the negligent tortfeasor under his liability should have been set off. We conclude that appellant is correct in this regard in view of the Supreme Court’s decision in Dewberry v. Auto Owners Insurance Company, 363 So.2d 1077 (Fla.1978). Thus, the finding by the trial court is reversed and the matter remanded to the trial court to determine the appellant’s pro rata share of the available $15,000 in uninsured motorists coverage which the carrier is obligated to pay in accordance with the opinion cited above.

The third and last point raises the issue of attorneys’ fees. Appellee was not in fact a contracting insured of appellant and the award of attorneys’ fees is, therefore, reversed in light of Roberts v. Carter, 350 So.2d 78 (Fla.1977).

The cause is .affirmed in part and reversed in part in accordance with the above.

AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH INSTRUCTIONS.

CROSS, J., and SMITH, CHARLES E., Associate Judge, concur.


text:
    PACIFIC NATIONAL EQUITY COMPANY, a California Limited Partnership, Appellant, v. James M. MONTGOMERY, Consulting Engineers, Inc., a California Corporation, and Ralph Torello, Appellees.
    No. 77-2126.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    Sherwin Gross of Courshon & Berk, Miami, for appellant.
    Craig W. Lekach of Law Offices of James J. Belcher, Fort Lauderdale, for appellee.
   PER CURIAM.

This cause is affirmed with the exception of the award of $809.99 described as “job connected expenses.”

The contract between the parties provided for payment by one of two methods:

(1) Cost, plus 125%, plus job connected expenses or, if less

(2) $15,000.00 total.

The trial court in this case found the second method to be applicable and with this we have no quarrel. However, the lower court also included $809.99 of job related expenses. This was error.

The cause is remanded with direction to the trial court to modify the final judgment by eliminating the award of $809.99 for job connected expenses and as so modified the final judgment is affirmed.

AFFIRMED AS MODIFIED.

DOWNEY, C. J., and DAUKSCH and LETTS, JJ., concur.


text:
    HUNT TRUCK SALES & SERVICE, INC., a Florida Corporation, Appellant, v. HOLOPAK VILLAGE, INC., a corporation and R. D. Phillips Paving Contractor, Inc., a corporation, Appellees.
    No. 77-2227.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.

      Francis E. Pierce, Jr., Orlando, for appellant.
    James A. Barks of Steed & Collins, Orlando, for appellees.
   PER CURIAM.

This is an interlocutory appeal from an order awarding attorneys’ fees to defendants as the prevailing party in an action to enforce a mechanic’s lien. The award was pursuant to Section 713.29, Florida Statutes. We have considered each of the eleven points raised by appellant — plaintiff in its brief and find them to be without merit.

AFFIRMED.

ANSTEAD and DAUKSCH, JJ., and RIVKIND, LEONARD, Associate Judge, concur.


text:
    The SCHOOL BOARD OF ORANGE COUNTY, Florida, Petitioner, v. John PALOWITCH, Orange County Classroom Teachers Association, and the Public Employees Relations Commission, Respondents.
    No. 77-2469.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    John W. Bowen of Rowland, Petruska & Bowen, Orlando, for petitioner.
    Mark F. Kelly and Richard H. Frank of Law Offices of Richard H. Frank, P. A., Tampa, for respondents, John Palowitch and Orange County Classroom Teachers Association.
    Thomas W. Brooks, Asst. Gen. Counsel, Public Employees Relations Commission, Tallahassee, for respondent — PERC.
    Peter J. Hurtgen, Miami, and R. Theodore Clark, Jr., Chicago, Ill., for amicus curiae — Florida Public Employer Labor Relations Association.
   DAUKSCH, Judge.

This case involves a ruling by the Public Employees Relations Commission (P.E.R.C.) that the appellant violated Section 447.-501(l)(c) Florida Statutes (1977) and thus committed an unfair labor practice by refusing to bargain collectively. We agree with the order of P.E.R.C. and deny certio-rari.

John Palowitch is a teacher and is represented by the Orange County Classroom Teachers Association which is the duly certified bargaining representative for Palo-witch and his colleagues. The appellant decided it would institute a quinmester system which is a year-round school period instead of the former two semester plus summer school system. When this decision was made another was made to change Palowitch and others from twelve month contract status to ten month contract status. The commission, P.E.R.C., found “such change in contract status carried with it changes in the number of total work days, changes in compensation and changes in leave and holiday benefits.” It also quite properly reasoned “whether these changes are viewed as beneficial or detrimental is irrelevant to the determination vel non (sic) of whether there was a unilateral change in terms and conditions of employment. A unilateral increase in benefits could foresee-ably do more to undermine the bargaining representative’s status than would a decrease.” As to this last sentence it is quite important that the bargaining representative maintain the confidence and respect of its members in order to adequately represent them. If it is best to have bargaining representatives then they should be as effective as possible to promote the good of the membership. It has been determined best for both the employers and the employees for the employees to have bargaining representatives, also known as unions, guilds, labor organizations and other similar names. This is so as to the employer so that he is faced with one party representing all of a group instead of all members of the group clamoring around negotiating individual contracts which contracts can be quite detailed and complex.

When the decision to change the conditions of Palowitch’s employment was made Palowitch was under contract and the appellant was negotiating with the bargaining representative for the next contract. Under Section 447.309(1), Florida Statutes (1977) it is required that “After an employee organization has been certified pursuant to the provisions of this part, the bargaining agent for the organization and the chief executive officer of the appropriate public employer or employers, jointly, shall bargain collectively in the determination of the wages, hours, and terms and conditions of employment of the public employees within the bargaining unit.” We agree with the determination of P.E.R.C. that “. unilateral action taken by an employer to change the length of the work year is a per se violation of the duty to bargain collec-: tively.” Like the commission we do not question petitioner’s authority to change from a semester to a quinmester system nor do we question the right of the employer to ultimately change the length of the service of various employees during the year. Section 447.209, Florida Statutes (1977). We do not agree with the petitioner’s position that the right of ultimate decision making instills the right of unilateral action without bargaining because to hold that would effectively gut the life of the statute providing for bargaining by public employees. There are certain tradeoffs in the statutory scheme not the least of which is the lack of right to strike. Section 447.505, Florida Statutes (1977), Section 447.203(6), Florida Statutes (1977).

Commissioner Parrish, speaking for P.E. R.C. in the appealed order goes on to say:

The School Board next argues that Section 447.309(5) operates as a statutory “zipper clause,” reasoning thusly: Section 447.309 states that any collective bargaining agreement “shall contain all of the terms and conditions of employment of the employees in the bargaining unit”; ergo, anything that is not in the agreement is not a term or condition of employment and, therefore, may be altered unilaterally by the public employer. Although the argument has a certain semantic charm, it must be rejected in favor of implementing the purposes of the Act.
The same policy considerations underlying the prohibition of unilateral changes during negotiations are equally applicable to unilateral changes in subjects not covered by an existing agreement. Terms and conditions not discussed by the parties in negotiations nevertheless continue to be terms and conditions of employment and, by virtue of Section 447.309(1), an employer must negotiate with the certified bargaining agent prior to changing them. The obligation to bargain imposed by Section 447.309(1), extends to all terms and conditions of employment. To conclude that terms and conditions of employment upon which the parties fail to reach agreement lose their status as such and somehow become management prerogatives leads to an absurd and fruitless result.

Adoption of the School Board’s argument would require a bargaining agent for employees to bargain and reach agreement on every conceivable item falling within the scope of “wages, hours, and terms and conditions of employment” or suffer immediate waiver upon the execution of an agreement. Such an interpretation would also inhibit the bargaining process by encouraging an employer to refrain from discussing bargainable subjects for fear of bringing to the attention of the employee organization a subject it might have overlooked.

Moreover, the School Board’s approach ignores the realities of the bargaining process. The obligation to bargain is bilateral — the “burden” to raise bargaina-ble subjects which it desires to change is no less on the public employer than on the employee organization. The public employer cannot refrain from raising at the bargaining table subjects which it desires to change in the hope that by so doing it will be able to unilaterally alter such subjects should the employee organization fail to secure their inclusion in an agreement. Simply stated, the bargaining table is the statutorily mandated forum for accomplishing all changes in the status quo; the sole exception being legislative action pursuant to Section 447.-403(4)(d). Rarely, if ever, do negotiating parties attempt to negotiate all existing terms and conditions of employment in a single agreement. Rather, such changes are accomplished gradually with both parties ordinarily content to leave some working conditions in conformity with past practice. Furthermore, it is virtually impossible for any party to abstractly identify all existing working conditions or predict new conditions which might arise during the duration of an agreement. The approach suggested by the School Board would impede rather than facilitate the collective bargaining process and the stabilization of labor relationships.

It must also be noted that corollary to the argument advanced by the School Board is the proposition that if the only terms and conditions of employment are

those contained in the collective bargaining agreement, then the employees are free to disregard any established policies or customary “terms and conditions of employment” which are not embodied in the agreement. Such conduct by employees would have the same potential for disharmony and instability of labor relationships as is occasioned by improper unilateral action by a public employer. When faced with a choice between a statutory interpretation which promises to frustrate the purposes of the Act and one which will advance such purposes, the latter must be chosen.
[We have deleted footnotes.]

We approve and adopt the well-reasoned conclusion of the commission as quoted above and otherwise affirm the order by denying certiorari.

CERTIORARI DENIED.

ANSTEAD, J., and SCHOONOVER, JACK R., Association Judge, concur.


author: DOWNEY, Chief Judge.

text:
    George T. WATSON, Appellant, v. The FIRST NATIONAL BANK OF CHICAGO, an Illinois Corporation, Appellee.
    No. 78-80.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.

      John R. Hargrove, of McCune, Hiaasen, Crum, Ferris & Gardner, Ft. Lauderdale, for appellant.
    Michael T. Greif, Ft. Lauderdale, and Curtis G. Levine of Baskin & Sears, Boca Raton for appellee.
   DOWNEY, Chief Judge.

In consideration for the appellee’s, The First National Bank of Chicago, extending credit to Kuch and Watson, Inc., an Illinois corporation, appellant, George T. Watson, executed a guaranty agreement guaranteeing repayment of any sums due from Kuch and Watson, Inc., to appellee. When Kuch and Watson, Inc., failed to pay the sum of $28,116.62 due the Bank appellee filed suit on the guaranty agreement.

Appellee’s complaint simply alleged the extension of credit in consideration of the guaranty agreement and that $28,116.62 was due and owing thereon and that the principal debtor, Kuch and Watson, Inc., had failed to make payment. Appellant filed an answer generally denying the allegations of the complaint and affirmatively alleging that no interest was due. After a non-jury trial the trial court entered judgment for the appellee for $28,116.62, plus costs of $137.00. No interest was provided for in said judgment.

Appellant contends the trial court erred because the guaranty agreement and promissory note sued upon were Illinois contracts and their validity and interpretation was governed by the law of Illinois. Therefore, appellant contends appellee was required to plead and prove the law of Illinois and having failed to do so appellee cannot recover.

We believe appellant’s argument is unsound. Either party to this litigation was free to plead and prove the law which was applicable to the contracts in question. Upon the failure to plead any applicable foreign law, it is presumed that any such law is the same as Florida law. Kingston v. Quimby, 80 So.2d 455 (Fla.1955); Movielab, Inc. v. Davis, 217 So.2d 890 (Fla. 3rd DCA 1969).

Appellee has cross appealed the failure of the trial court to grant appellee interest in the final judgment. Resort to the record reflects that the note in question provided for interest to be paid, but the rate thereof was left blank. Appellant successfully objected to any proof by appellee relating to the rate of interest applicable to this note. Our review of the testimony which appellee sought to adduce to prove its entitlement to interest convinces us that the trial court was correct in sustaining appellant’s objections thereto. In many instances the testimony was either not relevant or the witness was not competent to prove the issues. Thus, we find no merit in appellee’s cross appeal.

The judgment appealed from is affirmed.

ANSTEAD and LETTS, JJ., concur.


text:
    Martha H. WEBSTER, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
    No. 78-418.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    Hugh MacMillan, Jr., of Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellant.
    Thomas J. Schwartz, Robert Grafton, John H. Wheeler, Stephen A. Walker, West Palm Beach, for appellee.
   LETTS, Judge.

Martha H. Webster, formerly employed by the South Florida Water Management District had her employment terminated without compliance with Chapter 120.57(1) of the Administrative Procedure Act, said District arguing that its action is not covered by the Act. We reverse.

The District’s position is that Section 120.52(14)(a) Florida Statutes (1977) specifically excludes areas of “internal management memoranda.” With this position we have no dispute; however, the very same sentence continues “. . . which do not affect either the private interests of any person . . . There may be instances where we would be hard put to decide whether internal management mem-oranda did or did not affect the private interests of any person. Not so here, for we have no doubt that dismissal from employment affects a person’s private interests with a vengeance. Likewise we do not agree that the Act does not cover employees of the Agency affected but only covers those members of the individual public outside it. Martha Webster would have to be included within the term “any person” and we note that the First District Court is in full agreement. See State Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977).

REVERSED AND REMANDED.

CROSS and MOORE, JJ., concur.


text:
    John M. CATLETT, II, Appellant, v. STATE of Florida, Appellee.
    No. 78-1406.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    John M. Catlett, II, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the lower court’s dismissal of appellant’s motion to vacate filed pursuant to Fla.R.Cr.P. 3.850. Appellant’s motion was legally insufficient in that the motion did not specify whether appellant had previously filed a plenary appeal from his conviction and sentence (and, if so, the disposition of that appeal), nor did the motion specify whether appellant had filed any previous Rule 3.850 motions (and, if so, how many). We have recently ruled the latter omission, by itself, warrants a summary denial since the motion is not in substantial compliance with Rule 3.850. Scott v. State, 364 So.2d 67 (Fla. 4th DCA 1978).

Our affirmance is without prejudice to file a more properly drafted motion for collateral relief predicated on the same grounds. As we emphasized in Scott, supra, the recently adopted Rule 3.987, Fla.R. Cr.P., provides a complete fill-in-the-blanks type form to assist prisoners in preparing their 3.850 motions.

AFFIRMED.

DAUKSCH, MOORE and BERANEK, JJ., concur.


text:
    Neely Horton GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 78-2164.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    Norman J. Kapner of Campbell, Colbath & Kapner, West Palm Beach, for petitioner.
    David H. Bludworth, State’s Atty., Joseph L. Ackerman, Jr., Asst. State’s Atty., and Scott N. Richardson, Legal Intern, West Palm Beach, for respondent.
   BERANEK, Judge.

This is a petition for common law certio-rari seeking to review and overturn a decision of the Circuit Court sitting in its appellate capacity. The order in question affirmed the County Court’s conviction of the petitioner on a charge of driving while intoxicated (F.S. § 316.193) after a jury trial. Petitioner contends this decision conflicts with decisions of other Circuit Courts and the Supreme Court and on this basis seeks “conflict” certiorari.

Initially, it should be noted that review of circuit court appellate decisions by common law certiorari in the District Court is of a limited nature. Certiorari jurisdiction based on “conflict” is to be distinguished from common law certiorari which is based on the ancient form of writ. Conflict certiorari is created by the Florida Constitution and governed by specific appellate rules. Art. V, § 3(b)(3), Fla.Const. and Rule 9.030(a)(2)(A)(iii) Fla.R.App.P. clearly show that conflict certiorari is solely within the jurisdiction of the Supreme Court. Conversely, common law certiorari is within the jurisdiction of the District Courts of Appeal and the Circuit Courts, Art. V, § 4(b)(3), § 5(b), Fla.Const. The District Courts of Appeal do not have cer-tiorari jurisdiction based solely on conflict.

When a case is tried in County Court, appealed to the Circuit Court and affirmed, the parties have exercised their right of review and the decision of the Circuit Court is final. Further review by common law certiorari cannot be employed so as to result in a second appeal. Kennington v. Gillman, 284 So.2d 405 (Fla. 1st DCA 1973). As stated therein at page 406:

“The extraordinary writ of certiorari is highly discretionary on the part of a Superior Court. It cannot be used as a substitute for an appeal or to give a party a second appeal. Evidentiary questions are to be resolved by the trial court and its action was properly reviewable on direct appeal by the appellate court. The correctness of the appellate court’s decision is not reviewable in an attempted second appeal by a superior court in the name of certiorari. It is only when a judgment has been rendered in the absence of any competent evidence to support the judgment or material fundamental errors in applying the law that such a departure from the essential requirement of law will arise to justify a superior court to exercise its ancient power to issue the common law writ of certiorari.

In Townsend v. State, 97 So.2d 712 (Fla. 1st DCA 1957), the petitioner sought review by common law certiorari of an appellate decision of the circuit court. The district court noted that the circuit court was vested with final appellate jurisdiction and that this finality could not be circumvented by the device of a further appeal or certiorari. The court established a certiorari criteria substantially above mere error in stating at page 713:

“An error that warrants quashing a judgment on certiorari must be so flagrant as to constitute a departure from the essential requirements of the law with respect to procedural steps necessary to be taken or followed in order to administer justice according to the controlling and indispensable rules of law.

In the case presently before us, there is no demonstration of a jurisdictional basis. The reliance on conflict is completely misplaced and there is no attempt whatsoever to demonstrate the flagrant and fundamental departure from basic law required to achieve the discretionary and extraordinary review available by common law cer-tiorari. The petition for writ of certiorari is thus denied.

CERTIORARI DENIED.

CROSS and DAUKSCH, JJ., concur.

      . Haddad, The Common Law Writ of Certiorari in Florida, 29 U.Fla.L.Rev. 335 (1977).


text:
    VIKING COMMUNITIES CORP., now known as Communities Financial Corporation, Appellant, v. PEELER CONSTRUCTION CO. and Star Construction Co. of Ft. Pierce, Inc., Appellees.
    No. 77-1569.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.

      Leonard Jaffe, Miami, and Gerald Mager, of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, for appellant.
    Devitt J. Adams, Fort Pierce, for appellee Star Construction Co. of Ft. Pierce, Inc.
   BERANEK, Judge.

Viking Communities, plaintiff below, here appeals a final judgment entered in favor of Star Construction on a counterclaim in a third-party action.

Star Construction contracted with Viking to perform certain excavations on Viking’s construction project. Payment was based on a unit price for the volume of material excavated. The contract estimated the volume of excavation and established a dollar amount which was not to be exceeded. The contract also provided for progress payments from Viking to Star. Work commenced and problems arose. The subsequent events are disputed, but several facts are apparent. The estimated volume of excavation was too low. Star fell behind schedule in completing the project and Viking withheld a progress payment. Star eventually ceased work altogether and Viking completed the work through another subcontractor. Star filed a complaint seeking recovery on two counts; foreclosure of a mechanic’s lien and quantum meruit.

The case was tried by the Court resulting in a final judgment in favor of Star for the full amount claimed but denying the mechanic’s lien. The trial court found that Star had breached the contract in failing to perform within the prescribed time but that no damages to Viking had occurred. The Court denied foreclosure of the mechanic’s lien based upon the equitable theory of “unclean hands” as applied against Star. The Court entered judgment for the full amount claimed by Star under the breached contract but did so on the theory of quantum meruit. Viking here appeals that judgment and Star cross appeals denial of the mechanic’s lien.

Since a contract is essential to any mechanic’s lien, we look first to the enforceability of the basic contractual obligation. 22 Fla.Jur., Mechanic’s Lien § 19. The doctrine of substantial performance prevails in this State and a contractor who substantially performs and is in good faith is entitled to enforce the contract even if performance has been less than complete. Ocean Ridge Development Corp. v. Quality Plastering, Inc., 247 So.2d 72 (Fla. 4th DCA 1971). Where a contractor breaches a construction contract, the damages are generally determined by the amount in excess of the contract price which the owner reasonably expends to complete the project. Assuming good faith substantial performance, recovery under the contract should be diminished by this amount. Melnick v. Reynolds Metals, 230 So.2d 490 (Fla. 4th DCA 1970), Bryan v. Owsley Lumber Co., 201 So.2d 246 (Fla. 1st DCA 1967). Where a contractor complies with all provisions of Chapter 713, Florida Statutes, and has substantially performed the contract, he is entitled to a mechanic’s lien. See Poranski v. Millings, 82 So.2d 675 (Fla.1955), and American Motor Inns of Florida, Inc. v. Bell Electric, 260 So.2d 276 (Fla. 4th DCA 1972).

Here, the trial court found a breach by the contractor, Star, but no damages to the owner. Nevertheless the mechanic’s lien was denied because the court characterized Star as having “unclean hands.” The judgment makes no mention of substantial performance but the record indicates Star did substantially perform and a technical breach without damage is certainly consistent with substantial performance. A technical breach of contract alone may or may not result in unclean hands but under the circumstances here presented it should not have been the basis for denying the mechanic’s lien. The Court erred in failing to grant to Star a mechanic’s lien.

The final judgment granting full damages under the breached contract on a quantum meruit theory is the subject of Viking’s appeal. If the contractor is entitled to prevail on the mechanic’s lien aspect of the case, he is not also entitled to a full contract price recovery on the quantum me-ruit theory. We are, therefore, convinced that the Court misconceived the effect of the evidence and the judgment based on quantum meruit is also reversed. The matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

DOWNEY, C. J., and LETTS, J., concur.


author: ANSTEAD, Judge.

text:
    John PADREVITA, Appellant, v. CITY OF LAKE WORTH et al., Appellees.
    No. 77-1866.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.

      Stephen Lubow, Miami, for appellant.
    John J. Hoy of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appel-lees Carl V. M. Coffin and City of Lake Worth.
    D. Culver Smith, III of Adams, Sullivan, Coogler, Watson & Smith, West Palm Beach, for appellees Marvin Jenna and Paul Michael Lennertz.
   ANSTEAD, Judge.

This is an appeal from the dismissal of a complaint for malicious prosecution. We affirm.

John Padrevita was charged with violating the ordinances of the City of Lake Worth by acts contributing to the delinquency of a minor. The alleged acts were the purchase of a six pack of beer and a can of Ban deodorant, the beer allegedly for consumption by the minor and the deodorant for inhaling by the same minor. Pa-drevita was convicted in the municipal court. On appeal to the circuit court his conviction was reversed on the grounds of insufficient evidence and the improper admission into evidence of a statement by Padrevita, and the municipal court was directed to enter an order discharging Padre-vita. Padrevita then filed an action for malicious prosecution against the city, two police officers, Marvin Jenna and Paul Michael Lennertz, and the city prosecutor, Carl Y. M. Coffin, which was subsequently dismissed with prejudice upon motion by the appellees. On appeal the parties agree that the only issue to be resolved is the sufficiency of the allegations of the complaint as to the lack of probable cause for Padrevita’s prosecution.

To sustain the dismissal appellees rely upon the cases of Goldstein v. Sabella, 88 So.2d 910 (Fla.1956) and Community National Bank of Bal Harbour v. Burt, 183 So.2d 731 (Fla. 3d DCA 1966). The Third District, in Burt, held that when there has been an initial conviction, a complaint must specifically allege that the conviction was reversed on appeal on the grounds of fraud, perjury or other corrupt means in order to overcome the presumption of probable cause for the prosecution created by the conviction. Burt relies upon Goldstein for this proposition. Padrevita’s complaint alleged that his conviction was obtained by fraud, perjury or other corrupt means, but did not allege that such fraud, etc., was the reason for reversal of the conviction on appeal.

We do not agree with the Third District’s interpretation of Goldstein. The language in Goldstein relied on by Burt states:

Our research has convinced us that the views and line of decisions which constitute the weight of authority hold that a judgment of conviction is conclusive evidence of probable cause, unless the judgment was obtained by fraud, perjury, or other corrupt means. This view is in accord with our thinking, and, we believe, with logic. We do therefore adopt this view as the holding of this' Court on this question. We further hold that a subsequent reversal of the judgment of conviction does not destroy the validity and effect of the determination of the question of probable cause, unless it be reversed for fraud, perjury, or other corrupt means.

However, following this language the Supreme Court went on to decide the case at hand as follows:

While it is true that the trial judge followed what is considered to be a minority rule, that a judgment of conviction is conclusive evidence of probable cause, yet under the allegations of the complaint, as amended, which he dismissed, he would nevertheless have been required to dismiss the same under the rule of law which we have adopted hereinabove, since the plaintiff Goldstein alleged that there had been a judgment of conviction against her which had been subsequently reversed, but she did not allege that such judgment had been obtained by fraud, perjury, or other corrupt means. The effect of the allegation that the defendant had obtained a judgment of conviction against the plaintiff, in an action complained of, and the absence of an allegation of fraud, perjury, or other corrupt means in the procuring of said judgment, is .conclusive, on the face of the pleadings, that probable cause did exist for instituting the action.

We believe that Goldstein stands for the proposition that a judgment of conviction is conclusive evidence of probable cause, unless the judgment was obtained by fraud, perjury or other corrupt means. Hart v. Duncan, 233 So.2d 133 (Fla. 4th DCA 1970). Hence, it was only necessary that Padrevita allege the procurement of his conviction by fraud, perjury or other corrupt means to overcome the presumption created by his initial conviction. While we reach this conclusion based upon our reading of the Gold-stein opinion, we also note that since an appeal is a direct attack on a judgment, it would be virtually impossible to secure an appellate reversal based upon collateral matters such as fraud or perjury. Accordingly, requiring a showing that an appellate decision was based on a showing of fraud, etc., would be virtually impossible. The underlying reasoning behind the rule is that a conviction sufficiently establishes probable cause for prosecution so as to bar a subsequent malicious prosecution action, unless the conviction was obtained by fraud, perjury or other corrupt means, in which case the entire basis for accepting the conviction to establish probable cause disappears. This is true regardless of any appellate disposition of the conviction.

The appellees also contend that the allegations of fraud, etc., are not sufficient. The allegations as to fraud, perjury or other corrupt means employed to obtain the conviction can be divided into three classifications:

1. Allegations that the two police officers filed initial affidavits to secure arrest warrants stating that appellant’s actions constituted a crime.
2. Allegations that the police officers and the prosecutor were biased against the appellant because he was a homosexual and made improper references to his homosexuality during his trial.
3. Allegations that the prosecutor improperly argued to the court that “but for” appellant’s actions the minor involved would be alive.

Counsel have not cited and we are unable to locate a Florida case that clearly defines the “fraud, perjury or other corrupt means” necessary to nullify the presumption of probable cause created by a judgment of conviction. However, we are in substantial agreement with the following standard set out in the case of Norton v. John M. C. Marble Co., 30 Cal.App.2d 451, 86 P.2d 892 (1939):

In Holliday v. Holliday, supra [123 Cal. 26, 55 P. 703], the court said [page 704]: “* * * when a person is charged before a competent court having jurisdiction of the matter, and is tried and found guilty, the judgment rendered, unless it is shown to have been obtained by means of fraud, is conclusive evidence of probable cause for making the charge, even though it is afterwards held to be unauthorized, and reversed on appeal.
******
The fraud relied upon to overcome the presumption of probable cause arising from the conviction of the complaining party need not be extrinsic fraud such as would support an action for the setting aside of the judgment itself, but the fraud may be intrinsic. In Carpenter v. Sibley, supra [153 Cal. 215, 94 P. 879], this idea is expressed as follows: “So we find it laid down that the general rule now is ‘that if the declaration or complaint shows a conviction of the plaintiff, yet if it be averred that the conviction was procured by fraud, perjury, or subornation of perjury, or other unfair conduct on the part of the defendant, the presumption of probable cause is effectually rebutted.’ ” Also it is apparent that the “other unfair conduct on the part of the defendant” must amount to fraud.
The bare allegation of want of probable cause contained in the complaint is not a sufficient allegation where a conviction before the trial court is admitted in the complaint. Averments of conspiracy and of the knowledge of the falsity of the charge and the sprinkling of the complaint with vituperative epithets such as “premeditatedly, wickedly, and with studied care and protracted deliberation” are not allegations of fraud. White v. Brinkman, 23 Cal.App.2d 307, 313, 73 P.2d 254. The facts constituting the fraud must be set forth. Under the circumstances the complaint herein showed on its face probable cause, and therefore the demurrers were properly sustained.

Using this standard, we do not believe appellant’s allegations are sufficient to show that his conviction was obtained by fraud, perjury or other corrupt means employed by appellees. The filing of the initial affidavits was not before the court at the time of trial and could hardly constitute a basis for the finding of guilt. Indeed, the appellant also affirmatively alleged that the officers testified at trial that none of the beer had been consumed and that Ban deodorant was not a controlled substance under Florida law. Similarly, the appellant has failed to allege in what manner the references to his homosexuality and the death of the minor were improper or in what manner his conviction by the trial court was a result of such references. And the mere fact that the police and prosecutor acted out of bias is not sufficient in itself to show that the conviction by the court resulted from fraud, perjury or other corrupt means.

Under' the circumstances of this case we believe the appellant should be afforded one more opportunity to sufficiently allege fraud, perjury or other corrupt means. Accordingly, while we affirm the order of dismissal, this affirmance is without prejudice to the appellant to file an amended complaint.

DOWNEY, C. J., and DAUKSCH, J., concur.


text:
    AMERICAN FINANCE CORPORATION, Appellant, v. O. Jennings MURRHEE, as Sheriff of Clay County, State of Florida, and Harvey Nall, and John A. Peterson, as Deputy Sheriff of Clay County, Sheriff's Department, State of Florida, Appellees.
    No. KK-373.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1979.

      Lawrence C. Rolfe, Jacksonville, for appellant.
    Richard W. Cobb, Orange Park,.for appel-lees.
   MITCHELL, Henry Clay, Jr., Associate Judge.

This is an appeal from a trial court’s denial of a complaint to set aside a Sheriff’s sale.

Based on the evidence presented, the trial court found that the Appellant had failed to prove sufficient grounds for setting aside the Sheriff’s sale.

The order and judgment entered was one within the discretion of the court. We have examined the record and find that under the facts presented, the action of the trial court was not an abuse of discretion. Accordingly, the order and judgment appealed from is

AFFIRMED.

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


text:
    STATE of Florida, Appellant, v. James GLEASON, Appellee.
    No. 78-1354.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 1979.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, Clear-water, and Gordon B. Scott, Asst. Public Defender, New Port Richey, for appellee.
   PER CURIAM.

Reversed. See State v. Allen et al., 362 So.2d 10 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. James M. REYNOLDS, Appellee.
    No. 78-1355.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 1979.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, Clear-water, and Gordon B. Scott, Asst. Public Defender, New Port Richey, for appellee.
   PER CURIAM.

Reversed. See State v. Allen et al., 362 So.2d 10 (Fla.1978).

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


author: GRIMES, Chief Judge.

text:
    In re ADOPTION OF K. A. M., a Minor.
    No. 78-1395.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 1979.
    Ben L. Bryan, Jr., Fort Pierce, for appellants.
    Joe Horn Mount of Peavyhouse, Giglio, Grant, Clark, Charlton & Mount, Tampa, for appellees.
   GRIMES, Chief Judge.

K.A.M. is five years old. Her parents died in an automobile accident three years ago. The appellees, the child’s maternal aunt and her husband, have taken care of K.A.M. since that time under an order of guardianship. The guardianship order permitted appellants, the child’s paternal grandparents, to have visitation rights.

Appellees subsequently filed a petition to adopt K.A.M. Appellants opposed the adoption, not on grounds of the unfitness of appellees, but simply because they wished to maintain the status quo. The court approved the adoption by appellees but awarded appellants rights of visitation.

There is ample competent and substantial evidence supporting the order of adoption. However, on the cross-appeal we find it necessary to reverse the order granting appellants visitation rights. In Jones v. Allen, 277 So.2d 599, 601 (Fla. 2d DCA 1973), this court held that, following adoption by maternal grandparents, even the natural father no longer retained the right to visit the adopted child. We stated:

Although the new parents are perfectly free to allow anyone they wish to visit their daughter we can find no legal authority for compelling them to do so once the final adoption is entered.

Accord, Roberts v. Davis, 328 So.2d 879 (Fla. 2d DCA 1976).

The newly enacted Ch. 78-5, Laws of Florida, does not contain authority for visitation rights in adoption cases. The first section of this bill pertains only to custody matters in dissolution proceedings, and the second section is totally inapplicable to the facts of this case. As deserving as appellants may be, the determination of whether they shall continue to see their granddaughter must rest with the good judgment of appellees.

The order of adoption is affirmed, but the right of visitation accorded appellants is hereby stricken.

OTT and DANAHY, JJ., concur.

      . Now incorporated into Section 61.13(2)(b), Florida Statutes (1978 Supp.).

      . Now Section 68.08, Florida Statutes (1978 Supp.).


author: SUMMERS, Justice. DENNIS, Justice, TATE, Justice, PER CURIAM.

text:
    STATE of Louisiana v. Raymond BRADFORD, Duane Badie and Rene A. Bradford.
    No. 61972.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied March 5, 1979.

      George E. Escher, Student Practitioner, William J. O’Hara, III, Supervising Atty., Loyola Law School Clinic, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Raymond Bradford, his brother Rene A. Bradford, and Duane Badie were jointly charged, tried for armed robbery, convicted and each was sentenced to serve twenty-five years in the custody of the Director of the Department of Corrections. On this appeal they urge four assignments of error which are considered in the order presented by the defense brief.

The robbery occurred on November 15, 1976 when three men, armed with pistols, two wearing ski masks, entered the business office of St. Augustine High School in New Orleans. The school principal and his assistant were ordered at gunpoint to lie on the floor while the robbers took more than $7,000 from the school safe.

Assignments 17 and 19: Rene Bradford and Duane Badie moved for a severance from Raymond Bradford which was denied. Raymond Bradford’s motion for severance against Rene Bradford and Duane Badie was also denied. These rulings are the basis of these assignments of error.

On the morning of trial at the hearing on Rene Bradford’s motion for severance, defense counsel urged the court to sever his client from the case, explaining that he would attempt to cast blame on the other defendant in argument to the jury. He did not elaborate further on his defense strategy or commit himself to placing his client on the stand. In effect counsel represented that he would argue that Rene Bradford was not arrested with the codefendants at his mother’s house and he had no knowledge of the guns and ski masks seized there. The contention is without merit. By this alibi he would exculpate himself, not cast blame on the codefendants as he infers. At that point Raymond Bradford and Duane Badie joined in the motion to sever, but made no allegations to support their position. The trial judge denied the motions.

As a basic statutory proposition, jointly indicted defendants shall be tried jointly unless: The State elects to try them separately; or the court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance. La.Code Crim. Pro. art. 704. Because in many respects Article 704 adopts the Standards of the Federal Rules of Criminal Procedure on severance, reference to Federal authorities on the subject is often persuasive.

This article imposes the burden upon the defendant moving for severance to satisfy the judge that justice requires a severance. A mere allegation by a defendant that he will attempt to cast blame on his codefendant does not suffice. The judge must be satisfied by convincing evidence that justice requires a severance. And the granting or refusal of: the severance is committed to the sound discretion of the trial judge which will not be overturned, except upon a showing by defendant that actual prejudice resulted from the denial. United States v. Marionneaux, 552 F.2d 621 (5th Cir. 1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Lee, 340 So.2d 1339 (La.1976), cert. denied, 431 U.S. 941, 97 S.Ct. 2658, 53 L.Ed.2d 260.

This Court’s latest expression on the subject is to be found in State v. McGraw, 366 So.2d 1278 (La.1978):

“[RJeversal of a conviction for failure to sever where antagonism is shown is not always mandated unless prejudice can be shown. C.Cr.P. 921. As the comments to C.Cr.P. 704 indicate, the ‘antagonistic defenses’ test was not codified as a standard to be used by the court in granting a severance when, in his opinion, after a contradictory hearing, ‘justice requires it.’ According to the comments, the idea from the federal rules, that a severance may be granted when a joint trial may result in ‘prejudice’, has been incorporated into the standard of ‘justice’ in art. 704. Comment (d) to C.Cr.P. 704.”

On the vague allegations of defense counsel that he would cast blame on his clients codefendants in his argument to the jury, the trial judge properly denied the motion to sever. See Fed.Rules Crim.Pro., rules 8, 14, 18; United States v. Perez, 489 F.2d 51, reh. denied, 488 F.2d 552, cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664.

Where a crime involves more than one actor, the need arises to balance the interest of the State in trial economy against the rights of defendants to separate trials. Joinder expedites the administration of justice, reduces the congestion of the trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve on juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once. United States v. Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955 (1974).

Another policy consideration implicit in the mandate of Article 704—that jointly indicted defendants shall be jointly tried—is the need to present the whole case at one time where, as here, several defendants are involved in the same transaction. The State’s policy is supported by the general principle that the State decides when, how, and whom to prosecute and should therefore be permitted to join offenders under appropriate circumstances. United States v. Perez, supra.

At the close of the State’s case, while the trial was in progress, Raymond Bradford was called to the witness stand by his attorney and his codefendants moved for a severance in anticipation that his testimony would be prejudicial to their defense. Their argument was that Raymond’s testimony would place them in the position of defending against a codefendant and the State. Speculating that if Raymond took the stand Rene and Duane would feel compelled to take the stand in rebuttal, their attorneys joined in the motion for severance. The motion was again denied.

Raymond did take the stand'to support his defense of alibi. He denied any participation in the robbery. He stated that the ski masks found in the house belonged to his older brother, Robert. The guns in the house, he said, were found by him in bushes in the project courtyard. Later he displayed them to his brother, intending to sell them. At the time of the robbery he testified that he was at home sleeping. In the afternoon of that day he stirred himself to help his sister paint the apartment. He was not sure where Rene was that day, but believed he was in school. On cross-examination he linked Duane Radie to ownership of a green Chevrolet, similar to the getaway car used in the robbery.

Rene Bradford then took the stand against the express advice of his attorney. He admitted that he had seen both the ski masks and one of the pistols before. He denied participation in the robbery but was unable to account for his whereabouts at the time. His testimony was otherwise immaterial.

When it became apparent that counsel for Rene and Duane would call Sherman Predier to the witness stand as an eyewitness to the robbery, to identify Raymond as the unmasked confederate, Raymond’s attorney once again moved for a severance. As asserted by counsel at the time, having completed the presentation of Raymond’s defense, “this puts me in the position after I have already rested of being unable to defend against a new identification.” Actually, counsel for Raymond did cross-examine Predier to some extent, voluntarily limiting cross-examination to the time Predier viewed Raymond at the robbery. Moreover, Raymond’s attorney did not request an opportunity to introduce additional evidence, which the trial judge in his discretion is authorized to permit, La.Code Crim.Pro. art. 765(5). Raymond did not therefore take the stand in rebuttal to deny that he was present at St. Augustine High School during the robbery, despite the fact that he had waived his right to self-incrimination by his earlier testimony.

Predier testified he was a student at St. Augustine. He was in the principal’s office at the school on November 15, 1976 when the three armed robbers entered. The unmasked participant was Raymond Bradford.

The evidence relied upon by defendants establishes no sharp antagonism in their defenses. Except for inferences which may be gained from their testimony, each was primarily concerned with exculpating himself, not blaming the other.

Aside from the failure of the defense to discharge the burden of satisfying the judge that justice required a severance, this record fails to show that the claimed antagonistic defenses prejudiced defendants. All the evidence available from this record overwhelmingly supports the jury verdict of guilty.

Assignment 5: Officer Reed participated in the investigation of the robbery and the arrest of defendants. At the time of the arrest in the Bradford house, he testified the three defendants were present. On cross-examination defense counsel elicited from Officer Reed the fact that Duane Badie did not live at the Bradford house, but lived instead with his father on Gibson Street in New Orleans.

Defense counsel then asked, “Is it not correct that at the time you went to that other address on whatever street that was, that Mr. Badie was not wanted for anything, was he?”

Reed replied, “No, sir, but he was under investigation for the robbery at St. Augustine.”

No objection was made at this time. Cross-examination continued. Reed testified defendants were told to get their jackets and accompany the arresting officers to police headquarters. When Duane Badie reached for his coat on the bed, shotgun shells fell to the floor; concerned for their safety the officers grabbed defendants.

Defense counsel then proceeded to cross-examine Reed in an effort to show that Badie was only under investigation at the time and he was not arrested when Reed grabbed him. This colloquy followed:

“Q. [Defense counsel] They reached to get their jackets, because you said, ‘Put on your jackets; I’m taking you downtown.’
A. [Officer Reed] That’s right.
Q. You told that to Duane, and he’s not even under arrest at that point. Right?
A. He was under investigation for armed robbery.
Q. And what crime did you cite? Where is that in the Criminal Code?
A. It’s nowhere in the Criminal Code, but it’s also, if there’s enough probable cause generated that you think that someone can be under investigation and there’s enough probable cause, you can investigate them.
Q. I wish you would . . . It’s not a crime, Right? And yet it’s alright for you to take someone because you feel he is a possible suspect. You can take him, take him out of his house, and tell him to get in a car with an uninformed officer to go to an unknown location. Is that what you’re saying?
A. He was shown my identification, sir?
Q. You wouldn’t call that an illegal arrest, would you?
A. No, I wouldn’t.
Q. You wouldn’t say that he was under arrest then?
A. He was under arrest after checking this gun here that was on the bed that they were reaching for which come up stolen.”

An objection was made that the officer’s answer to the last question was unsolicited, and defense counsel moved for a mistrial. He argued that reference to the fact that the gun had been stolen was an impermissible remark about another crime as to which evidence was not admissible. La.Code Crim.Pro. art. 770.

In addition to the quoted testimony, defense counsel repeatedly questioned Officer Reed concerning the legal basis for his action in arresting Duane Badie. The purpose of the cross-examination was to show that no probable cause existed for the arrest. Prior to the objection, testimony had been elicited from Officer Reed, without objection, that Duane was under investigation for the robbery at St. Augustine High School. The interrogation challenged Officer Reed to justify his actions, and reference to the fact that the gun had been stolen, in the mind of the witness, was a direct reply to that challenge.

There is no basis for the defense claim that Officer Reed’s testimony reflected a deliberate attempt to introduce inadmissible, prejudicial remarks concerning another crime. To the contrary, the cross-examination was directed to the justification for the arrest and Officer Reed, who was untrained in the finer distinctions of the law on the subject, sought to justify his actions by his response. State v. Smith, 310 So.2d 580 (La.1975).

A witness is entitled to explain the basis for his testimony and in doing so an officer may properly rebut the attack upon his actions. Testimony was elicited to the effect that handguns had been procured by the accused for use in the robbery. Therefore evidence that one of these pistols was stolen was relevant to this prosecution. It was evidence bearing directly upon the crime charged.

This assignment is without merit.

Assignments 7 and 8: Harold Bradford, the younger brother of defendants Raymond and Rene was called as a witness by the State. His answers to questions were evasive and contradictory. Finally he admitted that he had gone to police headquarters and talked to someone there. When he was asked if he gave a statement there, he said he did not understand. Asked if he signed papers at that time, he replied that he signed papers but “didn’t know what it was.”

At this stage of the interrogation defense counsel objected to the introduction of the statement or even showing it to the witness. The objection was overruled.

In further questioning, Harold said he had seen the statement at police headquarters. When he was asked if he recognized the two signatures on the statement, defense counsel moved for a mistrial because no foundation had been laid and the prosecutor was attempting to impeach the State’s own witness. Again the objection was overruled.

Thereafter Harold identified the signatures as his own and that of his stepmother. After reading the document Harold denied that he told the police anything about an armed robbery. Pointing to defendants, the prosecutor asked Harold if he told the police anything about them. Over defense objection, he said yes; however, he then denied that he told the police anything about defendants or a robbery or guns. Thereafter Harold answered most questions “I don’t remember,” or “I don’t know,” whereupon, the prosecutor asked the court to declare Harold to be a hostile witness and the defense objected. The trial judge ruled that the witness was hostile. With this ruling the prosecutor questioned Harold concerning the contents of the statement he made to the police on January 4, 1977 about the high school robbery inculpating defendants. Again he categorically denied that he made the statement.

In its brief the defense argues that a mistrial should have been ordered because the court permitted the prosecutor to show the statement to Harold before he was declared to be a hostile witness. Also, according to the defense, no foundation was laid for showing the statement to the witness.

In our opinion this witness displayed marked hostility and it was therefore proper for the State to impeach him with his prior contradictory statement. La.Rev. Stat. 15:487.

For the reasons assigned, the conviction and sentence are affirmed.

DENNIS, J., concurs and assigns reasons.

TATE, J., dissents and assigns reasons.

DIXON and CALOGERO, JJ., dissent.

DENNIS, Justice,

concurring.

Under the post trial standard of review for prejudice by a denial of a pre-trial or mid-trial severance motion, i. e., it must be shown that the defendant probably would not have been convicted had he been allowed a separate trial, State v. McGraw, 366 So.2d 1278, 1285 (La.1978), I do not find that any defendant has shown sufficient prejudice to warrant reversal.

In fairness, however, defendants should be allowed to supplement the truncated record designed for our review, if they wish, in support of any motion for rehearing on the severance issue.

TATE, Justice,

dissenting.

I respectfully dissent from the failure to sever Raymond Bradford from the trial of his co-defendants.

As I stated in my dissent in the McGraw case, even though there may be substantial evidence in the record supporting the conviction all defendants, guilty and innocent, are entitled to a fair trial. One of the fair-trial rights of the defendant Raymond Bradford is to have his own trial severed from that of a co-defendant with an antagonistic defense to his, by which in effect he must defend not only against the state but also against his co-defendant. La.C.Cr.P. art. 703 (see official revision comment (c); State v. Thibodeaux, 315 So.2d 769 (La. 1975).

A substantial violation of this statutory (if not constitutional) right entitles him to a reversal and to a new trial conducted in accordance with law, La.C.Cr.P. art. 921, for the law presumes prejudice when an accused is denied a right designed to protect fair-trial rights of all aceuseds.

The circumstances of this trial indicate the prejudice sustained by the accused.

After Rene Bradford took the stand and denied any complicity in the crime, his defense counsel, in an apparent attempt to show that Raymond and not Rene was the perpetrator of the crime, called Sherman Predier to the stand who positively identified Raymond as one of the robbers.

It is immaterial that Raymond cross-examined Predier, and that he failed to request the opportunity to introduce additional evidence. The purpose of the antagonistic defense rule, as stated above, is to prevent situations in which a defendant must defend not only against the state, but also against his co-defendant. In this case, Raymond Bradford stood accused in the eyes of the jury not only by the state, but also by his co-defendants.

In my opinion, the defense of co-defendant Rene Bradford, antagonistic to the defense of Raymond Bradford, mandates separate trials.

Even under the McGraw test that the defendant show prejudice, I am unable to see how the majority can affirm the conviction, since the truncated record contains only excerpts of the full testimony. Whether error is harmless or prejudicial can only be determined in an instance such as this by examination and in the context of the entire evidence taken as to innocence or guilt.

The record does not indicate that the convictions of defendants Rene Bradford and Duane Badie should be reversed on the basis of the denial of repeated motions to sever under the Thibodeaux antagonistic defense test. Raymond Bradford sought to exculpate himself by an alibi defense. He did not, in fact, cast blame on the others for the offense.

Certain details in his testimony did tend to implicate the other defendants. Those details established that the co-defendants knew about the guns later recovered in the house, and that Badie drove a car similar in make and color to the get-away vehicle. But they do not emerge as part of a larger effort on Raymond’s defense to exclude the possibility of his guilt by directly suggesting the participation of the others. The taint of antagonism therefore may be too attenuated for purposes of State v. Thibodeaux.

I also dissent as to the conviction of all three defendants on the basis that the trial court improperly permitted the state to impeach its own witness through the use of a prior inconsistent statement.

The prosecutor called Harold Bradford, a juvenile and the younger brother of the defendants Rene and Raymond Bradford, to the stand for the precise purpose of destroying his credibility for the jury — to the end that the confession would be introduced for the truth of its contents. This use of the statement by Harold Bradford goes beyond the limits of impeaching one’s own witness provided by La.R.S. 15:487.

As noted by my concurring opinion in State v. Rossi, 273 So.2d 265, 271 (La.1973):

“Since the sole purpose of admitting prior inconsistent statements is to test the credibility of the witness, it is fundamentally illogical to permit a party to call a hostile witness to testify to a statement, for the sole purpose of impeaching the credibility of that expectedly hostile witness by showing some prior inconsistent statement. The apparent reason for calling the witness or questioning him on the subject of the prior statement must be to get before the jury such prior inconsistent statement, with its obviously prejudicial effect on the issue of the substantive guilt or innocence.
“A party should not be able to call a witness to evoke a statement which the party intends to dispute by the prior statement, for the sole purpose of getting before a jury inadmissible hearsay testimony (ostensibly offered only to prove that the witness is lying as indeed the party who called him knew in advance he would). See Pugh, 22 La.L.Rev. 397-398 (1962).”

For the reasons assigned, I respectfully dissent.

ON APPLICATION FOR REHEARING

PER CURIAM.

After reviewing the supplemented record in this case, and finding that a rehearing is not warranted, the applications for rehearing by the defendants are denied.

TATE, J., is of the opinion that a rehearing should be granted.

BLANCHE, J., not participating.