author: WALDEN, Chief Judge.

text:
    Robert M. ZIROT, d/b/a General Spray Service of Orlando, Appellant, v. Ben S. GILMER et al., Appellees. GEORGE A. HORMEL & COMPANY, Appellant, v. Ben S. GILMER et al., Appellees.
    Nos. 75-1178, 75-1179.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1976.
    Nicholas Yonclas, of Akerman, Senterfitt, Eidson & Wharton, Orlando, for appellants, Hormel and Zirot.
    Kenneth L. Mann, of Subin, Shams, Ro-senbluth & Moran, Orlando, for appellee-Donal F. Clark, Receiver.
    William E. Doster, of Lowndes, Peirsol, Drosdick & Doster, Orlando, for appellees, Trustees of Tri-South Mortgage Investors.
   WALDEN, Chief Judge.

These appeals are consolidated for appellate purposes because they involve the same point of law and arise out of the same trial court case.

The appellants, Robert M. Zirot, d/b/a General Spray Service and George A. Hormel & Company, were among the defendants. The trial court denied their Petitions for Orders Requiring Receiver to Pay Their Claims. They appeal. We affirm.

The action in the trial court was, in the main, one to foreclose a mortgage on a certain 660 room motel complex. During the course of events a receiver was appointed and authorized to take possession and operate the motel. The appointment was on September 30, 1974.

Appellant, Hormel, furnished meat supplies to the motel. Appellant, Zirot, furnished certain services to the motel. In both instances the supplies and services were furnished prior to the appointment of the receiver.

The appellate point may be stated:

Whether appellants’ claims for services and supplies furnished within a two month period immediately prior to the appointment of a receiver for the motel constituted an operating expense of the receivership which should have been paid by the receiver?

Succinctly, were the claims operating expenses of the receivership? If so, they should be paid. If not, they should be rejected.

The appellants contend that they should be paid for the supplies furnished prior to the appointment of the receiver because these supplies were expenses of operating the receivership and the expenses of operating the receivership constitute a first charge upon the earnings. Appellants argue that the six month’s rule is applicable. This rule is that claims which accrued in the period six months before the beginning of the receivership are entitled to be paid out of the income collected during receivership.

Appellants’ contention is without merit for two reasons. The first is that the cases enunciating the six month rule of prefera-bility have been limited to receiverships of public or quasi-public corporations — railroads, public utilities and the like. Second, Article 9, § 301 of the UCC, Fla.Stat. § 679.-301(3), is dispositive of the issue.

Regarding the six month rule, it has been noted that “[u]nder certain circumstances in railroad receiverships an expense of operation such as a debt incurred for labor, supplies, equipment or improvements, before receivership is entitled to priority over mortgagees.” Clark, Law of Receivers 3d Ed. 1959, § 676. The seminal case in this area is Fosdick v. Schall, 99 U.S. 235, 25 L.Ed. 339 (1879). The facts in Fosdick were: a certain railroad executed a mortgage to Fosdick. The railroad also entered into an agreement with Schall concerning the rental of railroad cars. Fosdick subsequently sued to foreclose his mortgage and petitioned for the appointment of a receiver. During the receivership the rental railroad cars were used. The trial court allowed Schall to intervene and ordered the receiver to pay Schall for the rental of the cars for the period of the receivership and six months prior thereto. One question on appeal to the U.S. Supreme Court was whether the order for the payment out of the fund in court for the rental of the cars, during the time they were used by the receivers appointed by the state court and for six months before was proper. The court did not allow it in this case, apparently because Schall recovered his railroad cars anyway; Burnham v. Bowen, 111 U.S. 776, 4 S.Ct. 675, 28 L.Ed. 596 (1884) (This also involved a railroad foreclosure. The court allowed payment by the receiver out of the current income for coal delivered prior to the appointment of the receiver. The rationale was that the payment of coal was for current expenses. The court cited Fos-dick for the proposition that the income from which the mortgagee is to be paid is net income which is gross income, minus operating and managing expenses.); Virginia and A. Coal Co. v. Central Railroad & Banking Co. of Georgia, 170 U.S. 355, 18 S.Ct. 657, 42 L.Ed. 1068 (1898) (Distributors of coal petitioned receiver of railroad for payment for coal delivered prior to receivership. The court held it should be paid as it was a current operating expense.)

However, early decisions also start to limit the above doctrine. The court in Kneeland v. American Loan & Trust Co., 136 U.S. 89, 10 S.Ct. 950, 34 L.Ed. 379 (1890) held that in a foreclosure action for a railroad in which a receiver was appointed it was error to pay the rental on rolling stock, thereby subordinating the priority of the mortgage debts. It must be noted, however, that the owner of the rolling stock recovered it. The court then stated:

“ • • • [W]e remark, first, that the appointment of a receiver vests in the court no absolute control over the property, and no general authority to displace vested contract liens. Because, in a few specified and limited cases, this court has declared that unsecured claims were entitled to priority over mortgage debts, an idea seems to have obtained that a court appointing a receiver acquires power to give such preference to any general and unsecured claims.”

accord Farmers’ Loan & Trust Co. v. Grape Creek Coal Co., 50 F. 481, (S.D.Ill.1892). (“It is only against railroad mortgages that the supreme court of the United States has sustained orders giving priority to receiver’s certificates representing particular indebtedness, and, as already stated, then only on principles having no application to a mortgage executed by a private corporation owing no duty to the public. . . . [T]here is a plain implication that the limited power which courts may exercise in displacing the liens of railroad mortgages should not and cannot be extended to mortgages executed by private corporations.”); Knickerbocker Trust Company v. Green Bay Phosphate Company, 62 Fla. 519, 56 So. 699 (1911); National Surety Corp. v. Sharpe, 236 N.C. 35, 72 S.E.2d 109 (1952) (citing Knickerbocker, supra, the court held that indebtedness in operating private firm in receivership can not be given priority over claims of non-consenting lienholders.); Crane Co. v. Fidelity Trust Co., 238 F. 693 (9th Cir. 1916); Clark, supra, § 677; 66 Am.Jur.2d, Receivers § 306 et seq.

It is our opinion that the six month preference rule is inapplicable to appellants and that their argument in its support is without merit.

Finally, appellants’ claims were correctly denied under the clear provisions of Fla.Stat. 679.301(l)(b), (3) (1975):

“679.301 Persons who take priority over unperfected security interests; ‘Lien creditor.’
“(1) Except as otherwise provided in subsection (2), an unperfected security interest is subordinate to the rights of: ******
“(b) A person who becomes a lien creditor without knowledge of the security interest and before it is perfected;
* * * * * *
“(3) A ‘lien creditor’ means a creditor who has acquired a lien on the property involved by attachment, levy or the like and includes an assignee for benefit of creditors from the time of assignment, and a trustee in bankruptcy from the date of the filing of the petition or a receiver in equity from the time of appointment. Unless all the creditors represented had knowledge of the security interest such a representative of creditors is a lien creditor without knowledge even though he personally has knowledge of the security interest.”

As seen, this statute establishes that a receiver takes priority over those with an unperfected security interest. We will not plumb or second-guess what appellants might have done at the time of delivery in order to perfect a lien or obtain some type of security device or to otherwise protect themselves. Suffice to say, they simply delivered on credit and they are nothing more nor less than unsecured creditors.

While we are not certain as to the differences, if any, as between an unsecured creditor as opposed to a creditor with an unper-fected security interest, we are certain and hold that an unsecured creditor has no greater rights or priority when compared to a creditor with an unperfected security interest. If anything, the unsecured creditor stands at the bottom of the creditor totem pole. Hence, we believe that Fla.Stat. 679.-301 (1975), in its application, establishes the priority of the receiver over an unsecured creditor.

And so, in light of the time sequences, the receiver became a lien creditor with priority over the appellant’s claims. Anderson, Uniform Commercial Code, 2d Ed., 1971, § 9-301:10; Industrial Packaging Products Co. v. Fort Pitt Packaging International Inc., 399 Pa. 643, 161 A.2d 19 (1960). (Receiver was appointed after the creditor had filed a financing statement. Hence, the court held the receiver did not have priority.); E. Turgeon Construction Co., Inc. v. Elhatton Plumbing & Heating Co., Inc., 110 R.I. 303, 292 A.2d 230 (1972) (Court cited UCC to defeat receiver’s claim to money over that of a creditor.)

Having considered the issue, the Orders appealed are

AFFIRMED.

DOWNEY, J., and LEE, THOMAS E., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anthony Lawrence DAMPIER, Appellant, v. STATE of Florida, Appellee.
    No. 75-750.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 1976.
    George B. Blume, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant Dampier appeals from a conviction for breaking and entering with intent to commit a misdemeanor, contending he was denied his right to closing argument under RCrP 3.250. We agree and reverse.

Appellant and Curtis Reed were tried before a jury for breaking and entering. Appellant called no witnesses. Reed, who was represented by separate counsel, called witnesses on his own behalf. The trial court denied appellant’s request for closing argument on the grounds that witnesses called by Reed testified on appellant’s behalf. The court viewed this “indirect calling” as a forfeiture of appellant’s right to closing argument. The state opened the closing arguments. This was followed by argument for Reed, and then argument for appellant. The state concluded the closing arguments.

The failure to allow the appellant closing argument was reversible error. RCrP 3.250 provides that a defendant offering no testimony in his own behalf, except his own, is entitled to the concluding argument before the jury. When the state chooses to try several defendants together, it takes the risk that a witness called by one defendant will give testimony favorable to the others. Faulk v. State, Fla.1958, 104 So.2d 519; Gordon v. State, Fla.1958, 104 So.2d 524. As this court noted in Wilson v. State, Fla.App.2d 1973, 284 So.2d 24, rev’d on other grounds, Fla., 294 So.2d 327, this long standing rule, legislative in its inception and now adopted by the Supreme Court as a procedural rule, may give precedence to form over substance and applies even when a witness’s testimony is more favorable to a co-defendant than to the defendant who actually called the witness.

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

HOBSON, A.- C. J., and GRIMES and SCHEB, JJ., concur.


author: SCHULZ, GEORGE E., Associate Judge.

text:
    John PARTIN, Appellant, v. KONSLER STEEL COMPANY, Appellee.
    No. 75-768.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1976.
    Michael D. Jones of Jones & Bishop, P. A., Altamonte Springs, for appellant.
    Harlan Tuck of Giles, Hedrick & Robinson, Orlando, for appellee.
   SCHULZ, GEORGE E., Associate Judge.

This suit involves the Mechanic’s Lien Law. The appellant is the owner of the property who contracted to have a building erected on said property, by a person not a party to this litigation who will be referred to as the contractor. The appellee was a supplier of certain materials to the job between June 7 and June 13, 1974. Appellee was not paid by contractor. Therefore it filed a claim of lien on September 5, 1974 against appellant’s property for $6,415.00, which was within the ninety day period as required under Florida Statute § 713.08(5). On the same date, appellee, for the first time mailed its notice to owner regarding the claim, but this notice was not mailed or delivered within the forty-five days from the first date of furnishing materials as required by Florida Statute § 713.06(2)(a). Complying with this statute must be strictly adhered to before a lien is perfected.

In the meantime appellant paid all sums due under the contract, namely, about July 22, 1974, except for some extras amounting to $1,164.46. The contractor thereafter left town, without giving appellant a final páyment affidavit as required in F.S. § 713.-06(3)(d)(l). After appellant received appel-lee’s notice to owner (9-6-74) he paid appel-lee the $1,164.46 he had remaining, and filed suit to cancel appellee’s lien, and ap-pellee in turn counterclaimed for foreclosure of his lien. Subsequently both parties moved the trial court for summary judgment.

The court below found the appellant was not entitled to the relief sought in his complaint to vacate and cancel of record the claim of lien filed by appellee, but did find that the appellee was entitled to the relief sought in its counterclaim for foreclosure of lien, and so ordered.

Apparently the learned trial judge reasoned that the failure of the appellant to require his contractor to furnish a final payment affidavit and to retain the last payment due under his contract or 10% of the contract price, whichever was larger, pending receipt of such affidavit as required by F.S. § 713.06(3)(d)(l), was sufficient to perfect appellee’s lien even though its notice to owner was not timely mailed or delivered as required by F.S. § 713.06(2)(a), provided appellee had complied with the ninety day requirement of F.S. § 713.08, supra.

We agree the issue to be decided is where the owner fails to comply with the Statute 713.06, does this preserve the subcontractor’s lien even though it failed to comply with the provisions of the Mechanic’s Lien Law, Chapter 713, F.S.? We think not. This law is explicit that a notice to owner must be served before commencing or not later than forty-five days from commencing to furnishing its materials. This is an absolute prerequisite to perfecting a lien.

It has been stated over and over again by our Appellate Courts of Florida that the Mechanic’s Lien Law is in derogation of the Common Law. So that tells us the law must be strictly construed and complied with in every detail.

“The acquisition of a mechanic’s lien is purely statutory. The courts have uniformly held that to acquire such a lien, the Mechanic’s Lien Law must be strictly complied with.” Sheffield-Briggs Steel Prod. v. Ace Concrete Serv. Co., Fla.1953, 63 So.2d 924; Trushin v. Brown, 132 So.2d 357 (3d DCA Fla.1961). We have considered Crane Co. v. Fine, 221 So.2d 145 (Fla.1969); Daly Aluminum Products, Inc. v. Stockslager, 244 So.2d 528 (2nd DCA Fla.1971); Bard Mfg. Co. v. Albert & Jamerson Bldg. Supply Corp., 212 So.2d 13 (4th DCA Fla.1968); W. W. Gay Mechanical Contractors, Inc. v. Case, 275 So.2d 570 (1st DCA Fla.1973); Babe's Plumbing, Inc. v. Maier, 194 So.2d 666 (2nd DCA Fla.1967); and Continental H. Pks., Inc., v. Golden Triangle A. Pav. Co., 291 So.2d 49 (2nd DCA Fla.1974).

In effect they all stand for the same proposition that strict compliance with the Mechanic’s Lien statute is an indispensable prerequisite to seeking affirmative relief thereunder.

We conclude that the chancellor was in error in holding that appellee/subcontractor’s failure to comply with the explicit provision of the statute, viz.: § 713.06(2)(a) (notice to owner) was excusable and did not preclude its perfecting a lien altogether. We hold that the appellee must rely on the correctness of its own position, not the failure or weakness of the appellant.

Therefore, we reverse the summary final judgment, and the cause is remanded for further proceedings not inconsistent herewith.

WALDEN and DOWNEY, JJ., concur.


text:
    William Robert O’MASTA, Appellant, v. STATE of Florida, Appellee.
    No. 75-867.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1976.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon due consideration of the briefs, record on appeal and oral argument we are of the opinion that the trial court erred in denying defendant’s motion for judgment of acquittal as to Count One of the information made after the close of the state’s case. In particular, count one of the information charged that the defendant did “unlawfully draw, make, utter, issue and deliver” a worthless check on December 22,1972 when in fact the check was dated December 23, 1972 thereby denoting the issuance of a post-dated check the uttering of which is not a crime under sec. 832.05(2)(a), Florida Statutes. The state suggests that notwithstanding the allegations contained in the information, the evidence presented did in fact support the uttering of the check in question on December 23, 1972. Such a variance between the allegations and proof was under the circumstances of this case fatal, rendering improper any conviction on that particular charge. Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972). Accordingly, no further reversible error having been made to clearly appear, the judgment and conviction of sentence as to Count One is reversed and the cause remanded for further proceedings consistent herewith.

MAGER, C. J., ALDERMAN, J., and WILLIAMS, W. C., Ill, Associate Judge, concur.


author: ALDERMAN, Judge.

text:
    Artis GUNN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1416.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1976.

      Richard L. Jorandby, Public Defender, and Channing E. Braekey, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

After trial by jury defendant was found guilty of the offense of possession of more than five grams of cannabis, contrary to Section 893.13(l)(e) and 893.13(l)(f), Florida Statutes (1973). Adjudication of guilt was withheld and defendant was placed on probation. Four issues have been raised by this appeal.

First, appellant contends that the trial judge erred in not dismissing the felony charge of possession of more than five grams because the State failed to prove the weight of the cannabis. Defense counsel stipulated that the seized substance was cannabis but made no stipulation as to the amount or weight. The cannabis was not weighed and no competent testimony was presented to establish its weight. In denying defendant’s motion for acquittal on the felony charge, the trial judge said:

“While we have no expert testimony as to the weight of those bags, it’s something the jury can look at and feel and I think it’s really a jury question . ” Trial transcript, p. 125.

Factually this case is similar to Samet v. State, 284 So.2d 450 (Fla.3d DCA 1973). There in a non-jury trial the State failed to present any evidence as to quantity or weight of the cannabis. Samet’s attorney moved to treat the matter as a misdemean- or, but the trial court proceeded on the basis of a felony, without proof of weight, stating: “Well, I think I can. It’s in evidence. I can look at it and I can know it’s more than five grams.” The appellate court in Samet, supra, rejected this argument, and reversed the felony conviction.

In the present case the State contends that it has no burden to prove the weight of the cannabis. The State argues that the burden is on the defendant to prove the weight of the marijuana to be less than five grams in order to make the offense a misdemeanor. To accomplish this the State relies upon Section 893.10(1), Florida Stat-. utes (1973), which provides:

“It shall not be necessary for the state to negative any exemption or exception set forth in this chapter in any indictment, information, or other pleading or in any trial, hearing, or other proceeding under this chapter, and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.”

In our opinion this section is inapplicable. It relates only to the various statutory exemptions or exceptions specifically set forth in Chapter 893. For example, an exception to the crime of possession of a controlled substance under § 893.13(l)(e) is that the controlled substance “ . was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice . . ” Under § 893.10 it would not be necessary for-the State to prove that the defendant did not have, a valid prescription. If the defendant relied upon such an exception as a defense, then the burden of proof would be upon the defendant.

A different situation exists with reference to the weight of the cannabis. If the State as in this case has not alleged and proven a prior conviction under § 893.-13(l)(f) it is only the weight of the cannabis that determines whether the offense is a felony or a misdemeanor. Therefore weight in excess of five grams is an essential element of the felony offense and must be proven by the State. Pope v. State, 268 So.2d 173 (Fla.2d DCA 1972). The trial court erred in not granting defendant’s motion of acquittal on the felony charge.

We now consider the second point raised by this appeal. Defendant moved to suppress the cannabis taken from his automobile subsequent to his arrest. The trial court denied the motion.

Defendant first contends that his arrest was invalid because it was made without a warrant although a warrant could have been reasonably obtained. For this proposition defendant relies upon the case of Carter v. State, 199 So.2d 324 (Fla.2d DCA 1967). However the Florida Supreme Court has subsequently held that to the extent Carter, supra, purports to impose requirements other than those set out in Chapter 901, Florida Statutes, for a valid arrest without a warrant, it is erroneous. Falcon v. State, 226 So.2d 399 (Fla.1969). See also State v. Rameriz, 284 So.2d 241 (Fla.4th DCA 1973); State v. Cannon, 317 So.2d 103 (Fla.4th DCA 1975). Defendant’s first contention is without merit.

Next defendant contends that even if his arrest was valid the inventory search of his automobile was not. We agree. Defendant testified that after his arrest he asked the arresting officer if he could call his mother so she could come and pick the car up. The arresting officer told the defendant “I can’t do that, it’ll be towed away.” A second officer told the defendant that the car was going to be impounded, and he could choose to have a tow truck or allow police personnel to drive the vehicle to the police department to be impounded. When presented with these alternatives the defendant gave permission for the officer to drive the car to the police station. At the station the car was searched and the contents inventoried. It was during this search that the cannabis was found. Defendant did not consent to the search.

In the present case there was no showing in the record that the automobile, if it had been left parked, would have created a traffic hazard or nuisance. The defendant was not given the choice of not having his car impounded. He was not allowed to call his mother to come take the car away, which according to defendant would have taken five minutes. As we stated in State v. Jenkins, 319 So.2d 91 (Fla.4th DCA 1975):

“ . . . the impounding and towing of an automobile and its concomitant inventory search is of questionable validity where the location of the automobile does not create a traffic hazard or nuisance and the owner or operator chooses not to have his car impounded. The individual in custody should be advised of and given the choice of leaving the car in its location, contacting someone else to take charge of the car or having it impounded. An individual who is taken into custody ought not to have his vehicle impounded, inventoried and towed away under such circumstances where alternative steps can be taken to secure the vehicle and the individual is willing to accept the responsibility for the safekeeping of the contents of such vehicle.”

See also Weed v. Wainwright, 325 So.2d 44 (Fla.4th DCA 1976) and Chuze v. State, 330 So.2d 166 (Fla.4th DCA 1976).

Based upon the particular facts of this case we find that the inventory search was unreasonable and illegal. The trial court erred in denying defendant’s motion to suppress and should not have admitted into evidence the cannabis which was seized from appellant’s car.

We have considered appellant’s third point and find that it is without merit. In view of the court’s ruling on points one and two it has not been necessary to consider the last point on appeal, questioning the validity of conditions 9 and 10 of appellant’s probation.

Since the State would be unable to establish a prima facie case without introducing the cannabis into evidence, the conviction is reversed and the case remanded with instruction that the appellant be discharged.

MAGER, C. J., and WILLIAMS, W. C., Ill, Associate Judge, concur.

      . Fla.Stat. § 893.13(l)(e) It is unlawful for any person to be in actual or constructive posses- ■ sion of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or * [to be in actual or constructive possession of a controlled substance] except as otherwise authorized by this chapter. Any person who violates this provision is guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.
      * Note.-Bracketed language inserted by the editors.

      . Fla.Stat. § 893.13(l)(f) If the first offense is the possession or delivery without consideration of not more than 5 grams of cannabis, that person shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.-082 and § 775.083. For purposes of this subsection, “cannabis” shall not include the resin extracted from the plant Cannabis sativa, or any compound manufacture, salt, derivative, mixture, or preparation of such resin.


author: DOWNEY, Judge.

text:
    Eloise B. FLYNT, Appellant, v. Joseph R. FLYNT, Appellee.
    No. 76-1133.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1976.
    Larry Klein, West Palm Beach, and Stuart, Walker & Jenne, Fort Lauderdale, for appellant.
    John M. Bernazzoli of DeTardo & Longo, Hollywood, for appellee.
   DOWNEY, Judge.

The wife seeks review of an interlocutory order setting aside a default and final judgment in a dissolution of marriage proceeding.

It seems appellant filed suit in Broward County for dissolution of marriage, and though appellee was personally served with process, he failed to file any pleadings or appear in the case. But a month or so later appellee himself filed a petition for dissolution of marriage in Broward County. The trial court entered a default in the case on the appellant’s petition and proceeded ex parte to final hearing and judgment. Said judgment dissolved the marriage, awarded custody of appellee’s daughter by a prior marriage to appellant, gave her the jointly owned marital home as lump sum alimony, and directed dismissal of the appellee’s suit for dissolution.

Approximately one month later appellee’s attorney learned of the final judgment and dismissal of appellee’s suit. He thereupon filed a motion to set aside the default and final judgment. Among other grounds, the following are alleged in said motion: 1) after appellee was served with process in the appellant’s suit, appellant misled him into believing that she was not going to prosecute the suit further, therefore appel-lee filed his own suit to have the matter resolved; 2) the appellant was awarded lump sum alimony with no showing of her need or appellee’s ability to pay, and appel-lee’s business was bankrupt and he was living on unemployment compensation; 3) appellant was not in need of alimony; 4) appellee did not abandon his children and had furnished their support; 5) appellee had other meritorious defenses.

Several short hearings were had on the motion to vacate the default and judgment but due to the inadequacy of the time set aside therefor virtually no testimony was taken in support of said motion. The hearings generally amounted to a colloquy between the court, counsel, and the parties.

If the allegations of the motion to vacate were adequately proven, the trial court would have grounds to vacate the default and final judgment. However, in the present state of the record there is inadequate proof of excusable neglect and a meritorious defense.

Accordingly, the order appealed from is reversed and the cause is remanded to the trial court with directions to hold an eviden-tiary hearing to determine the merits of the motion to vacate.

REVERSED and REMANDED with directions.

WALDEN and CROSS, JJ., concur.


author: ALDERMAN, Judge. DOWNEY, Judge

text:
    Lee C. HOWLEY and Sheldon B. Guren as Trustees for U. S. Realty Investments, Appellants, v. SAGE SHOPPING PLAZA CORP., a Florida Corporation, et al., Appellees.
    No. 76-1281.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1976.
    Robert S. Geiger and Richard E. Reckson of Levine, Reckson & Reed, Miami, for appellants.
    Robert J. O’Toole, Fort Lauderdale, for appellee Sage Shopping Plaza Corp.
   ALDERMAN, Judge.

Appellant filed suit to foreclose a $1,200,-000 first mortgage on a shopping center. Simultaneously with the filing of the complaint, appellant petitioned the trial court for the appointment of a receiver to collect rents and protect and preserve the property. An evidentiary hearing was held on the petition for appointment of a receiver. At the conclusion of appellant’s case, appellee moved to dismiss. After considering the arguments of counsel, but without requiring any evidence or testimony from appel-lee, the trial judge involuntarily dismissed the petition for appointment of receiver. From that order this interlocutory appeal is taken.

From our review of the record in this case we conclude that appellant established a prima facie case for appointment of a receiver. The right of a trial court to involuntarily dismiss the claim of a party seeking affirmative relief in an action tried by the court without a jury, at the conclusion of the presentation of his evidence, is based upon Fla.R.Civ.P. 1.420(b). The Florida Supreme Court in Tillman v. Baskin, 260 So.2d 509 (Fla.1972) held that a trial judge cannot weigh evidence when ruling on a defendant’s motion for involuntary dismissal following the presentation of a prima facie case by a plaintiff. As stated by the court in Tillman v. Baskin, supra:

“When a prima facie case is made by plaintiff, fairness would appear to require that the trial judge weigh it in the light of the strength or weakness of the defendant’s defense evidence.” (At 512.)

Reversed and remanded for a new hearing on appellant’s petition for appointment of a receiver. We express no opinion as to the merits of the petition or as to what decision the trial judge should make after he considers and weighs the evidence presented by both the plaintiff and the defendant.

WALDEN, J., concurs.

DOWNEY, J., concurs specially with opinion.

DOWNEY, Judge

(concurring specially).

I agree with the majority opinion that appellants made a prima facie case by their sworn complaint and the evidence adduced in support of their motion for appointment of a receiver, thus requiring reversal of the order appealed from. The appellees had assigned the leases and rents received from the property to the appellants and specifically gave appellants the right to collect those rents when appellants determined “in [their] sole discretion” that appellees were guilty of some act or omission which constituted a default. The mortgage in question also provided for the appointment of a receiver in any action to enforce payment of the mortgage and note. At the very least these contractual provisions placed the burden of proof upon the appellants-mortgagors to show that a receiver should not be appointed. Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241. However, although appellants proved a pri-ma facie case on their motion for appointment of a receiver, appellees adduced no testimony, filed no pleadings and their cross examination of appellant’s witness was insufficient to destroy the necessity of their going forward with the proof. However, I do not believe that the case of Tillman v. Baskin, 260 So.2d 509 (Fla.1972), is applicable here. We are not dealing with an involuntary dismissal but rather with the simple denial of a motion for appointment of a receiver. Thus Fla.R.Civ.P. 1.420(b), and the Baskin case are in my judgment inappo-site.


text:
    Leo J. GOLUB, Appellant, v. Rebecca N. GOLUB, Appellee.
    No. 75-1587.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 1976.
    Rehearing Denied Sept. 22, 1976.
    David A. Maney of Gordon & Maney, Tampa, for appellant.
    David S. Yost, Sarasota, for appellee.
   PER CURIAM.

Appellant/husband seeks review of an order which he contends illegally modified the final judgment in a dissolution of marriage proceeding. In November, 1973, the appel-lee/wife was awarded temporary alimony, attorney’s fees, and suit money, each amount subject to being used as set offs upon final determination of the cause. On February 24, 1974, the marriage was dissolved absolutely by a partial final judgment in which the court reserved jurisdiction on other issues raised by the pleadings. A final judgment was entered June 2, 1975, awarding alimony to the wife and determining her ownership in certain stock and in a partnership. The court awarded $5,000 as a special master’s fee to be paid by the appellant. No other costs were assessed against the husband and the court did not specifically reserve jurisdiction for this purpose. Appellee timely filed a notice of appeal from the partial final judgment and final judgment in this court on July 2,1975, which was voluntarily dismissed.

On July 15, 1975, appellee filed a motion for contempt for appellant’s failure to pay alimony, and on July 30, filed a motion for contempt for appellant’s failure to transfer certain properties as ordered in the final judgment. Also, on July 30, appellee filed a motion to tax attorney’s fees and suit money in her favor. On that same day, appellee filed a notice of hearing on the issues of contempt and costs as reserved by the February 24, 1975 partial final judgment. At the hearing on said motions, the court granted appellee’s oral motion to reopen and amend the final judgment for the purpose of assessing costs accrued prior to the entry of the said final judgment. On October 6, 1975, an order was rendered by the trial court ordering appellant to transfer the stock and partnership interest to appel-lee, and finding that appellee was entitled to a judgment of costs, but the specific amount was to be determined at such time as the wife provided the attorney for the husband a more detailed breakdown of costs.

Two points are presented for our consideration and decision. In point one, appellant contends that the trial court did not have jurisdiction to modify the final judgment to order him to transfer the stock and partnership interest. In point two, appellant contends that the trial court was without jurisdiction to assess additional costs.

As to point one, we hold that the order of October 6, requiring the transfer of certain assets awarded by the court in the final judgment to the appellee, was not a modification of the final judgment, but rather was an appropriate effort on the court’s part to enforce those provisions of the final judgment. Hoover v. Scott, Fla. 1950, 44 So.2d 657.

To decide point two, it is advisable first to consider the nature of costs. Costs are statutory allowances recoverable by the successful party as an incident to the main adjudication. State v. Barrs, 1924, 87 Fla. 168, 99 So. 668. They are neither part of the damages claimed nor a penalty and need not be specially pleaded or claimed. State v. Barrs, supra. The amount of costs does not affect the jurisdiction of the court. State v. Howell, 1945, 156 Fla. 163, 23 So.2d 153. Unlike the substantive issues in a lawsuit, we know of no rule which precludes a court from later entertaining a motion to tax costs even though it has not reserved jurisdiction to do so.

In the course of discussing appellate review from the taxing of costs, this court in Craft v. Clarembeaux, Fla.App.2d, 1964, 162 So.2d 325, assumed the propriety of an order taxing costs entered after the time for appealing from a final judgment had expired. Subject to the requirement of moving within a reasonable time, our supreme court held in Roberts v. Askew, Fla.1972, 260 So.2d 492, that “costs may be adjudicated after final judgment, after the expiration of the appeal period, during the pend-ency of an appeal, and even after the appeal has been concluded.” Admittedly, the judgment entered in that particular case prudently included a provision “ ‘that cost may be taxed upon motion,’ ” but the opinion does not suggest such a reservation as being necessary to jurisdiction.

The partial final judgment of February 24, 1975, dissolved the marriage but reserved jurisdiction on numerous other issues. This reservation was necessary to retain jurisdiction to pass upon these issues. Hyman v. Hyman, Fla.App.2d, 1975, 310 So.2d 378. The final judgment of June 2, 1975, resolved these issues. However, costs are in a different category. Cf. Chipola Nurseries, Inc. v. Division of Administration, Fla.App.1st, 1976, 335 So.2d 617. It was not necessary to reserve jurisdiction over costs in order to enter a subsequent order taxing costs in favor of the successful party. Therefore, the court did not need to try to reopen the judgment in order to award the costs. The length of time between the entry of the final judgment and the order of October 6, 1975, directing that costs should be taxed, was not unreasonable. Roberts v. Askew, supra.

Of course, the special master’s fee was a cost. See City of Miami v. Murphy, Fla.1962, 137 So.2d 825; Garlick v. Garlick, Fla.1948, 38 So.2d 222; 8 Fla.Jur., Costs, § 2 (1958, Supp.1976). Therefore, appellant suggests that the charging of the $5,000 special master’s fee against him in the final judgment constituted a rejection of any other claims for costs. However, the final judgment doesn’t say this, and an examination of the transcript of hearing which resulted in the order of October 6, 1975, re-' fleets that the court intended for the taxation of other costs to occur at a subsequent date. We believe that the court was within its authority to enter its order of October 6, 1975, directing the taxing of further costs. Our holding would be otherwise if it appeared that the court had already passed on the issue of costs when it entered the final judgment.

AFFIRMED.

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

      . The court found that the husband’s lack of candor concerning his income, assets, and net worth necessitated the appointment of a special master and the temporary award of attorney’s fees. The appellee was denied further attorney’s fees because the terms of the final judgment enabled her to pay them herself.

      . Case No. 75-951. Order dismissing appeal entered July 24, 1975.


text:
    Stanley Boyd STOOKEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1676.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 1976.
    Jack 0. Johnson, Public Defender, Bar-town, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Stookey appeals the revocation of his probation. We have carefully reviewed all the points raised on this appeal and find only one to be meritorious. Appellant was originally placed on probation for assault with intent to commit rape; however, after probation was revoked a judgment was erroneously entered for rape.

Accordingly, the revocation of probation is affirmed and the cause is remanded for correction of the judgment.

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


author: PE'R CURIAM.

text:
    Willard Lee BREWER, Appellant, v. STATE of Florida, Appellee.
    No. 75-886.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.
    Rehearings Denied Sept. 14, 1976.

      Fred Haddad of Sandstrom & Hodge, Fort Lauderdale, for appellant.
    Philip S. Shailer, State Atty., and Blaise Picchi, Asst. State Atty., Fort Lauderdale, for appellee.
   PE'R CURIAM.

Appellant-defendant, Willard Lee Brewer, appeals a judgment adjudging him guilty and imposition of sentence for the offenses of aggravated assault and marring or injuring a fence.

Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we determine that the evidence adduced at trial was totally insufficient to support that part of the judgment adjudging defendant guilty of aggravated assault, i. e., there was no evidence demonstrating that the defendant’s act of pointing a gun at the victim created in the victim a well-founded fear of imminent bodily harm. See State v. White, 324 So.2d 630 (Fla.1975).

Accordingly, that part of the judgment adjudging the defendant guilty of aggravated assault is reversed, and the sentence imposed thereon is vacated and set aside. In all other respects the judgment and sentence herein appealed is affirmed.

Reversed in part, affirmed in part.

CROSS and DOWNEY, JJ., and FO-GLE, HARRY W., Associate Judge, concur.


text:
    Robert J. ALMOND, as natural father, natural guardian and next of friend of Joseph Robert Almond and Robert John Almond, Jr., minors, Petitioner, v. Roger NOBLE, Individually and as Administrator of the Estate of Joy E. Noble, Respondent. Robert J. ALMOND, as natural father, natural guardian and next of friend of Joseph Robert Almond and Robert John Almond, Jr., minors, Appellant, v. Roger NOBLE, Individually and as Administrator of the Estate of Joy E. Noble, et al., Appellees.
    Nos. 76-435, 76-560.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1976.
    Rehearing Denied Sept. 9, 1976.
    Leonard Robbins of Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, for petitioner/appellant.
    Jack E. London of the Law Office of Jack E. London, Hollywood, for respondent/ appellee-Noble.
   PER CURIAM.

Petiton for Writ of Certiorari in Case No. 76-435 and Interlocutory Appeal in Case No. 76-560 were previously consolidated. Appellee’s motion to quash the interlocutory appeal was deferred until disposition of the petition for writ of certiorari. Upon a review of the briefs and record, we determine that the trial judge correctly denied petitioner’s motion to intervene and file amendment to complaint.

The Petition for Writ of Certiorari in Case No. 76-435 is denied. Appellee’s Motion to Quash Interlocutory Appeal in Case No. 76-560 is granted.

The trial court is affirmed.

WALDEN, CROSS, and ALDERMAN, JJ., concur.


text:
    In re the ESTATE of Francis P. MURPHY, Jr., Deceased. Jessie Smith MURPHY, Appellant, v. Anthony V. PACE, Jr., and Broward National Bank of Fort Lauderdale, Co-Executors of the Estate of Francis P. Murphy, Jr., Deceased, Appellees.
    Nos. 75-1146, 75-1315.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27. 1976.
    Rehearing Denied Sept. 27, 1976.

      J. Kaylor Young, Fort Lauderdale, for appellant, Jessie Smith Murphy.
    Clifford B. Wentworth, Hollywood, for appellee, Anthony V. Pace, Jr., as co-executor of the Estate of Francis P. Murphy, Jr., deceased, and Anthony V. Pace, Jr., Fort Lauderdale, for the Estate of Francis P. Murphy, Jr., deceased, and for the co-executors thereof.
   DOWNEY, Judge.

Appellant, the sole beneficiary of the Estate of Francis P. Murphy, Jr., seeks review of an order of the circuit court awarding a partial allowance of attorney’s fees to Anthony V. Pace, Jr., (attorney for the estate) and denying appellant’s petition to remove Mr. Pace as one of the co-executors of the estate.

It appears that Mr. Pace had represented Doctor Francis P. Murphy, Jr., and appellant for some years prior to the doctor’s death. At the doctor’s request Mr. Pace had prepared the doctor’s last will and testament, which included a provision naming Mr. Pace as one of the co-executors. Things went along smoothly for many months during the administration of the estate until Mr. Pace obtained an order allowing him a partial attorney’s fee of $30,000. Appellant eventually filed a petition to vacate said order and to remove Mr. Pace as one of the co-executors. After a full blown trial of all the issues raised by said petition the court made a partial allowance of attorney’s fees of $45,000 and refused to remove Mr. Pace as a co-executor.

The value of the services to the estate was vigorously contested by appellant. However, the record contains adequate competent evidence to support the trial court’s finding that the services rendered were services as an attorney for the benefit of the estate and that the value of said services based upon expert testimony was $45,000. Accordingly, we would be substituting our judgment for that of the trial court if we refused to accord that finding the presumption of correctness to which it is entitled.

The more difficult question is the validity of the order refusing to remove Mr. Pace as co-executor. The thrust of the petition vis a vis removal is that Mr. Pace failed to file accountings timely; Mr. Pace had obtained an order allowing a partial attorney’s fee without notice; and that appellant had become disenchanted with Mr. Pace. All of these contentions were thoroughly aired before the trial judge.

True the accounting in question was not timely filed. However the responsibility for the lack of timely filing must be shared by Pace’s co-executor. Furthermore, the accountings were eventually filed and no prejudice or harm to the estate resulting from the late filing has been shown. Removal of a personal representative pursuant to Section 733.504 Florida Statutes (1975) (formerly Section 734.11) involves the exercise of the trial court’s discretion. In re Estate of Anders, 209 So.2d 269 (Fla. 1st DCA 1968), and Kolb v. Levy, 104 So.2d 874 (Fla. 3d DCA 1958). As the court stated in the Anders case:

“. . .if the present petition sought the removal of a personal representative instead of the latter’s attorney, we would feel constrained to hold that the county judge’s court would have a ‘wide discretion’ in such removal proceedings and is not obliged to order removal ‘unless there is some tangible and substantial reason to believe that damage will otherwise accrue to the estate.’ ”

With regard to appellant’s disenchantment with Mr. Pace as a co-executor, at first blush it might seem that if the sole beneficiary wants a change in personal representatives, no one may complain. But that conclusion does not necessarily follow. It must be remembered we are dealing here with an executor appointed by the decedent in his will, not an administrator appointed by the court. As the court pointed out in In re Estate of Beichner, 432 Pa. 150, 247 A.2d 779, 781 (1968):

“ ‘A testator has, as a property right, the privilege and power to place the management of his estate in a selected person as a condition of his bounty.’ ”

The removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered. In re Estate of Beiehner, supra. The mere fact that a certain hostility has arisen between a beneficiary and the executor absent some showing of wrongdoing on the part of the executor or other factors which will prejudice the administration does not warrant such drastic action as removal. In re Estate of Beichner, supra; In re Hartt’s Estate, 75 Wyo. 305, 295 P.2d 985 (1956). Our close examination of the testimony in this case leads us to the conclusion that the trial court could well find that there was no showing that the administration would be prejudiced or endangered by Mr. Pace’s continuing to act pursuant to his nomination by the decedent as a coexecutor. We must also keep in mind that the administration of this estate remains under the continuing jurisdiction of the court, and should reason arise for removal in the future the court may entertain another petition for removal.

Accordingly, we find the issues on this appeal involved an exercise of the trial court’s discretion and no abuse thereof has been shown. The order appealed from is affirmed.

MELVIN, WOODROW M., Sr., Associate Judge, concurs.

WALDEN, J., dissents, without opinion.


text:
    Francis P. O’NEILL, a/k/a Patrick F. O’Neill, Appellant, v. STATE of Florida, Appellee.
    No. 74-1222.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.
    Rehearing Denied Sept. 27, 1976.

      Mary Lee Garfield, Washington, D. C., and William B. Seidel, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., and Philip Montante,__Acting. Sp. Asst. Atty. Gen., Fort Lauderdale, for appellee.
   MELVIN, WOODROW M., Sr., Associate Judge.

The parties will be here identified as they were in the trial court. The Defendant, Francis P. O’Neill, also known as Patrick F. O’Neill, was found guilty by judge trial of the offense of (1) sale of unregistered securities, and (2) sale of unregistered securities without being registered as a dealer or salesman, contrary to the applicable provisions of Sales of Securities Law, Chapter 517 F.S.

A security is defined in Section 517.-02, Florida Statutes:

“(1) ‘Security’ shall include any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation, whiskey warehouse receipt, or other commodity warehouse receipt, or right to subscribe to any of the foregoing; certificates of interest in a profit-sharing agreement, or the right to participate-therein; certificate of interest in an oil, gas, petroleum, mineral or mining title or lease, or the right to participate therein; collateral trust certificate, preorganization certificate, preorganization subscription, or any transferable share, investment contract, or beneficial interest in title to property, profits or earnings; interest in or under a profit-sharing or participation agreement or scheme, or any other instrument commonly known as a security, including an interim or temporary bond, debenture, note, certificate or receipt for a security or for subscription to a security.” (emphasis supplied)

The Florida Sales of Securities Law was enacted in harmony with the police power of the State and for the purpose of protecting the public from fraudulent and deceptive practices in the securities market. Edwards v. Trulis, Fla.App., 212 So.2d 893, text 895.

The document that is the basis for the State’s charge against O’Neill was executed by A.I.D. Incorporated, a Colorado corporation, Francis P. O’Neill, President, and it assigned and conveyed to Frank F. Conti (true name being Frank Troy, an undercover agent for the Florida Department of Law Enforcement) a fractional interest in an oil, gas and mineral lease as to described real estate in the Big Shanty Field Group, Lafayette Township, McKeon County, Pennsylvania, for a consideration of $5,000. The assignment conveyed “a leasehold average interest of 0.004444 per cent of the producing properties hereinafter described based on calculations of known reserves” and further “assignor warrants to assignee that it is the owner of the interest being assigned herein, and that there are completed, drilled, and producing oil wells located on the described property which are warranted to be capable of producing oil in quantity sufficient to produce 1666.67 barrels of oil from the assigned 0.004444 average interest within a period of five years from date.” (emphasis supplied)

The oil contract to which the assignment relates is between Universal Major Industries Corporation, a Nevada Corporation, and Banner Oil and Gas Funds, Inc., with offices in Kinston, New York, as seller, and A.I.D., Inc., a Colorado corporation, begin designated as the buyer. The seller warranted that at the rate of 0.857142 per barrel of oil in place that “the hereinafter described oil leases and wells can and will produce 375,000 barrels of oil within a five-year period, on a declining basis.” (emphasis supplied)

The contract further provides that the leases and oil wells in question “are being operated by Western Penn Operating Company and that said operations by West Penn Operating Company, or Universal Major Industrial Corporation shall continue until the well resources are depleted or the 375,000 barrels of oil are delivered, or five years, whichever is first.” The document further reserved to the seller the right to recapture the leased interest for salvage value if one or more of the wells became economically unproductive and was plugged and abandoned.

In determining whether the document is a security requiring registration under the Sales of Securities Law and whether the Defendant as a seller or dealer was required to register, we look not to the form but to the whole of the transaction, to the content of the document. The document reflects an investment of money in a common enterprise out of which profits, if any, were dependent solely upon the efforts of others. Based upon an analysis of the document and the totality of the activities of the Defendant, it is clear that the document is a security within the spirit and letter of Section 517.02, that the Defendant as an individual was conducting himself as a dealer in the security, and therefore he was required to be registered. The security instrument, and the sale thereof, here being considered do not come within any of the exemptions contained in the Sales of Securities Law.

We affirm the judgment of guilt and the sentences appealed from. See SEC v. Howey, 328 U.S. 293, 66 S.Ct. 1100, text 1104, 90 L.Ed. 1244, and United Housing Foundation, Inc. v. Foreman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621. See also 13 University of Miami Law Review, 320; 20 University of Miami Law Review, 546, for a comprehensive review of the development of securities law in the United States.

The Defendant in this Court seeks to raise for the first time a constitutional assault upon the Sales of Securities Law. The issue, not having been presented to the trial court, is out of season.

We have considered all other points properly presented and find each to be without merit.

AFFIRMED.

WALDEN, C. J., and DOWNEY, J., concur.


text:
    Gary LUDWICK, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-1525 and 75-1526.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.
    Rehearing Denied Sept. 27, 1976.

      Bryan C. Hugo of Hugo & White, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

Appellant in Case No. 75-1525 was tried and found guilty of both possession and delivery of cannabis. In Case No. 75-1526, he withdrew his previous plea of not guilty and entered a plea of nolo contendere to the offense of conspiracy fo commit a felony, specifically reserving his right to appeal. The cases have been consolidated for the purposes of this appeal.

The only issue presented is whether the trial court erred in denying appellant’s motions to dismiss for failure to make discovery. Testimony at a pretrial hearing established that the alleged offenses occurred at various times during December 1974. Throughout that month appellant had contacts with Officers Wingfield and Bass, undercover agents of the Orlando Police Department; the contacts included five telephone conversations involving narcotics transactions, which were recorded by the police. The tape cassettes were kept in a desk drawer in the Municipal Justice Building. The tapes were lost in the process of moving. There were differing opinions among police personnel who testified at the pre-trial hearing as to whether the tapes were merely for the use of law enforcement officers or were to have been preserved as evidence. There does not appear to have been a plan to preserve the subject tapes as evidence. Appellant made demand for production of the tapes under Fla.R.Crim.P. 3.220. Prior to trial appellant’s motions to dismiss were denied without prejudice.

Appellant has not provided this court with a transcript of the trial proceedings and we are unable to determine from the record that the loss of tapes resulted in prejudice to the defendant. The trial judge’s orders denying the motions to dismiss were without prejudice so the appellant upon a proper showing at the time of trial could have renewed his motions. This distinguishes the present case from Farrell v. State, 317 So.2d 142 (Fla.1st DCA 1975), in which the appellate court found unintentional destruction of tape recordings of drug transactions by the State to have violated defendants’ right to due process. The reversal in Farrell was based upon uncon-tradicted facts contained in a stipulation of the parties, particularly the stipulation that the erased tapes would have been beneficial to the defendants and that their destruction resulted in prejudice. In the present case we have no such stipulation of fact and appellant has not shown that he was actually prejudiced at trial. The purpose of the discovery rule is to help a defendant prepare his case, not to give him procedural escape hatch for the avoidance of prosecution. As stated by Judge Boyer in his concurring opinion in Farrell, supra:

“. . ., the mere fact that a tape recording which might have been used in evidence was inadvertently destroyed does not ipso facto lead to reversal. On the contrary, it must be demonstrated that the destroyed evidence was material and that the defendant was prejudiced by the destruction.” (At 144.)

The trial judge’s orders denying appellant’s motions to dismiss reach this court clothed with a presumption of correctness. The burden is upon the appellant to overcome that presumption and demonstrate from the record how he was prejudiced by the loss of the tapes. Without a record of what took place at trial we cannot make that determination.

Affirmed.

CROSS, J., and CARLTON, CHARLES T., Associate Judge, concur.


author: McCAULEY, Associate Judge. WALDEN, Judge

text:
    Daniel J. EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 74-537.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Rehearing Denied Sept. 27, 1976.
    James M. Russ and Charles R. Trulock, Jr., Law Offices of Howard Reiss, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   McCAULEY, Associate Judge.

This Appeal arises from judgments of conviction of (I) conspiracy to commit a felony, and (II) arson in the third degree, rendered in the Seminole County, Florida, Circuit Court.

Count I of the third amended information alleged that Mr. Evans committed the following acts in Orange and/or Seminole County, Florida, between August 12, 1973, and September 20, 1973:

“ . . . did unlawfully, willfully and maliciously procure the burning of personal property, to-wit: Twenty five (25) trucks in Seminole County, Florida, of the value of more than Twenty-five ($25.00) dollars, the property of Air-Flow Heating and Air Conditioning, Incorporated, a corporation, by procuring Benjamin Hanes to burn said personal property and Benjamin Hanes pursuant to . Daniel Evans’ procurement did, with the assistance of Arthur Brundon, unlawfully and maliciously set fire to and burn 'said personal property in violation of Florida Statute § 806.03.”

Count II charged that Mr. Evans:

“ . . . did unlawfully agree, combine, conspire and confederate with Arthur Brundon and Benjamin Hanes to set fire to and burn twenty-five (25) trucks, in Seminole County, Florida, of the value of more than Twenty-five ($25.00) dollars, and the property of Air-Flow Heating and Air Conditioning, Incorporated, a corporation, in violation of Florida Statute § 833.04.”

Appellant argues two points involved in this appeal. Appellant first alleges three violations of constitutional due process: The right to notice of the charges against him, the right to confront and cross-examine witnesses and the right to a trial free of irrelevant, prejudicial evidence. In support of this point Appellant alleges that at trial the State presented evidence and argument in support of a theory of the case based upon a claimed labor dispute between a local union, of which Appellant was a member, and Air-Flow Heating and Air Conditioning, Inc. The prosecutor injected the union controversy theory at the beginning of the trial in his voir dire examination; he further developed this theory in the course of his opening statement. Over objection, the prosecutor was allowed to present testimony from company officials concerning an alleged labor dispute dating back more than a year prior to the dates alleged in the charges. Appellant contends that this testimony constituted hearsay and had no relationship to Appellant or the factual issues as framed in the charges.

Appellant suggests that the testimony relating to the labor dispute was highly damaging and prejudicial, but he does not establish how he was harmed thereby. He admits that the essential elements of the crimes charged were established, even without the labor dispute testimony. Therefore, even if error was committed, it would be harmless.

Appellant’s second point alleges a violation of the Williams Rule where the trial court admitted evidence of collateral offenses. The Williams Rule, albeit Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86, announced the general rule that:

“ . . . similar fact evidence is admissible if relevant to a fact in issue even though it also points to the commission of a separate crime. The rule is subject to the lone exception that such evidence is inadmissible if its sole relevancy is to establish a bad character on the part of the accused.” Williams at 658-659.

A second exception has been added of inadmissibility if the sole relevancy is to show a propensity to commit crime. Baker v. State, 241 So.2d 683 (Fla.1970). Similar fact evidence (collateral offense) has been found admissible to prove identity, Fivecoat v. State, 244 So.2d 188 (2nd D.C.A.Fla. 1971); to prove pattern or intent, Ashley v. State, 265 So.2d 685 (Fla.1972); to show a general pattern of criminality, Marion v. State, 287 So.2d 419 (4th D.C.A.Fla.1969); to show a pattern of violent conduct, Bryant v. State, 235 So.2d 721 (Fla.1970); and to rebut possible defenses, Gordon v. State, 288 So.2d 295 (4th D.C.A.Fla.1974).

The recent Florida Supreme Court case of Ashley, supra, reaffirmed Williams stating:

“It is well settled in this state that evidence of other crimes is admissible if it casts light on the character of the act under investigation by showing either motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of such other crimes would have a relevant or material bearing upon some essential aspect of the offense then being tried.” Ashley at 693.

Appellant contends that the evidence admitted in violation of the Williams rule in the instant case involved the hearsay testimony of company managers, Blodgett and Cousineau, concerning a claimed labor-management dispute which occurred approximately one year prior; the testimony of Benjamin Hanes concerning acts of destruction he claimed to have committed at the request and direction of a Mr. Beck over the previous five years about which Arthur Brundon also testified; and evidence of conversations between Mr. Evans, Mr. Hanes and Mr. Brundon concerning other proposed acts of destruction involving other businesses.

The State contends, and we agree, that this evidence was relevant and properly admitted to show motive, intent and common scheme or design. The testimony showed that Appellant Hanes, and Brundon had been involved in other acts of industrial sabotage against non-union businesses as part of the union’s organizational effort.

There being no error demonstrated here which would mandate a reversal and new trial, the judgment of the lower court is hereby affirmed.

DOWNEY, J., concurs.

WALDEN, J., dissents, with opinion.

WALDEN, Judge

(dissenting):

I respectfully dissent and would reverse and remand for a new trial. It is clear, at least to me, that the State engaged in pros-ecutorial overkill, to an impermissible degree under umbrella of the Williams Rule. Here, the bulk of the testimony about alleged collateral crimes such as dynamiting a car and a number of other “burning jobs” was overdone and unnecessary and, as such, became a feature of the trial and an assault upon the defendant’s character. State v. Davis, 290 So.2d 30 (Fla.1974); Denson v. State, 264 So.2d 442 (1st D.C.A.Fla.1972); Reyes v. State, 253 So.2d 907 (1st D.C.A.Fla.1971); Green v. State, 228 So.2d 397 (2d D.C.A.Fla.1969).


author: WALDEN, Judge.

text:
    Wendy L. TREMAIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-901.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Rehearing Denied Sept. 27, 1976.
    Richard L. Jorandby, Public Defender, Frank B. Kessler and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond and Harry M. Hipler, West Palm Beach, for appellee.
   WALDEN, Judge.

The defendant was found guilty by jury on two counts of delivery of cannabis, one count of delivery of cocaine, and one count of possession of more than five grams of cannabis. As to all three charges of delivery, the defendant raised the defense of entrapment.

We have examined all points on appeal and find no reversible error. Hence, we affirm.

There is one underlying point which merits discussion. Defendant proffered the testimony of a psychologist who would have testified, in furtherance of defendant’s plea of entrapment, that defendant was dependent on others and lacked will power. Defendant did not plead insanity as a defense.

And as the basic question is whether testimony regarding the mental state of a defendant in a criminal case is admissible in the absence of a plea of not guilty by reason of insanity.

The answer to the question is “no.”

Mental medical testimony is generally not admissible unless the defendant places his sanity in issue. The rationale is that the test for criminal responsibility is whether the defendant knows the difference between right and wrong, other evidence relating to defendant’s mental state is immaterial, see gen. 23 C.J.S. Criminal Law § 867; 22 C.J.S. Criminal Law § 58. Illustrative of this principle of nonadmissibility are the following cases:

People v. Jenko, 410 Ill. 478, 102 N.E.2d 783 (1952). Defendant was indicted for first degree murder. At trial two psychiatrists testified on behalf of defendant. Both testified that, while he was a psychopathic personality, he was capable of differentiating between right and wrong. Defendant called a psychologist who testified that she gave a Rorschach test. The state objected and the psychologist testified no further. On appeal defendant contended the psychologist should have been allowed to testify regarding his mental condition. The court held her testimony was properly excluded.

“Criminal responsibility depends upon whether the accused knows the difference between right and wrong . A subnormal mentality is not a defense to a charge of crime unless the accused is by reason thereof unable to distinguish between right and wrong . . . .”

State v. Huff, 14 N.J. 240, 102 A.2d 8 (1953). Defendant was convicted of first degree murder. On appeal the court stated:

“A psychologist whose qualifications were unquestioned was offered by the defendant, and after the preliminary foundation had been established, he was asked if he ‘arrived at any definite conclusion as to the mental age and the capability of this defendant.’ The State’s objection to the question was sustained, and counsel argue it was offered ‘for the purpose of attempting to explain the burial and not for the purpose of reducing the chronological age from the defendant’s 38 years to a mental age, thereby creating a presumption of the defendant’s inability to commit a crime.’
“No objection appears in the record challenging the court’s ruling and the matter is not therefore properly before us. Nevertheless, on the merits we find no error.
“An adult’s responsibility for a crime is not measured by a comparison of his mental ability with an infant’s, but rather the test is his appreciation of the nature and the quality of his act and the difference between right and wrong in its commission.”

Commonwealth v. Bey, 364 Pa. 150, 70 A.2d 342 (1950). Defendant was convicted of murder. At the trial he proffered the testimony of a medical witness for the purpose of testifying that a physical injury to the defendant’s chest, accidentally received at work, had produced a mental reaction which, in his opinion, was capable of inducing defendant’s later criminal conduct. The court held this testimony was properly excluded noting that defendant had never raised the issue of his sanity.

McKee v. State, 372 P.2d 243 (Okl.Cr.1962). Defendant was found guilty of manslaughter and appealed the trial court’s refusal to admit the testimony of Dr. Unger-man, a psychiatrist. . The court held such testimony had been properly excluded:

“The state of mind of the accused is the proper subject for expert testimony when the defense is based on a plea of insanity at the time of the commission of the act but such is not the case here presented.”

State v. Narten, 99 Ariz. 116, 407 P.2d 81 (1965). Defendant was convicted of first degree murder. On appeal the defendant argued that the trial court erroneously excluded psychiatric testimony showing the absence of a specific mental state though not amounting to legal insanity. On appeal the testimony was held properly excluded.

Johnson v. State, 223 Miss. 56, 76 So.2d 841 (1955). Defendant did not plead insanity at his first degree murder trial; therefore, the trial court properly excluded testimony concerning peculiarities, etc., displayed by defendant. See Fitzhugh v. State, 43 So.2d 831 (Ct. of App.Ala.1949), but see State v. Padilla, 66 N.M. 289, 347 P.2d 312 (1959).

The Florida Supreme Court case of Everett v. State, 97 So.2d 241 (Fla.1957), indicates support for the foregoing principle. In Everett defendant pleaded not guilty by reason of insanity to first degree murder. On appeal defendant urged that the court’s refusal to give certain charges was erroneous. The substance of the instructions was that the defendant’s mental condition could be considered by the jury in arriving at the determination of whether he was capable of forming a premeditated design even though he was not found to be insane. In response to this the court stated:

“It is settled law that conviction of a lower degree of crime cannot be secured for the reason that defendant’s mind was so unsound as to render him incapable of deliberation if he knew the nature of his act.”

The court further noted that in Florida the test for determining criminal responsibility is whether one knows right from wrong.

Furthermore, in Ezzell v. State, 88 So.2d 280 (Fla.1956), the court held that the testimony of an expert witness was properly excluded. The purpose of the testimony was to prove that defendant had a psychopathic personality so severe as to show lack of intent to commit first degree murder. Since the plea of insanity was out and there was no defense based on mental defects less than insanity, the expert testimony was properly excluded.

The foregoing cases support the holding that, since defendant in the case at bar did not plead not guilty by reason of insanity, the psychologist’s testimony was correctly excluded.

The two Florida cases, Ezzell and Everett, supra, indicate Florida aligns itself with the jurisdictions which have not followed the diminished responsibility doctrine and, hence, the trial court in the case at bar correctly excluded the testimony of the psychologist.

It is our opinion that to allow expert testimony as to mental state in the absence of an insanity plea would confuse and create immaterial issues. If permitted, such experts could explain and justify criminal conduct. As lay people we could guess that almost everyone who commits crimes against society must have some psychiatric or psychological problem. However, the test continues to be legal insanity as defined and not otherwise, and the court and jury should not be subjected to testimony as to mental flaws and justifications where the defendant knew the difference between.right and wrong at the time of the crime.

For these reasons we affirm the trial court decision rejecting the testimony of the psychologist.

AFFIRMED.

DOWNEY, J., concurs and

ANDREWS, JOHN S., Associate Judge, dissents without opinion.

      . There is the theory of diminished responsibility under which evidence of a mental condition less than insanity is admissible. This evidence has been held admissible for purposes of negating specific intent, to determine what punishment to give a defendant, see 22 A.L.R.3d 1228, Annot.: Mental or emotional condition as diminishing responsibility for crime.

      . Florida cases have held that expert testimony regarding the mental state of a witness (not a defendant) may be introduced into evidence. This evidence may be entered even though no one is arguing the witness is insane. Hawkins v. State, 326 So.2d 229 (2d DCA Fla.1976); see Dinkins v. State, 244 So.2d 148 (4th DCA Fla. 1971); see 15 A.L.R. 932, Annot.: Impeachment of witness by expert evidence tending to show mental or moral defects.


author: WEAVER, SIDNEY M., Associate Judge.

text:
    Francis K. BUCKLEY, Appellant, v. Jean C. BUCKLEY, Appellee.
    Nos. 75-934, 75-1834.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Rehearing Denied Sept. 27, 1976.
    Francis K. Buckley, in pro. per.
    J. B. Patterson, of Patterson, Maloney & Shankweiler, Fort Lauderdale, for appellee.
   WEAVER, SIDNEY M., Associate Judge.

Appellant-husband timely appeals from a Final Judgment of Dissolution of Marriage and an Order Granting Sanctions entered after Final Judgment. The two cases have been consolidated. -

We have reviewed the various points on appeal and after consideration of the record, briefs, and oral argument of counsel we find there is competent substantial evidence to support the findings of the trial judge as to each point. Further,, we find that the trial judge did not abuse his broad discretion as he dissolved this marriage of over thirty years, taking into consideration the best interest of the minor children and the financial posture of the parties.

We affirm the trial judge in all respects but conclude that one troublesome area exists which requires future guidance. In addition to the payment of permanent, periodic alimony, the husband is required to make the full mortgage payments on the marital domicile of the parties which is occupied by the wife and the minor children. Based on the facts and circumstances of this case, we direct the trial court to give proper consideration to awarding the husband an equitable credit when, and if, the said property is partitioned as contemplated by paragraph 3(b) of the Final Judgment. See Guthrie v. Guthrie, 315 So.2d 498 (Fla. 4th DCA 1975).

Affirmed, with directions.

MAGER, C. J., and ALDERMAN, J., concur.


author: DAKAN, STEPHEN LEE, Associate Judge.

text:
    John GERECA, Appellant, v. STATE of Florida, Appellee.
    No. 75-2034.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1976.
    Rehearing Denied Sept. 27, 1976.
    Bruce Zeidel, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAKAN, STEPHEN LEE, Associate Judge.

Appellant appeals the judgment and sentence of the trial court pursuant to a jury verdict finding him guilty of breaking and entering a building with intent to commit a felony and grand larceny.

The only issue before this Court is the application of Rule 3.191, Florida Rules of Criminal Procedure, “Speedy Trial,” to the facts of this case.

The Appellee filed an information charging appellant with the crimes for which he was ultimately convicted. The record shows he was arrested in connection with these charges on April 5, 1975.

On May 16, 1975, the Appellee filed a motion for continuance alleging that the victim would be out of the state and unavailable for trial until sometime in September of 1975. The motion asked that the case be placed on the trial docket for the first available trial week in September. No disposition of this motion is reflected in the record.

On June 10, 1975, Appellant filed a demand for speedy trial demanding that he be brought to trial within 60 days. Appellee, on June 18, 1975, filed another motion for continuance. The motion alleged that the trial was set for July 7, 1975, and that the victim would be out of town as a steward on a ship until September of 1975. Appel-lee contended in the motion that this was an essential witness and that his absence was an exceptional circumstance under Rule 3.191(f), Florida Rules of Criminal Procedure.

The trial court, on June 27, 1975, entered an order finding exceptional circumstances as defined in the rule and set the case for “the top of the trial calendar for the first available trial week in September, 1975.” This was apparently the week of September 8, 1975, for on September 5, 1975, Appellee filed a motion for continuance alleging that another material witness was presently out of state and Appellee was only informed of this on September 5. The motion stated that the witness was under subpoena, and that his testimony was vital to the Appel-lee’s case because he witnessed many of Appellant’s activities during the time periods alleged in the Appellee’s information. Appellee requested a one week continuance and said he could locate the witness and present his testimony at trial. This motion was followed, on September 8, 1975, by another motion seeking an “extension of speedy trial time” and apparently alleging that the facts stated in Appellee’s motion of September 5, 1975, constituted exceptional circumstances as defined in Rule 3.191(f)(iii), Florida Rules of Criminal Procedure.

The record does not reflect the disposition of these motions but apparently the case was continued until the week of September 1, 1975, when it was tried and a guilty verdict returned. After this trial, the Appellant filed a motion for discharge claiming he had been denied his right to a speedy trial. This motion was denied by the trial court.

Appellant relies almost entirely upon this Court’s opinion in Anderson v. Edwards, 234 So.2d 720 (4th D.C.A.Fla.1970) and the general language of Rule 3.191, Florida Rules of Criminal Procedure. In Anderson, supra, we indicated that unavailability of a witness was not sufficient to toll the provisions of Section 915.01(2), Florida Statutes. That Statute has since been repealed, but it provided for a discharge of a defendant upon demand if he had not been tried within three successive terms of court. The only exception was a filing for a continuance by the defendant or prevention of attendance of witnesses by the defendant. See Section 915.01(2), Florida Statutes (1967).

Rule 3.191(f), Florida Rules of Criminal Procedure, provides for continuances and extension of the speedy trial time limits imposed by the rule on a showing of “exceptional circumstances.” The trial court in this case found such exceptional circumstances in its order of June 27, 1975, which set the case for the first available trial week in September. Appellant has not attacked this order nor the finding upon which it was based. We note, parenthetically that without this order, the 60-day provisions of Rule 3.191(a)(2) Florida Rules of Criminal Procedure, would have expired prior to September of 1975. We also note that Appellant was tried within 180 days from his arrest.

By its order of June 27, 1975, the trial court extended the provisions of Rule 3.191(a)(2) beyond the 60-day limit. Once the time limitations set forth in the rule were no longer applicable, the trial court was still required to grant Appellant a speedy trial. At this point, however, the right to speedy trial is relative, and the question of whether a trial date affords a defendant a speedy trial must be determined in light of the circumstances of the particular case. The trial court is vested with discretion in determining whether a delay in a particular case has prejudiced a defendant. See, State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); King v. State, 303 So.2d 389 (3rd D.C.A.Fla.1974). In this case, a delay of one week from the scheduled trial date of September 8 has not been shown to be prejudicial.

The judgment and sentence appealed is therefore affirmed.

Affirmed.

WALDEN and ALDERMAN, JJ., concur.


text:
    David Dwight BADKEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-733.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1976.
    Rehearing Denied Sept. 27, 1976.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant takes a timely appeal from his plea of nolo contendere to possession of marijuana, specifically reserving his right to appeal the trial court’s denial of his motion to suppress. Appellant’s sole point argues that the trial court erred in denying his motion to suppress tangible evidence seized pursuant to an invalid inventory search.

Within the last year this court has considered a number of cases involving war-rantless inventory searches of automobile. State v. Jenkins, 319 So.2d 91 (Fla.4th DCA 1975); Weed v. Wainwright, 325 So.2d 44 (Fla.4th DCA 1976); Chuze v. State, 330 So.2d 166 (Fla.4th DCA 1976). Reviewing the present case in light of Jenkins, Weed and Chuze, supra, we conclude that the State failed to meet its burden of proof in showing the constitutional validity of this search. State v. Hinton, 305 So.2d 804 (Fla.4th DCA 1975). The trial court erred in denying appellant’s motion to suppress.

Reversed and remanded for further proceedings consistent with this opinion.

WALDEN and ALDERMAN, JJ., concur.

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


author: SCHOONOVER, JACK R., Associate Judge.

text:
    Benjamin Levy BURNSED, Appellant, v. SEABOARD COASTLINE RAILROAD COMPANY, a corporation, Appellee.
    No. 75-743.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 1976.

      E. Summers Sheffey and Leonard J. Hol-ton of Hoffer & Sheffey, Zephyrhills, for appellant.
    George D. Lynn, Jr. of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appellee.
   SCHOONOVER, JACK R., Associate Judge.

Appellant/plaintiff, Benjamin Levy Burnsed, sought damages against the appel-lee/defendant, Seaboard Coastline Railroad Company, for injuries sustained in a collision with one of appellee’s trains at a railroad crossing. At the conclusion of the appellant’s case in chief, and again at the close of all of the evidence, the appellee made a motion for a directed verdict. The trial judge reserved ruling on the motion and submitted the matter to the jury, which returned a verdict for the appellant in the amount of $15,000.00. After verdict, the trial court granted appellee’s motion for a directed verdict. Appellant contends the trial court erred in directing a verdict in favor of the appellee.

Viewing the testimony adduced at the trial in a light most favorable to the appellant, we disagree with appellant. We affirm.

Appellee’s train stopped during hours of darkness at the crossing in question because its brakes had locked. Appellant who had driven through the crossing many times and was thoroughly familiar with it, did not heed the stop sign, and without looking either right, left, or straight ahead, drove into the side of appellee’s railroad train which consisted of 171 cars, a caboose and four engines which had stopped because of the emergency. Railroad personnel were in the engine and the caboose. As soon as the train stopped, the flagman got off and started walking forward towards the crossing in question which was approximately one mile from the caboose of the train in which he was riding. The evidence is un-contradicted that the train was stopped for no more than ten minutes, and that it would have taken the flagman fifteen minutes to arrive at the crossing and set in place the “fusees” (flares) as required by Fla.Stat. § 357.08(1). The evidence is un-controverted that the only reason the flagman did not continue to the crossing and place the warning signals required was that the brakes released and the train departed shortly after it stopped.

Appellant argues that appellee’s failure to have the fusees in place constituted a violation of Fla.Stat. § 357.08(1) and is negligence per se. But, as the Supreme Court has held in Burnsed v. Seaboard Coastline Railroad Co., Fla.1974, 290 So.2d 13, the statute must be construed to mean that the fusees should be placed at the crossing within a reasonable time.

The mere fact that it would be possible to draw some inference of negligence on the part of the appellee, does not warrant submitting an issue of negligence to a jury. Rather, the test is whether a reasonable inference exists. Here we find no reasonable inference of negligence to warrant a submission of the question of negligence to a jury. There was no evidence of improper or unlawful operation of the train, and no evidence that it would have been possible to place the fusees at the railroad crossing in question before the appellant’s vehicle collided with same. In effect the appellee’s employees on the train simply did not have time to comply with the statutory requirement of placing the fusees. Cf., Waters v. Winn-Dixie Stores, Inc., Fla.App.2d 1962, 146 So.2d 577.

Accordingly, the judgment of the trial court is affirmed.

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

      . “(1) Whenever a railroad shall engage in a switching operation or stop so as to block a public highway, road or street at any time from one half hour after sunset to one half hour before sunrise, the crew of such railroad train shall cause to be placed a lighted fusee or other visual warning device in both directions from such railroad train upon or at the edge of the pavement of the highway, road or street to warn approaching motorists of the railroad train blocking the highway, road or street; provided, this section shall not apply to railroad crossings at which there are automatic warning devices properly functioning or at which there is adequate lighting.”


text:
    STATE of Florida, By and Through the OFFICE OF the STATE ATTORNEY FOR the TWENTIETH JUDICIAL CIRCUIT, Petitioner, v. John Patrick McNALLY, Respondent.
    No. 75-1131.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 1976.

      Joseph P. D’Alessandro, State Atty., and Louis S. St. Laurent and Dennis Hedge, Asst. State Attys., Fort Myers, for petitioner.
    Frank C. Alderman, III, of Alderman & Wallace, Fort Myers, for respondent.
   PER CURIAM.

The state contends the trial court erred in denying its motion to strike the evidence of insanity which respondent McNally intends to introduce at trial. We disagree and deny certiorari.

McNally was charged with four counts of manslaughter, two pursuant to Fla.Stat. § 782.07 (manslaughter by culpable negligence), and two pursuant to Fla.Stat. § 860.01 (manslaughter by driving an automobile while intoxicated).- McNally notified the state of his intention to rely on the defense of insanity and filed a statement of particulars consisting of reports of experts who had examined him for the purpose of testifying on this issue. The reports generally showed McNally to be an alcoholic who was most likely suffering a blackout at the time the deaths occurred. The state filed its motion to strike the evidence on the grounds that it did not constitute a legal defense to the crime of manslaughter as charged. Upon denial of the motion to strike, the State filed this petition for a writ of certiorari.

The availability of intoxication as a defense to a crime is set forth in Cirack v. State, Fla.1967, 201 So.2d 706, where the court said at p. 709:

“Although the opinion of Dr. Estes appears to have been treated as dealing, with the sanity of Cirack it obviously did not. The doctor stated in his report and on examination outside the presence of the jury that he found no evidence of a psychosis, mental disease or disorder of the mind in Cirack. His opinion held merely that Cirack’s judgment and ability to distinguish between right and wrong was impaired by too much alcohol and too little food. The law recognizes insanity super-induced by the long and continued use of intoxicants so as to produce. ‘a fixed and settled frenzy or insanity either permanent or intermittent.’ Garner v. State, 1891, 28 Fla. 113, 9 So. 835; Cochran v. State, 1913, 65 Fla. 91, 61 So. 187; and Britts v. State, 1947, 158 Fla. 839, 30 So.2d 363. This condition was not found in Cirack.
“Dr. Estes opinion could only go to proving the defense of voluntary intoxication, not insanity. While not a complete defense, voluntary intoxication is available to negative specific intent, such as the element of premeditation essential in first degree murder. Garner v. State, supra.”

Before this court, the respondent McNally essentially makes three contentions. First, he contends that the crime he was charged with required a specific intent and voluntary intoxication would be a defense. Second, he claims that since he was an alcoholic, his intoxication was therefore not “voluntary.” Third, he claims that the psychiatrists will be able to testify to the type of fixed and settled frenzy or insanity which will constitute a defense under the rule of law enunciated in Cirack above. We categorically reject the first two contentions; however, we hold that the psychiatrist’s reports before the trial court did not, as a matter of law, conclusively rule out the third possibility. We, therefore, decline to issue the writ.

First, McNally cites no authority for his contention that the crimes for which he was charged require a special intent, i. e., the intent to drive while intoxicated, so that voluntary intoxication which negates that intent would be a defense. Common sense indicates otherwise, for to allow that defense would in effect completely nullify the effect of the statute. At 7 Am.Jur.2d, Automobiles § 280, it is said at p. 828:

“In any event, in accordance with the general rule that voluntary drunkenness is not a defense to crime, one cannot, on the ground that he was so intoxicated that he did not appreciate his condition or the dangers that might arise therefrom, avoid criminal liability for a homicide committed in driving a motor vehicle while intoxicated.”

Second, McNally argues, but cites no authority, for the proposition that alcoholism in itself is enough to render intoxication “involuntary.” In the annotation at 8 A.L.R.3d 1236, Modern Status of the Rules as to Voluntary Intoxication as Defense to Criminal Charge, it is said at p. 1239:

“. . . the decisions indicate that it is only where the alcohol is introduced into the accused’s system by force majeure that the intoxication would be regarded as involuntary for the purposes of the application of these rules.”

A footnote to this passage indicates that cases presenting instances of involuntary intoxication are “simply and completely nonexistent.” We agree. Therefore we reject McNally’s second contention.

Turning to the respondent McNally’s third contention, we note that the State’s position does have some merit; however, we must reject the State’s petition. We have reviewed the reports of the four medical experts, Drs. Wiseman, Bourne, Haber, and Alford. Generally, these reports indicate the absence of any mental condition that would constitute a defense under Ci-rack, supra. One psychiatrist, Dr. Wise-man, even indicated “There was no evidence of psychotic thought process and he was entirely oriented in time, place and person.” Another psychiatrist, Dr. Haber, while noting “that there were no symptoms or signs of mental deficit, organic brain syndrome or psychosis,” referred to a previous head injury and did indicate the data concerning McNally was consistent with the diagnosis of “Alcoholic Pathological Intoxication in a depressive neurotic individual cognizant of previous alcoholic induced episodes of amnesia.” Concluding that cognition and perception were impaired during McNally’s intoxication, this psychiatrist made a qualified opinion that McNally was “insane” at the time of the alleged offense. From this report we cannot conclude the testimony of this psychiatrist would be legally sufficient to show that McNally has a “fixed and settled frenzy or insanity either permanent or intermittent” required under Cirack, supra. But on basis of the report, we cannot say as a matter of law that this psychiatrist’s testimony may not be sufficient.

Surely, the Cirack test must contemplate a mental disease or disorder which manifests itself intermittently or permanently irrespective of consumption of alcohol. Otherwise any individual diagnosed as an alcoholic would be able to assert the defense of insanity on that basis alone. We rejected that concept in appellant’s second contention.

We have under other circumstances upheld a pre-trial exclusion of expert testimony, Nelson v. State, Fla.App.2d 1975, 319 So.2d 154. But such a motion in a criminal case must be viewed with great caution and any doubts must be resolved in favor of the accused. Here, we are reviewing only reports without the benefit of testimony directed to the issue of insanity. We cannot now say there would not be sufficient evidence for a jury to conclude that McNally has “a fixed and settled frenzy or insanity either permanent or intermittent,” so as to relieve him of consequences of an act otherwise criminal. Accordingly, we are unwilling at this time to say that McNally should be precluded from presenting evidence on his defense of insanity.

Certiorari denied.

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