text:
    DORY AUERBACH REALTY COMPANY, a Florida Corporation, Al Evans and Edith Evans, Hidden Pines, Incorporated, a Florida Corporation, and Clara Auerbach, Appellants, v. Edward C. WASER and Lillian Waser, Appellees.
    No. 77-792.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.

      Levine, Reckson & Reed and Robert Geiger, Miami, for appellants.
    Edward B. Johnson, Jr., Miami, for appel-lees.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiffs appeal an adverse final judgment in this action for damages for alleged misrepresentation in their purchase of a mobile home park.

Defendant-appellees, Edward and Lillian Waser, owned the Sea Breeze Trailer Park which consisted of 101 usable lots, 29 of which were connected to a sewage treatment plant on the property. However, 16 of the 101 lots known as Pelican Point were connected to septic tanks. The Wasers listed the property for sale with Dory Auer-bach Realty Company and Mr. Waser showed Mr. Auerbach, as broker, the property and gave him a plot plan which allegedly demonstrated that the 16 Pelican Point lots were connected to the sewage treatment plant. Subsequently, the plaintiffs, Dory Auerbach Realty, Al and Edith Evans, Hidden Pines, Inc. and Clara Auer-bach executed a contract for the purchase of the park. An addendum to the contract provided that the Wasers place $5,000 in escrow to be used for the enlargement of the sewage treatment plant, this sum to be repaid by purchasers at $100 per month. The parties consummated the deal and thereafter plaintiff-purchasers discovered that the Pelican Point lots were on septic tanks and not connected to the treatment plant. Plaintiffs then filed the instant suit for the false and misleading representations with respect to the sewer line connections to these lots allegedly made by Waser orally and as shown in the plot plan given to Mr. Auerbach. The Wasers answered and counterclaimed for repayment of the $5,000 es-crowed for the enlargement of the sewage treatment plant because of plaintiffs failure to make the monthly payments. The Wasers also counterclaimed for $449.18 wrongfully credited to plaintiffs at the time of closing. The cause proceeded to a nonju-ry trial at which the Wasers denied making any representations with respect to the sewer line connections and further alleged that the subject plot plan was obviously out of date, incomplete and was used only for the purpose of locating the lots and who was occupying the lots at the time. At the conclusion of the trial, the judge found that plaintiffs had not been induced into the purchase of the park by the misrepresentations of the Wasers and then further found for the Wasers for $5,449. We affirm.

After a consideration of the records and briefs in this case, we find that there were conflicts in the. evidence which were resolved by the judge as trier of the facts as well as the law. There is substantial competent evidence to support the findings of the trial judge and, therefore, we cannot and shall not reverse the judgment of the trial court. See Morrison v. Smith, 257 So.2d 623 (Fla. 4th DCA 1972); City of Miami Beach v. Fein, 263 So.2d 258 (Fla. 3d DCA 1972); Jackson v. Granger Lumber Company, Inc., 275 So.2d 555 (Fla. 1st DCA 1973).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SELIGMAN OF FLORIDA, INC., d/b/a Applegreen Condominium Apartments, Appellant, v. Edward F. RUGG and Helen P. Rugg, his wife, Appellees.
    No. 77-826.
    District Court of Appeal of Florida, Fourth District.
    June 14, 1978.
    Jeffrey S. Altman and Chad P. Pugatch, of Goldberg, Young, Goldberg & Borkson, P.A., Fort Lauderdale, for appellant.
    Herbert A. Warren, Miami, for appellees.
   PER CURIAM.

Appellees sued for specific performance or in the alternative to recover their deposits on two condominium apartments. Ap-pellees abandoned the count for specific performance and the trial court found for the appellees on the second count for restitution.

We have fully considered appellant’s contentions but find on this record that the judgment appealed from should be affirmed.

AFFIRMED.

DOWNEY, C. J., ANSTEAD, J., and SIL-VERTOOTH, LYNN N., Associate Judge, concur.


author: LETTS, Judge.

text:
    BRADLEY INVESTMENT, INC., O’Riley Investment, Inc., Liberal Investment, Inc., Hugo Investment, Inc., and the Third Investment, Inc., Appellants, v. VIMY INVESTMENT, INC., and Sam Biberman, Trustee, Appellees.
    No. 77-2525.
    District Court of Appeal of Florida, Fourth District.
    June 14, 1978.
    R. T. Shankweiler of Patterson, Maloney & Shankweiler, Fort Lauderdale, for appellants.

      Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellee, Vimy Investment, Inc.
   LETTS, Judge.

This appeal involves the reinstatement of a case dismissed for lack of prosecution. The same order of reinstatement also vacated an earlier order abating the cause entered because litigation on the same subject matter had earlier commenced, and was still pending, in Canada. We reverse that part of the judge’s order vacating the abatement.

From the record and facts provided, we cannot say that the trial judge abused his discretion when, for good cause shown, he reinstated this case dismissed for lack of prosecution pursuant to Fla.R. of Civ.P. 1.420(e). However, we think he was in error in not continuing the abatement. The trial judge himself recognized the continuation of the Canadian proceedings noting in his order:

Those court orders abated this cause because of the pendency of certain Canadian litigation which the Court has been advised by counsel for the Plaintiff and the intervenors, STILL CONTINUES (emphasis supplied).

However the pendency of the Canadian litigation was the very reason for the entry of an abatement order in the first place and if it (the litigation) STILL CONTINUES, we find nothing in the record to warrant a vacation of the abatement. Moreover, part of the Court’s reasoning for reinstatement of the case was that the non-record activity was justified by the Canadian litigation. Accordingly, we find it inconsistent to, in part, find the foreign litigation good cause to reinstate, but not good cause to continue the abatement in accordance with the precepts of Cicero v. Paradis, 184 So.2d 212 (Fla. 2d DCA 1966).

We would comment that the trial court continues to have the authority to reconsider any order of abatement, upon a proper showing of a change in circumstances.

REVERSED IN PART IN ACCORDANCE HEREWITH.

CROSS and ANSTEAD, JJ., concur.


author: OTT, Judge.

text:
    Arthur Lee McKEEVER, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-1808, 77-1809 and 77-1810.
    District Court of Appeal of Florida, Second District.
    June 14, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Stephannie DaCosta, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Arthur McKeever appeals the revocation of his probation, which was predicated upon three charged violations. Because one of the charged violations was not established and the other two were technical violations, we reverse.

Appellant was placed on probation for three separate offenses, grand larceny and two counts of breaking and entering with intent to commit petit larceny. During the probationary period, affidavits and warrants were filed charging him with.having violated his probation by (1) failing to file three of his required monthly reports, in violation of condition 2; (2) shoplifting, in violation of condition 4; and (3) failing to make four of the required monthly payments for the cost of his supervision, in violation of condition 10.

At appellant’s probation revocation hearing, appellant admitted allegations (1) and (3) (the reporting and monetary violations— conditions 2 and 10), but denied allegation (2) (the shoplifting violation of condition 4). No evidence was offered to establish that appellant violated condition 4.

At the conclusion of the revocation hearing the trial court sentenced appellant to five years imprisonment on each of the underlying offenses, two of the sentences to run concurrently and the third to run consecutive to the first two. The trial court did so without expressly stating which conditions it found him to have violated.

The probation revocation orders which were subsequently entered by the trial court recite that appellant violated conditions 2, 4, and 10 of his probation.

Inasmuch as the allegation charging appellant with a shoplifting-violation of condition 4 was neither admitted nor proved, the trial court could not properly find that appellant violated that condition or base the revocation of appellant’s probation upon such a finding. See Bernhardt v. State, 288 So.2d 490 (Fla.1974). While it is undisputed that appellant violated the terms of his probation by failing to file monthly reports and failing to make monthly payments, we are uncertain whether the trial court would have revoked probation and imposed the sentence it did solely on those grounds. Accordingly, the order of revocation is reversed and the cause is remanded for further proceedings. See Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976).

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


author: GRIMES, Acting Chief Judge.

text:
    Paul MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 77-1876.
    District Court of Appeal of Florida, Second District.
    June 14, 1978.

      Jack O. Johnson, Public Defender, Douglas Brinkmeyer, Asst. Public Defender, and Daphne W. Boswell, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

This is an appeal from a conviction of perjury by contradictory statements under Section 837.021, Florida Statutes (1977).

The appellant and Ben Kennedy were charged with grand larceny. Appellant pled nolo contendere and was placed on probation for five years. In preparation for the trial of Kennedy, Assistant State Attorney Pickard subpoenaed appellant to his office and required him to give testimony under oath concerning the details of the crime. Appellant’s testimony was neither recorded nor transcribed. However, Pick-ard testified that appellant told him that he and Kennedy together conceived the idea of the larceny and that after the money was taken it was split between them. A few days later, at Kennedy’s trial, the appellant told a different story. He testified under oath that Kennedy did not participate in the decision to commit the crime and that Kennedy shared no part of the proceeds.

Only Pickard testified concerning what appellant had told him under oath prior to the trial. Therefore, appellant contends that his conviction must fall because of the “two witness rule” which requires the crime of perjury to be proved by two witnesses or by one witness and other independent and corroborating circumstances. See Womack v. State, 283 So.2d 573 (Fla. 4th DCA 1973).

Appellant interprets the rule too broadly. Careful analysis indicates that the common law requirement of more than the testimony of one witness in a perjury trial is limited to proof of the falsity of the accused’s statement. Thus, in Yarbrough v. State, 79 Fla. 256, 264, 83 So. 873, 875 (1920), our supreme court stated:

It is settled law that a verdict of conviction in a perjury case must have for its support something more than the testimony of one witness. In the case of McClerkin v. State, 20 Fla. 879, this court said:
“To convict of the crime of perjury, the offense must be proved by the oaths of two witnesses, or by the oath of one witness, and by other independent and corroborating circumstances, which is deemed of equal weight with another witness. Such is the rule now, well established on authority.”
And the element of the offense which must be so proved is the falsity of the matter sworn to. .

The necessity for corroboration in a perjury case refers only to proof of the falsity of what was said and not to proof of the other elements of the crime. United States v. Magin, 280 F.2d 74 (7th Cir. 1960); Commonwealth v. Billingsley, 357 Pa. 378, 54 A.2d 705 (1947); 70 C.J.S. Perjury § 70, p. 539.

In order to convict of perjury by inconsistent statements there was no need to prove that either of the two statements was false. Section 837.021(3), Florida Statutes (1977); Brown v. State, 334 So.2d 597 (Fla.1976). Therefore, it was only necessary to have the testimony of one witness to establish each of the essential elements of the crime.

AFFIRMED.

OTT and DANAHY, JJ., concur.


author: MILLS, Judge.

text:
    Steven O. SPURRIER and Billy G. Dunavant, Appellants, v. UNITED BANK, Appellee.
    No. DD-263.
    District Court of Appeal of Florida, First District.
    June 16, 1978.

      Allison E. Folds of Fagan, Crouch, Anderson & Folds, Gainesville, for appellants.
    Bevin G. Ritch of Lowry & Ritch, Gaines-ville, for appellee.
   MILLS, Judge.

United Bank (United) brought suit on two promissory notes against Steve Spurrier’s Golden Door Spa, Inc. (Spa), as maker of the notes, and appellants, Spurrier and Dunavant, as guarantors of the corporate obligations of Spa. The notes for Forty and Twenty-five Thousand Dollars were signed on behalf of Spa by James Latham, above the line labeled president, and by Charles Latham, above the line labeled secretary. Prior to the Spa notes being executed, Spa had filed with United a corporate resolution which provided that Spa could borrow money from United “. and that James R. Latham, Pres., Lowell V. Summerhays, Sec., are hereby authorized and empowered to execute and deliver the promissory note or notes of this corporation. . ” It was further provided that the resolution would continue in effect until rescinded by resolution, and notice of the rescission, signed by the president and secretary, was received by United.

In their answer, Spurrier and Dunavant asserted the defense of unauthorized execution of the notes and negligence on the part of United in failing to determine that the notes were not executed in conformity with the corporate resolution on file with United. After trial without a jury, final judgment was entered against Spa, Spurrier and Du-navant. Spurrier and Dunavant take this appeal from that judgment.

Spurrier and Dunavant contend that the Spa notes were not executed in compliance with the authorization of corporate borrowing on file with United, and therefore they cannot be held liable on the notes. Spurrier’s and Dunavant’s liability as guarantors is contingent on Spa’s liability on the notes. The guaranties executed by Spurrier and Dunavant guaranteed “. prompt payment, at maturity, of any and all notes, drafts, checks, and any and all indebtedness, . . . which now or hereafter may exist or be owing from [Spa] to [United]. . . . ” If Spa is liable on the notes, so are Spurrier and Dunavant as guarantors.

In its final judgment, the trial court found that United was the owner and holder of the notes “. . . executed by STEVE SPURRIER’S GOLDEN DOOR SPA, INC., in favor of UNITED. . . .”, and that payment of the notes had been guaranteed by Spurrier and Dunavant. Since the trial court did not specifically state the facts or theory supporting its ultimate conclusion, we are required to accept the facts to be those shown by evidence most favorable to United, the party which prevailed below, and can only reverse the trial court if there is no theory under which the judgment can be sustained. Coble v. Agnew, 128 So.2d 158 (Fla. 2d DCA 1961); Cohen v. Mohawk, 137 So.2d 222 (Fla.1962). We believe that there are at least two possible theories which would sustain the lower court’s judgment.

Firstly, the lower court could have determined that the notes were executed in accordance with the resolution on file with United. The resolution was ambiguous. It did not clearly state whether the signatures of both James R. Latham, President and Lowell V. Summerhays, Secretary, were required to execute a promissory note, or whether the signature of either Latham or Summerhays was sufficient. The trial court’s construction of an ambiguous contract cannot be disturbed by an appellate court, “. . . unless no valid legal basis exists for the conclusion reached”. Posner v. Flink, 167 So.2d 259 (Fla. 3d DCA 1964).

Secondly, even if the signatures on the notes were not the authorized signatures, the trial court could have found that the unauthorized signatures had been ratified by Spa or that Spa was estopped to deny their authority. “Ratification, as applied to the law of agency, is the adoption or affirmance by a principal of the acts of his agent, either expressly, as by a written act, or impliedly, as by acceptance of the benefits of the contract.” Skye Realty Co. v. Diversified Insurance Agency, Inc., 221 So.2d 871 (3 C.C.A.La.1969). “The doctrine [of estoppel] requires of a party consistency of conduct, when inconsistency would work a substantial injury to the other party. . As stated in Warren v. Tampa Mortgage Investors’ Co., 1933, 112 Fla. 555, 150 So. 738 . . ‘[t]he law is too well settled to admit of controversy that one may not accept the fruits of a contract and at the same time renounce, or repudiate, the burdens which that contract places on him’.” United Contractors, Inc. v. United Construction Corp., 187 So.2d 695 (Fla. 2d DCA 1966).

The evidence shows that Spa received and retained the proceeds of the notes. The trial court could have found that this constituted ratification of the unauthorized signatures or that Spa was estopped to assert the lack of authority of the officers signing. See, e. g., Grand Lodge, Knights of Pythias of Florida v. State Bank of Florida, 79 Fla. 471, 84 So. 528 (1920); Board of Public Instruction v. Cassidy, 122 Fla. 536, 155 So. 834 (1934).

The judgment of the trial court is affirmed.

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


author: BOOTH, Judge.

text:
    GUERDON INDUSTRIES, INC., a Delaware Corporation, d/b/a Armor Mobile Home Manufacturing Corporation of Georgia, Petitioner, v. Laura H. DURRENBERGER, Respondent.
    No. JJ-369.
    District Court of Appeal of Florida, First District.
    June 16, 1978.

      Jerry W. Gerde, Panama City, for petitioner.
    Bill A. Corbin, Blountstown, for respondent.
   BOOTH, Judge.

This cause is before the Court on Petition for Writ of Certiorari to review the order of the Circuit Court, Washington County, which order is in pertinent part, as follows:

“THIS CAUSE having come on before the Court for Hearing, upon Defendant’s Motion To Strike Affidavit, and Motion For Summary Judgment; and the Court having considered the matter, and having heard argument from counsel for both parties; and finding that a Motion For Summary Judgment is a pleading, and that the Pre-Trial Order forbids the filing of any further pleading without order of the Court; it is therefore
* * * * * *
ORDERED AND ADJUDGED that Defendant’s Motion For Summary Judgment be, and it is hereby, denied, upon the aforesaid basis that it is a pleading and therefore proscribed by the provisions of the Pre-Trial Order . .”

On consideration of the Petition and Appendix and Response thereto we hold that the Petition has merit and that the foregoing order of the trial court refusing to consider a motion for summary judgment on the grounds stated violates essential requirements of law. A motion for summary judgment is not a “pleading.” See Rules 1.100 and 1.110, F.R.C.P.; Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974), cert. denied 302 So.2d 414 (Fla.1975). Further, the trial court may not prohibit or deny consideration of the motion if timely and otherwise proper under Rule 1.510, F.R.C.P.

Accordingly, the order denying summary judgment is VACATED and the cause REMANDED for consideration of the motion on its merits.

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


author: BOARDMAN, Chief Judge.

text:
    Michael Douglas HILL, Appellant, v. William T. “Bill” ROBERTS, as Sheriff of Pinellas County, Florida, Appellee.
    No. 77-1216.
    District Court of Appeal of Florida, Second District.
    June 16, 1978.

      Jack F. White, Jr., Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant Michael Douglas Hill appeals the denial of his petition for writ of habeas corpus. The petition sought his discharge from custody after he had been held for more than thirty days pursuant to an extradition demand from the governor of North Carolina. We hold appellant was entitled to discharge, and we reverse.

Appellant was arrested in August 1972 on a fugitive warrant from North Carolina. In September or October 1972, the governor of Florida issued a rendition warrant pursuant to a demand from the governor of North Carolina. Appellant then filed a petition for writ of habeas corpus, which was denied by the trial court. This court affirmed that denial on December 7, 1973. State ex rel. Hill v. Genung, 287 So.2d 168 (Fla. 2d DCA 1973). Meanwhile, appellant had remained in jail. He was released on bail in May 1974, but no further action was taken concerning his extradition until July 1976, when he filed a petition for writ of habeas corpus in federal court which was dismissed without prejudice for failure to exhaust state remedies. Appellant then filed the instant petition in the Pinellas County circuit court raising the same grounds upon which the petition filed in federal court was predicated. The petition was denied after hearing and this appeal followed.

Proceedings for interstate extradition are controlled by federal law, and the applicable federal statutes must therefore be applied by state courts in proceedings concerning extradition. South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292 (1933). 18 U.S.C. § 3182 (1948) provides:

Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged. [Emphasis supplied].

The word “may” in the provision “[i]f no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged” has been construed as mandatory, Prettyman v. Karnopp, 192 Neb. 451, 222 N.W.2d 362 (1974), although the thirty-day period is tolled during any delay attributable to the fugitive. Prettyman v. Karnopp, supra; Application of Dunster, 131 N.J.Super. 22, 328 A.2d 238 (N.J.Super.App.Div.1974). We agree with this reasoning. We do not consider it reasonable nor do we believe it was ever intended that a person could be held indefinitely as a fugitive from justice pursuant to the authority of 18 U.S.C. § 3182 (1948) without some action to receive him being taken on the part of the demanding state. See Treadway v. Heidtman, 284 So.2d 473 (Fla. 4th DCA 1973).

Here there was some delay attributable to appellant caused by the pendency of his first petition for writ of habeas corpus, during which time he was not available for extradition. However, from the date of issuance of this court’s mandate in the prior case in January 1974 to the time of filing of appellant’s petition for habeas corpus in federal court in July 1976, a period of two and a half years, appellant was available to be received by the agent of the demanding state. The demanding state having made no attempt to receive appellant during all this time, appellant is entitled to discharge.

Accordingly, the order denying appellant’s petition for writ of habeas corpus is reversed and the cause remanded with instructions to discharge appellant.

SCHEB and RYDER, JJ., concur.


text:
    Clifford MONROE, an Individual, Appellant, v. Samuel BADANES, an Individual and Sam Nurenberg, an Individual, Appellees.
    No. 76-2306.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Schweitzer & Kosdan and Brian W. Paris-er, Miami, for appellant.
    Pyszka, Kessler, Adams & Solomon, Richard M. Gale, Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment entered in favor of the appellees in a slip and fall action for damages suffered by appellant when he slipped and fell on an unlighted outside stairway of an apartment house owned by the appellees.

The record on appeal discloses that there are genuine issues of material fact which have not been eliminated by the movants for summary judgment. Fletcher v. Petman Enterprises, Inc., 324 So.2d 135 (Fla. 3d DCA 1975); Robinson v. Kiwanis Club of Delray Beach, 265 So.2d 387 (Fla. 4th DCA 1972); and Carter v. Parker, 183 So.2d 3 (Fla. 2d DCA 1966).

The judgment appealed is reversed and the cause remanded for further proceedings.

Reversed and remanded.


author: KEHOE, Judge.

text:
    Cherylann HOBBS et al., Appellants, v. Floyd Michael SAUERS and State Farm Mutual Automobile Insurance Company, an Illinois Corporation, Appellees.
    No. 77-453.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Wolfson, Appel & Maram and Anthony J. Brown and Christopher W. Warner, Miami, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley and Robert J. Dickman, Miami, for appellees.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

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

Appellant brought the instant action as a result of injuries she allegedly sustained in an automobile accident with appellee Floyd M. Sauers. The gravamen of appellant’s complaint was that, because of the accident, she had sustained permanent injury within reasonable medical probability. § 627.737, Fla.Stat. (1975).

During the course of the trial, the testimony of one of appellant’s witnesses, Jordan Davis, M.D., was excluded from evidence. Doctor Davis’s testimony involved, among other things, the permanency of appellant’s injuries. However, the trial court determined that Dr. Davis was an “examining physician” who was ineligible to testify under the rationale of Marshall v. Papineau, 132 So.2d 786 (Fla. 1st DCA 1961), and its progeny. Thereafter, at the close of appellant’s case, the trial court entered a directed verdict in favor of appellees. Pursuant to the directed verdict, the trial court entered a final judgment in favor of appel-lees. From this final judgment, appellant appeals.

Appellant contends that Dr. Davis’s testimony was improperly excluded because he was not an “examining physician” under the rationale of the Marshall case, but rather was a “treating physician” whose testimony in regard to appellant’s complaint was an exception to the hearsay rule.

We agree with appellant’s contention. Our review of the record leads us to the conclusion that Dr. Davis was a “treating physician” whose testimony was improperly excluded from evidence by the trial court. Further, we are of the opinion that if Dr. Davis’s testimony had been admitted, it would have created a justiciable issue of fact which was properly determinable by the jury. See Parker v. Martin, 338 So.2d 230 (Fla. 3d DCA 1976); Bill Kelley Chevrolet, Inc. v. Kerr, 258 So.2d 280 (Fla. 3d DCA 1972); Steiger v. Massachusetts Casualty Insurance Co., 253 So.2d 882 (Fla. 3d DCA 1971); and City of Hialeah v. Hutchins, 215 So.2d 496 (Fla. 3d DCA 1968).

Accordingly, the final judgment entered by the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed.


text:
    GAYETY THEATRES, INC., d/b/a Pussycat Theatre and Leroy C. Griffith, William Finigan, Lou Hollander and Sanford Oleesky, Appellants, v. STATE of Florida ex rel. Richard E. GERSTEIN, Appellee.
    No. 77-873.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Weinstein & Krasnow, Miami Beach, for appellants.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

By this appeal we are asked to review the propriety of a civil contempt order entered in the Circuit Court for the Eleventh Judicial Circuit of Florida based on a violation of a prior court order which had enjoined the showing of the film “Deep Throat” on grounds of obscenity under Section 847.011, Florida Statutes (1977). No appeal was taken from the prior injunctive order. We affirm the civil contempt order entered herein against the defendants Gayety Theatres, Inc., d/b/a Pussycat Theatre and Leroy C. Griffith as the order is based on substantial competent evidence.

We reverse the civil contempt order, however, as to the defendants, William Finigan and Lou Hollander, because such defendants were not made parties to the original order which had enjoined the showing of the aforesaid film “Deep Throat”. In addition, the last paragraph of the contempt order herein which forbids the defendants from showing or attempting to show any X-rated movies is stricken as an unconstitutional prior restraint on free expression prohibited by the First Amendment to the United States Constitution. Mitchem v. State ex rel. Schaub, 250 So.2d 883 (Fla.1971); Art Theatre Enterprises, Inc. v. State ex rel. Gerstein, 260 So.2d 267 (Fla.3d DCA 1972); Paris Follies, Inc. v. State ex rel. Gerstein, 259 So.2d 532 (Fla.3d DCA 1972).

Affirmed in part; reversed in part.


author: HENDRY, Judge.

text:
    INDIANA INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Mildred COLLINS et al., Appellees.
    Nos. 77-878, 77-879 and 77-1019.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.

      Horton, Perse & Ginsberg and Edward A. Perse, Hawkesworth, Schmick, Ponzoli & Wassenberg, Miami, for appellant.
    Alboum & Furlong and Estelle Furlong, Miami Beach, High, Stack, Davis & Lazen-by and Alan R. Dakan, Blackwell, Walker, Gray, Powers, Flick '& Hoehl, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant insurer, defendant and third party plaintiff below, takes this consolidated appeal from three orders of the trial court which dismissed appellant’s third party complaint against appellees, third party defendants below. We reverse.

The plaintiffs in the trial court were insured under the terms and provisions of a policy of automobile liability insurance issued to them by appellant. The policy, which provided uninsured/underinsured motorist coverage, further provided for direct Circuit Court action rather than the usual arbitration, to resolve disputes arising under the policy provisions relating to the uninsured/underinsured motorist coverage.

On January 23, 1976, plaintiffs’ minor son, insured under appellant’s policy, was injured in an automobile accident when the ear in which he was a passenger was involved in an intersectional collision. Pursuant to the terms of the policy, on December 10, 1976, plaintiffs filed suit against appellant. Subsequently, appellant filed its third party complaint against the various appel-lees, to wit: the owner of the vehicle in which plaintiffs’ son was riding, Foster; the driver of said vehicle, Edward Caronia, Jr., a minor; Edward Caronia, Sr., the driver’s father; Travelers Insurance Company, Caronia, Sr.’s carrier; Ansley, the driver of the other vehicle involved in the accident; Fuchs Baking Co., the owner of said other vehicle; and Liberty Mutual Insurance Company, Fuchs’ carrier. Basically, the third party complaint alleged that should plaintiffs recover from appellant, then ap-pellees might be liable to appellant for damages.

All appellees moved to dismiss the third party complaint. Eventually, the trial judge dismissed the third party complaint with prejudice and this appeal follows.

Appellees argue that in order for appellant to file a third party complaint for subrogation, (1) the insureds (plaintiffs) must have first received payment from their insurer and (2) the subrogation complaint must then be filed by the insurer in the name of the insureds “for the use and benefit of” the insurer. We agree with appellee’s position.

As succinctly stated in 18A Fla.Jur. Insurance § 945:

“It is well settled that an insurer, after payment of a loss incurred by the insured, is entitled to be subrogated pro tanto to any right of action that the insured may have against the third person whose negligence or wrongful act caused the loss. This right may be the right of conventional subrogation, that is, subrogation by agreement between the insurer and the insured, or the right of equitable subro-gation, by operation of law, upon payment of the loss and without any formal assignment or any express stipulation to that effect.” (Emphasis supplied.)

See also National Surety Corporation v. Bimonte, 143 So.2d 709 (Fla.3d DCA 1962). Additionally, pursuant to Gould v. Weibel, 62 So.2d 47 (Fla.1952) and Central Mutual Insurance Company v. State Farm Mutual Automobile Insurance Company, 247 So.2d 94 (Fla.3d DCA 1971), the third party complaint for subrogation filed sub judice must be filed in the name of the insured for the use and benefit of the insurer.

While appellant has neither settled its claim with its insureds, nor filed its third party subrogation claim in the name of the insureds, for the use and benefit of the insurer, we nevertheless are of the opinion that dismissal with prejudice was improper. Appellant should be given the opportunity to settle the claim with plaintiffs and then be allowed to file an amended third party complaint in the name of the plaintiffs for the use and benefit of the insurer. This two stage process, i. e., settlement and third party subrogation claim, may be completed in one proceeding or the trial judge, at his discretion, may bifurcate the stages holding a trial on plaintiffs’ claims against appellant prior to the third party action. See Fla.R.Civ.P. 1.270.

Accordingly, the orders appealed from are reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.


text:
    Geoffrey H. HILL, Appellant, v. Dr. Herbert W. VIRGIN, Jr., Appellee.
    No. 77-1009.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Edward C. Vining, Jr., Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellee.
    Before HENDRY and BARKDULL, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Appellant, plaintiff in this medical mal-practicé action, seeks review of the following adverse summary final judgment in which the trial court found:

“1. That the Plaintiff, GEOFFREY H. HILL was a patient of the Defendant, DR. HERBERT W. VIRGIN, JR. commencing on or about March 8, 1967, in connection with an injury involving, among other conditions, a fracture of the right femur.
2. That the defendant .. . .attended the patient during the period of 1967 through 1970 and that the Plaintiff, during that period of time, was advised of a non-union situation and the development of infection within the injured area.
3. That the patient . . . ceased treatment with the Defendant in late 1970 and was thereafter attended by other physicians.
4. That in December of 1972 the Plaintiff was advised by a physician to wit: Dr. Thompson, that the medical management of the infectious condition as rendered by this Defendant was not in keeping with the appropriate standard of care.
5. That the leg in question to wit: the right leg, was amputated in January of 1973 and this lawsuit was not instituted until February 27, 1975.
In view of the foregoing, it is
ORDERED AND ADJUDGED as follows:
1. That the Motion for Summary Judgment of the Defendant ... be and the same is hereby granted in that the Statute of Limitations expired, at the very latest, in January of 1975 being two (2) years after the amputation of the leg.
2. That the Statute of Limitations may have expired prior to January of 1975 predicated upon the actual knowledge of the Plaintiff of the condition of the nonunion and infection but such finding is unnecessary in view of conclusion # 1 above.
WHEREFORE, it is ordered and adjudged that Summary Judgment be and the same is hereby entered in favor of the Defendant, DR. HERBERT W. VIRGIN, JR. and the Plaintiff, GEOFFREY H. HILL shall take nothing by this action and the Defendant shall go hence without day ...”

By this appeal, we are called upon to determine whether the trial court was correct in entering summary final judgment for the defendant holding, in effect, that there is no genuine issue of material fact, and that defendant is entitled to judgment as a matter of law because the statute of limitations had run. We hold that the trial court was correct, and we affirm.

The applicable statute of limitations at the time of the filing of this lawsuit was Section 95.11(6), Florida Statutes (1973), as amended by Laws of Florida, Chapter 74-382, Section 7(4)(a), which provided that in an action for professional malpractice, the two year

“ . . . period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence . . ”

The meaning of this statute is clear, that it begins to run when the plaintiff knows, or by the exercise of due diligence under the circumstances, should have known of the alleged malpractice. If the plaintiff knew or had reason to know of any negligence on the part of the defendant doctor more than two years prior to February 27, 1975, the date on which his complaint was filed, this action is barred and summary judgment was proper.

From the record in this case, it appears that the plaintiff may have had notice or reason to know of the alleged malpractice prior to 1970, 1971 or 1972, and that as late as December, 1972, he was provided with information which put him on notice to make reasonable and diligent inquiry into the cause of his problem. His failure to do so is unjustified in terms of the tolling of the statute of limitations. In January, 1973, plaintiff’s leg was amputated. We find that the amputation, coupled with plaintiff’s prior knowledge and suspicions, had to commence the running of the statute of limitations no later than January, 1973, and the two year period would have expired in January, 1975, as determined by the trial court. Therefore, summary judgment was correctly entered.

Affirmed.


text:
    Steve Edward HOSHAW, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1259.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, 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.

This appeal is by the defendant below from an order revoking probation and the sentence then imposed. The previous conviction, upon which adjudication of guilt had been withheld and probation granted, was for unlawful carnal intercourse with an unmarried female minor of previous chaste character.

Upon revoking probation the court adjudicated the defendant guilty of the above mentioned crime and sentenced him to imprisonment in the State Penitentiary for a term of 15 years, with credit for certain jail time served. The sentence then made the following provision:

“It Is Further Ordered that at the completion of said sentence you be evaluated by the Division of Mental Health for determination as a Mentally Disordered Sex Offender, pursuant to Section 917 of the Florida Statutes.
“It Is Further Ordered that you shall not be released until it is determined that you are able to remain in Society without causing harm.”

Chapter 917, Florida Statutes (1975) for determination of whether a person is a Mentally Disordered Sex Offender provides for procedure thereunder to be taken prior to sentencing, upon deferring sentence. It was error to provide for it to occur after expiration of a sentence of imprisonment which was imposed. Section 917.14, Florida Statutes (1975) provides:

“(1) If a defendant has been convicted of or has pleaded guilty or no contest to an offense or attempted offense in a current prosecution, the court may defer sentencing and certify him for a hearing and examination in the circuit court to determine whether he is a mentally disordered sex offender.
“(2) The court may certify a defendant under subsection (1) on its own motion, on motion by the State Attorney or the defendant, or on application by affidavit of the defendant.’-’

Accordingly, the judgment is affirmed, but the sentence is vacated and the cause is remanded to the Circuit Court to either resentence the defendant or defer sentence and certify the defendant for hearing under the said mentally disordered sex offender act.

It is so ordered.


text:
    Franklin Hodgers WARNER, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-1567, 77-2614.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Franklin Hodgers Warner, pro se.
    Robert L. Shevin, Atty. Gen. and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Affirmed. See, e. g., State v. Weeks, 166 So.2d 892 (Fla.1964); Brumley v. State, 224 So.2d 447 (Fla. 4th DCA 1969); and Simpson v. State, 164 So.2d 224 (Fla. 3d DCA 1964).


text:
    Manuel Ismael PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1613.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Jack R. Blumenfeld, Miami, for appellant. Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, J., and CHARLES CARROLL (Ret.) and PARKER, J. GWYNN (Ret.), Associate Judges.
   PER CURIAM.

Affirmed. See McCloud v. State, 335 So.2d 257 (Fla.1976); Reis v. State, 248 So.2d 666 (Fla.3d DCA 1971); DeLaine v. State, 230 So.2d 168 (Fla.2d DCA 1970); Matire v. State, 232 So.2d 209 (Fla.4th DCA 1970), and Goodwin v. State, 157 Fla. 751, 26 So.2d 898 (1946).


text:
    Richard MORRIS, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL INSURANCE COMPANY, Appellee.
    No. 77-1717.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.

      Helliwell, Melrose & DeWolf and Douglas S. Lyons, Miami, for appellant.
    Rentz, McClellan & Haggard, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the plaintiff below from an adverse judgment entered on a non-jury trial. We find error, and reverse.

The plaintiff, Richard Morris, who was residing in the household of his father, Earnest Morris, received personal injuries caused by an uninsured motorist, while Richard Morris was driving an automobile owned by his brother, Randal F. Morris.

The plaintiff’s father, Earnest Morris, held a liability indemnity policy with uninsured motorist coverage, issued to him by the appellee, Pennsylvania National Mutual Insurance Company, herein referred to as the insurer. Under the terms of the policy Richard Morris was an insured.

Following a denial of coverage by the insurer this action was brought by Richard Morris against the insurer for declaratory judgment to establish coverage, and to compel arbitration.

The policy provided “Family Protection Coverage” for an insured, defined therein as “the named insured and any relative”, the latter being defined as a relative who is a resident of the household of the named insured.

In defense thereof the insurer asserted absence of coverage based on an exclusionary clause in the policy which provided that the uninsured motorist coverage did not apply:

“to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile; * * *”.

Randal Morris was the titled owner of the automobile being driven by the plaintiff, Richard Morris, at the time of the accident. It was one of two automobiles owned by Randal Morris, who had granted Richard Morris the right to use the automobile in question, which the latter did for the limited purpose of driving to and from his place of work and for errands.

Following trial a judgment was entered in favor of the defendant insurer, thereby holding absence of coverage based on the exclusionary clause above quoted. That ruling of the court was error.

We need not invoke the rule established in Florida against exclusionary provisions in such policies which operate to reduce or impair the benefit of the uninsured motorist coverage required therein by law, because on the facts of the case the exclusionary clause of the policy was not applicable to preclude coverage or bar the claimant’s right to arbitration. This is so because the exclusionary clause provided that uninsured motorist coverage did not apply to bodily injury to an insured while occupying an automobile (other than an insured automobile) “owned by the named insured or a relative”. Here the automobile occupied by Richard Morris when he was injured, although it was not an insured automobile, was not one owned by the named insured or by a relative as defined in the policy. The automobile being used was owned by Randal Morris, the plaintiff’s brother, and because Randal was not living in the household of the named insured, he was not a “relative” as defined.

For the reasons stated the judgment is reversed and the cause is remanded with direction to enter judgment holding in favor of the plaintiff on the question of coverage and directing arbitration.

It is so ordered.

      . Mullis v. State Farm Mutual Automobile Ins. Co., 252 So.2d 229 (Fla.1971); Johnson v. Auto-Owners Insurance Company, 289 So.2d 748 (Fla. 1st DCA 1974); Lee v. State Farm Mutual Automobile Insurance Company, 339 So.2d 670 (Fla. 2d DCA 1976).


author: BARKDULL, Judge.

text:
    Rudolph Joseph MILAZZO, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1749.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    J. Edward Worton, Key West, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.

      Before BARKDULL, NATHAN and HUBBART, JJ.
   BARKDULL, Judge.

Appellant, after a jury trial, was convicted of two counts of sale of cocaine, in violation of Sections 893.03, 893.13, Florida Statutes (1975-1976). The trial court sentenced appellant to two fifteen-year terms, to run concurrently.

Appellant raises two points on appeal. The first is that the trial court erred in limiting cross-examination of a State’s witness as to his prior employment. In response, the State contends that the prior occupation of a police officer is irrelevant to the issue of sale or delivery of cocaine. We agree with the State. This testimony was irrelevant to the case and was properly excluded. See: Crespo v. State, 344 So.2d 598 (Fla.3d DCA 1977). Furthermore, the witness’ prior occupation was in fact established before the jury.

By his second point, the appellant alleges error in failing to give his requested jury instruction on attempted sale or delivery of a controlled substance. The State, however, while recognizing the necessity of instruction on lesser included offenses, contends that attempted sale of narcotics and sale of narcotics constitute the same crime, negating the necessity of giving the requested charge.

In support of his contention, appellant relies on Fla.R.Crim.P. 3.510, which provides:

“Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense * * * ” [emphasis added]

He also relies on Lightfoot v. State, 331 So.2d 388 (Fla.2d DCA 1976); Garrison v. State, 340 So.2d 1171 (Fla.4th DCA 1976); Lomax v. State, 345 So.2d 719 (Fla.1977).

Upon reviewing these authorities, we find Garrison v. State, supra, and Lomax v. State, supra, are not applicable in the instant case. Neither of these cases deal with crimes involving sale of controlled substances but, rather, they deal with robbery, aggravated assault, and receiving stolen property, all of which recognize attempt as a lesser included offense pursuant to Brown v. State, 206 So.2d 377 (Fla.1968) and its progeny.

On the other hand, Lightfoot v. State, supra, is on point, holding that attempted sale of heroin is a separate offense requiring an instruction on attempt. For the following reasons, we respectfully decline to follow that holding.

In order to justify a charge on attempt it is necessary that such attempt is itself an offense. Brown v. State, supra; Fla.R.Crim.P. 3.510. But, “If a crime is itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime.” King v. State, 317 So.2d 852 (Fla.1st DCA 1975), affirmed 339 So.2d 172 (Fla.1976).

Section 893.02(4), Florida Statutes (1975) provides that: “ ‘Deliver’ or ‘delivery’ means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is any agency relationship.” Attempted delivery and actual delivery are, by definition, the same crime; and instruction that attempted delivery is a separate crime would have been improper.

Florida Standard Jury Instructions in Criminal Cases, as approved by the Florida Supreme Court, provide that: “ ‘To sell’ means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.” A “sale” is nothing more than a “delivery” with consideration; the transfer being the essence of the “sale”. An offer to sell, by definition, is a sale and not a separate crime of attempted sale. Betancourt v. State, 228 So.2d 124 (Fla.3d DCA 1969); Delgado v. State, 229 So.2d 651 (Fla.3d DCA 1969).

To hold that attempted sale is a crime distinct from sale would result in absurdity. Attempted sale would be defined as an attempt to “deliver [i. e., to attempt transfer] something to another person in exchange for money or something of value or a promise of money or something of value”. The Legislature did not intend to separately punish an “attempt to attempt to transfer for consideration”. There can be no crime of attempt to attempt to do something. King v. State, supra; Henry v. State, 344 So.2d 1311 (Fla.3d DCA 1977).

Notwithstanding its holding in Lightfoot v. State, supra, the Second District Court of Appeal recognized the foregoing rationale in the ease of State v. Vinson, 298 So.2d 505 (Fla.2d DCA 1974), wherein in dealing with the question of delivery under Section 893.-13, Florida Statutes (1973), it stated:

******
“This raises the question of whether it . would be necessary for the prescription to be filled in the instant case before the felony could be committed. Ordinarily it would, because the word ‘delivery’ refers to the transfer of the drug rather than the transfer of the prescription. Therefore, one who issues such a prescription which is never filled would have only committed an attempt which, under normal circumstances, would be punishable under § 776.04, F.S.A. However, that statute, by its terms, only applies ‘when no express provision is made by law for the punishment’ of an attempt. In Chapter 893, delivery is defined as the ‘actual, constructive or attempted transfer.’ Therefore, one who attempts to make the transfer is guilty of the substantive offense even though the transfer is not successful. The physician who has issued a prescription for a drug in bad faith and not in the course of his professional practice has done everything he can do toward committing the crime. Because of the definition of delivery, he is just as guilty where the transfer of the drug never takes place as where it does.” [emphasis supplied]
******

In the case of Henry v. State, supra, this court, when confronted with a question of refusal to give a charge on attempted unlawful possession of dynamite, recognized the aforementioned principle in holding that if there is no crime of attempt under the applicable statutes no instruction thereon is necessary.

Therefore, we hold that for purposes of Sections 893.03, 893.13, Florida Statutes (1975-1976), attempted delivery is, by definition, the same crime as delivery; attempted sale (an element of which is delivery) is, by definition, the same crime as sale.

Based on the foregoing, the trial court properly excluded separate instructions on these “attempts”, and the convictions, adjudications, and sentences are therefore affirmed.

Affirmed.


text:
    Oscar RODRIGUEZ and Ayda Rodriguez, his wife, Appellants, v. Kenneth I. SILVERSTEIN, State Farm Automobile Insurance Company, and Allstate Insurance Company, Appellees.
    No. 77-1751.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Grover, Ciment, Weinstein & Stauber, Miami Beach, Greene & Cooper and Sharon Wolfe, Miami, for appellants.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellees.
    Before HAVERFIELD, C. J., and BARK-DULL, J., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Harrell v. Durrance, 9 Fla. 490 (1861); W. T. Hadlow Company v. Sargent, 61 Fla. 263, 54 So. 1003 (1911); Orange Julius Realty Corporation v. Sunshine Toy Center, Inc., 251 So.2d 681 (Fla. 3d DCA 1971); Fears v. Lunsford, 314 So.2d 578 (Fla.1975); Gordon v. Goodrich, 347 So.2d 715 (Fla. 3d DCA 1977); Fla.R.Civ.P. 1.420.


text:
    S. Peter CAPUA, as administrator of the Estate of Bernabe Hernandez, Deceased, Appellant, v. Peter RAGONE and Allstate Insurance Company, Appellees.
    No. 77-1890.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    West, Friesner & Goldman and Harold West, Miami, for appellant.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Kahn v. Delaware Securities Corp., 114 Fla. 32, 153 So. 308 (1934).


author: HUBBART, Judge.

text:
    BONDED RENTAL AGENCY, INC., Appellant, v. John M. CONNER, Appellee.
    No. 77-2674.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.

      Abe Schonfeld, Miami, for appellant.
    Betty Kessler and Alan Mark Wayne, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

The defendant Bonded Rental Agency, Inc. appeals an order denying its motion to vacate a default judgment entered against it on an action for breach of contract and an accounting in the Circuit Court for the Eleventh Judicial Circuit of Florida. The default was entered by the trial court because the defendant did not file an answer to the plaintiff John M. Conner’s amended complaint as permitted, but not required by the court in its order dismissing the plaintiff’s original complaint. The defendant contends on appeal that the default was improperly entered and should have been vacated upon its motion herein because it had previously filed an answer to the original complaint, the amended complaint was virtually the same as the original complaint, and therefore its original answer should have been permitted to stand over as an answer to the amended complaint. We agree and reverse.

The law is clear that an answer to an original complaint stands over as an answer to an amended complaint providing the amended complaint is so substantially similar to the original complaint that the answer is responsive thereto. A contrary rule would exalt form over substance by requiring the performance of a useless act. A default judgment may not be entered against a party for failure to file an amended answer under such circumstances. The rule is of course different where (1) the amended complaint contains substantial changes from the original complaint so that the previously filed answer cannot be considered as responsive to the amended complaint, or (2) the trial court in its sound discretion orders the party to file an amended answer because of the confused state of the pleadings or for any other valid reason. In either such case, the party must file in timely fashion an amended answer (or in lieu thereof a legally recognized response) to the amended complaint; failure to do so constitutes prima facie grounds for the entry of a default judgment against the said party. Polar Enterprises, Inc. v. Srednicki, 354 So.2d 419 (Fla. 3d DCA 1978); Ortiz v. Nicolaides, 196 So.2d 186, 187 (Fla. 3d DCA 1967); Craver v. Ramagli Realty Co., 109 So.2d 187 (Fla. 3d DCA 1959); Fla.R.Civ.P. 1.190(a).

Measured by these standards, it is clear that the defendant herein was entitled to have its answer stand over as an answer to the plaintiff’s amended complaint. The amended complaint was so substantially similar to the original complaint that the defendant’s answer was responsive thereto. The trial court permitted, but did not order the defendant to file an answer to the amended complaint. Consequently, the trial court improperly entered a default judgment against the defendant which judgment should have been vacated upon the defendant’s motion herein.

The order appealed from is reversed and the cause remanded for further proceedings.


text:
    Samuel SHOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 77-312.
    District Court of Appeal of Florida, Second District.
    June 21, 1978.
    Elliott C. Metcalfe, Jr., Public Defender, and Harold H. Moore, Asst. Public Defender, Sarasota, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After his conviction for assault with intent to commit second degree murder, appellant wrote a letter to the trial court in which he stated that he wished to appeal and asked that the court appoint counsel for that purpose. The court treated the letter as a timely notice of appeal and appointed the public defender for the Tenth Circuit to act as appellate counsel. However, the appeal was neither docketed in the trial court nor in this court. Appellant’s counsel filed a motion to withdraw, which the trial court subsequently granted.

Some time later, appellant filed a petition for a writ of habeas corpus in the trial court alleging that his right to appeal had been frustrated by state action. He also made other allegations which we need not consider here. The trial court treated the petition as a motion for postconviction relief and denied it.

We cannot say that the trial court erred in denying appellant’s petition. A defendant seeking a belated appeal by way of habeas corpus should file his petition in the district court of appeal which would have jurisdiction over the appeal. Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). Moreover, a trial court does not have the power to grant a belated appeal. State v. Wooden, 246 So.2d 755 (Fla.1971).

We do believe, however, that the better procedure would have been for the trial court to transfer appellant’s petition to this court. See Baggett v. Wainwright, supra. Accordingly, we retain jurisdiction of this case and treat appellant’s petition as if he had originally filed it here.

We think that the undisputed facts in the record which we have set out above clearly demonstrate that appellant’s right to appeal was frustrated by state action and that consequently he is entitled to a belated appeal.

Accordingly, we grant the petition for habeas corpus and give appellant the opportunity for full appellate review by this court of the judgment and sentence dated November 18,1975. As it appears from the record that appellant is insolvent, we appoint the public defender for the Tenth Judicial Circuit for Polk County, Florida, to conduct the appeal. All computations of time under the appellate rules shall commence from the date of this opinion.

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

      . Both the 1962 and 1977 versions of Florida’s appellate rules also lend support to this solution. See Fla.App.R. 2.1(a)(5)(a) (1962); Fla.R.App.P. 9.040(b) (1977).


text:
    Gregory P. POUK, Appellant, v. STATE of Florida, Appellee.
    No. 77-1670.
    District Court of Appeal of Florida, Second District.
    June 21, 1978.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The only point raised by appellant in this appeal which has merit is whether, as appellant contends, the trial court erred in failing to give his requested instruction on justifiable homicide. We agree with his contention and reverse.

The state of Florida charged appellant Gregory P. Pouk with second-degree murder in violation of Section 782.04(2), Florida Statutes. He pled not guilty, and after trial a jury found him guilty as charged. The trial judge sentenced appellant to serve five years in prison and suspended the last two years placing appellant on probation for that time.

The Supreme Court of Florida has held that when a trial court gives an instruction on manslaughter, as the court did here, it must also give an instruction on justifiable homicide and excusable homicide. Hedges v. State, 172 So.2d 824 (Fla.1965); see, also, Whitehead v. State, 245 So.2d 94 (Fla. 2d DCA 1971); Green v. State, 244 So.2d 167 (Fla. 3d DCA 1971). This is so even where there is no evidence to support a finding of justifiable or excusable homicide because manslaughter cannot be adequately defined without such an instruction. Hedges v. State, supra.

The state contends that appellant did not request a justifiable homicide instruction. We have reviewed the record and find that it does not support the state’s argument. Accordingly, we remand the case for a new trial.

REVERSED and REMANDED.

BOARDMAN, C. J., and OTT and DAN-AHY, JJ., concur.