author: ANSTEAD, Judge.

text:
    Julia B. REESE, Appellant, v. SEABOARD COASTLINE RAILROAD COMPANY, National Railroad Passenger Corp., a/k/a Amtrak, and D. F. Cook, Individually, Appellees.
    No. 76-2063.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.
    Rehearing Denied July 17, 1978.

      Chandler R. Muller and Kirk N. Kirkcon-nell of Muller & Kirkconnell, P.A., Winter Park, for appellant.
    Janis M. Halker of Lippincott & Halker, Winter Park, and Gurney, Gurney & Hand-ley, P.A., Orlando, for appellees.
   ANSTEAD, Judge.

The appellant, Julia B. Reese, is here seeking a new trial in a railroad accident case, claiming error in the exclusion of evidence and an improper verdict. We reverse.

Reese was a passenger in an automobile driven by Clarence James which was struck by a northbound Amtrak passenger train. There was conflicting evidence presented at trial as to the operation of the warning signals at the crossing and the condition of the railroad right-of-way near the crossing in regard to visual obstructions. The trial court refused to admit evidence as to the warning signals’ operation the day after the accident and of a railroad regulation restricting the height of vegetation in the railroad right of way.

Reese sustained severe and permanent injuries. The jury returned a special verdict finding James 95 percent responsible for the accident and the railroad 5 percent responsible. In answer to the verdict question asking for the total amount of Reese’s damages, the jury wrote in “$25,000.00 medical expenses”.

The first point on appeal concerns the admissibility of evidence of the failure of the crossing signals on the day after the accident. There was conflicting evidence presented as to whether the warning bells and lights were operating at the time of the accident. In the case of Seaboard Air Line Railroad Company v. Hawes, 269 So.2d 392 (Fla. 4th DCA 1972) this court held:

To rebut this testimony, the defendant offered the testimony of Mr. I. E. Scott, an employee of the defendant responsible for the maintenance of the signals. Mr. Scott testified that he inspected the signal devices on the day after the accident, but he was not allowed to testify as to their condition at that time. We believe that such testimony was relevant to a material fact in issue and should have been allowed to go to the jury for whatever weight the jury might have decided to attach to it. The law favors the admission of all relevant evidence, unless it is excluded by some specific principle of law. 31A C.J.S. Evidence § 158, p. 427. Evidence of the condition of a machine at a point in time subsequent to the time under investigation may be so remote as to be without probative value. We recognize that the determination of the relevancy and materiality of such evidence rests within the discretion of the trial judge. However, we conclude that the testimony in question should have been admitted as relevant evidence of the condition of the lights at the time of the accident because of the short time lapse between the time of the accident and Mr. Scott’s observations and the relatively stable nature of the equipment involved. See 32 C.J.S. Evidence § 585, p. 714. Id. at 395.

Under the Hawes decision it was error to exclude evidence of the warning signals’ operation on the day following the accident.

Reese next claims error in the exclusion of the railroad’s regulations pertaining to the control of vegetation near the crossing. Seaboard’s regulations provided:

Road crossings, maintain a cover of low growing grasses but eliminate all tall growing vegetation over three feet high from the right-of-way line to the track extending for 200 hundred (sic) feet on each side of the crossing.

Again, there was conflicting evidence presented as to the condition of the right of way near the crossing. However, there was some evidence presented that visibility south of the crossing for the train engineer and motorists was'impaired by the growth of trees and other vegetation. Since the condition of the right of way was in issue, we believe the regulation constituted relevant evidence on that issue and should have been admitted. The reason most commonly assigned in support of the theory or doctrine of admissibility is that the employer’s rule, while not conclusive of the question, constitutes some indication of the care required under the circumstances, and may properly be considered by the jury in determining the question of negligence. 50 A.L.R.2d 16 (1956).

We also believe the verdict was patently erroneous. In response to an interrogatory calling for the jury to determine the total amount of Reese’s damages, the jury assessed only the medical expenses. It is undisputed that Reese sustained severe injuries and was entitled to an assessment of other elements of damages in addition to medical expenses. There is some indication that the jury’s verdict resulted from a misunderstanding of previous questions asked of the court. Regardless of the cause, however, the verdict was simply not a proper response to the interrogatory pertaining to damages and cannot stand.

For the foregoing reasons this cause is hereby reversed and remanded to the trial court for a new trial on all issues.

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


source: Caselaw Access Project

author: DOWNEY, Chief Judge.

license: Public Domain

text:
    HEINZ PAVING & ASPHALT COMPANY, INC., a Florida Corporation, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Foreign Corporation, Appellee.
    No. 77-1013.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.
    Rehearing Denied July 19, 1978.

      Joseph L. Daye, Fort Lauderdale, for appellant.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellee.
   DOWNEY, Chief Judge.

Appellant sued appellee to recover a sum of money allegedly owed to appellant for labor and materials furnished by appellant for construction of a public building in Ft. Lauderdale, Florida. Appellee is the surety on a performance bond furnished pursuant to Section 255.05, Florida Statutes (1975). The trial court sustained a motion to dismiss appellant’s complaint and granted appellant 20 days to amend. Instead of amending said complaint appellant filed a new suit alleging virtually the same cause of action but adding therein a new date for services rendered by appellant as “the last stage of work to complete the project.” Apparently this new allegation in the new suit made the claim timely by bringing it within the one year limitation of Section 255.05(2), Florida Statutes (1975). Appellee attacked the complaint in this case (the new suit) by motion to dismiss and motion to strike.

Appellant took a voluntary dismissal of the first suit. Thereafter, the trial court held an evidentiary hearing in this case (the second suit) and then entered an order dismissing the complaint with prejudice. It is that order which we now review.

We conclude that, since no final judgment had been entered in the first suit, appellant was entitled to take a voluntary dismissal of that suit. Hibbard v. State Road Dept. of Florida, 225 So.2d 901 (Fla.1969); Gate City, Incorporated v. Arnold Construction Company, 243 So.2d 637 (Fla. 4th DCA 1971). Thus, the trial court had for consideration a complaint in the new suit which alleged the appellant had performed labor and service and furnished materials on a public job for which appellee furnished a performance bond. The allegations of the complaint make it appear the suit was timely filed and in all other respects the complaint appears to state a cause of action. Therefore, the motion to dismiss and motion to strike should have been denied and appellee should have been required to answer. Instead, the trial court held an evidentiary hearing during which inquiry was directed toward the question of whether appellee had concealed' from appellant the fact that appellee had furnished a performance bond on the job.

It appears to us the trial court was premature in holding the evidentiary hearing. The pleadings were not yet settled and regardless of what had transpired in the past vis-a-vis the first suit which was voluntarily dismissed, the only question before the court was the sufficiency of the complaint in this new suit. Perhaps on motion for summary judgment proof could be adduced to demonstrate there is no genuine issue of material fact involved and that appellee is entitled to judgment as a matter of law. However, this case has not yet arrived at that juncture.

Accordingly, the judgment appealed from is reversed and the cause is remanded with instructions to reinstate the complaint and for further proceedings.

REVERSED AND REMANDED with directions.

ANSTEAD, J., and SILVERTOOTH, LYNN N., Associate Judge, concur.

      . No final judgment had been entered in that suit.


author: PER CURIAM.

text:
    JONES & BISHOP, P. A., Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Diana L. McCrary, Respondents.
    No. 77-2702.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.
    Rehearing Denied July 17, 1978.
    Michael D. Jones of Jones & Bishop, P. A., Altamonte Springs, for petitioner.
    Kenneth H. Hart, Jr., Gen. Counsel, Tallahassee, and Alex D. Littlefield, Jr., Tallahassee, for respondent Florida Department of Commerce Division of Employment Security.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

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


author: SMITH, Judge.

text:
    FRED L. AHERN, INC., etc., et al., Appellants, v. V. E. RAWSON d/b/a Rawson Construction, Appellee.
    No. JJ-27.
    District Court of Appeal of Florida, First District.
    June 13, 1978.
    Rehearing Denied July 14, 1978.
    Jere D. McWinn, Jacksonville, for appellants.
    Carl K. Zolezzi, Jr., of Alexander & Zolez-zi, P. A., Neptune Beach, for appellee.
   SMITH, Judge.

An interlocutory appeal. Rule 4.2, Fla.R.App.P. (1962). The complaint as amended does not wholly fail to state a cause of action for foreclosure of a mechanic’s lien under circumstances envisioned in Brown v. First Federal Savings & Loan Ass’n, 160 So.2d 556 (Fla. 1st DCA 1964). The sufficiency of plaintiff’s proof to avoid ultimate dismissal under Section 713.06(3)(d)1, Florida Statutes (1977), may be appropriately tested when the proofs are developed. The interlocutory order is AFFIRMED. Motions for attorneys’ fees DENIED.

BOYER, Acting C. J., and BOOTH, J., concur.


author: HUBBART, Judge.

text:
    Victor P. KRESTOW, Appellant, v. Shirley O. WOOSTER, Jr., et al., Appellees.
    Nos. 77-144, 77-145.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 14, 1978.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellant.
    Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appel-lees.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

The plaintiff Victor P. Krestow appeals from a final judgment entered upon a jury verdict in favor of the defendants Shirley 0. Wooster, Jr., T. Trip Russell, William Russell, Russell-Wooster Associates, and their insurer, the Continental Casualty Company in an action for professional architect malpractice, breach of contract, and fraud and a counterclaim by the defendants against the plaintiff for monies owed on a contract for architectural services, such judgment having been entered in the Circuit Court for the Eleventh Judicial Circuit of Florida. The plaintiff appeals raising a number of contentions none of which in our opinion rise to the level of reversible error sufficient to upset the judgment appealed from. We accordingly reject such contentions and affirm. Gallegher v. Federal Insurance Co., 346 So.2d 95 (Fla. 3d DCA 1977); Strahm v. Aetna Casualty & Surety Co., 285 So.2d 679 (Fla. 3d DCA 1973); Bell’s Fish & Poultry Co. v. Jenkins, 227 So.2d 512 (Fla. 1st DCA 1969); Warfield v. Sparks, 203 So.2d 63 (Fla. 1st DCA 1967).

One point merits brief discussion. The plaintiff contends that he was entitled upon motion at trial to a directed verdict on his claim for professional malpractice and breach of contract against the defendants as architects. He contends that as a matter of law the defendants breached their duty of due care in submitting building and architectural plans in conformance with local zoning ordinances because the plans in fact violated such local ordinances. We cannot agree.

The law is clear that an architect owes a duty of due care to his clients in arranging site plans and drawing buildings in conformance with building and zoning codes as well as other similar local ordinances. That duty is discharged, however, when the architect, as in the instant ease, reasonably relies on the legal advice of the client’s lawyer concerning the nature of the applicable zoning classification and submits architectural plans in conformance with such zoning. There can be no action against the architect in tort or contract if it later develops, as here, that the legal advice was wrong and the zoning classification is different from that represented by the lawyer. Robsol, Inc. v. Garris, 358 So.2d 865 (Fla. 3d DCA) (opinion filed May 16, 1978); Graulich v. Berlowe & Associates, Inc., 338 So.2d 1109 (Fla. 3d DCA 1976); Maritime Construction Co. v. Benda, 262 So.2d 20 (Fla. 1st DCA 1972); Geer v. Bennett, 237 So.2d 311 (Fla. 4th DCA 1970); Bott v. Moser, 175 Va. 11, 7 S.E.2d 217 (1940).

Although there is a conflict in the evidence as to whether the defendants obtained the legal advice in question with reference to the applicable zoning classification, it is clear that there was sufficient evidence upon which the jury could have reasonably concluded that such advice was given and that the defendants relied thereon. It is not the function of this court to reweigh and re-evaluate the evidence on appeal; that is the sole function of the jury as the trier of fact. Warfield v. Sparks, 203 So.2d 63 (Fla. 1st DCA 1967).

Affirmed.


author: KEHOE, Judge.

text:
    F. M. CHRISTIE, Appellant, v. Raymond F. ADAMS, Clayton D. Elliott and Florida Power & Light Company, Appellees.
    No. 77-391.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 14, 1978.
    Milton M. Ferrell, Herbert A. Warren, Miami, for appellant.
    Steel, Hector & Davis and Paul J. Bona-via, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, appeals a final judgment entered pursuant to a directed verdict in favor of appellees, defendants below.

In our opinion the trial court acted correctly in entering a directed verdict at the close of appellant’s case. We have carefully reviewed the record and find that, even by considering all of the evidence in the light most favorable to appellant, it fails to reflect that appellant demonstrated a prima facie case of malicious prosecution against appellees. Appellant adduced no sufficient evidence to show the absence of probable cause for the criminal charges which appellees caused to be brought against him. Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878 (1931); Ward v. Allen, 152 Fla. 82, 11 So.2d 193 (1942); Applestein v. Preston, 335 So.2d 604 (Fla. 3d DCA 1976); Sponder v. Brickman, 214 So.2d 631 (Fla. 3d DCA 1968); and Wilson v. O’Neal, 118 So.2d 101 (Fla. 1st DCA 1960). Accordingly, the trial court acted correctly in entering a directed verdict in favor of appellees at the close of appellant’s case.

Affirmed.


text:
    Verta FERNANDEZ, Appellant, v. Ovidio Edmund KABA et al., Appellees.
    No. 77-519.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 14, 1978.
    Horton, Perse & Ginsberg, Stabinski, Funt, Tucker & Levine, Miami, for appellant.
    Robert L. Dube, Richard M. Gale, Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

The plaintiff, Verta Fernandez, appeals a summary final judgment in her action for personal injuries. The uncontroverted evidence is that the plaintiff emerged at mid-block near parked cars to cross Flagler Street in Miami and was struck by the defendant’s automobile. The deposition of the plaintiff revealed that she could not remember much about what happened. She did not see the approaching automobile.

Eyewitnesses could not add much to the facts except that one of them stated that the plaintiff hurriedly stepped out from between parked vehicles. The defendant testified on deposition that he could not avoid the accident even though he applied his brakes as soon as he saw the plaintiff.

It affirmatively appears without genuine issue of material fact that the defendant driver was not guilty of actionable negligence. See Swift v. Century Insurance Company of New York, 264 So.2d 88 (Fla.3d DCA 1972); and Gates v. Fien, 219 So.2d 477 (Fla.3d DCA 1969). See also Preger v. Gomory, 55 So.2d 541 (Fla.1951); Bell v. A. A. Holiday Rent-A-Car, Inc., 304 So.2d 535 (Fla.3d DCA 1974); and Jackson v. Haney, 124 So.2d 719 (Fla.2d DCA 1960).

Affirmed.

KEHOE, J., dissents.


text:
    Robert J. ARCHER, Appellant, v. CITY OF MIAMI, Florida, a Municipal Corporation, Appellee.
    No. 77-671.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 14, 1978.

      K. Neil Glassford, Miami, for appellant.
    George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., for appellee.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   PER CURIAM.

Appellant, plaintiff below in an action for declaratory relief, appeals an adverse final judgment rendered in favor of appellee, defendant below. The final judgment determined that appellant, a sergeant with the City of Miami Police Department, was not entitled to the rank of lieutenant in the force.

After reviewing the record, briefs and arguments of counsel, it is our opinion that the final judgment must be affirmed. While the record reveals that appellant held the position of lieutenant, receiving a lieutenant’s salary from March 29, 1975, to November 17, 1975, his status was officially designated as “temporary” up to June 17, 1975, pursuant to Rule VIII, section 7 of the Civil Service Rules and Regulations of the City of Miami. During the remaining five months, appellant was reclassified as a “probationary” employee. Rule VIII, section 6, subsections C & D of those same Rules provide that prior to the end of a six month period of probationary status, a probationary employee may be reduced in rank upon notice.

In November of 1975, one month prior to the running of the six month probationary period, appellant was notified that he was being reduced in rank to his former sergeant status, the grounds being incompetency, negligence and inefficiency. This procedure was in accord with the Civil Service Rules. As such, we believe the court correctly concluded that appellant was not entitled to the position of lieutenant.

We cannot accept appellant’s contention that the period of time he served as lieutenant while on a “temporary” basis should be added to the time served while on a “probationary” basis, thus resulting in a period of time greater than the six month period of probation and entitling appellant to the automatic promotion to the rank of lieutenant.

Accordingly, the final judgment appealed is hereby affirmed.

Affirmed.


text:
    Robert M. EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 77-902.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 14, 1978.

      Kogen & Kogan and Geoffrey C. Fleck, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Johnson v. State, 292 So.2d 426 (Fla.2d DCA 1974); Williams v. State, 259 So.2d 753 (Fla.1st DCA 1972); Kelly v. State, 254 So.2d 22 (Fla.1st DCA 1971); West v. State, 249 So.2d 505 (Fla.2d DCA 1971); Baker v. State, 188 So.2d 346 (Fla.3d DCA 1966); Manning v. State, 176 So.2d 380 (Fla.3d DCA 1965); § 801.121(2), Fla.Stat. (1971).


text:
    COPLAN PIPE & SUPPLY CO., INC., Appellant, v. SUNRISE POINT, INC., Appellee.
    No. 77-1529.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 14, 1978.
    Herman Grayson, Miami Beach, and Frank Brezina, Miami, for appellant.
    Shevin, Shapo & Shevin and David A. Freedman, Miami, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

The plaintiff, Coplan Pipe & Supply Company, Inc., appeals a final judgment on a jury verdict and urges as error an order on the pleadings which dismissed count one of its complaint. The defendant, Sunrise Point, Inc., cross-assigns error on a trial order directing a verdict for the plaintiff/counter-defendant upon Sunrise’s counterclaim. We do not find error in either ruling and affirm the judgment.

Plaintiff Coplan was a supplier to a plumbing subcontractor. Defendant/counter-plaintiff Sunrise was the general contractor on a building project' for a condominium. After the default of the plumbing subcontractor, Coplan entered into a written contract with Sunrise to supply plumbing materials upon a cash basis. A claimed breach of written contract to pay for some materials was the basis of Coplan’s suit. A jury verdict was entered for defendant Sunrise on count two of the complaint, and that portion of the judgment based upon the jury verdict is not attacked on this appeal.

Coplan’s point on appeal claims error upon the trial judge’s order dismissing count one, which alleged unjust enrichment of Sunrise. That count of the complaint alleging unjust enrichment reads as follows:

“2. That the plaintiff supplied the defendant with plumbing supplies and materials which were used in the construction of a condominium building known as Sunrise Point, 8261 S.W. 128th Street Miami, Florida; that the value of the merchandise and materials supplied between July 1, 1974 and August 29, 1974 was in the approximate amount of $36,248.79 of which the defendant has failed to pay $11,200.00”

As stated, the only privity between the parties was under a written contract. Count two of the complaint alleged nonpayment for the same materials and was based on the written contract. Therefore, we hold that the dismissal of the count, at most, was harmless error because the plaintiff could recover only upon the completed execution of the express contract, and' that particular issue was presented and fully tried by the jury. Cf. Bloom v. Frese, 123 So.2d 47 (Fla.3d DCA 1960).

The appeal of Sunrise claims error upon the granting of a directed verdict for the counter-defendant upon its counterclaim for fraud. The claim of fraud was that the supplier, Coplan, agreed by express contract to supply all the plumbing material to complete the project for a set price of $8,500.00, and that the supplier never intended to perform at that figure. The evidence before the court from the written contract was that the $8,500.00 was an estimated figure. The contract provided “ . . . that the estimated amount of material needed to complete shall not exceed $8,500.00”. The letter contract was prepared by the president of Sunrise. Sunrise depends for proof of fraud upon a statement from the president of Coplan on the witness stand that he (Coplan) never believed that the project could be completed for that amount. The answer, in context, demonstrates that the witness was attempting to show that the estimate was not his and that he never would have made such an estimate. We agree with the trial judge that there was insufficient proof of fraudulent intent for the issue to go to the jury. Cf. Finney v. Frost, 228 So.2d 617 (Fla.4th DCA 1969), concerning the degree of proof with regard to fraud.

Affirmed.


text:
    KNOWLES ANIMAL HOSPITAL, INC., Appellant, v. Helen WILLS and Howard Wills, her husband, Appellees. Helen WILLS and Howard Wills, her husband, Appellants, v. Dr. Robert KNOWLES, Appellee.
    Nos. 77-1758, 77-1754.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 14, 1978.

      Goldstein & Goldstein and Caron Balka-ny, Miami, for Wills.
    Corlett, Merritt, Killian & Sikes, Greene & Cooper and Sharon L. Wolfe, Miami, for Knowles.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.) Associate Judge.
   PER CURIAM.

Helen Wills and Howard Wills filed an action against Knowles Animal Hospital, Inc., and Dr. Robert Knowles for injury to plaintiffs’ dog, and for consequent physical and mental pain and suffering caused thereby to plaintiffs. It was alleged that the defendants were guilty of gross negligence resulting in a severe burn and disfigurement being inflicted on the dog. Plaintiffs sought compensatory and punitive damages. Jury trial resulted in favor of the defendant, Dr. Knowles, and a verdict and judgment in favor of plaintiffs against defendant Hospital corporation for $13,000.00 made up of awards of $1,000.00 and $12,000.00.

The defendant Hospital appealed (No. 77-1758) and plaintiffs appealed from the judgment in favor of Dr. Knowles (No. 77-1754). We affirm the judgments appealed from.

Following an operation on the dog, it was placed on a heating pad in a cage and permitted to remain thereon in the hospital for a day and the better part of a second day with an absence of care or attention. Severe burn on one side of the dog was the result. The plaintiffs’ claim of physical and mental suffering which followed was sustained in the evidence. Thereafter, elsewhere, the dog underwent treatment, and partly because of the effect of that injury to the dog and because of another unrelated adverse condition which developed, the dog subsequently was required to be put away. On authority of Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950), and LaPorte v. Associated Independents, Inc., 163 So.2d 267 (Fla.1964), we hold that the court did not commit err by including for consideration of the jury the element of the mental pain and suffering of the plaintiff-owners of the dog. Additionally, on the evidence the jury could, and no doubt did view the neglectful conduct which resulted in the burn injury suffered by the dog to have been of a character amounting to great indifference to the property of the plaintiffs, such as to justify the jury award. See: Levine v. Knowles, 197 So.2d 329 (Fla. 3d DCA 1967); Levine v. Knowles, 218 So.2d 217 (Fla. 3d DCA 1969); Levine v. Knowles, 228 So.2d 308 (Fla. 3d DCA 1969).

Affirmed.


text:
    Valentin HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-2169, 77-2564.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 14, 1978.
    Nathaniel L. Barone, Jr., Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

The defendant, Valentin Hernandez, was tried by the court without a jury and found guilty of aggravated assault with a deadly weapon upon one Luciano Nieves, in violation of Section 784.04, Florida Statutes (1973). He has brought these appeals from the judgment entered thereon. The second appeal was apparently filed, out of an abundance of caution, after the sentence had been entered. A single point is presented, which urges that the defendant was denied due process and the right to confront his accuser because he was limited in his cross-examination of the complaining witness.

The State has accepted as substantially true and correct the defendant’s statement of the facts, which are that he was convicted of the aggravated assault of Luciano Nieves, who appeared at trial as the complaining witness. The substance of Nieves’s testimony was that he went to a restaurant for lunch, that the defendant allegedly entered shortly thereafter, and for some time watched him in a strange manner and, without motive, then struck him over the head with a chair, pulling a gun and telling him that he would kill him, and thereupon fleeing. Nieves allegedly never saw or heard of the defendant before, nor could he testify to any reason that the assault was made upon him.

Defense counsel states in his brief on appeal that he was endeavoring to show that there was abundant reason for the complaining witness to fabricate charges because of an intense animosity between him (the complaining witness) and the defendant, arising out of the fact that defendant was a zealous anti-Castro activist in the Cuban community and the complaining witness was vociferously pro-Castro.

The trial court sustained the prosecution’s objections to such questions, as follows:

“Q. When you entered the restaurant, you did not observe the man who assaulted you; is that correct?
“A. When I came in?
“Q. Yes.
“A. No. Right after I was in the restaurant there was a friend of mine there and I went to say hello to him.
“Q. Do you know any reason why this man, or anyone, would assault you in the restaurant?
“MR. AUERBACH: Excuse me. I object to that question. That is totally improper.
“THE COURT: Sustained.
“Q. (By Mr. Barone) Do you know why the man who you say was Mr. Hernandez would assault you?
“MR. AUERBACH: I object to that. That is totally improper, what the other man was thinking.
“THE COURT: Sustained.
“Q. (By Mr. Barone) Did the man who assaulted you say why he was attacking you?
“MR. AUERBACH: Yes or no.
“THE WITNESS: No.
* * * * * *
“Q. Are you engaged in any political activities?
“MR. AUERBACH: Excuse me. Judge, counsel knows that is totally irrelevant to an aggravated assault charge.
“THE COURT: Sustained.
“Q. (By Mr. Barone) Isn’t it a fact, Mr. Nieves, that you have a very bad reputation in the Cuban community for your pro-Castro
“MR. AUERBACH: Judge, I would object to that.
“THE COURT: Sustained.
“MR. AUERBACH: If counsel wants to get into anything without politics — I would ask that counsel be admonished not to pursue that line.
“Q. (By Mr. Barone) You stated that you did not recognize the caliber or the type of weapon; is that correct?
“A. I said, and I am repeating it, that in that moment that I was attacked, I wasn’t aware of it, and by the analysis that I made after the aggression, this man was there for at least one hour looking for me, or watching for me, in order to strike me treacherously in a very cowardly way, and with premeditation.
“How could I be looking for any type of weapon? All I wanted to see was just to look at the face of the crazy man that I had facing me.
“MR. BARONE: Your Honor, I would move to strike all the extemporaneous comments.
“THE COURT: Granted.
“Q. (By Mr. Barone) Mr. Nieves, you are very familiar with weapons, are you not?
“A. No.
“MR. AUERBACH: I would object.
“Please instruct the witness that if I am making an objection, not to respond until his Honor rules upon the objection.
“THE WITNESS: I’m sorry, I do not speak English.
“Q. (By Mr. Barone) Well, you were in the Cuban army, were you not, sir?
“MR. AUERBACH: Objection, your Honor; totally irrelevant.
“THE COURT: Sustained, unless you can show there is some relevance.
“MR. BARONE: Your Honor, he says he doesn’t know what type of weapon he was assaulted with, and I am attempting to show the man’s background.
“THE COURT: Sustain the objection. You can’t impeach him like that.” [Emphasis added]

Appellant relies for reversal upon Simmons v. Wainwright, 271 So. 464 (Fla. 1st DCA 1973); Kirkland v. State, 185 So.2d 5 (Fla. 2d DCA 1966); and United States v. Kartman, 417 F.2d 893 (9th Cir. 1969), and cases from other state jurisdictions holding that cross-examination of a witness to determine bias or prejudice may pertain to irrelevant or immaterial matters as bearing on memory, accuracy, credibility, interest or sincerity of the witness.

Bias on the part of a prosecution witness is a valid point of inquiry in cross-examination, but the prospect of bias does not open the door to every question that might possibly develop the subject. In the early case of Wallace v. State, 41 Fla. 547, 26 So. 713, 722 (1899), the Supreme Court of Florida laid down the rule that inquiry into collateral matters should not be permitted, unless there is reason to believe it may tend to promote the ends of justice and it seems essential to the true estimation of the witness’s testimony by the jury. Cf. United States v. Fowler, 151 U.S.App.D.C. 79, 81-82, 465 F.2d 664, 666-667 (1972), and cases cited therein.

In the present case, the question to which objections were sustained were improper unless they came within the exception discussed. Counsel for the defendant made no tender nor did he advise the court of the relevancy of questions to a showing of bias. We hold that no abuse of discretion appears on this record, nor can it be said that the rulings of the court amounted to a denial of due process. Cf. Pandula v. Fonseca, 145 Fla. 395, 199 So. 358 (1940); and Welch v. State, 342 So.2d 1070 (Fla. 3d DCA 1977).

Affirmed.


text:
    The GREYHOUND CORPORATION, Appellant, v. Prudencio ESTEVEZ and Josephine Estevez, Appellees.
    No. 77-2488.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 14, 1978.
    Preddy, Kutner & Hardy and T. G. Ánag-nost, Miami, for appellant.
    Duran, Cantera, Kalish, Schere & Press, John R. Farrell and Norman Malinski, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant/defendant takes this interlocutory appeal from an order of the trial court which denied its motion to dismiss the cause of action filed by appellees/plaintiffs for failure to prosecute. We reverse.

It affirmatively appears that no action was taken by the parties by the filing of pleadings, the entrance of court orders, or otherwise for a period of more than one year. In addition, as required by Fla.R. Civ.P. 1.420(e), no good cause in writing was submitted to the trial judge as to why the action should remain pending five days prior to the hearing on the motion.

Accordingly, the order appealed is reversed and the cause remanded with directions to dismiss the cause of action pursuant to the above cited rule. Shields v. Moore, 352 So.2d 139 (Fla. 4th DCA 1977); Metropolitan Transit Authority v. Porter, 328 So.2d 573 (Fla. 3d DCA 1976).

Reversed and remanded with directions.


text:
    George HUBACHER, D.O., Petitioner, v. June LANDRY et vir., Respondents.
    No. 77-2577.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 7, 1978.
    Fleming, O’Bryan & Fleming and William D. Ricker, Jr., Fort Lauderdale, for petitioner.
    Spence, Payne & Masington, Daniels & Hicks, Miami, for respondents.

      Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is an original petition for writ of certiorari filed by the defendant in a medical mediation proceeding. The claimants in such proceeding are made respondents by this petition for writ of certiorari and have filed a motion to dismiss the petition herein for lack of jurisdiction.

The issue which this motion presents for review is a critical one, namely, whether this court has jurisdiction to review by a petition for writ of certiorari [or by any other original writ proceeding under Fla.R. App.P. 9.100] (1) a decision on the admission of evidence at a medical mediation hearing, and (2) the ultimate finding of a medical mediation panel, under Section 768.44, Florida Statutes (1977). We hold that this court has no jurisdiction by certiorari or any other original proceeding to review a decision or order of a medical mediation panel under Section 768.44, Florida Statutes (1977), save for those decisions or orders which touch upon the jurisdiction of the said panel to hear the medical malpractice claim itself. We, accordingly, grant the respondents’ motion herein as well taken and dismiss the instant petition for a writ of certiorari.

It appears without dispute from the petition for writ of certiorari and supporting record that on January 10,1977, the medical claimants June Landry and Ira Landry filed a request for medical mediation under Section 768.44, Florida Statutes (1977), against the medical defendants George Hubacher, D.O., Leon Shore, D.O., Shore, Munroe and Yeamons, P.A. and the Community Hospital of South Broward Corp. All the parties timely answered the request for mediation, discovery was accomplished, and a medical mediation panel selected. The claimants voluntarily dismissed the Community Hospital of South Broward from the case.

On November 9, 1977, the matter came on for final hearing before the mediation panel at which time testimony was taken and argument from the respective parties was heard. The judicial referee during the hearing granted the claimants’ oral motion for protective order prohibiting the defendant Hubacher from calling a medical doctor to testify as an expert witness. At the conclusion of the hearing, the mediation panel entered findings of no actionable negligence in favor of Dr. Shore as well as the partnership Shore, Munroe & Yeamons. The panel entered a finding of actionable negligence against the defendant Dr. Hu-bacher.

Dr. Hubacher has filed the instant petition for writ of certiorari in which he contends that the decision of the medical mediation panel finding him actionably negligent departed from the essential requirements of law in that the evidence was insufficient to sustain any finding of negligence. Dr. Hubacher further contends the judicial referee departed from essential requirements of law in denying him the opportunity to present his expert witness during the final hearing.

Florida courts in an unbroken line of decisions have held that original petitions for extraordinary writs of certiorari, prohibition and mandamus lie to review decisions of a medical mediation panel relating solely to the jurisdiction of said panel to hear the plaintiff’s claim under Section 768.44, Florida Statutes (1977). Most of these cases have dealt with the strict jurisdictional time limits within which a medical malpractice claim must be heard by the medical mediation panel. Other decisions have dealt with the jurisdictional time limit within which an answer must be filed by the medical defendant, the jurisdiction of the medical mediation panel to proceed with patently unqualified members, and the termination of jurisdiction of the medical mediation panel by a judgment on the pleadings, or by a summary judgment, both of which have been held unauthorized.

These decisions have all been confined to fundamental jurisdictional issues for good reason. The entire purpose of the Medical Malpractice Reform Act would be frustrated if the jurisdiction of the medical mediation panel could be erroneously defeated or maintained in violation of the plain terms of the Act. Prompt and adequate review of such jurisdictional decisions by extraordinary writ (mainly through cer-tiorari, but also by prohibition and mandamus) is a compelling need under the circumstances because the aggrieved party has no other adequate legal remedy to cure such a fundamental error. Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977); Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977).

The same cannot be said of non-jurisdictional issues which may arise during the course of the medical mediation proceeding such as those involved in the instant case. Questions concerning the admissibility of evidence at the medical mediation hearing or the sufficiency of the evidence to support the finding of the medical mediation panel are not matters of such extreme importance that they can be said to go to the integrity of the Medical Malpractice Reform Act. The purposes of the Act are in no sense thwarted by requiring the party claiming error on such issues to object to the admissibility of the panel’s finding on whatever non-jurisdictional ground may seem appropriate when offered in evidence at the circuit court trial and thereafter to seek review of any adverse ruling thereon by appeal. Such party has an adequate legal remedy by these trial and appellate procedures and has not in any sense been substantially harmed. Under the law of this state, certiorari review does not lie under such circumstances. Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541, 545 (1942); Tart v. State, 96 Fla. 77, 117 So. 698 (1928); Ford Motor Co. v. Nelson, 355 So.2d 158 (Fla. 4th DCA 1978); Johnson v. General Motors Corp., 350 So.2d 1119 (Fla. 4th DCA 1977); Pullman Co. v. Fleishel, 101 So.2d 188 (Fla. 1st DCA 1958).

There is another compelling consideration which supports the result which we reach in this case. It is the medical defendant herein who seeks certiorari review from the medical mediation panel’s findings on the above non-jurisdictional issues. In Carter v. Sparkman, 335 So.2d 802 (Fla.1976), the Florida Supreme Court held that the pre-litigation burden cast upon the claimant by a medical mediation proceeding under Section 768.44, Florida Statutes (1977), reaches the outer limits of constitutional tolerance with respect to the plaintiff’s right of access to the courts. To allow the medical defendant herein to use extraordinary legal remedies in non-jurisdictional matters to review the finding or the admission of evidence before the medical mediation panel where there are adequate means of legal review thereof increases the plaintiff’s pre-litigation burden beyond the limits of constitutional tolerance. The medical defendant once having submitted to medical mediation could conceivably postpone the circuit court proceedings on the plaintiff’s common law action for an indefinite period by litigating through extraordinary writ proceedings various non-jurisdictional matters arising during the course of the medical mediation proceedings. In our view, this would place an intolerable burden on the plaintiff’s constitutional right of access to the courts.

For the above-stated reasons, the respondents’ motion to dismiss the petition for writ of certiorari herein is granted.

      . § 768.44(3), Fla.Stat. (1977); Love v. Jacobson, 358 So.2d 1179 (Fla. 3d DCA 1978); Febles v. Abercrombie, 358 So.2d 568 (Fla. 2d DCA 1978); Letts v. Davis, 356 So.2d 910 (Fla. 1st DCA 1978); Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978); Aldana v. Holub, 354 So.2d 1272 (Fla. 1st DCA 1978); Kirschgessner v. Miami International Hospital, 356 So.2d 11 (Fla. 4th DCA 1977); Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977); State ex rel. Lund v. Keough, 352 So.2d 572 (Fla. 2d DCA 1977); Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977); Limond v. Llanio, 349 So.2d 214 (Fla. 3d DCA 1977); Mercy Hospital, Inc. v. Badia, 348 So.2d 631 (Fla. 3d DCA 1977); State ex rel. McGuirk v. Cowart,
        344 So.2d 624 (Fla. 3d DCA 1977); State ex rel. Love v. Jacobson, 343 So.2d 1328 (Fla. 3d DCA 1977); State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977).

      .§ 768.44(1)(c), Fla.Stat. (1977); Latorra v. Patrick, 359 So.2d 463 (Fla. 4th DCA 1978); Johnson v. Crawford, - So.2d - (Fla. 4th DCA 1978) (case no. 77-233, opinion filed April 10, 1978); Scherer v. Liberto, 353 So.2d 1224 (Fla. 4th DCA 1977).

      . § 768.44(2)(a), Fla.Stat. (1977); Morales v. Moore, 356 So.2d 829 (Fla. 4th DCA 1978).

      . Floyd v. Goss, 352 So.2d 1189 (Fla. 4th DCA 1977).

      . Drs. Howard & Scott, P. A. v. Edwards, 353 So.2d 175 (Fla. 4th DCA 1977).


text:
    Nancy Elizabeth PICKETT, as Personal Representative of the Estate of Wilbur Crafts Pickett, Jr., Deceased, and Nancy Elizabeth Pickett, as Personal Representative of the Estate of Wilbur Crafts Pickett, Jr., Deceased, on behalf of King Pickett, Duke Pickett, Earl Pickett and Baron Pickett, the minor surviving children of Wilbur Crafts Pickett, Jr., Deceased, Appellants, v. T. Michael WOODS, Successor Personal Representative of the Estate of Jack L. Byrd, Deceased, Foremost Insurance Company, a Michigan Corporation, Jan M. Sellers, Personal Representative of the Estate of Clifford R. Sellers, Deceased, and John Doe Insurance Company, an unknown insurance company, Appellees.
    No. 77-736.
    District Court of Appeal of Florida, Fourth District.
    June 14, 1978.
    Rehearing Denied July 19, 1978.
    Walter A. Butcka and Lester A. Lewis of Smalbein, Eubank, Johnson, Rosier & Bus-sey, P.A., Daytona Beach, for appellants.
    James B. Denman and Frank R. Gram-ling of James V. Dolan & Associates, P.A., Fort Lauderdale, for appellee Foremost.
    Stephen P. Kanar of Fishback, Davis, Dominick & Simonet, Orlando, for appellee Jan M. Sellers.
   ANSTEAD, Judge.

This is an appeal from a final summary judgment barring the wrongful death claims of the appellants against the appel-lees, Foremost Insurance Company and Jan M. Sellers. We reverse.

The appellants filed a wrongful death action against the appellees, alleging that Jack L. Byrd, as owner and operator, and Clifford R. Sellers, as operator, were negligently responsible for an airplane crash which resulted in the death of Wilbur Crafts Pickett, Jr. The complaint further alleged that Foremost Insurance Company had liability insurance on the airplane which inured to the benefit of the appellants.

Prior to the filing of appellants’ action, Foremost had secured a final declaratory judgment in the United States District Court against the estate of Jack Byrd holding that Foremost had no liability coverage on the airplane in question. The appellants were neither parties to nor given notice of Foremost’s declaratory action. The declaratory judgment was entered after Foremost and the Byrd estate entered into a factual stipulation which controlled the outcome of the case.

When the wrongful death action was filed, Foremost moved for summary judgment, claiming collateral estoppel against the appellants by reason of the declaratory judgment. The motion was granted.

Collateral estoppel requires that the issues and real parties in interest in both actions be identical. Mobil Oil Corp. v. Shevin, 354 So.2d 372 (Fla.1977). In this case there was no identity of parties in the declaratory action and the wrongful death action. It is true that estoppel by judgment has previously been applied in situations where the actions were derivative. Seaboard Coast Line R. Co. v. Cox, 338 So.2d 190 (Fla.1976). However, we do not believe there is any identity of interest between the appellants, alleged third party beneficiaries of the Foremost policy and Foremost’s insured, the Byrd estate, that would collaterally estop appellants from litigating the issue of coverage. In this action the appellants and the Byrd estate are opposing parties. While it would appear to benefit both parties that insurance coverage apply, the declaratory judgment actually resulted from a stipulation of facts agreed to by the Byrd estate and Foremost. Clearly, the appellants are not bound by such stipulation or the resulting judgment.

For the reasons set out above the final summary judgments are reversed with directions for further proceedings consistent with this opinion.

The appellants’ motion for attorneys fees under Section 627.428, Florida Statutes (1975), is denied because third party beneficiaries of a liability policy are not entitled to fees. Roberts v. Carter, 350 So.2d 78 (Fla.1977).

DOWNEY, C. J., and SILVERTOOTH, LYNN N., Associate Judge, concur.

      . Summary judgment was also rendered in favor of the Sellers estate on the basis that the liability of the estate was limited to the insurance coverage available. Since the trial court found no coverage by reason of the declaratory judgment the estate was granted a summary judgment. No timely claim was filed against the estate for any liability above that of insurance coverage. See § 733.16(1)(d), Fla.Stat. (1973).


author: BOARDMAN, Chief Judge.

text:
    Alvin MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1540.
    District Court of Appeal of Florida, Second District.
    June 14, 1978.

      Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant Alvin Miller was found guilty after non jury trial of the offenses of battery of a law enforcement officer and resisting arrest without violence. Appellant was placed on probation for a period of three years on the battery charge and one year on the charge of resisting arrest, to run concurrently.

The sole point raised on appeal is whether the trial court erred in entering an order denying appellant’s motion to compel production of statements made by police officers who witnessed the crime. The motion was filed pursuant to Rule of Criminal Procedure 3.220(a)(1)(H) which requires the prosecutor in a criminal action to disclose the statements of all persons known to him to have information relevant to the offense charged. Appellant sought to compel the state to produce the police report concerning these offenses or a copy of the written statements of six police officers and a police intern of the St. Petersburg Police Department, all of whom allegedly witnessed the offenses charged. Two of the officers, Lightfield and Sullivan, each testified that he had made a written statement as part of the police report detailing his observations with respect to the charges that had been filed against appellant and that he intended to use the police report to refresh his memory at trial. None of the other alleged witnesses to the incident made a written statement regarding the incident. At trial Officers Lightfield and Sullivan testified that they had previously reviewed their police reports.

The state contends that on the authority of this court’s decision in Glow v. State, 319 So.2d 47 (1975) we should affirm the trial court’s ruling. In Glow we held that police reports are not public documents open to inspection. However, our decision in Glow should not be read as placing a written statement of an eyewitness or victim to an alleged crime beyond the reach of a defendant simply because the witness is a police officer. Certainly a defendant in a criminal case should have access to the written statements of witnesses in possession of the state particularly where, as in this case, they pertain to essential elements of proof and are used by witnesses to refresh their memories before taking the witness stand. See State v. Johnson, 284 So.2d 198 (Fla.1973); State v. Latimore, 284 So.2d 423 (Fla.3d DCA 1973).

The instances where police officers are actual eyewitnesses to or victims of the crime charged and write their observations in a police report are infrequent. Requiring the prosecution to supply that portion of the police report is not an undue burden. Where the report otherwise includes confidential or sensitive material it can be excised by the trial court in an in camera proceeding.

Accordingly, the judgments are reversed, and the cause is remanded to the trial court for proceedings consistent with this opinion.

REVERSED and REMANDED.

RYDER and DANAHY, JJ., concur.


text:
    CITY OF NAPLES AIRPORT AUTHORITY, Appellant, v. CITY OF NAPLES, Appellee.
    No. 77-1966.
    District Court of Appeal of Florida, Second District.
    June 16, 1978.
    John F. Stanley, of Vega, Brown & Nichols, Naples, for appellant.
    John G. Fletcher, City Atty., Naples, for appellee.
   PER CURIAM.

Appellant City of Naples Airport Authority (Authority) filed a complaint against the City of Naples (City) for a declaratory judgment as to which of the parties controls .land use at the Naples Municipal Airport. The trial court dismissed the complaint for lack of jurisdiction. We hold that the dismissal was proper because the Authority’s interest was not clearly made to appear on the face of the complaint, but the dismissal should have been without prejudice.

The Authority alleged in its complaint that it is a body politic created by Chapter 69-1326, Laws of Florida. Chapter 69-1326, Section 4(o), Laws of Florida, empowers the Authority:

To exercise and perform all of the powers and perogatives [sic] conferred upon “political subdivisions” by chapter 333 Florida Statutes, with respect to the adoption, promulgation and enforcement of airport zoning regulations under the provisions of said chapter 333, Florida Statutes.

The complaint alleged that the Authority leases the airport premises from the City; that for many years, the City had issued building permits for the construction of all buildings authorized by the Authority despite the fact that the land upon which the airport is located was zoned single family residential by the City; that on August 8, 1977, Dean Steel Buildings, Inc. was refused a building permit for construction of a building at the airport; that on August 17, 1977, the Authority appealed the administrative determination, and that the City refused to issue the permit on the ground that the land upon which the building was proposed to be built was zoned residential; wherefore, the Authority sought a declaratory judgment determining who controls land use at the airport and whether the City has the power to deny building permits for the construction of buildings at the airport.

The City filed a motion to dismiss, which the trial court granted “for lack of jurisdiction.”

Circuit courts have jurisdiction to entertain actions for declaratory judgment under Chapter 86, Florida Statutes (1977). However, before such an action can be maintained, it must appear that the question raised is real and not theoretical and that the party raising it has a bona fide and direct interest in the result. Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So.2d 194, 198 (1946).

We do not think the Authority has met this requirement. It has not alleged that the building for which Dean Steel Buildings, Inc. sought a permit was to be constructed at the Authority’s behest. Nor has it alleged that it has enacted, or intends in the near future to enact, airport zoning regulations, but is in doubt as to the validity or enforceability of such regulations. In short, it does not clearly appear on the face of the complaint that the Authority has such an interest in the subject matter in issue as to entitle it to a declaratory decree. Consequently, the trial court did not err in dismissing the complaint.

The dismissal, however, should have been without prejudice to the Authority to file an amended complaint alleging, if it can, a bona fide and direct interest in the issue it seeks to have resolved.

Accordingly, the order dismissing the Authority’s complaint is affirmed in part and reversed in part and the cause remanded for further proceedings not inconsistent with this opinion.

BOARDMAN, C. J., and RYDER and DANAHY, JJ., concur.


text:
    Daniel Prince WOODRUFF, Appellant, v. STATE of Florida, Appellee.
    No. HH-59.
    District Court of Appeal of Florida, First District.
    June 23, 1978.

      Michael J. Minerva, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Woodruff appeals from his conviction upon charges of sexual battery and burglary of a dwelling. His trial counsel thoughtlessly conducted a group interview of prospective defense witnesses after the trial court had instructed all concerned that the rule of sequestration of witnesses would be invoked. When the prosecutor moved the court to exclude the testimony of the defense witnesses involved in the conference, defense counsel was given an opportunity to object, to attempt a showing that their testimony was critical to the defense, or to show that, for other reasons, justice did not require exclusion of the testimony. Defense counsel neither objected nor offered such a showing, and the court excluded the testimony of certain witnesses. Further inquiry by the court would have been appropriate, had counsel requested and assisted that inquiry. See Dumas v. State, 350 So.2d 464 (Fla.1977). Defense counsel having failed to preserve the point at trial, appellant cannot raise it here. State v. Barber, 301 So.2d 7 (Fla.1974).

AFFIRMED.

McCORD, C. J., and MELVIN, J., concur.


text:
    Clyde WALTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1683.
    District Court of Appeal of Florida, Second District.
    June 23, 1978.

      Jack 0. Johnson, Public Defender, P. Douglas Brinkmeyer, Chief Asst. Public Defender, and Daphne W. Boswell, Legal Intern, Bartow, for appellant.
    Clyde Walton, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The state filed one information charging appellant in separate counts with possession of marijuana, cocaine, and heroin and a second information charging him in Count I with possession of a concealed firearm and in Count II with possession of a concealed firearm while committing a felony. Appellant pled guilty to all the charges. Thereafter the court sentenced him to three concurrent five-year prison terms on the first information and two concurrent five-year prison terms on the second information. Appellant then filed a timely notice of appeal.

We do not consider any irregularity which might have occurred in the acceptance of appellant’s plea. Appellant having pled guilty to the charges filed against him does not have the right to a direct appeal from that plea. Section 924.06(3), Florida Statutes (1977). We are not, however, precluded from reviewing appellant’s sentence which we hold should be corrected.

We submit the trial court erred in sentencing appellant for carrying a concealed firearm because the factual basis developed for appellant’s plea demonstrates that the crimes of carrying a concealed firearm and carrying a concealed firearm while committing a felony were facets of the same transaction. Williams v. State, 349 So.2d 800 (Fla. 2d DCA 1977). Section 775.021(4), Florida Statutes (1977), which limits the single transaction rule, does not change this result since carrying a concealed firearm is a necessarily lesser included offense of carrying a concealed firearm while committing a felony. In Brown v. State, 206 So.2d 377, 382 (Fla.1968) the Supreme Court of Florida defined a necessarily lesser included offense as “an essential aspect of the major offense.” Under this definition it would be manifestly impossible to prove carrying a concealed firearm while committing a felony without also proving carrying a concealed firearm. See Huff v. State, 350 So.2d 123 (Fla. 2d DCA 1977).

Accordingly, we remand this case to the trial court with directions to set aside the sentence for carrying a concealed firearm; otherwise affirmed. Appellant need not be present for this purpose.

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

      . (3) A defendant who pleads guilty or nolo contendere with no express reservation of the right to appeal shall have no right to a direct appeal. Such a defendant shall obtain review by means of collateral attack.

      . (4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.


author: BOYER, Judge.

text:
    M. Lucius WALKER et ux., Appellants, v. CITY OF JACKSONVILLE, and Ulysses C. Glover, Appellees.
    No. GG-225.
    District Court of Appeal of Florida, First District.
    June 26, 1978.
    As Amended July 25, 1978.
    E. K. Mcllrath, Jacksonville, for appellants.
    C. Ray Greene, Jr. of Greene & Greene, William L. Coalson, Jacksonville, for appel-lees.
   BOYER, Judge.

Appellants (Walkers) appeal from an order determining that appellee Glover is the fee simple owner of a certain parcel of land in Duval County and that Walkers have no interest therein.

This case emanates from an eminent domain proceeding by the City of Jacksonville in which Walker and Glover were made parties defendant. The case is before us on a stipulated record on appeal.

The record reveals that Glover, an undertaker in Jacksonville, is a step-uncle of the Walkers. The Walkers live in Washington, D.C. In 1971 the Walkers signed and mailed to Glover an instrument entitled “Warranty Deed” which was regular in form, acknowledged by a notary public, but not witnessed. Across the spaces provided for witness signatures appears the word “Blub”. The instrument was never recorded, but Glover was made a party defendant in the eminent domain proceeding because the record revealed that he had paid taxes on the property for the years 1970 through 1974. The Walkers filed an answer, in customary form, demanding “full and just compensation to be set by a jury” and attorney’s fees. Glover, too, filed an answer, in customary form, but specifically denying that Walkers had any interest in the property and affirmatively alleging sole ownership in Glover. The City of Jacksonville, being only interested in obtaining good title via eminent domain, expressed no interest in the dispute between Walkers and Glover and has taken no part in this appeal.

In response to requests for admission which were introduced into evidence at the trial before the trial judge as to the ownership issue, Glover admitted possession of the subject “deed” and admitted that it had not been recorded. (The evidence also reveals that it bears no documentary stamps) Testifying at the hearing, Glover asserted possession of the property since 1971, which he has been using as a parking lot in connection with his funeral home. He further testified that the Walkers wanted to give him the property but that he paid “$1,000.00 for it anyway”. His testimony did not explain the reason for the alleged desire to make a gift by the Walkers. The Walkers, on the other hand, in response to requests for admission which were also introduced, admitted that $1,000.00 was advanced by Glover, claiming that a portion of that sum was delivered back to Glover to apply on the costs of the funeral of one Mamie Walker, a relative of the Walkers and Glover.

The order of the trial judge here appealed states:

“The Court determines that Ulysses C. Glover was the fee simple owner of the land described as Parcel 49-3 at the time the order of taking was entered herein, and that the Defendants M. Lucius Walker and Inez Walker, his wife, have no valid claim or interest in the land described as Parcel 49-3 or any awarding to be made therefor.”

F.S. 689.01 requires that an interest in land be conveyed “by instrument in writing, signed in the presence of two subscribing witnesses by the party * * * conveying * * *”. The statute specifically provides that a conveyance may not be accomplished “in any other manner”.

Sub judice, it is clear that the purported deed is not signed by two subscribing witnesses. Glover urges that, the record being silent on the point, Blub may well be a witness. That is true but Blub cannot be two witnesses.

Glover next refers us to Medina v. Orange County, 147 So.2d 556 (Fla. 2nd DCA 1962) wherein it was held that the statutory requirement may be met by proof that the deed was actually signed in the presence of two witnesses, notwithstanding that they did not then and there immediately sign as such. We have no quarrel with that holding, but there is no evidence sub judice of the signing before any witnesses, nor does the instrument itself reveal any witnesses unless Blub is one.

Glover further urges that since the instrument is acknowledged before a notary public the notary may be considered a witness. An identical contention was rejected by our sister court of the Third District in Santos v. Bogh, 334 So.2d 833 (Fla. 3rd DCA 1976). Certainly there is nothing to prevent a notary from also being a witness. However, it is not necessary to the validity of an acknowledgment that the acknowledged instrument be signed in the presence of the notary: It is only necessary that the person whose execution is acknowledged be known by the notary to be the person described in and who executed the instrument (or that the notary have satisfactory proof thereof) that such person acknowledge to and before the notary the execution of the instrument. (See F.S. 695.09) The mere existence of an acknowledgment on an instrument can therefore raise no presumption that the notary was a witness, nor is the mere existence of the acknowledgment proof thereof.

Glover’s reliance on Kozacik v. Kozacik, 157 Fla. 597, 26 So.2d 659 (Fla.1946) is also misplaced. The issue there treated by the Supreme Court of Florida related only to the termination of a joint tenancy, the holding being “that the contract for sale, even though not executed with due statutory formality, was sufficient to terminate the joint tenancy and destroy the right of sur-vivorship.”

The record sub judice is also devoid of any evidence to support Glover’s contention of equitable estoppel.

It necessarily follows, and we so hold, that the instrument executed by Walkers was insufficient under Florida law to convey title to Glover.

Glover, however, is not entirely without remedy. The Walkers themselves, in their brief, urged that the defective “deed” may be construed as a mortgage securing the sum which the evidence reveals was “advanced" by Glover to Walkers, viz: $1,000.00. Although the evidence is scanty in that regard, it is sufficient, particularly in view of Walkers’ own admission and argument in its brief. There is ample authority for the proposition that a warranty deed, even when properly executed, may be construed as a mortgage if it was intended by the parties at the time of execution and delivery that it not convey title but rather secure an indebtedness.

In Wickes Corp. v. Moxley, 342 So.2d 839 (Fla. 2nd DCA 1977) our sister court of the Second District held that under the present constitution and statutes of the State of Florida two witnesses are not required to the execution of a mortgage of homestead property. Certainly the same is applicable to nonhomestead property. The decision of the Second District was approved and adopted by the Supreme Court of Florida in Moxley v. The Wicke Corporation, 356 So.2d 785 (Fla.1978), Opinion filed January 26, 1978.

Reversed and remanded for further proceedings consistent herewith.

McCORD, C. J., and MELVIN, J., concur.


text:
    Garrett G. SALSMAN, Appellant, v. Lois E. SALSMAN, Appellee.
    No. HH-447.
    District Court of Appeal of Florida, First District.
    June 26, 1978.

      Earl R. Duncan, Panama City, for appellant.
    James C. Husbands, Panama City, for appellee.
   BOYER, Judge.

By final judgment of divorce dated December 18, 1968 appellant and Lois E. Sals-man were divorced. Incorporated in the final judgment, ratified and affirmed was a separation agreement entered into between the parties.

Numbered paragraph four thereof provides in material part as follows:

“The wife is to have as her sole and exclusive property [the marital home]. The husband agrees to make all the mortgage payments which are now due or may hereafter become due upon said house and lot, which mortgage * * * has monthly payments in the approximate amount of $101. The husband’s responsibility for making these mortgage payments shall continue until the mortgage indebtedness is paid in full. All payments made by the husband on the mortgage indebtedness shall be considered lump-sum alimony, payable in periodic payments.”

The wife died in November of 1974 and her daughter was appointed personal representative of her estate. The husband (appellant) continued to make the monthly payments on the mortgage after the death of his ex-wife until January of 1977 when the property was sold by the personal representative. At that time the balance due on the mortgage in the sum of $6,118.36 was paid by the wife’s estate. When the husband failed to pay the estate the amount that was due on the mortgage at the time it was paid off, the personal representative intervened in the original divorce proceeding and obtained an order requiring the husband to pay to his former wife’s estate the “pay off balance” at the rate of $101.00 per month, which is the order here appealed. That order recited, in material part, as follows:

“This cause came on to be heard * * * upon the petition filed by the personal representative of the Estate of Lois E. Salsman, Oral Stipulation of facts by the parties, * * * and the Court finding that Garrett Salsman had made mortgage payments pursuant to the Final Judgment of Divorce entered by the Court on December 18, 1968, until January 1, 1977, such payments being in the nature of a property settlement and not subject to termination, and the Court further finding that the property in question was sold by the Estate of Lois E. Salsman in January of 1977, and at the time of the sale the balance owing by Garrett Salsman' was $6,118.36, it is therefore “ORDERED AND ADJUDGED that the Respondent, Garrett G. Salsman, shall make payments to the Estate of Lois E. Salsman in the amount of * * * $101.00 per month, until the amount of * * * $6,118.36 is fully paid. * *”

We agree with the trial court and with the appellee that this court’s opinion in Horton v. Horton, 330 So.2d 69 (Fla. 1st DCA 1976) is dispositive. Indeed, the facts of this case are much stronger than those in Horton.

AFFIRMED.

McCORD, C. J., and MELVIN, J., concur.


text:
    Luis STABINSKI et al., Appellants, v. WINDJAMMER INTERNATIONAL CORPORATION et al., Appellees.
    Nos. 77-567, 77-571.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Stabinski, Funt, Tucker & Levine and Norman Funt, Miami, for appellants.
    David Goldman, Miami, for appellees.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, plaintiffs below, bring these consolidated appeals from an order entered by the circuit court transferring the cause to the county court. We reverse.

In 1968, appellants won a free cruise on a ship owned by appellee, defendant below. After setting a cruise date of August 27, 1968, with appellee, appellants made preparations for what was to be their honeymoon cruise. Twenty-two days before sailing, ap-pellee notified appellants that the ship could not sail because it was in dry-dock for repairs. Subsequently, appellants filed suit for compensatory and punitive damages.

In their complaint, among other things, appellants alleged that the ship on which they were scheduled to sail on August 27, 1968, did sail, as also did a substitute ship on the same date. Appellants further alleged that they were “bumped” from passage in favor of paying customers on these two ships. As a result of appellee’s conduct, appellants’ complaint sought both compensatory damages for breach of contract and punitive damages for appellee’s tortious conduct.

Appellants’ complaint survived appellee’s motion to dismiss; however, on the day of trial, after appellants stipulated that their claim for compensatory damages did not exceed the minimum jurisdictional limits of the circuit court, the trial judge ruled that appellants could not maintain their action for punitive damages and issued an order transferring the cause to the county court. From this order dated February 15, 1977, appellants appeal.

Prior to entering the order appealed, the trial judge required appellants to proffer proof in regard to their tort allegations. Appellants made such a tender, and, after the trial judge received it, he ruled, sua sponte, that the matter should be transferred to the county court.

In our opinion, the trial court erred. We believe that the complaint set forth in good faith an independent cause of action in tort for damages in excess of the minimum jurisdictional amount of the circuit court. We note that the complaint survived appellee’s motion to dismiss. Because the complaint was properly before the circuit court, the trial judge had no authority to require the proffer by appellants and then rule that they could not proceed. Having properly set forth a cause of action in tort meeting the jurisdictional requirements of the circuit court, appellants were entitled to proceed with their cause of action in the court. See, e. g., Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957); Anderson v. Burwell Motor Co., 73 So.2d 822 (Fla.1954); Country Club of Miami Corp. v. McDaniel, 310 So.2d 436 (Fla. 3d DCA 1975; Mendoza v. Farrell, 199 So.2d 750 (Fla. 3d DCA 1967); and Brown v. Cahill, 157 So.2d 871 (Fla. 3d DCA 1963). Accordingly, the order entered by the circuit court transferring the cause to the county court is quashed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed.


text:
    Ezacuras DAWSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-853.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Ezacuras Dawson, defendant-appellant, seeks reversal of his conviction for burglary of a dwelling and grand larceny, and sentences of 15 years imprisonment at hard labor on the burglary count and consecutive 5 years imprisonment at hard labor as to the grand larceny count.

Dawson first contends that the evidence adduced at trial was insufficient to sustain the conviction for grand larceny because the prosecution failed to prove that the market value of the property at the time of taking was $100 or more.

While market value at the time of the theft is the proper test, purchase price and other circumstances can be sufficient evidence of the market value in the appropriate case. Pickles v. State, 313 So.2d 715 (Fla.1975).

Upon being questioned with respect to the market value of the items stolen (a bicycle, television, clock-radio, watch, and turntable), the victim testified that her bicycle was bought for about $60 and she added improvements bringing the market value of the bike to approximately $70; she purchased her television at an auction for $35 but it actually was worth more; the radio was purchased for $60 and was in good working condition; she valued her watch and turntable to be worth $30 and $100 respectively at the time of the theft. Thus, we conclude that there was ample sufficient evidence presented to prove that the market value of the property at the time of the taking exceeded $100.

Defendant Dawson also argues that the “at hard labor” portion of the sentences is erroneous. We agree and strike the words “at hard labor” from each of the sentences. See McDonald v. State, 321 So.2d 453, 458 (Fla. 4th DCA 1975).

In all other respects the conviction and sentences are affirmed.


text:
    Yolanda DIAZ, Appellant, v. Pedro HERNANDEZ and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 77-1168.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    A. Koss and Gary D. Malfeld, Coral Gables, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The only substantial question presented on this appeal is whether the trial court properly applied the test set forth in Marshall v. Papineau, 132 So.2d 786 (Fla. 1st DCA 1961); and Reeder v. Edward M. Chadbourne, Inc., 338 So.2d 271 (Fla. 1st DCA 1976), in excluding the testimony of an expert witness. Our review of the record shows no error.

Affirmed.


text:
    AMERICAN FRUIT PURVEYORS, INC., Appellant, v. Robert FRANK, Appellee.
    Nos. 77-1604, 77-2004.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.

      Shirley Woolf and Arthur D. Frishman, Miami Beach, for appellant.
    Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Magee v. Croker, 116 Fla. 131, 156 So. 314 (1934); Welch v. Gray Moss Bondholders Corporation, 128 Fla. 772, 175 So. 529 (1937); Smith v. Urquhart, 129 Fla. 742, 176 So. 787 (1937).


text:
    MERLIN, INC. and Hartford Insurance Company, Appellants, v. Rita E. MOONEY, Appellee.
    No. 77-1687.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Rehearing Denied July 28, 1978.
    Marlow, Shofi, Ortmeyer, Smith & Span-gler, Greene & Cooper and Robyn Greene, Miami, for appellants.
    Beckham, McAliley & Proenza, Podhurst, Orseck & Parks and Robert Orseck, Miami, for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Compare Brown v. Kendrick, 192 So.2d 49 (Fla.1st DCA 1966); Sawyer v. Dawson, 215 So.2d 764 (Fla.3d DCA 1968; Paschal v. Pinkard, 228 So.2d 633 (Fla.2d DCA 1969); Greenbaum v. Barcus, 242 So.2d 182 (Fla.3d DCA 1970); Lincoln v. Miggins, 249 So.2d 88 (Fla.3d DCA 1971); Quinn v. Millard, 358 So.2d 1378 (Fla.3d DCA 1977), opinion filed May 9, 1978.


text:
    James L. BARNES, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2066.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: North v. State, 65 So.2d 77 (Fla.1952); Crum v. State, 172 So.2d 24 (Fla.3d DCA 1965); Wincor v. State, 212 So.2d 42 (Fla.3d DCA 1968); Pearsall v. State, 215 So.2d 58 (Fla.1st DCA 1968); Yost v. State, 243 So.2d 469 (Fla.3d DCA 1971); Ashley v. State, 265 So.2d 685 (Fla.1972); Fla.R.Crim.P. 3.390(d); Fla.Std.Jury Instr. (Crim.) 2.16.


text:
    Charles Joseph KELLENBENZ, Appellant, v. Constance KELLENBENZ, Appellee.
    No. 77-2232.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    L. Murray Fitzhugh, Miami, for appellant.
    Angelo P. Demos, Miami, for appellee.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   PER CURIAM.

In 1973, the circuit court established a foreign decree as a Florida judgment, which reads in part as follows:

* * * * * *
“THIS CAUSE having come on before me upon Final Hearing on March 7, 1973, and the Court having heard the testimony and argument of counsel for the respective parties, and being otherwise fully advised in the premises, it is hereby “ORDERED and ADJUDGED that the Final Decree of Divorce between the parties hereto entered by the Supreme Court of Ontario, Canada, on the 21st day of December, 1970, is hereby established as a Judgment of this Court and the same is given full faith and credit as though it were a Judgment of this Court, and it is “ORDERED and ADJUDGED that the Defendant, CHARLES JOSEPH KEL-LENBENZ, shall obey provisions of the said Final Decree as though fully set forth herein, and it is * * * ”
* * * * * *

Appellant argues that the judgment of March 27, 1973 was not a final judgment because the court retained jurisdiction to consider memorandums of law as to whether it had power of contempt over actions committed by appellant prior to the Florida court adopting the Canadian judgment.

Subsequently, the appellee commenced proceedings to collect arrearages for payments due after March, 1973. Upon appropriate petitions, the trial court found an arrearage and entered judgment on September 30, 1977 for such arrearages in alimony and child support. Thereafter, on October 3, 1977, the trial judge apparently signed a duplicate original of the judgment; it is identical in form as to that signed on September 20, 1977. The appeal was taken from both judgments.

The appellant contends that the judgment establishing the foreign decree rendered in 1973 was not final in nature and, therefore, not subject to enforcement; also, that the trial court erred in signing the subsequent judgment of October 3, 1977. The appellee concedes the latter point but, as to the former, urges that the establishment of the foreign decree was complete as to obligations thereunder accruing in the future, and the appellant was directed to comply therewith and, therefore, the order of the trial judge enforcing the Florida judgment on the foreign decree was proper. Sackler v. Sackler, 47 So.2d 292 (Fla.1950).

A different result might have obtained as to any attempt to enforce a judgment for arrearages that accrued prior to the establishment of the foreign decree, but such a result is not applicable to the amounts due subsequent to the establishment of the foreign decree.

Therefore, for the reasons above stated, the final judgment of September 20, 1977 be and the same is hereby affirmed, and the final judgment of October 3, 1977 be and the same is hereby declared to be a nullity and of no force and effect.

Affirmed in part; reversed in part.


text:
    Mark T. INNERST et ux., et al., Appellants, v. DADE COUNTY, Appellee.
    No. 77-2396.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Micheál E. Walters, Homestead, for appellants.
    Stuart L. Simon, County Atty., and Stanley B. Price, Asst. County Atty., John G. Fletcher, South Miami, for appellee.
    Before NATHAN, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Neida’s Boutique, Inc. v. Gabor and Co., 348 So.2d 1196 (Fla.3d DCA 1977); Warriner v. Ferraro, 177 So.2d 723 (Fla.3d DCA 1965); Rashard v. Cappiali, 171 So.2d 581 (Fla.3d DCA 1965).


text:
    Wade Hampton WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1606.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed is affirmed, but this case is remanded for correction of the judgment and sentence. Appellant was charged with attempted first degree murder with a firearm and was convicted as charged. His life sentence was proper, since attempted first degree murder, a first degree felony, § 777.04(4)(a), Fla.Stat. (1975), is reclassified as a life felony if a firearm is used. § 775.087(l)(a), Fla.Stat. (1976 Supp.). However, the judgment and sentence simply recites that appellant was convicted of attempted murder; it does not specify the degree of murder attempted or indicate that a firearm was used. It should reflect the specific crime of which appellant was convicted. In addition, the period of credit time to be allowed should be specifically set forth as required by Section 921.161(1), Florida Statutes (1977). Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). Appellant need not be present for this purpose.

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

      . Appellant was charged with two counts of attempted murder and was convicted on the first count and acquitted on the second.


author: MILLS, Judge.

text:
    Deborah L. GANEY, Appellant, v. GOODINGS MILLION DOLLAR MIDWAY, INC., and Ambassador Insurance Company, Inc., Appellee.
    No. EE-330.
    District Court of Appeal of Florida, First District.
    June 30, 1978.

      Antony E. Fiorentino, Pensacola, for appellant.
    Robert G. Kerrigan of Kerrigan & Estess, Pensacola, for appellee.
   MILLS, Judge.

Ms. Ganey was injured when she fell from a ramp while descending from an amusement ride. Summary judgment on liability was entered in her favor. At the jury trial on damages, her treating physician testified that she had a lumbosacral sprain with a resulting permanent disability of between five percent and ten percent of the body as a whole. The jury returned a verdict of $15,000 for Ms. Ganey.

Goodings moved for a new trial on the ground that it was surprised by the physician’s trial testimony of permanent disability because at no time during pretrial discovery did the physician indicate or imply that Ms. Ganey suffered a permanent disability. As a result, Goodings alleged it did not move to have Ms. Ganey examined by another physician, it was denied the opportunity of effective cross examination, and it was denied the opportunity to offer rebuttal testimony.

The trial court granted the motion for new trial. Ms. Ganey appeals. We reverse.

Ms. Ganey alleged in her complaint that her injuries were permanent and continuing in nature. Although the doctor stated in his deposition that Ms. Ganey would be all right and would have no further problems, he also stated that the ligaments and muscles of Mrs. Ganey’s low back were weakened and she might have problems with her job. At no time during the deposition did Goodings ask the doctor if Ms. Ganey suffered a permanent disability. Although Goodings was given the right to move for an independent physical examination [Fla.R.Civ.P. 1.360(a)], it did not choose to do this. Under these circumstances, Goodings cannot claim surprise.

There is no merit in Goodings’ argument that the trial court’s order must be affirmed because the court also granted Goodings a new trial on the ground that the verdict was excessive and Ms. Ganey did not assign this as error. The trial court stated that “Upon the Court suggesting a remittitur of $7,500.00 because the original award shocked judicial conscience, counsel for plaintiff announced his client would not accept such a remittitur.” The statement by the trial court amounted to no more than a suggestion, not an order. The court did not order a remittitur nor did it order a new trial upon Ms. Ganey’s refusal to accept the remittitur.

We reverse and remand this ease for reinstatement of the judgment rendered for Ms. Ganey on 16 September 1976 and for reinstatement of the order assessing her costs rendered on 11 October 1976.

BOYER and ERVIN, JJ., concur.


author: BOWEN, Judge.

text:
    Larry James BAXTER v. STATE.
    1 Div. 909.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.

      S. J. Laurie, Chatom, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the offense of carnal knowledge of a girl over twelve and under sixteen years of age. Title 14, Section 399, Code of Alabama 1940. The jury fixed sentence at two years’ imprisonment.

I

It was within the sound discretion of the trial court to permit the Sheriff, a witness for the state, to remain in the courtroom during the trial although the rule had been invoked. Webb v. State, 100 Ala. 47, 14 So. 865 (1894); Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967); 6A Alabama Digest, Criminal Law, Key Number 665(2). The exclusion of witnesses from the courtroom is entirely a matter of discretion, and not of right. McLean v. State, 16 Ala. 672 (1849); Patterson v. State, 53 Ala.App. 567, 302 So.2d 540, cert. denied, 293 Ala. 770, 302 So.2d 545 (1974).

II

Even though a child should, as far as possible, be permitted to tell, in his own language, what he saw and heard before resort is made to leading questions, it was within the discretion of the trial court to permit the prosecution to ask the twelve year old victim leading questions as to the details of the crime and the events surrounding its commission. Jackson v. State, 239 Ala. 38, 193 So. 417 (1940); Massey v. State, 49 Ala.App. 341, 272 So.2d 267, cert. denied, 289 Ala. 747, 272 So.2d 270 (1972); Title 7, Section 444, Code; Gamble, McElroy’s Alabama Evidence, Section 121.05(8) (3rd ed. 1975).

Ill

After cross examining the victim, defense counsel reserved “the right to recall this witness”. The trial judge responded, “All right” and instructed the bailiffs to assist the jury during the recess. After the state had rested and all the witnesses for the defense had testified, defense counsel moved to recall the victim for further cross examination because “there is a definite conflict in the testimony the defendant has presented and the testimony the state has presented”. Counsel stated that he “just want(ed) her to get on the stand and ask her if she wants to change her story”. The trial judge responded that he would allow the victim to be recalled' but only as a defense and not a hostile witness.

A trial court has discretion to allow or disallow a witness to be recalled for further cross examination. Shiflett v. State, 52 Ala.App. 476, 294 So.2d 444, cert. denied, 292 Ala. 749, 294 So.2d 448, cert. denied, 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1973); Morningstar v. State, 59 Ala. 30 (1877). A witness may be recalled and reexamined in chief, or further cross examined, at any stage of the trial, and as often as the court may allow. Thomas v. State, 100 Ala. 53, 14 So. 621 (1894). Because it is within the discretion of the trial court to disallow a witness to be recalled, the court, even after allowing the recall, has the discretion to disallow any question that may be asked the witness. Koger v. State, 38 Ala.App. 476, 87 So.2d 552 (1956); Bone v. State, 8 Ala.App. 59, 62 So. 455 (1913). It is within the court’s discretion to allow the recall of a witness for the purpose of impeachment or to lay a foundation therefor. Hammond v. State, 147 Ala. 79, 41 So. 761 (1906), and cases cited at 147 Ala. 89, 41 So. 761; Lewis v. State, 231 Ala. 211, 164 So. 92 (1935); Bell v. State, 74 Ala. 420 (1883). The trial court may properly allow a party to ask leading questions of a witness who has been recalled. Gurley v. State, 216 Ala. 342, 113 So. 391 (1927). If the court permits the recall of an adverse witness for purposes of impeachment or further cross examination, this act does not make such witness the witness for the party calling him. Hammond, supra; Jones v. State, 115 Ala. 67, 22 So. 566 (1897). Contra, Barker v. Bell, 46 Ala. 216 (1871).

We find that the trial judge did not abuse his discretion in refusing to allow the appellant to call the prosecutrix for further cross examination or for impeachment after the state had rested its case and the defense presented all of its witnesses. In brief the appellant contends that the trial court “abused its discretion and prevented the appellant from using certain information gained by testimony at this trial in an effort to impeach and otherwise change the testimony of the state’s witness”. Not only does defense counsel have a duty to seek to determine all relevant facts known to the accused but he also has a duty to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. American Bar Association Standards Relating to The Administration of Criminal Justice, The Defense Function, 3.2(a) and 4.1. Thus, absent surprise, defense counsel will be prepared to lay the foundation for impeaching a complaining witness in the usual course of cross examination during the state’s presentation of its case. Here the record discloses no reason why defense counsel should have been permitted to recall the complaining witness for further cross examination. The conflict presented between her testimony and that of the appellant was clearly a question for the jury. After the state had rested and the defendant presented all his witnesses, the defendant had no right to recall the prosecutrix for purposes of further cross examination and impeachment on matters to which she had previously testified and which conflicted with the testimony given by the appellant. Such a course would convert the trial into an endless display of refutation and rebuttal.

While the denial of a party’s request for further cross examination after the right to recall has been granted may constitute an abuse of discretion, the record in this case does not support a finding that defense counsel specifically reserved a right to recall the witness for further cross examination or that the court granted such a reservation. Hall v. State, 51 Ala. 9 (1874). Unlike the situation in Hall, the record does not indicate that the cross examination was temporarily suspended to prepare questions laying a proper predicate for impeachment or contradiction. Without question a defendant is entitled to call a witness used by the prosecution as his own. However the defense counsel who wishes to discontinue his cross examination and reserve a remainder until a later time should make the purpose of his reservation clear to the court.

IV

The evidence of the appellant’s guilt raises questions of fact for the jury. Such evidence, if believed, is sufficient to sustain the conviction. Even the uncorroborated testimony of the prosecutrix is sufficient to sustain a conviction for carnal knowledge under Title 14, Section 399, Code. Blackmon v. State, 46 Ala.App. 274, 240 So.2d 696, cert. denied, 286 Ala. 733, 240 So.2d 699 (1970); Waters v. State, 55 Ala.App. 646, 318 So.2d 342, cert. denied, 294 Ala. 773, 318 So.2d 346 (1975). The prosecutrix testified, in substance, that the attempted act of sexual intercourse caused her pain. A physical examination revealed a very small abrasion on the child’s hymen ring which is “essentially an area of skin around the entrance to the vagina”. This was sufficient evidence of the element of penetration to support the jury’s finding of carnal knowledge. Thomas v. State, 53 Ala.App. 232, 298 So.2d 652, cert. denied, 292 Ala. 755, 298 So.2d 657 (1974). The slight degree of physical injury to the child does not negative a claim of penetration. Smith v. State, 57 Ala.App. 164, 326 So.2d 692, cert. denied, 295 Ala. 419, 326 So.2d 695 (1975).

We have carefully searched the record and found no error adverse to the substantial rights of the appellant. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.