text:
    INTERNATIONAL UNION OF OPERATING ENGINEERS and International Union of Operating Engineers, Local 487, Appellants, v. Murl LONG and Sally Long, his wife, Appellees.
    No. 77-1129.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 20, 1978.

      Kaplan, Dorsey, Sicking & Hessen, Miami, and Joel V. Lumer, Coral Gables, Larry Klein, West Palm Beach, for appellants.
    Horton, Perse & Ginsberg, Stanley M. Rosenblatt, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, two of the defendants below, bring this appeal from a final judgment entered pursuant to a jury verdict awarding appellees, plaintiffs below, total compensatory damages of $400,000 and total punitive damages of $400,000. We reverse.

During 1972, L & A Contracting Company, defendant below (not a party to this appeal), was a subcontractor at what was known as the Aventura job site. L & A was engaged in the placement of manholes and the laying of conduit under a contract with Southern Bell Telephone Company. A continuing labor dispute was occurring at the job site. Appellant International Union of Operating Engineers, Local 487 [hereinafter referred to as Local] was claiming jurisdiction over the entire job site and a confrontation occurred between Local and L & A’s employees who were not members of Local. During this confrontation, members of the Local engaged in a variety of abusive and threatening conduct toward L & A’s employees. The confrontation reached the point where members of Local assaulted and battered several L & A employees. Officers of the Dade County Public Safety Department had to be called in to restore order, etc. While the officers were still nearby on the scene, Edward Walker, an employee of L & A, started back to work by operating a backhoe. Members of Local began intimidating Walker. Walker, while operating the backhoe under these conditions, allowed the top of the backhoe to come in contact with some high-tension wires located in the area. The wires broke and fell to the ground some distance away from where they were hit. The wires struck appellee Murl Long who was an innocent bystander. As a result, Murl Long was seriously injured and permanently incapacitated.

Appellees filed a complaint against appellants and two others not parties to this appeal. The complaint sought both compensatory and punitive damages for the injuries sustained by Murl Long. Basically, the complaint alleged a breach of duty on the part of Local to appellees and alleged that International was liable on the basis of its relationship with Local.

One of the defendants below, Florida Power and Light Co., was dismissed from the cause with prejudice, and the matter proceeded to a jury trial as to the other three defendants. The jury returned a verdict finding L & A Company 35%, Local 40%, and International 25% responsible for compensatory damages of $400,000. Additionally, the Local was assessed $100,000 and International $300,000 in punitive damages. From the final money judgment entered pursuant to the jury verdict, appellants appeal.

Among the several points raised by appellants on appeal, is one which we think is dispositive of the matter. At the close of all the evidence, a charge conference was held at which time both appellants and appellees requested certain charges. The trial court refused to give appellants’ proposed instruction on vicarious liability, and instead gave, among others, the following instruction, requested by appellees:

“The defendants, International Union of Operating Engineers Local No. 487, and International Union of Operating Engineers, by and through their membership, are, as a matter of law liable for the common law torts, negligent or intentional of their officers or members.”

In our opinion, this instruction was incorrect. Although a labor union or its membership is not liable to persons who suffer financial losses as the result of peaceful and lawful labor activities, the courts have uniformly recognized that a labor union or its membership may be held liable, under general principles of agency law, for the common law torts of its officers or members committed during the course of a lawful strike, or other primary labor activities, if the union officers or members authorized, participated in, or ratified the tortious acts. See Annot., 36 A.L.R.3d 405 (1971), and cases cited therein. In this case, the instruction quoted above given by the trial court failed to instruct on whether Local or International either authorized, participated in, or ratified the tortious acts of Edward Walker. Without such instruction having been given, the jury was incorrectly instructed on appellants’ theory of the case. Accordingly, the final judgment entered by the trial court must be reversed and the cause remanded for a new trial. See, e. g., Gallagher v. Federal Insurance Co., 346 So.2d 95 (Fla. 3d DCA 1977).

In the light of this determination, it is unnecessary for us to determine the other points raised by appellants on appeal.

Reversed and remanded.


source: Caselaw Access Project

author: KEHOE, Judge.

license: Public Domain

text:
    Manuel Jose FREYRE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1267.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 20, 1978.

      Engel, Aronson, Fried & Cohn, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, was charged by an information with robbery and unlawful possession of a firearm while engaged in a criminal offense. After a jury trial, verdicts of guilty were rendered on both counts. Thereafter, the trial court entered a judgment of conviction and sentenced appellant to twenty-five years in the state prison, without eligibility of parole for three years, to be followed by seven years probation. From this judgment and sentence, appellant appeals. We affirm.

We have very carefully reviewed each of the points raised by appellant on appeal and find them to be without merit. However, we feel that one of the points raised by appellant does merit some discussion.

Prior to the jury trial in this cause, appellant made a motion to suppress certain physical evidence which was denied by the trial court. One of the arguments advanced by appellant at the hearing on his motion to suppress was that there was an illegal search and seizure of certain physical evidence which ultimately led to his conviction. The pertinent facts relating to this contention may be summarized as follows: On several occasions an automobile owned by appellant’s co-defendant below [not a party to this appeal] was observed by the police circling several Burger King and McDonald restaurants. Because of a pattern of robberies at these restaurants, they were under surveillance by the police. As a part of their investigatory efforts, the police had observed appellant, along with his co-defendant, as an occupant of the car. Also, they had learned the address of the co-defendant. Because of this investigation, a court order was obtained permitting the installation of an electronic transmitter on the car. Near midnight on June 15, 1976, a robbery was reported at a McDonald’s restaurant located at 7208 S.W. 8th Street. At the time of the robbery, one of the officers who had been involved in the investigation and whose car was equipped with a receiver for the transmitter was driving westbound on S.W. 8th Street at about 62d Avenue. The officer, who was aware of the home address of the co-defendant, responded to the police broadcast of the robbery by proceeding toward co-defendant’s address by traveling northbound on Palmetto Expressway. Shortly thereafter, the officer received a transmitter signal from co-defendant’s car and within a matter of seconds sighted the car. Pursuant to a police call for assistance, a Florida Highway Patrol (F.H.P.) car started following co-defendant’s car. Thereafter, the F.H.P. directed the car to pull over and stop. The car continued down the highway during which time the other officer observed the passenger in the car “throwing things out of the window.” All of these “things” were thrown out of the car while it was still moving and before it finally stopped some distance down the highway. These “things” were the physical evidence which the appellant sought to have suppressed.

In response to the contention of appellant which we have chosen to discuss, we adopt the reasoning of those cases which hold that it is not a search or seizure within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 12, Florida Constitution, for the police to seize property which a person has abandoned in an area where he has no reasonable expectation of privacy, e. g., strewn all over the highway as in the instant case. See, e. g., Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Jones v. State, 332 So.2d 615 (Fla.1976); State v. Nittolo, 317 So.2d 748 (Fla.1975); State v. Jackson, 240 So.2d 88 (Fla. 2d DCA 1970); State v. Padilla, 235 So.2d 309 (Fla. 3d DCA 1970); and Holliday v. State, 104 So.2d 137 (Fla. 1st DCA 1958). We are aware of those cases which seem to limit the application of this principle to those situations in which the abandonment was considered voluntary. See, e. g., State v. Nittolo, 317 So.2d 748 (Fla.1975); Kraemer v. State, 60 So.2d 615 (Fla.1952); Stanley v. State, 327 So.2d 243 (Fla. 2d DCA 1976); State v. Jackson, 240 So.2d 88 (Fla. 3d DCA 1970). The question of voluntariness must, of course, be determined by the facts of each case. Even where an illegal search has taken place, we believe that there are factual situations which may support a finding that there is an insufficient nexus between the illegal search, e. g., by an unlawful, police stopping, detention, or arrest, and a subsequent abandonment of the evidence seized to call such an abandonment involuntary. See, e. g., Smith v. State, 333 So.2d 91 (Fla. 1st DCA 1976); and Riley v. State, 266 So.2d 173 (Fla. 4th DCA 1972). Although in the instant case it is our opinion that the abandonment was clearly voluntary and not compelled by any unlawful police activity, even assuming arguendo that the stopping was improper, as contended by appellant, we would be of the opinion that, based on the facts of this case, the nexus between any police impropriety and the ultimate seizure of evidence was so remote as to negate a finding of an involuntary abandonment. In the light of this determination, we are further of the opinion that, based upon the principles set forth above, because of the voluntary abandonment no illegal search and seizure question is presented. Accordingly, appellant’s other contentions in this regard are without merit.

In conclusion, we feel that the trial court acted properly in denying appellant’s motion to suppress and that appellant has failed to show the merits of his other points on appeal; therefore, the judgment and sentence appealed are affirmed.

Affirmed.


text:
    Betty Jean WINCHELL, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1738.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 20, 1978.

      Mark King Leban, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita G. Esquiroz and Anthony Musto, Asst. Attys. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   KEHOE, Judge.

Appellant and her co-defendant, Roy A. Falin, were charged by an information filed August 27, 1975, with the felony possession of marijuana, possession of cocaine, possession of a drug implement, and possession of methaqualone. After the denial of her motion to suppress certain physical evidence, appellant was tried alone. The trial resulted in a hung jury and the declaration of a mistrial. Thereafter, the trial court ordered appellant’s case consolidated with that of her co-defendant. A joint trial commenced on June 23, 1977, which resulted in verdicts of guilty as charged. Subsequently, the trial court withheld adjudication of guilt and sentenced appellant to five years probation with the condition that she serve six months in jail as to counts three and four; the court further ordered that in regard to counts five and six appellant serve six months probation to run concurrently with the probationary sentences in counts three and four. Appellant’s motion for a new trial was denied and this appeal followed.

The pertinent facts relating to this appeal may be summarized as follows: Appellant’s co-defendant, Roy A. Falin, was stopped by the police in North Bay Village for the purpose of inquiring as to his presence in the area and to obtain some identification. As a result of this inquiry, Falin was arrested for not having a valid driver’s license. Falin seeking to establish his identity, advised the officer that he was staying with a girl friend (appellant) in room 112 at a Holiday Inn located in North Bay Village. After taking Falin to the police station, a police officer and his sergeant went to the motel to verify the information given by Falin. After checking with the desk clerk, the officers found that the room was registered to Falin, but noted for occupancy by two persons. The officers then proceeded to the room and knocked on the door. Appellant opened the door and, in plain view, the officers saw, among other things, several bags of marijuana, a scale, a pipe, and a box of sandwich bags. .After making this observation from outside the room, the officers then entered the room, seized the marijuana and pipe, and arrested appellant for possession of a controlled substance. While appellant was sitting down in the room, the officers observed a firearm in an open suitcase at her feet. The pistol was seized and turned out to be a BB gun which was a replica of a German Luger. In seizing the pistol, two more bags of marijuana in the suitcase were seized. Also, a bag containing cocaine, which was wrapped inside a brown paper bag was seized. During this time, no other search was made. Instead, the room was then sealed by the officers and a search warrant was obtained from the circuit court to search the room. The search conducted pursuant to the warrant revealed additional contraband, including one tablet of methaqualone found in a corner of the room lying on the rug and a bag of cocaine found secreted inside the back of a radio. The charges in the instant case resulted from the foregoing facts.

In point two of her appeal, appellant contends that the trial court erred in denying her motion to suppress the evidence herein because it was seized pursuant to an illegal stop of her co-defendant’s automobile. This point is without merit because appellant has failed to demonstrate that she had any standing to challenge the stopping of the vehicle. See, e. g., United States v. Sacco, 436 F.2d 780 (2d Cir. 1971); and Russell v. State, 270 So.2d 462 (Fla. 3d DCA 1972).

Appellant contends in her fourth point on appeal that the trial court erred in admitting the marijuana into evidence because the separate quantities seized were commingled at the time of trial thus indicating probable tampering with the evidence. Our review of the record shows this point to also be meritless. See, e. g., Wingert v. State, 353 So.2d 643 (Fla. 3d DCA 1977); Frederiksen v. State, 312 So.2d 217 (Fla. 3d DCA 1975); and Stunson v. State, 228 So.2d 294 (Fla. 3d DCA 1969).

Appellant’s first and third points on appeal raise, basically, the question of the sufficiency of the evidence to uphold the jury verdict. In our opinion, based on the record of this cause, there was nothing improper in the police officers going to the Holiday Inn to verify the identity of Falin. There was nothing unlawful or improper in their knocking on the door of room 112 to obtain information about Falin and to inform appellant of his arrest. When appellant opened the door the officers saw several bags of marijuana, a scale, a pipe, and a box of sandwich bags in plain view on a dresser in the lighted room before entering it. It was not an illegal search for the officers, who had a lawful right to be where they were, to then enter the room and seize those items. Nor was it unlawful for the officers after arresting appellant and upon seeing the pistol in the suitcase to seize the pistol and search the suitcase for other weapons to protect themselves. The marijuana and cocaine found in the suitcase pursuant to the search were also lawfully seized. See, e. g., State v. Ashby, 245 So.2d 225 (Fla.1971); and Sheff v. State, 301 So.2d 13 (Fla. 1st DCA 1974). This evidence was lawfully seized. Further, the officers then declined to search the room further and, instead, went to the circuit court to obtain a search warrant for the premises. The warrant was properly issued and, upon the attendant search, the remaining contraband was lawfully seized. See, e. g., State v. Hutchins, 269 So.2d 377 (Fla. 2d DCA 1972); and Ludwig v. State, 215 So.2d 898 (Fla. 3d DCA 1968).

There is no question in our mind about the legality of the search and seizure of the contraband in this case. However, a more difficult problem arises in regard to appellant’s conviction for possession of the contraband. None of the contraband was actually found on appellant’s person; therefore, the validity of the conviction must be demonstrated by her constructive possession. The applicable standard has been discussed in Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967) as follows:

“. . . [BJefore one charged with unlawfully possessing narcotic drugs may be convicted, the State must establish beyond a reasonable doubt that the accused knew of the presence of the narcotic drugs on premises occupied and controlled by him, either exclusively or jointly with others. If the premises on which the drugs are found are in the exclusive possession and control of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over them may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused, the inference of knowledge is rebuttable and not conclusive. If the premises on which the drugs are found is not in the exclusive but only in the joint possession of the accused, knowledge of the drugs’ presence on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the drugs’ presence on the premises. In any event, the question of scienter or knowledge is one which must be resolved by the jury under the evidence in the case and upon proper instruction by the court embodying the principles didscussed above.” Id. at 120-21.

See also Zicca v. State, 232 So.2d 414 (Fla. 3d DCA 1970). In applying this standard to the instant case, the record reflects that the motel room involved was in the joint possession of appellant along with her co-defendant. Under these circumstances, as stated in Frank, appellant’s knowledge of the contraband must be established by proof and not inferred. This proof may be made by showing that appellant had actual knowledge of the contraband or by showing such other circumstances from which a jury could infer knowledge by the accused.

We have carefully reviewed the entire record in this cause and have concluded that there was insufficient evidence upon which a jury could have properly inferred that appellant had the requisite knowledge and constructive possession of the methaqualone tablet and the cocaine found in the suitcase and in the radio. See Taylor v. State, 139 Fla. 542, 190 So. 691 (1939). Accordingly, appellant’s conviction on the charges of possession of cocaine and the possession of methaqualone are reversed. However, our review of the record also reveals that there was sufficient competent evidence upon which the jury could infer the requisite knowledge and constructive possession to support appellant’s conviction on the charges of the felony possession of marijuana and possession of a drug implement (pipe). We note that these items were on top of the dresser in the motel room. They were even within the plain view of the police officers who went to the motel room to verify the identity of appellant’s co-defendant. Under these circumstances, the jury could properly infer that appellant had constructive possession of the bags of marijuana and the pipe which contained marijuana residue. Accordingly, appellant’s conviction for the felony possession of marijuana and of the drug implement are affirmed.

Affirmed in part, reversed in part, and remanded for the entry of a judgment and sentence in conformity with this opinion.


author: PER CURIAM.

text:
    ARMER E. WHITE, INC., REALTORS, a Florida Corporation, Appellant, v. The AMBROSE CO. and Riteway, Inc., Realtors, a Florida Corporation, Appellees.
    No. 77-2031.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 20, 1978.

      Horton, Perse & Ginsberg, Miami, for appellant.
    Garber & Buoniconti, Podhurst, Orseck & Parks and Michael Olin, Miami, for appel-lee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See: United Service Corporation v. Vi-An Construction Corp., 77 So.2d 800 (Fla.1955); Parsley Brothers Construction Company v. Humphrey, 136 So.2d 257 (Fla.2d DCA 1962); Ruwitch v. First National Bank of Miami, 291 So.2d 650 (Fla.3d DCA 1974); Fla.R.Civ.P. 1.190(b). Compare Sutton v. Stewart, 358 So.2d 119 (Fla.3d DCA 1978).

KEHOE, J., dissents.


text:
    William Shepard BOYD, etc., et al., Appellants, v. Moselle Boyd PEAVY, Appellee.
    No. 77-2272.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 20, 1978.
    Rollo E. Karkeet, Hernando, for appel- • lants.
    Richard H. W. Maloy & Associates and John R. Lindsey, Coral Gables, for appellee.
    Before HAYERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

The appellants were the respondents in the circuit court to a petition by the appel-lee to revoke the probate of a contested will and for probate of a prior will. The cause was tried before the circuit judge and extensive testimony was taken. At the conclusion of the trial, the circuit judge entered a full opinion in which he set out all the relevant facts, and held:

“Although the evidence tends to support the contestant’s contention that the decedent was incompetent to make her new will, its weight is not sufficient to sustain a finding of incompetency at the time she executed her new will on November 4, 1976. In this connection, the attorney who drafted the decedent’s new will, and in whose presence she executed it in the nursing home, testified that in his judgment the decedent was competent to make a will. The other witness, the attorney’s legal secretary, also testified that she felt decedent was competent to make a will.
“However, although the evidence is not sufficient to sustain a finding of incompetency at the time decedent executed her new will on November 4, 1976, the evidence amply shows that said will is invalid by reason of undue influence by the proponents.”

On this appeal, the appellants have presented three points, all of which depend for reversal upon a holding by this court that the evidence was either insufficient to establish undue influence or that the trial court misconceived the force and legal effect of the evidence.

It is unnecessary for us to set out in this opinion the lengthy findings of fact made by the trial judge. It is sufficient that we have reviewed the record in the light of the trial judge’s findings and appellants’ objections thereto, and have found that there is sufficient, competent evidence to sustain the judgment. See In Re Auerbacher’s Estate, 41 So.2d 659 (Fla.1949).

Affirmed.


text:
    William RANEY, d/b/a Krone Avenue Nursery, Appellant, v. JIMMIE DIESEL CORP. et al., Appellees.
    No. 77-1865.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.
    Rehearing Denied Oct. 20, 1978.
    Richard M. White, Miami, for appellant.
    Brumer, Moss, Cohen & Rodgers and David H. Burstyn, Gilbride & Heller and Lawrence R. Heller, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an order titled order on all pending motions to dismiss dated July 25, 1977, entered by the trial court pursuant to ap-pellees’, defendants below, motions to dismiss the amended complaint. The order dismissed with prejudice Counts o I, II, IV, and V of appellant’s amended complaint. We reverse.

Counts I and II of the amended complaint attempted to state a cause of action against appellee Jimmie Diesel Corporation for breach of contract and negligence, respectively. Counts IV and V of the amended complaint attempted to state a cause of action against appellee Miller Bearings of Orlando, Inc., for breach of contract and negligence, respectively. Both appellees filed motions to dismiss appellant’s amended complaint. Except as to Count III of the amended complaint which sought specific performance, the trial court entered the order appealed dismissing with prejudice the amended complaint.

Basically, the function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. A court is not permitted to speculate as to whether a plaintiff will be able to prove the allegations, rather a court is required to accept all well pleaded allegations contained in the complaint as .true. See, e. g., Pizzie v. Central Bank and Trust Co., 250 So.2d 895 (Fla.1971); Connolly v. Sebeco, 89 So.2d 482 (Fla.1956); and Johnson v. Southern Bell Telephone and Telegraph Co., 169 So.2d 36 (Fla. 3d DCA 1964). The elements of a cause of action for breach of contract are set forth, e. g., in Cook v. Underwriters National Assurance Co., 221 So.2d 18 (Fla. 3d DCA 1969); the elements for a cause of action for negligence are set forth, e. g., in Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976).

Applying the principles set forth above, in the light of the requisite elements of causes of action for breach of contract and for negligence, contrary to the trial court’s determination, we are of the opinion that appellant’s amended complaint in Counts I and IV set forth causes of action for breach of contract and in Counts II and V causes of action for negligence against appellees. Accordingly, the order appealed is reversed and the cause is remanded for further proceedings consistent with this opinion. This opinion should not, in any way, he considered in passing upon the ability of appellant to prove or fail to prove the allegations set forth in his amended complaint.

In view of our opinion expressed above, it is unnecessary to consider the other points raised by appellant on appeal.

Reversed and remanded.


text:
    Richard Eugene PEREZ, Appellant, v. Darlene STEVENS, Appellee.
    No. 77-2395.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.
    Rehearing Denied Oct. 20, 1978.
    Franklin, Ullman, Kimler & Entin, North Miami Beach, and Ronald A. Dion, Miami, for appellant.
    Magill, Sevier & Reid and Hector J. Lom-bana, Miami, Hugh R. Papy, Key West, for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   KEHOE, Judge.

Appellant, petitioner below, brings this appeal from an order on respondent’s [ap-pellee] motion to dismiss dated November 10, 1977, entered by the trial court dismissing his petition for a final judgment establishing his paternity as the natural and legal father of a minor child born out of wedlock to appellee. We affirm.

At common law, the putative father of an illegitimate child had neither rights nor obligations toward that child. When statutes were devised to protect the interests of illegitimate children, the mother alone was given the right to institute proceedings to determine paternity in order that the innocent child have the benefit of support from the father. See generally Gammon v. Cobb, 335 So.2d 261 (Fla.1976); Clarke v. Blackburn, 151 So.2d 325 (Fla. 2d DCA 1963); and deMoya v. dePena, 148 So.2d 735 (Fla. 3d DCA 1963).

In the instant case, appellee denies that appellant is the father of the child. We are unaware of any authority which gives a putative father a cause of action to establish that he is the father of a child who the mother denies is his. Chapter 742, Florida Statutes (1977), provides the jurisdictional basis for a court to determine paternity. No case interpreting this Chapter has gone so far as to read into it an intent to give such a cause of action to a putative father. Absent legislative revision of Chapter 742, a putative father is without the right to have himself declared the father of a child who the mother denies is his. Ford v. Loeffler, - So.2d -(Fla. 3d DCA, opinion filed September 19, 1978). Accordingly, the order appealed is affirmed.

Affirmed.


author: DOWNEY, Chief Judge.

text:
    Earl E. ELDER, Sr., as Administrator of the Estate of Earl E. Elder, Jr., Appellant, v. ROBERT J. ACKERMAN, INC., a Florida Corporation for profit, Robert J. Ackerman, Jr., Continental Insurance Company, a Foreign Corporation, and Highlands Insurance Company, a Foreign Corporation, Appellees.
    No. 76-2669.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1978.

      Phillips & Babbitt and Larry Klein, West Palm Beach, for appellant.
    Kirk Sullivan and Edna L. Caruso, of Montgomery, Lytal, Reiter, Denney & Sear-cy, West Palm Beach, for appellee-High-lands Ins. Co.
    Stephen C. McAliley, of Brennan, McAli-ley, Albury & Hayskar, West Palm Beach, for remaining appellees.
   DOWNEY, Chief Judge.

This appeal involves the admissibility of a statement by a driver of a vehicle given to a police officer at the scene of an accident.

Appellee, Robert J. Ackerman, Jr., a 16 year old high school boy, while driving a truck at about 5:00 a.m. in Palm Beach County, collided with appellant’s decedent, Earl Lee Elder, Jr., who, with a passenger, was driving a motorcycle through an intersection controlled by a traffic light. Elder and his passenger were killed and this wrongful death action resulted.

Shortly after the accident Deputy Sheriff Jon McDonough arrived on the scene and proceeded with a traffic accident investigation. Immediately thereafter Detective Walsh arrived and proceeded to assist McDonough with the investigation. McDo-nough interrogated Ackerman to obtain information for his accident report, required by Section 316.066, Florida Statutes (1975). Ackerman was placed in the back of a police car and interrogated further by McDo-nough, who testified he read Ackerman his Constitutional rights. After McDonough had obtained sufficient information for his accident report, Walsh proceeded to interrogate Ackerman further about the accident. Walsh testified that he did not advise Ack-erman that there might be criminal charges involved, and as far as Ackerman knew, Walsh was one of the policemen working on the accident. Walsh testified further that Ackerman told him he was not sure what color the light was when he entered the intersection.

Walsh’s testimony was elicited during a proffer by appellant. It was particularly vital because Ackerman testified at the trial that he had a green light as he entered the intersection. The trial judge rejected the proffer on the grounds that the evidence did not show that when Ackerman made the critical statement he knew the accident investigation had terminated, and the criminal investigation had commenced. The trial resulted in a defense verdict and the trial judge’s ruling on the proffer of Walsh’s testimony is the judicial error assigned for review.

The parties don’t agree on the point involved in this appeal. However, the issue as we see it is whether the proffered testimony was admissible in evidence or whether it was protected by Section 316.066, Florida Statutes (1975).

Appellant contends that McDonough was at the scene to investigate the accident and to make the Section 316.066 report but that Walsh was there to conduct the criminal investigation, if such an investigation were called for. That is not an entirely fair analysis of the proffered testimony. We agree with the trial judge that the evidence does not make it clear that Walsh’s function at the scene was purely criminal investigation — in fact, his conduct there was in part assisting McDonough with the accident investigation. However, that is not decisive of the real point in the case.

Ackerman was required by law to make a report of the accident §§ 316.062; 316.066; 316.068 (1975). As a consequence of that statutory mandate he was entitled to the protection of § 316.066(4), Florida Statutes (1975), which makes such report inadmissible as evidence in any trial, civil or criminal, arising out of the accident. Stevens v. Duke, 42 So.2d 361 (Fla.1949). That protection does not apply with regard to a voluntary statement made during the course 'of an investigation of the criminal aspects of an accident. The same officer may conduct both the accident investigation for the § 316.066 report and the criminal investigation or different officers may be involved. The important point is that the person being questioned must be apprised of the distinction between the accident investigation phase and the criminal investigation phase.

In Nash Miami Motors, Inc. v. Ellsworth, 129 So.2d 704 (Fla. 3rd DCA 1961), the defendant driver gave Officer McCracken a statement regarding the accident. Thereafter, and while McCracken was still conducting his investigation, Officer Fonta-na arrived to conduct a special investigation. He advised the driver he wanted to take his statement and drove the driver to the police station to do so. At the station Fontana advised the driver that he was being questioned regarding the subject accident; that the driver was not required to answer any questions, but that any statements made might be used against him in some future criminal proceedings. The driver gave a statement which was transcribed but was not used by McCracken in his accident report. In reversing a judgment for plaintiff because the driver’s statement to Fontana was admitted in evidence, the District Court stated:

“But appellee urges that the second report given to officer Fontana was not an ‘accident report’ within the meaning of the statute. He argues that the statement given to officer Fontana was not for the purpose of making an accident report but was for discovery of possible criminal charges which might arise from the accident. From the viewpoint of the person interrogated there is little difference. The distinction, to have meaning, would require realization by a person charged with giving such a report that one officer was reporting the accident, while a second, who asked the same questions, was not reporting the accident. It further appears that for the statement of a defendant to be privileged under this statute it is not necessary for it to be given to an investigating officer, or given at the scene of the accident, or that the statement be used in a subsequently filed report of the accident.” 129 So.2d at 706.

The facts in Nash, supra, are stronger than those in the case at bar with regard to what the officer did to put Ackerman on notice of the termination of the accident investigation and commencement of the criminal investigation. As the Supreme Court in State v. Coffey, 212 So.2d 632, 635 (Fla. 1968), stated:

“ . . .In the Nash case, after relating his version of the accident to one officer, the driver of the motor vehicle which struck a pedestrian was taken to the police station and interrogated by a special accident investigator a second time as to his version of the accident. The purpose of this second investigation was ‘for discovery of possible criminal charges which might arise from the accident’, to quote the decision of the appellate court, 129 So.2d p. 706 [t]he stereotype ‘warning’ given to the driver in the Nash case was insufficient to alert him to the fact that the accident-report phase of the investigation had ended, even if it could be said that some type of criminal investigation had begun.”

In the case at bar the only possible indication of a different character of investigation was the fact that Walsh advised Acker-man of his constitutional rights; but then, so did McDonough during his interrogation for the accident report. How is a 16 year old boy at the scene of a serious auto accident and the emotional upset which usually accompanies such an experience supposed to discern the nuances of the dichotomy existing between investigations for automobile accident reports and investigations for the criminal aspects of automobile accidents? The trial judge found here that the evidence did not show that Ackerman understood that Walsh’s capacity was different than McDonough’s.

The solution to the problem presented in these cases is relatively simple. Law enforcement officers investigating accidents must be aware of the ramifications associated with taking statements from drivers in accident cases. When the investigation conducted to make the 316.066 report is concluded and the investigation into possible criminal aspects of the accident commences the driver should be advised of that fact. To do any less simply erodes the protection which the Legislature affords drivers in order to obtain accurate information for reports of automobile accidents.

In his reply brief appellant takes the position that an analysis of the dissenting opinion in Coffey v. State, 205 So.2d 559 (Fla. 1st DCA 1967), and the opinion of the Supreme Court in the same case on certiorari demonstrate that the driver’s understanding of the change from the accident report investigation to the criminal investigation is of little or no significance. We strongly disagree with able counsel for appellant; the cases simply do not support that conclusion.

The majority in the Coffey case in the District Court held the evidence inadmissible relying to some extent upon Ellsworth v. Nash Miami Motors, Inc., supra. The dissent pointed out that:

“It is only consistent with logic and reason to hold that once a person who is the subject of an accident investigation in which he is involved is told by the investigating officer that he is thenceforth being investigated in connection with a criminal charge which may be placed against him arising out of the accident, that he is entitled to the protection of all rights accorded him by the constitution including the right to remain silent, the immediate right to counsel, and that anything he 'may thereafter say, or the report of any tests or examination to which he may voluntarily submit, may be used against him in any criminal prosecution arising out of the accident, then under such circumstances the immunity statute loses its relevancy and should no longer be applicable to anything voluntarily said or done by the suspect in the course of the criminal investigation.” 205 So.2d at 562.

Upon certiorari the Supreme Court quashed the majority holding in Coffey, but once again made it clear that the driver in Coffey knew when the accident report phase of the investigation ended and the criminal investigation commenced. In that regard the Supreme Court stated:

“There was no doubt that the respondent knew that the accident-report phase of the investigation had ended and that the blood test was being given to him in connection with the charge of manslaughter with which he was faced.” 212 So.2d at 634.

Rather than discard the Nash decision, supra, the Supreme Court impliedly approved it. The court noted that the District Court of Appeal majority’s reliance on Nash was unwarranted. Obviously, that was due to the difference in the facts. In Coffey the driver knew when the accident investigation ended and in Nash he did not. The following quote from the Supreme Court in Coffey indicates to us that it did not in any way disapprove the holding in Nash. The court simply said:

“In any event, it appears that the stereotype ‘warning’ given to the driver in the Nash case was insufficient to alert him to the fact that the accident-report phase of the investigation had ended, even if it could be said that some type of criminal investigation has begun. Clearly, the facts of the Nash case are so different from those in the instant case, as to afford no basis whatsoever for the decision sub judice.” 212 So.2d at 635.

In view of the foregoing we conclude that the trial judge was eminently correct in sustaining the objection to the proffer of Walsh’s testimony. Thus, the judgment appealed from is affirmed.

AFFIRMED.

MOORE, J., and RIVKIND, LEONARD, Associate Judge, concur.

      . In denying the appellant’s motion for new trial, the trial court stated: “In the case before this Court and the testimony submitted to it by the investigating officers, it is unclear when, if ever, the accident report had been concluded and the criminal investigation had commenced in relation to the testimony Plaintiff unsuccessfully sought to have introduced in the trial. Jon Edward McDonough was the officer investigating the accident and was present when the first conversations took place with the driver of the vehicle. Officer McDonough testified he advised the driver of the vehicle of his Miranda Warnings and began to interview the driver to ascertain what had happened with regard to the traffic accent [sic]; that the accident involved a death and the investigation would continue, however, the officer was not sure if criminal charges would be filed or not. Officer McDonough went about his official duties leaving the driver and Officer Walsh together.
      “Officer Walsh talked further with the driver and other persons. Upon returning to the driver and continuing his inquiry, it was then the driver indicated to Officer Walsh he was not sure what color the traffic light was.
      “It is this statement counsel for Plaintiff desired to admit into evidence to which the defense objected, and the Court sustained the objection.
      “Officer Walsh testified he was assisting Officer McDonough and he could not recall exactly what he had told the driver in relation to when the accident investigation terminated and criminal investigation commenced.
      “For such testimony to become admissible into evidence during a trial and escape the legislative immunity accorded to it by statute, the burden is upon the proponent of the evidence to show the person involved in the accident who has made a report required of him by statute is made aware and sufficient alerted that the inquiry relating to the accident report statute has come to an end and the inquiry now being made is for purposes other than those required by the statute. Such burden has not been met in the case under consideration.”

      . State v. Coffey, 212 So.2d 632 (Fla.1968).


text:
    STEWART ARMS APARTMENTS, LTD., Worthington Associates, Ltd., Florida limited partnerships, Vanguard Construction Company, Inc., a Florida Corporation, Petitioners, v. STATE of Florida DEPARTMENT OF REVENUE and Office of Comptroller, State of Florida, Respondents.
    No. 77-982.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1978.

      Edward C. Tietig, Miami, for petitioners.
    Patricia S. Turner, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, for respondents.
   DOWNEY, Chief Judge.

This appeal was filed prior to March 1, 1978, to review a final agency order of the Department of Revenue and will be treated as a Petition for Certiorari. Yamaha International Corporation v. Ehrman, 318 So.2d 196 (Fla. 1st DCA 1975).

The petitioners are three corporate owners of proposed apartment projects. Each petitioner executed a construction mortgage and note providing for periodic payments to the mortgagor as the construction progressed. Class C intangible taxes were paid by each of the petitioners at the time the mortgages were recorded. Each of the projects was only partially built and thus, the face amount of each mortgage and note was not disbursed to the mortgagor. Applications for refund were filed by the petitioners and denied by the Comptroller, because none of the applications were filed within three years of the date of payment of the taxes.

Petitioners filed petitions for administrative review and the Hearing Officer entered a Recommended Order granting the refund. However, the Governor and Cabinet, sitting as the head of the Department of Revenue, entered a Final Agency Order reversing the Recommended Order of the Hearing Officer with regard to the refund of the intangible tax.

Pursuant to statute a Class C intangible tax is imposed upon all promissory notes secured by a mortgage on real property in this state.

The final order of the Department of Revenue held that the Clerk of the Circuit Court would refuse to record a mortgage unless the intangible tax were paid on the principal amount of the obligation. The order further provided that the only exception to the requirement of payment of the intangible tax on the face amount of the obligation at the time of recording was in a situation where the mortgage provided for future advances pursuant to Section 199.-052(7)(d). The Department held that the tax on other than the initial debt secured by the mortgage was not payable under those circumstances until the advance was actually made. Therefore the Department concluded that the petitioners could have filed a claim for refund of the intangible taxes paid on funds not advanced at the time the mortgage was recorded. Instead, the petitioners waited until the mortgagees terminated their obligations under the mortgages without fully disbursing the proceeds on the loan and then filed claim for refund which was more than three years from date of payment of the tax. We agree with the final order of the Department of Revenue.

The amount of the tax is determined by the principal amount of the indebtedness evidenced by the note and mortgage and must be paid prior to recording the mortgage.

Section 199.052(7)(d), Florida Statutes (1971), provides:

“(d) If the mortgage, deed of trust, or other lien subject to the tax levied by this chapter secures future advances, as provided in § 697.04, the tax shall be paid at the time of execution on the initial debt or obligation secured, excluding future advances; at the time and so often as any future advance is made, the tax shall be paid on all sums then advanced. . . ”

Section 215.26(2), Florida Statutes (1971), provides:

“Application for refunds as provided by this section shall be filed with the comptroller within three years after the right to such refund shall have accrued else such right shall be barred and such application shall be on a form to be prescribed by the comptroller and shall be sworn to and supplemented with such additional proof as is necessary to establish such claim; provided, such claim is not otherwise barred under the laws of this state.”

The general rule seems to be that when a claim for refund of taxes must be made within a stated time after the refund accrues, the time period commences when the tax is paid. State ex rel. Victor Chemical Works v. Gay, 74 So.2d 560 (Fla.1954); State ex rel. Tampa Electric Co. v. Gay, 40 So.2d 225 (Fla.1949); Grunwald v. Department of Revenue, 343 So.2d 973 (Fla. 1st DCA 1977); see Annot., 46 A.L.R.2d 1350 (1956).

The Final Agency Order appears to us to be the correct decision in this case. We perceive the conclusion in the Hearing Officer’s Recommended Order to have gone astray because some of his conclusions of fact are not supported by the record, e. g. “An application for refund of the intangible tax representing the difference between the face amount of the mortgage to secure future advances, and the amount advanced, will be disapproved by the Department of Revenue so long as advances on the face amount of the loan are still being made.”

We have considered all of petitioner’s points on appeal and find them to be without merit. Accordingly, the petition for certiorari is DENIED.

MOORE, J., and RIYKIND, LEONARD, Associate Judge, concur.

      . Section 199.032, Florida Statutes (1971).

      . The authority for the finding was Section 199.052(7)(d), Florida Statutes (1971) and the Department’s answer to petitioner’s request for admission No. 1.

      .Section 199.122, Florida Statutes (1971).


text:
    Robert L. JANE, Appellant, v. STATE of Florida, Appellee.
    No. 77-2097.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1978.

      Hugo H. DeBeaubien of Drage & De-Beaubien, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellant was charged in two counts with false imprisonment and battery and convicted as charged on each count. On appeal appellant contends the trial court erred in adjudicating him guilty on both counts because a) the evidence was insufficient to prove false imprisonment, b) the battery in question was a lesser included offense of false imprisonment and c) the refusal of proffered defense testimony and limiting cross examination of the complaining witness prejudiced appellant’s case.

The charges arose out of a factual situation involving the custody of a young child. The victim, Alice Williams, was traversing a grocery store parking lot holding the hand of her stepdaughter, Amy. A car pulled up behind them, two men exited the car, one grabbed Amy, put her in the car and drove away. The other man turned out to be the appellant and he grabbed Alice in a bear hug. Alice struggled to get free but appellant restrained her for a short period of time and finally released her.

Regarding the charge of false imprisonment, appellant contends that the evidence was insufficient to convict him of that crime because there was no proof of restraint by threat or in a secret manner. It is appellant’s view that, since the statute defining false imprisonment, Section 787.-02(1)(a), Florida Statutes (1977), provides:

“ ‘False imprisonment’ means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against his will with any purpose other than those referred to in § 787.01.”

in order to convict the restraint must have been imposed by threat or in a secret manner. We reject appellant’s contention upon authority of Brunelle v. State, 360 So.2d 70, Florida Supreme Court opinion filed May 26, 1978, wherein the court said:

“A reading of subsection (1)(a) [787.-021(1)(a)] clearly indicates that it is written in the disjunctive with adverbs ‘forcibly,’ ‘threat’ and ‘secretly’ all being intended to modify the verbs ‘confining,’ ‘abducting,’ ‘imprisoning’ and ‘restraining’. The appellant’s contention that the transposition of ‘threat’ and ‘secretly’ has created an unconstitutionally vague and ambiguous statute is simply without merit.”

Thus, it now appears clear that the wording of that statute does not require that the restraint be secretly accomplished, or done by threat; it can be accomplished by force alone.

The other point we consider worthy of comment requires a reversal in part of the judgment and sentence under review. Appellant was charged with and convicted of false imprisonment and battery. Both crimes were committed in the course of the “bear hug”. In wrapping his arms around Alice appellant forcibly restrained her against her will and without lawful authority; that same act constituted the battery in question. Thus, it appears that the battery in this case was a Brown category four lesser included offense of false imprisonment. Therefore, it was error to adjudicate appellant guilty of the battery count.

We have considered appellant’s third point and find it to be without merit.

Accordingly, the judgment and sentence on Count I for false imprisonment is affirmed and the adjudication of guilty on Count II is reversed, and the cause is remanded with directions to vacate the adjudication of guilty on Count II.

AFFIRMED IN PART; REVERSED IN PART, with directions.

MOORE, J., and RIVKIND, LEONARD, Associate Judge, concur.


author: LETTS, Judge. MOORE, Judge,

text:
    Janet KILLIAN, Appellant, v. Robert P. LAWSON, also known as Robert Paul Luttman, Appellee.
    No. 77-2099.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1978.
    Paula S. Gold of Baskin, Schwartz, Brown & Kaplan, Boca Raton, for appellant.
    Shepard Lesser of Lesser, Lesser & Daniels, P. A., West Palm Beach, for appellee.
   LETTS, Judge.

This is an appeal from a ruling that a divorced man, who pays $1,000 a month alimony, which constitutes the sole support of his ex-wife, is entitled to the exemption of wages from garnishment under § 222.11 Fla.Stat. (1975). We affirm.

The appellant refers to several cases holding that a divorced man, with no minor children to support, is not the “head of a family.” Anderson v. Anderson, 44 So.2d 652 (Fla.1950); In Re: Estate of Deem, 297 So.2d 611 (Fla. 4th DCA 1974); In Re: Estate of Van Meter, 214 So.2d 639 (Fla. 2nd DCA 1968), affirmed 231 So.2d 524 (Fla.1970); and Jordan v. Jordan, 100 Fla. 1586, 132 So. 466 (1931). However, all of these cases can be factually distinguished from the one at bar. Thus in Anderson the ex-husband was seeking to establish homestead exemption on his real estate against a claim for support by his minor children. Likewise in Deem and Van Meter the opinions were interpretating the homestead status of real estate owned by deceased ex-husbands relative to the inheritance thereof. Finally in Jordan the court was considering whether a separated husband whose children no longer lived in his home, could continue to be classed as the head of the family and be thus restricted as to alienation of his residential real estate.

None of the foregoing cases concern themselves with the garnishment of an ex-husband’s wages when he provides the sole support for his ex-wife and we are of the opinion that for this purpose he should come within the purview of § 222.11 Fla. Stat. (1975). In so holding, we recognize a recent case from the Second District which, by inference, might be construed to suggest a contrary result. See Busot v. Busot, 354 So.2d 1255 (Fla. 2nd DCA, filed February 10, 1978). Nonetheless, we choose to look to the obvious purpose of § 222.11 which is to prevent the families of debtors from becoming public charges. As was said in Elvine v. Public Finance Co., 196 So.2d 25 (Fla. 3rd DCA 1967),

Exemption statutes should be liberally construed in favor of the debtor. The very purpose of the statute is to preserve to the unfortunate debtor and his family a means of living without becoming a charge upon the public. See Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931); Farland Loan & Savings Co. v. Pittman, 108 Fla. 442, 146 So. 554 (1933); Slatcoff v. Dezen, Fla.1954, 76 So.2d 792.

To us it makes little difference whether the wage earner is residing in the same house with a wife and/or family or whether he is living elsewhere in a divorced status. Rather it is the obligation to support that family, and their dependency on him, that should control, not the aggregation of all the parties under one roof, in a state of connubial bliss. See Lena v. Clinkenbeard, 172 Okl. 6, 44 P.2d 2 (1935). For the purpose of support, under the facts of this case, the ex-husband is still, by the divorce court’s command, the principal breadwinner, and as such is very much the financial head of a family.

AFFIRMED.

CROSS, J., concurring.

MOORE, J., dissenting, with opinion.

MOORE, Judge,

dissenting:

I respectfully dissent. In my opinion there can be no head of a family when there is no family. If Section 222.11, Florida Statutes (1977) is to be expanded to provide an exemption for those divorced husbands who are required to support their former wives then I believe this to be the prerogative of the Legislature. I would reverse.


text:
    COUNTY OF SEMINOLE, State of Florida, Petitioner, v. CITY OF LAKE MARY, a Florida Municipal Corporation, Respondent.
    No. 77-2435.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1978.
    Gary Siegel, Asst. County Atty., Sanford, for petitioner.
    S. Joseph Davis of Stenstrom, Davis & McIntosh, Sanford and Marcia K. Lippin-cott, Winter Park, for respondent.
    DOWNEY, C. J., and ANSTEAD and MOORE, JJ., concur.
   Petition for Writ of Certiorari to the Circuit Court, Seminole County; Clarence T. Johnson, Judge.

Petition for Writ of Certiorari is hereby DENIED.


text:
    Earnest Lee DUKES, Appellant, v. STATE of Florida, Appellee.
    No. 77-1395.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 1978.
    Rehearing Denied Oct. 19, 1978.
    Angelo M. Ferlita of Diecidue, Ferlita & Prieto, and Anthony Alfonso, Jr., Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court. However, the present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975). Moreover, the phrase “at hard labor” in the sentence is improper because no existing state statute provides for imprisonment at hard labor as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla.2d DCA 1974). Therefore, we remand the case for correction of sentence, and appellant need not be present at that time.

GRIMES, C. J., and HOBSON and DAN-AHY, JJ., concur.


author: McCORD, Chief Judge. BOYER, Judge,

text:
    JACKSONVILLE PORT AUTHORITY, a body politic and corporate, Appellant, v. PARKHILL-GOODLOE CO., INC., a Florida Corporation, Appellee.
    No. FF-257.
    District Court of Appeal of Florida, First District.
    Oct. 3, 1978.
    As Corrected Oct. 18, 1978.
    Dawson A. McQuaig and William Lee Allen, Jacksonville, for appellant.
    Neil C. Taylor of Toole, Taylor, Moseley, Milton & Joyner; and Aubrey L. Coleman, Jr., of Smith, Currie & Hancock, Atlanta, Ga., for appellee.
   McCORD, Chief Judge.

This appeal is from a final judgment finding appellant, Jacksonville Port Authority, liable to appellee Parkhill-Goodloe Co., Inc., for damages to its equipment and additional costs incurred for extended time required to complete a dredging contract which was awarded to appellee by appellant. The alleged damages resulted from the unexpected dredging of rock in carrying out the terms of the contract. We affirm.

The trial court in its final judgment stated as follows:

“Prior to bidding, the Plaintiff reviewed the boring reports furnished by the Defendant, as well as making ‘on-site’ probings themselves in conjunction with other prospective bidders. Neither the boring reports of the Defendant nor the probings by the Plaintiff indicated any significant rock in the area. The area in question was Bid Item No. 3 of the contract. During dredging to the required depth of 38 feet, rock was encountered as high as 35 feet but mostly around 37 feet. The defendant claims that Plaintiff was on notice of possible rock because of prior experience in dredging in an area immediately east of Bid Item No. 3 area when the Plaintiff had scraped over rock in dredging the 36 feet. In such prior dredging the Plaintiff had incurred no difficulty in reaching the 36 feet depth which would put it on notice of any significant rock. Another company had later dredged the area east of Bid Item No. 3 and incurred rock and made a claim against the Defendant. The Plaintiff claims that this information should have been disclosed to bidders and failure to do so constituted fraudulent misrepresentation, breach of contract, breach of implied or expressed warranty which give rise to liability on the part of the Defendant. Additionally the Plaintiff seeks relief on the grounds of mutual mistake and quantum meruit.
The Defendant additionally claims that the Plaintiff dredged too deeply and should not be able to claim damages for delay resulting therefrom. Because of the difficulty in maintaining absolute control of dredging equipment, the dredging contract provided for compensation to the depth of 40 feet — 2 feet beyond the minimum required depth. The uneven surface of the rock encountered and the methods required to extract and remove the rock created the possibility of going deeper than 40 feet in some areas. There was some discrepancy likewise in depths reported by the Plaintiff and the Defendant, but nothing significant in the Court’s view.
The Court finds that the Plaintiff relied on the boring reports furnished by the Defendant and had a right to do so and its own ‘on-site’ probings also did not reflect any significant rock to be encountered in the dredging. Further, the Defendant was on notice of rock in the area because of the prior claim from a prior contractor dredging in an adjacent area and the Defendant did not disclose the possibility of rock to the bidders, including Plaintiff, on the contract. The Court finds that Defendant had a duty to make known to the bidders on this project its full knowledge of the possibility of rock in this area. The Plaintiff incurred damages to its equipment and incurred damages for extended time to complete the dredging work for which the Defendant is responsible.”

From a review of the record and the briefs of the parties, we agree with the foregoing findings and conclusions of the trial court.

The dispute here involves only Bid Item No. 3 of the bid documents which was for dredging in a certain area to a minimum depth of minus 38 feet mean low water with provision that payment would be made for going as deep as minus 40 feet. Addendum No. 1 to the contract documents issued by appellant to all prospective bidders added 13 pages consisting of seven core boring reports made by Law Engineering Testing Company for appellant at a cost to appellant of $7,271. These core boring reports indicated that the materials likely to be encountered in the area within the 38 foot depth were sand, silt, and limestone fragments. One of the seven borings showed rock at 37.1 feet and two at 40 feet. Appel-lee, along with two other prospective bidders, made 10 less sophisticated probings in the area which appeared to confirm the information obtained from appellant’s six borings — rock was not found within 40.8 feet depth. Upon commencement of dredging operations, appellee began encountering an extensive amount of fixed, solid and heavy rock. The rock which was dredged was found in peaks with holes right next to them and was encountered as shallow as minus 33 feet. Appellee is not a rock dredger and does not bid on projects which involve rock dredging of any significant amount. As a result of the large quantities of rock encountered, appellee damaged its dredge pumps and pipelines and spent an additional 19 days in the area of Bid Item No. 3 above what would have been required had only sand, silt and limestone fragments been present.

Upon encountering the rock, appellee called the project engineer for appellant and advised that rock was being encountered and that a claim would be submitted. The project engineer told appellee to go ahead and submit a claim and that it would be considered. Appellee advised appellant that since it had suffered extensive damage to its equipment, it was discontinuing dredging of the rock. Appellant responded and advised that discontinuance of the dredging of the rock would be construed as a breach of the contract, but that any claim submitted by appellee because of the rock would be given careful and thorough consideration. Appellee then resumed dredging of the rock at additional expense and damages. Upon completion of the dredging contract, appellant denied appellee’s claim.

As alluded to by the trial court, the evidence shows that a dredging contractor on an earlier project for appellant in the adjacent area in dredging the same depth as required in appellee’s contract had to dredge an average of seven or eight feet of rock. This information had not previously been furnished to appellee and the other bidders by appellant.

In support of its position, appellant relies upon the following provisions of the contract between it and appellee:

“1. Examination of Drawings, Specifications and Site of Work
The Bidder is advised, before submitting his proposal, to visit the site of the proposed work and familiarize himself with the nature and extent of the work and any local conditions that may in any manner affect the work to be done and equipment, materials and labor required. He is required to examine carefully the drawings and specifications and contract forms, and to inform himself accurately regarding any and all conditions and requirements contained herein that may in any manner affect the work to be performed. No allowances will be made for conditions overlooked by the Contractor.”
“12. Borings
Boring information shown on the Drawings or furnished with the specifications, or both, is not guaranteed to be more than a general indication of the materials likely to be found adjacent to holes bored at the site of the work approximately at the locations indicated. Bidders shall examine boring records and interpret the subsoil investigation and other preliminary data for himself, and shall base his bid on his own opinion of the conditions likely to be encountered. It is mutually agreed that the submission of the proposal shall be considered prima facie evidence that the bidder has made examinations.”
“9. Dredging and Disposal of Material
Dredging shall be required to the depths as shown on the Drawings. All materials of whatever nature encountered shall be removed to the depths shown.”

Appellant contends that under the above provisions, it was the responsibility of ap-pellee to satisfy itself as to the nature of the material to be dredged and that, therefore, appellant is not liable for the unexpected rock dredging of the material to be dredged. Of particular significance, however, is the above statement in the contract that the boring information furnished “is not guaranteed to be more than a general indication of the materials likely to be found adjacent to holes bored at the site of the work approximately at the location indicated.” From the evidence, it appears that the holes drilled by appellant did not show that the underwater rock structure was in peaks and valleys with peaks extending into the area to be dredged. The negative language of the contract quoted above constitutes a guarantee that the boring information furnished by appellant gave a general indication of the materials likely to be found adjacent to holes bored at the site of the work approximately at the locations indicated. The information failed to give such general indication. We, therefore, must consider the legal effect of the giving by appellant of this misleading information to bidders.

In United States v. Atlantic Dredging Company, 253 U.S. 1, 40 S.Ct. 423, 64 L.Ed. 735 (1920), the Supreme Court found in favor of a contractor’s claim for excess cost of dredging due to conditions differing from those represented to exist. The government relied on. various exculpatory provisions. There the court said:

“The specifications stated that the depth of the channel to be dredged was thirty five feet, and under the heading, ‘Quality or Character of the Material,’ contained the following: ‘The material to be removed is believed to be mainly mud, or mud with an admixture of fine sand, except from Station 54 to Station 55 + 144, at the lower end of West Horseshoe Range (the latter is not included in the contract) where the material is firm mud, sand, and gravel or cobbles.’ It was stated that — ‘bidders are expected to examine the work, however, and decide for themselves as to its character and to make their bids accordingly, as the United States does not guarantee the accuracy of this description.’
The further statement was that — ‘a number of test borings have been made in all of the areas where dredging is to be done under these specifications, and the result thereof may be seen by intending bidders on the maps on file in this office. ’(See paragraph 17.) No guaranty is given as to the correctness of these borings in representing the character of the bottom over the entire vicinity in which they were taken, although the general information given thereby is believed to be trustworthy.’ ”

Finding that actual conditions were not as had been represented, the Supreme Court held that the contractor was entitled to damages flowing from his reliance on the representation and stated as follows:

“The case is . within the ruling of United States v. Spearin, 248 U.S. 132, 136, where it is stated that the direction to contractors to visit the site and inform themselves of the actual conditions of a proposed undertaking will not relieve from defects in the plans and specifications, citing Christie v. United States, 237 U.S. 234, Hollerbach v. U. S., 233 U.S. 165, and United States v. Utah, Nevada & California Stage Co., 199 U.S. 414. It is held in those cases ‘that the contractor ought to be relieved, if he was misled by erroneous statements in the specifications.’ ”

In a somewhat similar case where the owner gave the contractor pre-bid information relating to soil moisture conditions, the Ohio Supreme Court in Condon-Cunningham, Inc. v. Day, 22 Ohio Misc. 71, 258 N.E.2d 264 (1969), stated as follows:

“The principal issue here is whether the contractors could rely upon information given to them and also other information made available to them concerning the moisture content of the soil found in the Kaiser-Nelson Cut. This information was gained through borings made by a Columbus engineer by the name of Jewell, who made these borings for and on behalf of Cuyahoga County in connection with this project.
Plaintiff stated in evidence at the trial that they relied on this information in preparation of their bid; that when they actually encountered the material referred to it was found to be much too wet to be easily dried, and in its present condition could not be used as fill. There is no question that the material encountered had a higher moisture content than anticipated after studying the Soils-General Notes, Jewell Report and Soil Profiles, and that extra expense was required for proper excavation and embankment of the area in question.”

As to disclaimer clauses in the contract, the Ohio court said as follows:

“While the defendant contends that because of the various disclaimers the contractors had no right to rely upon the information given as to the moisture content of the soil, it does seem that it is a strange procedure to furnish the contractors with such information, to invite them to seek more detailed information from the county and to give them extensive boring reports in 11 elaborate pamphlets, which the county invites them to inspect, and then to say because of some of our disclaimers you may not use any of this elaborate information that obviously was obtained by us at much expense and, if you do rely on it, you are doing so at your peril. [Citations omitted.]
******
This is one more thought before passing this subject matter. What were the bidders to do? Was each bidder to run these tremendously expensive core boring tests not knowing whether or not he would get the contract? Under defendant’s contention there would be practically no bidders. A bidder would be faced with this dilemma. Shall I bid on what is presented to be and run the risk of loss if the information is not correct or shall I run core boring tests at great expense, amounting to thousands of dollars, which expense I must bear on my own if I do not secure the contract?
The county, on the other hand, should know what soil they are dealing with in a project they have under consideration. The information, if gathered by the county, will be useful to the county no matter who gets the job. The county should be the logical one to make the tests or have them made and not the bidders who may or may not get the job.
If the county has elaborate tests made and makes its finding known to the bidders, the bidders should be able to rely on these tests in all justice and fair play.”

Compare also State Road Department v. Houdaille Industries, Inc., 237 So.2d 270 (Fla. 1 DCA 1970).

In furnishing bidders with information as to the nature of the materials likely to be encountered in dredging to the required depth, appellant had a duty to furnish information which would not mislead prospective bidders and to not withhold from prospective bidders information that another dredging contractor, in an adjacent area, had encountered extensive rock in dredging to the depth required by appellee here. We find competent substantial evidence to support the final judgment.

AFFIRMED.

MASON, ERNEST E., Associate Judge, concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

As stated by the majority, appellee had prior experience in the area. Further, it did not rely upon the information obtained from appellant, but made with two other prospective bidders, at least 10 other probings. The cases cited by the majority are not therefore, in my view, controlling. Upon the facts recited in the majority opinion, I would reverse.


text:
    Robert Logan MORLEY, Appellant, v. STATE of Florida, Appellee.
    No. HH-230.
    District Court of Appeal of Florida, First District.
    Oct. 3, 1978.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from a conviction and sentence for resisting an officer without violence and attempted battery upon a law enforcement officer.

Robert -Logan Morley was initially arrested for fighting, a misdemeanor that was not committed in the presence of a law enforcement officer. That arrest was improper. Section 901.15, Florida Statutes (1977). In fact, it was later determined that Morley was not involved in the fight. In the course of the arrest Morley resisted. He was charged with resisting arrest with violence and was found guilty of resisting arrest without violence.

In Florida, the common law right to resist an illegal arrest with force has been abrogated by statute Section 776.051, Florida Statutes (1977). Thus, legality of the arrest is not a factor in that situation. There has been no statutory change, however, to the right to resist an illegal arrest without force. Marshall v. State, 354 So.2d 107 (Fla. 2d D.C.A. 1978); Lowery v. State, 356 So.2d 1325 (Fla. 4th D.C.A. 1975). Thus, we think the conviction for resisting arrest without violence must be reversed.

The conviction for attempted battery of a law enforcement officer while in the lawful performance of his duty is affirmed. The incident giving rise to that charge took place at the police station while the officers were investigating the fight that had taken place earlier. We believe that the investigation constituted the lawful performance of a legal duty.

The conviction and sentence for resisting an officer without violence is reversed. The conviction and sentence for attempted battery on a law enforcement officer is affirmed.

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


author: BOYER, Judge.

text:
    John S. WINNIE and Elizabeth Ann Winnie, his wife, and Frank Sarver, d/b/a Craftman Builders, Inc., Appellants, v. John BUCKHALTER, d/b/a Buckhalter Heating and Air Conditioning, Appellee.
    No. HH-498.
    District Court of Appeal of Florida, First District.
    Oct. 3, 1978.

      Herbert M. Webb, Gainesville, for appellants.
    No appearance for appellee.
   BOYER, Judge.

This is an appeal from an order which denied attorney’s fees under Section 713.29, Florida Statutes (1975). Buckhalter brought suit against Winnie to foreclose a mechanics’ lien. Winnie answered denying that the mechanics’ lien law had been complied with and counterclaimed for damages alleging in part a material breach of contract. The trial court determined that neither party had established his claim by a preponderance of the evidence. Further, the trial court held that each party should be responsible for his own attorney’s fees.

Section 713.29, Florida Statutes (1975) of the mechanics’ lien law provides:

In any action brought to enforce a lien under part I of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as a part of his costs.

Winnie was entitled to recovery of attorney’s fees under Section 713.29 as the prevailing party since he successfully resisted the mechanics’ lien foreclosure action and was not found otherwise liable for damages in the same case. See, e. g., Charter Development Corp. v. Eversole, 342 So.2d 143 (Fla.lst DCA 1977); Falovitch v. Gunn & Gunn Construction Co., 348 So.2d 560 (Fla.3d DCA 1977); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla.3d DCA 1975); Dominguez v. Benach, 277 So.2d 567 (Fla.3d DCA 1973); H. D. McPherson, Inc. v. Metro Electric of Orlando, Inc., 253 So.2d 878 (Fla.4th DCA 1971). Contrast, Emery v. International Glass & Mfg. Inc., 249 So.2d 496 (Fla.2d DCA 1971). However, Winnie is only entitled to attorney’s fees for the services rendered incident to the mechanics’ lien aspect of the case. Kinard Enterprises, Inc. v. Johnson, 308 So.2d 593 (Fla.lst DCA 1975); Planas & Franye Engineers, Inc. v. Padilla, 310 So.2d 354 (Fla.3d DCA 1975); Jackson v. Hatch, 288 So.2d 564 (Fla.2d DCA 1974).

Accordingly, that portion of the final judgment denying Winnie attorney’s fees is reversed and the cause is remanded for a determination by the trial court of a reasonable fee for Winnie’s attorney’s services incident to the mechanics’ lien aspect of the case.

McCORD, C. J., and MILLS, J., concur.


text:
    Timothy Lewis MILLER, Appellant, v. STATE of Florida, Appellee.
    No. JJ-26.
    District Court of Appeal of Florida, First District.
    Oct. 3, 1978.

      Michael J. Minerva, Public Defender, Louis Carres, Margaret Good and Janice Scott, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

There being no requirement under Section 39.02, Florida Statutes (1977) or Florida Rule of Juvenile Procedure 8.150 that a juvenile’s demand for waiver of juvenile jurisdiction reflect that the juvenile has been afforded the right to counsel or has validly waived that right, we find appellant’s attack on the jurisdiction of the adult division of the circuit court to be ill-founded here. Appellant’s final judgment and sentence are therefore AFFIRMED.

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


text:
    Charlie HAYES, Appellant, v. STATE of Florida, Appellee.
    No. KK-98.
    District Court of Appeal of Florida, First District.
    Oct. 3, 1978.
    Charlie Hayes, in pro. per., for appellant.
    No appearance for appellee.
   PER CURIAM.

This appeal is from a summary denial of a motion to vacate or set aside a judgment and sentence. (Rule 3.850, Fla.R.Crim.P.) Appellant was convicted of robbery with a firearm. He contends that his sentence to life imprisonment is illegal because the statute (sections 812.13(2)(a) and 775.082(b), Florida Statutes (1977)), provides that the sentence be “a term of years not exceeding life imprisonment” and that such terminology does not permit a life sentence. We disagree. We interpret this statute to allow the sentence to be either a term of years or life imprisonment.

AFFIRMED.

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


text:
    Grady NELSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-541.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY and KEHOE, JJ., and PIERCE, WILLIAM C. (Ret.), Associate Judge.
   PER CURIAM.

Appellant/defendant Grady Nelson was charged by information filed November 4, 1976, with robbery and aggravated battery. The acts were alleged to have occurred at Miami Beach Senior High School and perpetrated upon the person of Cindy Siegel, a student at the school.

Appellant’s first trial commenced on December 13, 1976, and ended in a mistrial when the jury was unable to agree upon a verdict. A second trial was held on January 17, 1977. The jury returned a not guilty verdict on the robbery charge and a guilty verdict on the charge of aggravated battery. After post-trial motions for new trial were denied, appellant was adjudicated guilty and sentenced to four (4) years imprisonment. From appellant’s conviction and sentence, this appeal has been taken.

In a lengthy and detailed brief, appellant has raised five points on appeal in which he contends that certain rulings of the trial judge deprived him of due process of law and/or a fair and impartial trial. After carefully reviewing the record in light of the briefs and authorities cited therein, and the oral argument of counsel, we are of the the opinion that reversible error has been demonstrated as to appellant’s second point, which we shall discuss forthwith. In light of our decision to reverse appellant’s conviction and sentence and remand for new trial, we shall also discuss the remaining four points raised by appellant immediately proceeding our discussion of what we consider to be the crux of this appeal.

POINT II

Whether the trial judge erred in limiting the cross-examination of two State’s witnesses and further erred in limiting the defense’s presentation of its case by refusing to allow defense counsel to introduce a statement of the victim which would explain or rebut adverse inferences created by the introduction of a taped statement given by appellant to the arresting officer.

At trial, the prosecution introduced a taped statement taken from appellant at the time of his arrest. In the statement, appellant admitted having been at Miami Beach High School on the day of the incident to obtain his diploma, but denied that he had assaulted Miss Siegel. Further the statement included a series of questions by Sergeant Duncan, the arresting officer, concerning the clothing worn by appellant on the day of the incident. Under questioning, appellant had stated that he had given the police the shirt, trousers, hat and sunglasses which he had worn on October 8, 1976, the day of the incident.

During the first trial, which as previously mentioned, ended in a mistrial when the jury was unable to agree upon a unanimous verdict, the prosecution sought to introduce into evidence the clothing which appellant had given Sergeant Duncan. The prosecutor suggested at that time that the clothes were relevant since appellant had been wearing them on the day of the incident. The clothing was thereupon introduced into evidence. At the first trial, Sergeant Duncan testified on cross-examination that Cindy Siegel did not recognize the clothes when they were shown to her after the incident.

At the second trial, defense counsel sought to cross-examine Siegel regarding the clothing which Sergeant Duncan had obtained from appellant. The prosecution objected to this cross-examination on the grounds that no evidence had been introduced to establish that Miss Siegel had ever identified the clothing. Defense counsel proffered that the relevancy of the testimony would be established by subsequent evidence, (cross-examination of Duncan) and requested that the cross-examination be allowed “subject to tying it up at a later time.” The court sustained the objection and refused to allow cross-examination.

Subsequently, as in the first trial, the prosecution again introduced into evidence the taped statement given by appellant to Sergeant Duncan. Upon cross-examination of Duncan by the defense, the trial judge again refused counsel the opportunity to question the arresting officer on the subject of appellant’s clothing, i. e., that Miss Siegel could pot identify the clothing as that worn by her assailant. Further, when the defense presented its case, the trial judge did not allow counsel for appellant to introduce into evidence the clothing allegedly worn by appellant on the day of the incident and given to Sergeant Duncan.

The jury was apprised at the outset of the trial that the only issue in the case would be identity. At the time of closing argument, the prosecution introduced three pertinent facts: (1) that Miss Siegel had identified appellant as her assailant; (2) that her assailant wore a brown and white striped shirt and light brown trousers; and (3) that appellant gave Sergeant Duncan the clothing which he stated he had worn on the day of the incident.

The defense centered its efforts on demonstrating that Miss Siegel had made numerous inconsistent statements and that her memory of the events was unreliable. Yet, the jury never heard the defense attempt to establish, either through cross-examination of Miss Siegel, through contradictory testimony of Miss Siegel brought out through Sergeant Duncan, or by introduction of the actual clothing, itself, that the clothing which appellant had given Sergeant Duncan was not the clothing described by Miss Siegel as having been worn by her assailant.

The record in this case clearly establishes that the jury drew adverse inferences from the absence of any testimony concerning the clothing. During deliberations, the jury submitted the following question:

“On the tape it is stated clothes (pants, shirt, cap) and sunglasses were taken from the defendant.

“Is there any way these can be produced or we can find the colors of these?” The record also reflects that the absence of testimony concerning the clothing was of considerable significance in the ultimate decision of the jury. In the supplemental motion for new trial was a sworn statement of one of the jurors taken by the defense pursuant to an order of the trial judge permitting the defense to interview the trial jurors. The statement establishes the jury’s concern about the absence of testimony on the subject:

“ . . . We wanted to know. It seemed to us that somebody was trying to hold something back.”

The juror further stated that if the jury had been informed (as it was at the first trial) that Cindy Siegel had examined the clothing and had stated that it was not the clothing worn by her assailant, the jury “would have hung.”

It is our opinion that the trial judge erred in limiting the cross-examination of both Miss Siegel and Sergeant Duncan on the subject of appellant’s clothing once the State had “opened the door” to this testimony by the introduction of the taped statement of appellant. Further error was committed by refusing to allow the defense to introduce into evidence the clothing given to Sergeant Duncan by appellant. The defense should have been permitted to rebut the adverse inferences established by the taped statement by (1) eliciting from either of the witnesses the inability of Miss Siegel to identify the clothing as that worn by her assailant, or (2) by actually introducing the clothing into evidence. Ellison v. State, 349 So.2d 731 (Fla.3d DCA 1977); see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1028, 35 L.Ed.2d 297 (1973) and Elmore v. State, 291 So.2d 617 (Fla.4th DCA 1974).

Clearly, the error committed could in no way be deemed harmless in light of the jury’s reaction to the fragmentary character of the evidence and the sole issue to be determined by the jury, i. e. identity of the assailant. The question submitted by the jury to the trial judge during deliberation, as well as the sworn statement of the juror taken by defense counsel, conclusively show that in the absence of an explanation of the clothing given by appellant to Sergeant Duncan, the jury drew adverse inferences that significantly influenced their ultimate decision. The law is settled that where jurors consider matters not in evidence to the prejudice of a defendant, a new trial is mandated. Russ v. State, 95 So.2d 594 (Fla.1957).

Accordingly, appellant is entitled to a new trial.

POINT I

Whether the trial judge erred in refusing to compel the production of the Grand Jury testimony of Miss Siegel.

As has previously been mentioned, the only issue involved in this case was that of identity, and likewise, the only defense was the misidentification of appellant as the assailant. Miss Siegel was the only eyewitness to the offense and her credibility was the crucial factor at trial. Appellant now contends that certain testimony given by Miss Siegel before the Grand Jury was both contrary and inconsistent with various statements she had made concerning the facts surrounding her identification of appellant, a former student at the high school, from a yearbook photograph. Appellant argues that the testimony before the Grand Jury amounted to “favorable evidence” which, upon his request, should have been produced for use at trial in his defense. In support of his contention, appellant cites Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

We note that pursuant to appellant’s request for production, the trial judge held an in camera inspection of the transcript and concluded that there were no “great material differences” between the testimony of Miss Siegel before the Grand Jury and certain statements that she had subsequently made. Appellant’s motion to produce the Grand Jury testimony was therefore, denied.

We have carefully reviewed the Grand Jury testimony of Miss Siegel and compared same to her testimony at trial. While it does appear that there are certain differences between the testimony it does not appear that the disparity can be raised to the “favorable evidence” status as per Brady, supra. Rather, the differences can be more aptly categorized as the “inconsequential deviations” spoken of in Minton v. State, 113 So.2d 361 (Fla.1959).

Therefore, we are of the view that the trial judge did not abuse his discretion in denying the defense access to the grand jury testimony, as such testimony did not amount to favorable and material evidence. Williams v. State, 275 So.2d 284 (Fla.3d DCA 1973).

POINT III

Whether the trial judge erred in denying motions for mistrial and new trial when a prosecution witness, on cross-examination, volunteered testimony which implied that appellant had been involved in unrelated criminal activities.

On cross-examination, Sergeant Duncan was questioned about his contacts with appellant during the time of the investigation of the assault. The Sergeant was asked if appellant, who had denied committing the assault in a statement given after his arrest, had also denied committing the assault during their previous conversations prior to appellant’s arrest. In answering this question, Sergeant Duncan volunteered testimony which implied that appellant had been involved in other criminal activity:

“Q. In your previous conversations with Grady Nelson voluntarily had on Tuesday and Wednesday previous to this Friday (when the recorded statement was taken), he denied any participation in the assault; correct?
“A. He wasn’t asked about the assault, to my knowledge. I didn’t talk to him Tuesday and Wednesday we did not discuss the assault. We picked him up at eight-thirty, took him to the Miami Beach Station on another matter; and when he refused, then we brought him back in.”

At sidebar, defense counsel moved for a curative instruction and for a mistrial. The motion for mistrial was denied, however, the trial judge did instruct the jury to “please disregard entirely the last question and answer given by this witness.”

In light of our decision to reverse appellant’s conviction and sentence as per POINT II, and remand the cause for new trial, we need not determine whether the aforementioned comment of Sergeant Duncan was so prejudicial (when viewed within the context of the curative instruction) so as to be deemed reversible error.

POINT IV

Whether the trial judge erred in excluding expert testimony of a psychologist on matters of eyewitness identification.

At the first trial of appellant, the defense sought to call Dr. Elizabeth Loftus, as expert witness on the subject of eyewitness identification. The trial judge conceded that Dr. Loftus was “an expert on the subject,” but ruled that “this subject is not a proper one for admission of expert testimony.” The trial judge refused to allow a proffer of the testimony at that time.

Prior to the second trial, the defense filed a motion to admit the testimony of Dr. Loftus, accompanied by a proffer of her testimony. The trial judge again refused to admit the testimony, denying the motion. Appellant contends that it was error to refuse to allow the defense to present the expert testimony. We disagree.

The expert testimony proffered by defense counsel concerned the memory process in general and the various factors which may affect an individual’s perception. The testimony did not relate to an examination of the victim, Miss Siegel, but dealt with hypothesis, theories, generalization and speculation. Its purpose was to prove that Miss Siegel could have misidentified the defendant given the facts sub judice.

When facts are within the ordinary experience of jurors, conclusions to be drawn therefrom are left to the jury. McGough v. State, 302 So.2d 751 (Fla.1974); Tongay v. State, 79 So.2d 673 (Fla.1955); Thomas v. State, 317 So.2d 450 (Fla.3d DCA 1975). We believe it is within the common knowledge of the jury that a person being attacked and beaten undergoes stress that might cloud a subsequent identification of the assailant by the victim. As such, the subject matter was not properly within the realm of expert testimony. Tongay v. State, supra; see Seaboard Coast Line Railroad Company v. Kubalski, 323 So.2d 32 (Fla.4th DCA 1975) and Judge Downey’s concurring opinion in Public Health Foundation for Cancer and Blood Pressure Research, Inc. v. Cole, 352 So.2d 877 (Fla.4th DCA 1977).

Accordingly, the trial judge did not err in excluding expert testimony on the eyewitness identification process.

POINT V

Whether the trial judge erred in refusing to instruct the jury as requested by defense counsel.

Appellant contends that the trial judge’s refusal to give his requested jury, instructions on eye witness identification was reversible error. We find this final point to be without merit. The requested instruction was not taken from the Standard Jury Instructions in Criminal Cases in use in this state, but rather from a model instruction derived from United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972).

Instruction 2.12(b) of the Standard Jury Instructions sets forth a charge on credibility of witnesses in which the jury is instructed to take into account factors such as opportunity of observation and ability to remember. This standard charge, though not as elaborate as the model charge advocated in Telfaire, supra, nevertheless adequately covers the factors to be considered by the jury in evaluating the credibility of an eyewitness. In that the standard instruction was in fact given to the jury, the trial judge did not err in refusing to give appellant’s charge on eyewitness identification. Zuberi v. State, 343 So.2d 664 (Fla.3d DCA 1977); Roker v. State, 284 So.2d 454 (Fla.3d DCA 1973).

We have carefully reviewed all of the points raised by appellant on appeal and, for the reasons expressed under POINT II, are of the opinion that appellant is entitled to a new trial.

Reversed and remanded for new trial.


text:
    Raymond PACE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1184.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. State v. Abreau, 363 So.2d 1063 (Fla.1978); DeLaine v. State, 262 So.2d 655 (Fla.1972).