text:
    TRAVELERS INSURANCE COMPANY, a Foreign Corporation authorized to do business in the State of Florida, Appellant, v. Eugene PAC, Appellee.
    No. 75-380.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1976.
    Rehearing Denied Oct. 12, 1976.
    Patrick E. Geraghty of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    John B. Cechman of Goldberg, Rubinstein & Buckley, Fort Myers, for appellee.
   PER CURIAM.

This case presents the question of whether “stacking” of uninsured motorist coverage is available to a person who achieves his status as an insured by driving his employer’s vehicle.

Appellee Pac, an employee of Frank Carroll Oil Co., was injured by a uninsured motorist while operating his employer’s vehicle. At the time of the accident, Frank Carroll Oil Co. was one of the named insureds under a fleet automobile liability insurance policy issued by appellant Travelers Insurance Co. (Travelers) which provided, among other things, uninsured motorist coverage for the motor vehicle involved in the accident in the amount of $10,000 for each person and $20,000 for each accident. The policy also provided the same uninsured motorist coverage for 14 additional vehicles, all of which were specifically identified in the policy and for which a separate premium was paid.

Travelers filed a declaratory judgment action to determine whether or not the ap-pellee could aggregate or “stack” the uninsured motorist coverage provided under the policy on all 15 individual vehicles. The trial court ruled that appellee was entitled to stack the uninsured motorist coverage under the Travelers policy which, in effect, made the total coverage $150,000. Travelers appeals this declaratory judgment. We reverse.

The parties have not cited, and we have not found, a Florida case dealing with “stacking” uninsured motorist coverages where the injured party was an insured only by virtue of occupying an insured vehicle. No contention is made that there is any policy provision authorizing an insured to aggregate or “stack” coverage; therefore, we must determine whether statutory or case law requires the result reached by the trial court.

The insurance policy at issue defines “insured” as:

(1) the named insured as stated in the policy (herein also referred to as the “principal named insured”) and any person designated as named insured in the schedule and, while residents of the same household, the spouse of any such named insured and relatives of either;
(2) any other person while occupying an insured automobile;

The entitlement of each of these two classes of insureds to uninsured motorist protection was distinguished in Mullis v. State Farm Mutual, Fla.1971, 252 So.2d 229. There, the court held that the named insured, his spouse, and their relatives must be afforded uninsured motorist protection regardless of whether they are in an insured vehicle at the time of the accident. This is to be contrasted to persons who become an insured solely by riding in an insured vehicle. As the court pointed out, this second group is necessarily restricted to occupants of the insured vehicle for the purpose of coverage identification.

The case which gave rise to the concept of stacking is Tucker v. Government Employees Insurance Co., Fla.1978, 288 So.2d 238. There, the court wrote:

The total uninsured motorist coverage which the insured has purchased for himself and his family regardless of the number of vehicles covered by his auto liability policy inures to him or any member of his family when injured by an uninsured motorist.

The Tucker opinion cites Mullis and we think the net effect of the language quoted above is that stacking is mandated only for those insureds in the first category outlined in Mullis. Stacking is derived from the presumption that when the named insured purchases uninsured motorist coverage on more than one automobile, he intends to buy extra protection for himself and his family, regardless of whether his injury occurs in any one of his insured vehicles or elsewhere. But there is no reason to apply this result to a guest or employee injured in an insured vehicle. That person has no relationship with any other insured vehicle and the coverage on the others should not inure to his benefit.

Cases outside of Florida are split on the issue of whether stacking is available to an occupant of a vehicle when the owner of that vehicle has multiple policies. In Blocker v. Aetna Casualty Co., 1975, 232 Pa.Super. 111, 332 A.2d 476, the court could find no distinction between the two categories of insureds and held that stacking of uninsured motorist coverage was available to each. Cf., General Mutual Ins. Co. v. Gilmore, 1975, 294 Ala. 546, 319 So.2d 675. We are more persuaded by Cunningham v. INA, 1972, 213 Va. 72, 189 S.E.2d 832; Long v. U S F & G, N.D.Ala.1975, 396 F.Supp. 966; and Moomaw v. State Farm, S.D.W.Va.1974, 379 F.Supp. 697, each of which recognized the distinction outlined above and held that stacking is available only to insureds in the first category. In Cunningham, the leading case in this area, the court wrote:

The purpose of uninsured motorist insurance is to provide compensation to the innocent victim of the uninsured motorist. The named insured in a policy receives coverage, and a contract benefit, for which he has paid a consideration. He seeks indemnity based on the payment of that premium and where he has paid separate premiums he is entitled to the additional coverages. However, this argument and reasoning does not apply to a permissive user of a vehicle who pays no premium and does not receive the broader uninsured motorist coverage of a named insured.

We think it is particularly noteworthy that the court in Long gave great weight to the Florida decisions in concluding that the issue presented here remains open in Florida, despite decisions mandating stacking under other circumstances.

The logic of these cases is especially compelling where the named insured is a large commercial venture. Here, 15 vehicles were involved, while in Cunningham, supra, the insured sought to stack coverage on over 4,000 vehicles. We can easily envision a situation in which stacking of coverage for an occupant would give the insurance company in return for a minimal premium a potential liability running into millions of dollars, and we do not think Tucker was ever intended to lead to that result.

Reversed.

GRIMES and SCHEB, JJ., concur.

HOBSON, A. C. J., dissents without opinion.

      . Since he is already covered regardless of his location when he is injured by an uninsured motorist, there would be no other reason to pay another premium for coverage on a second vehicle. On the other hand, since coverage is limited to occupancy in the insured vehicle under the second category, the extra premium paid on another vehicle provides coverage which would not otherwise be available under that category.


source: Caselaw Access Project

author: McCORD, Judge.

license: Public Domain

text:
    FLORIDA SALT SPRINGS CORPORATION, a Florida Corporation, Appellant, v. H. A. P. LEININGER and his wife, Berneta M. Leininger, Appellees.
    No. Z-389.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1976.
    Rehearing Denied Oct. 13, 1976.
    J. Christian Meffert, of Ayres, Cluster, Curry, Meffert & McCall, Ocala, for appellant.
    Young J. Simmons, of Green, Simmons, Green & Hightower, Ocala, for appellee.
   McCORD, Judge.

Appellant, Florida Salt Springs Corporation, appeals a final judgment in ejectment rendered in favor of appellees, H. A.. P. Leininger and his wife Berneta M. Leininger, following a jury verdict. Appellant contends that the trial court erred in refusing to direct a verdict in favor of appellant on the issue of boundary by acquiescence and erred in instructing the jury on the law applicable to boundaries by acquiescence. We agree.

Our review of the record reveals that the jury had the problem of attempting to resolve conflicting testimony of surveyors. The location of appellant’s and appellees’ respective properties depends upon surveys which are in conflict. In 1835 R. B. Ker surveyed township 13 south, range 25 east, in Marion County and established the range line, and in 1847 C. C. Tracy surveyed the J. M. Hernandez grant and established its west boundary which runs on a northeast-southwest diagonal course crossing the range line at the southeast corner of appel-lees’ land. In 1928 the United States government assigned Rigby and Bandy to perform a dependent survey of Ker’s original 1835 survey and Tracy’s original 1847 survey.

Appellees own to the aforesaid range line on their east side. Appellant’s property is in the Hernandez grant which is east of appellees’ property. The west boundary of the Hernandez grant is not the aforesaid range line and there is intervening property between them. Appellees’ witness Jerne-gan testified that from his survey he is of the opinion there is a 357.8 foot difference between the location of the range line by Ker in 1835 and the location of the range line by the resurvey of 1928. Appellant’s surveyor, however, is of the opinion that the resurvey of 1928 placed the range line in the same position as did Ker’s survey in 1835. It is this discrepancy which creates the problem to be resolved by a jury and it does not involve the issue of boundary by acquiescence because appellant and appellee do not share a common boundary and therefore are not adjacent land owners.

Reversed and remanded for a new trial.

BOYER, C. J., and GREEN, R. A., Jr., Associate Judge, concur.


author: SCHEB, Judge.

text:
    Charles Albert HUCKELBURY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1497.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1976.
    Rehearing Denied Oct. 12, 1976.

      David A. Maney of Gordon & Maney, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

The trial court refused to set aside the conviction of Charles Albert Huckelbury, which was based on his negotiated plea of guilty to first degree murder entered by him while he was represented by an Assistant Public Defender who was not a member of the Florida Bar. Huckelbury appeals. We reverse.

Appellant Huckelbury was charged with first degree murder and conspiracy to commit murder. After finding him to be insolvent, the trial court directed the Office of the Public Defender of the Twentieth Judicial Circuit to represent him. The Honorable Douglas M. Midgley, Public Defender for that circuit, assigned one of his assistants, Lawrence A. Pearce, Jr., to represent Huckelbury. Pearce had been employed by Midgley some months before, after having represented to Midgley that he was a member of the Florida Bar. While actively representing Huckelbury, Pearce conducted certain negotiations with the Office of the State Attorney, and on November 12, 1974, Huckelbury accompanied by Pearce, pled guilty to first degree murder before the Honorable William Lamar Rose, Circuit Judge. From the colloquy it appears the plea was freely and voluntarily entered after consultation between Huckelbury and his counsel, Pearce. A factual basis was developed and the court explained the consequences of the plea to Huckelbury. As a result of plea negotiations, the State waived the death penalty and nolle prossed the conspiracy charge. The trial court accepted Huekelbury’s plea and sentenced him to life imprisonment.

Subsequently, Huckelbury became aware that Pearce was not a qualified lawyer at the time of his representation. Huckelbury retained private counsel and pursuant to RCrP 3.850, he sought to revoke his plea and have the court vacate his judgment of conviction and sentence on grounds that he was not represented by qualified counsel. Following an evidentiary hearing, the trial judge on September 17, 1975, denied appellant’s motion, holding:

“1. That the plea of guilty of the Defendant on November 12, 1974, which is incorporated into this Order, was freely and voluntarily given after extensive examination by the Court.
2. Larry Pearce, at the time of his representation of the Defendant, was a law school graduate who had passed the Florida bar examination.
3. The pleadings and actions before this court demonstrated Larry Pearce’s competence and ability in his representation of the Defendant.”

The trial judge viewed the issue on Huck-elbury’s petition to be solely whether Huck-elbury was afforded qualified representation by Pearce. And, although the original record is devoid of any predicate for so much of the trial judge’s findings in Number 2 as states that Pearce had passed the Florida Bar Examination, we do not quarrel with the remaining findings. The testimony reveals Pearce to be a law school graduate; however, the State stipulated that he was not a licensed member of the Florida Bar at the time of his representation of Huckelbury. Since the record as originally furnished us did not disclose why Pearce was not admitted, we relinquished jurisdiction to the trial court directing a further evidentiary hearing to develop the reasons why Pearce was not a qualified member of the Florida Bar.

As supplemented, the record now before this court reveals the Florida Board of Bar Examiners in January 1975, found that Pearce received a J.D. degree from Creighton University in 1974, prior to being employed as an Assistant Public Defender. Although his grade on the Florida Bar Examination was above the minimum passing grade, the results had been impounded by the Supreme Court of Florida, since Pearce failed to meet the standards of character for applicants to the Florida Bar required under the provisions of Art. IV, § 20, of the Rules of Supreme Court of Florida Relating to the Admissions to the Bar. Specifically, the Board determined that Pearce failed to reveal certain prior school attendance and employment, altered certain of his academic transcripts, and testified falsely before the Board on various matters, including claiming to be unemployed at a time when he was actually working for the Public Defender of the Twentieth Judicial Circuit.

With the landmark case of Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the principle became well established that an indigent defendant charged with a felony is entitled to court-appointed counsel unless he understandingly and intelligently waives that right. Huckelbury had been declared indigent by the court and requested counsel. While he did not have the right to representation by any particular member of the Bar, he was entitled to be advised and represented at every critical stage of the case by counsel certified by the State to be competent and of good moral standing. In Florida the Legislature responded to the constitutional requirement to appoint counsel for indigents in establishing the Office of Public Defender in each judicial circuit of the state. Fla.Stat. §§ 27.50, et seq. Appropriately the Public Defender was appointed to represent Huckelbury. In the course of events the Public Defender delegated the assignment to Pearce, an Assistant, believed in good faith by the Public Defender to be a qualified member of the Bar.

Huckelbury’s entry of a plea of guilty and his sentencing were critical steps in the criminal process where he was entitled to be represented by court-appointed counsel. Sardinia v. State, Fla.1964, 168 So.2d 674; Reader v. State, Fla.App.2d 1964, 168 So.2d 557; RCrP 3.111. Recently the Supreme Court of Florida reiterated that a guilty plea resulting in imprisonment entered without counsel is invalid. Rollins v. State, Fla.1974, 299 So.2d 586.

We must reject the arguments of the State to the effect that the quality of legal services rendered is the only controlling factor in determining whether or not the appellant was deprived of his fundamental rights. And, although Pearce, while representing Huckelbury, had been in contact with Mr. Midgley, nevertheless, no serious contention is made that Midgley himself was serving as counsel to Huckelbury. Rather, while Midgley was supervising Pearce, that supervision according to Midg-ley was at the level maintained over duly qualified lawyers. This, of course, is understandable considering the volume of cases assigned to the Office of Public Defender. Nor is it any answer to cite the Florida Bar Program of allowing senior law students to appear as interns. The intern program requires a degree of supervision far beyond that which a Public Defender would be expected to maintain over his professional staff. Here, the appellant entered a plea of guilty to a first degree murder charge and thereby waived his privilege against self-incrimination, his right to a jury trial, and his right to confront his accusers and other protections afforded an accused under our federal and state constitutions. See Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. To be valid, such a waiver must be entered on a voluntary and advised basis. And where, as here, such plea is entered upon advice of one who, in effect, was an imposter in the legal profession, we cannot say that the requirement for counsel was fulfilled, or that the plea was voluntarily and advisedly entered.

The right to court-appointed counsel presupposes appointment of counsel fully accredited by competency and moral standards to practice law. Pearce did not meet those requirements.

We emphasize that we are not here dealing with a person who merely failed to comply with some administrative requirement prerequisite to membership in the Florida Bar. Rather, we are dealing with a situation where one without proper credentials as a lawyer in any state or federal jurisdiction posed as a lawyer. And, he who so posed has not been considered to be of sufficient moral fiber to bear the stamp of approval of the Florida Bar. Here, there was an actual and knowing misrepresentation on the part of Pearce to his client. Pearce’s representation that he was a qualified member of the Bar was relied upon by the appellant Huckelbury just as it was by the Public Defender. Both were deceived by Pearce.

Accordingly, the order of the trial court is reversed with directions to vacate the judgment of conviction and sentence and allow the appellant to enter a new plea.

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

      . On July 27, 1976, Lawrence A. Pearce was permanently enjoined by the Supreme Court of Florida from his activities, which constituted unauthorized practice of law in the State. The Florida Bar, Re: Lawrence A. Pearce, Case No. 49,383, opinion filed July 27, 1976.

      . Midgley immediately discharged Pearce upon learning that he was not a member of the Florida Bar.

      . See Integration Rule of the Florida Bar, Art. 18, § 6.

      . The correlation between moral character and the lawyer’s role in society was simply but eloquently stated by the Supreme Court in State v. Murrell, Fla.1954, 74 So.2d 221, where the late Justice Terrell, speaking for the court, stated:
      “There is in fact, no vocation in life where moral character counts for so much or where it is subjected to more crucial tests by citizen and the public than is that of members of the bar. His client’s life, liberty, property, reputation, the future of his family, in fact all that is closest to him are often in his lawyer’s keeping. The fidelity and candor with which he performs his trust, point up reasons that distinguish the legal profession from other businesses. . . . ”


author: BOARDMAN, Judge.

text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant, v. James S. CRISP and Patricia A. Crisp, Appellees.
    No. 76-366.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1976.
    Robert L. Shevin, Atty. Gen. and Patricia S.Turner, Asst. Atty. Gen., Tallahassee, for appellant.
    Thomas M. Gallen of Miller, Gallen, Kak-lis & Venable, Bradenton, for appellees.
   BOARDMAN, Judge.

Appellant Department of Revenue (Department) brings this interlocutory appeal from an order denying its motion to dismiss, for lack of subject matter jurisdiction and improper venue, an action initiated by ap-pellees James S. and Patricia A. Crisp.

Appellees brought this-action for a declaratory judgment alleging that Fla.Stat. § 201.02 and § 201.17 are not applicable to the subject matter of the conveyance upon which the Department assessed additional documentary stamp taxes and that Fla. Stat. § 201.17 violates the equal protection and due process clauses of the constitutions of Florida and the United States. Appel-lees prayed for an injunction prohibiting the Department from collecting the tax and penalty. The Department issued a “PROPOSED NOTICE OF ASSESSMENT OF TAX AND PENALTY UNDER CHAPTER 201, FLORIDA STATUTES” to appellees which stated that payment of the amount assessed must be made on or before December 3, 1975. Appellees did not request an informal or formal hearing before the Department to review the assessment but elected to file this suit in the Circuit Court of Manatee County on November 25, 1975.

Generally, an action against the state or a state agency, absent a waiver, must be brought in the county where its official headquarters are located. Dowdy v. Lawton, Fla.1954, 72 So.2d 50; Department of Revenue v. First Federal Savings & Loan Association of Ft. Myers, Fla.App.2d 1971, 256 So.2d 524. Exceptions germane to this controversy are that suit may be filed in the circuit court of the county where the agency action threatened a constitutional right or where the agency attempted to seize property. Williams v. Ferrentino, Fla.App.2d 1967, 199 So.2d 504. The agency’s “threat” or “attempt” must be real and imminent rather than contingent and anticipatory to qualify as an exception to the general rule of venue. First Federal, supra.

Although the complaint in this case alleges infringement of due process and equal protection rights, those rights have not been imminently “threatened” as contemplated in Williams, a case wherein the appellees’ driver’s licenses were suspended, effective upon receipt of notification, in derogation of their due process right to a hearing. Notice of a tax assessment and demand for payment unaccompanied by further action, as in this case, is not an imminent “attempt” to seize and sell property of the taxpayer. See Gaulden v. Gay, Fla.1950, 47 So.2d 580; Department of Revenue v. Arvida Corporation, Fla.App.2d 1975, 315 So.2d 235; First Federal, supra. This court has been quite careful to distinguish between the types of agency action which are affirmative and those which are passive or dormant. In Arvida, the court held that issuing a tax warrant and execution to collect past-due taxes was a real and imminent “attempt” to seize property, and venue was proper in the county where the taxpayer did business. See also Swinscoe v. Department of Revenue, Fla.App.4th 1975, 320 So.2d 11. The formal notice of assessment and demand for delinquent taxes in First Federal specifying the date payment was due and merely advising the taxpayer to pay the assessment to avoid service of a tax warrant was characterized as a contingent and anticipatory “threat,” and venue was held to be in Leon County, headquarters of the Department of Revenue. The Department’s action in the instant case was very close to that of the Department of Revenue in First Federal. Accordingly, we reverse on the issue of venue and remand for transfer to Leon County, pursuant to RCP 1.060(b).

The Department contends that the proper forum for review of the cause before us is in the district court of appeal as mandated by the Administrative Procedure Act, § 120.68(2), Fla.Stat. We disagree and hold that jurisdiction over this action is vested in the circuit court.

The Florida legislature has determined that the circuit courts shall have exclusive original jurisdiction in all cases in equity and in all cases involving legality of any tax assessment. Fla.Stat. § 26-012(2)(c),(e); Fla.Const., art. V, sec. 20(3). See Department of Revenue v. University Square, Inc., Fla.App. 1st 1976, 336 So.2d 371. We agree with the reasoning of the First District Court of Appeal in University Square that if the legislature had intended to divest the circuit courts of jurisdiction over this matter it would have repealed or amended Fla.Stat. § 26.012. Department of Revenue v. University Square, Inc., supra. There is a significant difference between the hearings authorized by Fla.Stat. § 26.012 and those of Fla.Stat. § 120.68. Section 26.012 requires that the circuit court sit as a court of original jurisdiction providing an opportunity for full judicial proceedings while 120.68(4) limits the district court of appeal to appellate jurisdiction where the scope of review is confined to the record transmitted to it by the agency. We do not believe that the restricted review authorized by the APA pre-empts the complete hearing prescribed in 26.012.

Furthermore, independent of the statutory requirements previously discussed, the decision in Department of Revenue v. Young American Builders, Fla.App. 1st 1976, 330 So.2d 864, on facts similar to those before us, is persuasive. The complaint in Young American Builders alleged that a rule of the Department of Revenue was unconstitutional. In Young American Builders the court held that:

The Administrative Procedure Act could not and does not relegate Fourteenth Amendment questions to administrative determination, nor restrict the occasions for judicial consideration of them by reference in § 120.73 to ch. 86, F.S., nor otherwise impair the judicial function to determine constitutional disputes.

Accordingly, we affirm on the issue of subject matter jurisdiction.

REVERSED in part; AFFIRMED in part; REMANDED for further proceedings consistent with this opinion.

McNULTY, C. J., and SCHEB, J., concur.

      . At the time this suit was filed appellees did have an administrative remedy available which they did not elect. The Department has asserted in its brief that the opportunity for a hearing was lost when the assessment became final on December 3. Appellees were not required to request a hearing before the Department and failure to do so does not effect their right to pursue judicial remedies.

      . This case is now pending before the Supreme Court of Florida on petition for writ of certiorari.


author: PER CURIAM.

text:
    Herman E. MINTON and Diane Minton, Individually and as husband and wife, Appellants, v. CNA INSURANCE, a Foreign Corporation, et al., Appellees.
    No. 73-1014.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1976.
    Noriega & Bartel and Paul J. Levine; Ronald I. Strauss, Miami, for appellants.
    Carey, Dwyer, Austin, Cole & Selwood, Miami, for appellees.
    Before BARKDULL, C. J., HAVER-FIELD, J., and CHARLES CARROLL, (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on April 16, 1974 (293 So.2d 742) reversing the judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed March 31, 1976 (334 So.2d 257) and mandate now lodged in this court, quashed this court’s judgment with directions to reinstate the judgment of the trial court,

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on May 21, 1974 is withdrawn, the judgment of this court filed April 16, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment of the circuit court is reinstated and affirmed. Costs allowed shall be taxed in the circuit court (Rule 3.16 b, F.A.R.).


author: MILLS, Judge.

text:
    The STATE of Florida, Appellant (State), v. Patrick DOUGLAS and Lydia Collins, Appellees (Defendants). Patrick DOUGLAS and Lydia Collins, Appellants (Defendants), v. STATE of Florida, Appellee (State).
    Nos. AA-247, AA-354, AA-355.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1976.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Andrew W. Lindsey, Asst. Attys. Gen., for the State.
    Reese Marshall, Jacksonville, Richard W. Ervin, III, Public Defender, Michael M. Co-rin, Louis G. Carres, David J. Busch, Asst. Public Defenders, and Lydia Collins and Patrick Douglas, in pro. per., for appellees and appellants Patrick Douglas and Lydia Collins.
   MILLS, Judge.

The State appeals from an order dismissing a count of an information charging Collins and Douglas with robbery. Collins and Douglas appeal from a judgment based on a jury verdict finding Collins guilty of two charges of assault with intent to commit murder in the second degree, and finding Douglas guilty of aggravated battery and assault with intent to commit murder in the second degree. The appeals have been consolidated.

The State contends that the trial court erred in granting the defendants’ motion to dismiss the robbery count of the information. We agree. The attorney for the defendants has filed a brief stating that he finds no error in their trial. We agree.

The manager of a food market saw Douglas grab several pieces of meat from the meat counter and drop them into the shoulder bag of Collins. The manager intercepted them as they attempted to depart by the exit at the front of the store. At the request of the manager, they agreed to walk to the rear of the store with him. As they walked toward the rear of the store, Douglas turned and struck the manager. The manager fought back. Collins then drew a knife and began stabbing the manager and an employee who was accompanying him. After the affray, the defendants ran out the front exit where they were apprehended by a police officer. Collins drew a bloody knife which she handed to Douglas which he dropped when the officer threatened to shoot him. They were arrested and at the time of the arrest the meat was found in Collins’ shoulder bag. The facts are not in dispute.

Section 813.011, Florida Statutes (1973), under which the defendants were charged with robbery, requires that the property of another be taken by force, violence, assault or putting in fear. The defendants urge that the taking of the meat was not accompanied by force; rather, it was a completed larceny which occurred before the commission of the assaults by the defendants.

The question before us, therefore, is whether a person who. finds it necessary to resort to violence in order to escape with the property of another is chargeable with robbery.

The undisputed facts before us are sufficient to support a charge of violence concurrent with the taking of the goods. The taking was not terminated when the defendants took the meat. If the defendants were to enjoy the meat they stole, they had to get it out of the market. But to do this the defendants had to overcome the manager’s actions in interfering with their exit from the store. This required the defendants to use force.

Both reason and logic demand that where the owner of property takes action to prevent a thief from taking his goods from his premises, and the thief uses force in an effort to get away with the goods, the thief’s use of force is concurrent with the taking and constitutes robbery. State v. Culver, 109 N.J.Super. 108, 262 A.2d 422 (N.J.App.Div.1970).

The series of events which took place here constituted a single occurrence, and is distinguishable from a situation in which force is used to prevent pursuit after the taking is complete.

The order is reversed and this ease is remanded for appropriate action by the trial court.

The judgment is affirmed.

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


text:
    Jesus BENITEZ, Appellant, v. Rafaela BENITEZ, Appellee.
    No. 75-940.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1976.

      Robert T. Gilligan of Black & Gilligan, Dania, for appellant.
    Norman D. Zimmerman, Pompano Beach, for appellee.
   PER CURIAM.

We have considered the points raised by this appeal and find no error except in the award of attorney’s fee. The trial court’s award of $1,750.00 to appellee’s attorney was done without proper evidence to support the fee awarded. The only evidence was the testimony of appellee’s attorney and his invoice for services. Whatever amount is fixed as attorney’s fees in a divorce action must be supported by competent substantial evidence. Ortiz v. Ortiz, 211 So.2d 243 (Fla.3d DCA 1968). The self-serving nature of testimony given by an attorney who performed services for which an attorney’s fee is sought, precludes the court from making an award based solely on that attorney's testimony. Lyle v. Lyle, 167 So.2d 256 (Fla.2d DCA 1964).

The portion of the final judgment awarding $1,750.00 attorney’s fee to appellee’s attorney is reversed and the case remanded for further proceedings consistent with this opinion. The remainder of the final judgment is affirmed.

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


author: DOWNEY, Judge.

text:
    John David TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1417.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1976.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was convicted of two counts of breaking and entering buildings with intent to commit petit larceny. The trial judge entered a separate judgment of conviction and imposition of sentence on each count and in each judgment he sentenced appellant to the Division of Corrections for a period of five years “to run consecutively with any sentence entered heretofore or hereafter.”

Appellant contends that the sentences are illegally vague and uncertain. On the contrary we find the sentences to be clear and certain. The trial judge obviously intended that the sentences on each count should run consecutively, therefore we find no merit in this or any other contention raised by appellant.

Accordingly, the judgments and sentences appealed from are affirmed.

CROSS and ALDERMAN, JJ., concur.


text:
    Rosemary RICHEY, as Supervisor of Elections of Indian River County, Florida, Appellant, v. TOWN OF INDIAN RIVER SHORES, a Municipal Corporation of the State of Florida, et al., Appellees.
    No. 75-1441.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1976.

      Robert L. Shevin, Atty. Gen., and John A. Barley, Asst. Atty. Gen., Tallahassee, for appellant.
    Gordon B. Johnston of Sharp, Johnston & Brown, and James T. Vocelle of Voeelle & Gallagher, Vero Beach, for appellees.
   PER CURIAM.

We have for review a final judgment declaring, among other things, that the qualifications for registering as a municipal elector set forth in Chapter 29163, Laws of Florida, 1953, (the Charter of the Town of Indian River Shores) were not affected by the portion of Chapter 73-155, Laws of Florida (1973), that made mandatory the adoption of the single permanent registration system. In pertinent part Chapter 29163 provides:

“Section 1. Registration: There shall be a registration book to register all qualified electors of the municipality. The Town Council shall prescribe the form thereof and the oath to be administered. Registration books shall be open for registration of voters or electors not less than thirty (30) days before each and every municipal election.
“Section 2. Qualification of Electors: Every person of the age of twenty-one years or over, . . and who has an immediate beneficial ownership, interest, legal or equitable in the title to a fee simple estate in land located within the limits of the said town for not less than six months, or shall have resided within the limits of the said town for not less than six months prior to the date of registration for election, shall be deemed a qualified elector to vote in all elections pertaining to municipal affairs of the Town of Indian River Shores, excepting only Bond Elections. Qualification of electors at Bond Elections held by the municipality shall be the same as provided by the general law of the State of Florida for elections where only freeholders are qualified to vote. The term ‘immediate beneficial ownership’ shall be construed to include both a husband and wife where title to real estate is held in the name of the husband and wife. Provided, however, that the following classes of persons shall not be entitled to vote: Persons who are insane or idiotic, or who may have been convicted of any felony by any Court of Record; Persons who may have been convicted of bribery, or larceny, or perjury.” Article VI, § 2, Chapter 29163.

In pertinent part, Chapter 73-155, provides:

“Section 1. Section 98.041, Florida Statutes, is amended to read:
98.041 Permanent single registration system established; effective date.—
A permanent single registration system for the registration of electors to qualify them to vote in all elections is provided for the several counties and municipalities. This system shall be put into use by all municipalities prior to January 1, 1974 and shall be in lieu of any other system of municipal registration. Electors shall be registered in pursuance of this system by the supervisor or by precinct registration officers, and electors registered shall not thereafter be required to register or re-register except as provided by law.
“Section 2. Section 98.091, Florida Statutes, is amended to read:
98.091 Use of system by municipalities. — •
(1) The board of county commissioners, with the concurrence of the supervisor of elections, may arrange the boundaries of the precincts in each municipality within the county to conform to the boundaries of the municipality subject to the concurrence of the governing body of . the municipality. All binders, files, and other equipment or materials necessary for the permanent registration system provided by § 98.041 shall be furnished by the board of county commissioners; provided, each municipality in a county shall reimburse the board of county commissioners fifty percent (50%) of the cost of such binders, files, and equipment necessary for the precincts within the municipality, unless agreed to otherwise by the county and the municipality; and provided further no such reimbursement shall be required where such a system is presently in effect by law.
(2) The supervisor of elections shall deliver the records required for a municipal election to the municipal elections boards or other appropriate elections officials on the morning of the day before the election and collect them on the day after the election. The municipality shall reimburse the county for the actual costs incurred.
(3) Any person who is a duly registered elector pursuant to this chapter and who resides within the boundaries of a municipality is qualified to participate in all municipal elections, the provisions of special acts or local charters notwithstanding.”

Appellees filed suit for declaratory decree seeking to determine 1) “who are qualified to register with appellant, the Defendant, ROSEMARY RICHEY, Supervisor of Elections of Indian River County, Florida, as qualified electors to vote in all elections in the Town of Indian River Shores and to be qualified to hold the office of member of the Town Council thereof” and 2) “that Section 2 of Article VI of Chapter 29163, Laws of Florida ... is the law relating to the qualifications of electors to vote in all elections in said Town and to hold office as a member of the Town Council of said Town.” The complaint prayed for an order directing appellant “to register and qualify as qualified electors to vote in all elections in the Town of Indian River Shores all persons meeting the qualifications of such electors as set forth in Section 2 of Article VI of Chapter 29163, Laws of Florida.”

The case was presented upon the pleadings and argument of counsel without the adduction of any testimony. The trial judge entered a comprehensive final judgment in which he found, among other things that: (1) Section 2 of Article VI of Chapter 29163, Laws of Florida, relating to the qualifications of electors is a valid special act and was not repealed by Chapter 73-155, Laws of Florida; (2) it is the duty of appellant to carry out and obey the mandate of said law; (3) appellee Alex MacWil-liam, Jr., is qualified to hold office in the Town of Indian River Shores. The judgment then directed appellant to “accept as qualified to vote in all municipal elections in the Town of Indian River Shores all persons heretofore registered under the provisions of the Town Charter, and shall provide for the registration ... of any person who seeks to register as a qualified elector in the Town of Indian River Shores who possesses the qualifications set forth in Sections 97.041(1), 98.091(3) and 166.032, Florida Statutes, or in Section 2, Article VI of Chapter 29163, Laws of Florida .. . .”

Refined to its simplest form the primary question involved here is, does the Chapter 73-155 amendment of Section 98.041, Florida Statutes, preclude individuals from registering to vote in municipal elections of the Town of Indian River Shores if those individuals are not qualified to register with the County Supervisor of Elections so as to become qualified State electors in accordance with Section 98.041 as amended?

Chapter 73-155, a general act, did not expressly repeal the provisions of the Charter of Indian River Shores, a special act, insofar as qualification of electors is concerned. So the answer to the foregoing question depends upon a determination of whether or not the general act repealed or superseded the relevant portions of the special act by implication.

As the trial judge points out in the final judgment, repeal of a statute by implication is not favored. As the Supreme Court stated in Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So.2d 194, 196, 165 A.L.R. 967 (1946):

“It is an elementary proposition that amendments by implication are not favored and will not be upheld in doubtful cases. Before the courts may declare that one statute amends or repeals another by implication it must appear that the statute later in point of time was intended as a revision of the subject matter of the former, or that there is such a positive and irreconcilable repugnancy between the law as to indicate clearly that the later statute was intended to prescribe the only rule which should govern the case provided for, and that there is no field in which the provisions of the statute first in point of time can operate lawfully without conflict.”
Thus, “if courts can by any. fair, strict, or liberal construction, find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation upon the subject, it is their duty to do so.” Curry v. Lehman, 55 Fla. 847, 47 So. 18, 21 (1908).

But try as we might to find compatibility between Sections 1 and 2 of Article VI of the Town Charter in question and Section 1 of Chapter 73-155, we are unable to do so. Consequently we conclude that the two legislative enactments are repugnant, a conclusion which impels us to hold that the legislature intended Section 1 of Chapter 73-155 to prevail, thus repealing by implication Sections 1 and 2 of Article VI of Chapter 29163, Laws of Florida.

Reviewing the repugnant aspects of the two enactments we find Section 1, Article VI of the Special Act provides for a municipal registration book, the forms to be furnished, the oath to be taken, and the time periods for the book to be open. On the other hand the title to Chapter 73-155 states, among other things, that the act relates

“to municipal elections; amending § 98.-041, Florida Statutes, to provide a single permanent registration system for all elections held within a county, including municipal elections ; amending § 98.091, Florida Statutes, to provide procedures for municipal uses of county election books; providing that certain electors are qualified to vote in municipal elections . .” (Emphasis added.)

Section 1 then amends Section 98.041, Florida Statutes, by making the permanent registration system mandatory for municipalities. Theretofore it was optional. It provides that this registration system “shall be in lieu of any other system of municipal registration.” (Emphasis added.) It seems clear that the permanent registration system shall be in lieu of the registration system provided in the Charter of Indian River Shores.

Appellees concede that Chapter 73-155 repeals by implication Section 1 of Article VI of Chapter 29163. But they contend that Chapter 73-155 has no such impact upon Section 2 of Article VI of Chapter 29163, which specifies the qualification for voting in the Town. We disagree.

The town charter provides that any person 21 years of age who has owned the immediate beneficial ownership of a fee simple estate in land in the town for six months or any person who has resided within the town limits for not less than six months prior to registration, shall be deemed a qualified elector to vote in town elections except bond elections. However, Section 98.041 makes registration in the single permanent registration system a requirement for voting in all elections. In order to qualify to register in the permanent registration system one must be a permanent resident of the county. Section 97.041(1), Florida Statutes 1974. When you add to the foregoing the fact that this single registration system is in lieu of all other registration systems, it seems to follow that a nonresident of the Town of Indian River Shores cannot vote in a town election regardless of his ownership of property therein because he cannot become a qualified elector.

It should be noted that the Attorney-General ruled in two opinions, 073-426 and 073-484, that Chapter 73-155 preempts the field on voter registration and qualifications to vote in all elections in Florida. Thus, he concluded in the latter opinion that the qualifications for voting contained in the Charter of The Town of Manalapan (which are very similar to those contained in the Charter of Indian River Shores and the Charter of the Town of Bellair Shore in Hisgen v. Rileigh, 115 So.2d 715 (Fla.App.2d 1959)), “will cease to have any force or effect.” Opinions of the Attorney General, while not legally binding on the courts, are persuasive and entitled to weight in construing Florida Statutes. 3 Fla.Jur., Attorney General, § 7; Beverly v. Division of Bev. of Dept. of Business Reg., 282 So.2d 657 (Fla.App.1st 1973).

Appellees’ reliance on Hisgen v. Rileigh, 115 So.2d 715 (Fla.App.2d 1959), is misplaced.

When the court decided the Hisgen case, Section 165.12, Florida Statutes 1957, was the general law that set forth “the general qualifications for electors in municipal elections.” 115 So.2d at 717. Among other things it provided that “electors shall have resided in the city or town for six months next preceding the election.” Ibid. The charter of the Town of Bellair Shores (a special act) provided, among other things, that “electors shall be freeholders of improved property.” Ibid. It set forth no requirement that an elector be a resident of the Town for any period of time. In an action contesting the election of Mr. Hisgen as mayor of the Town, the trial court entered summary judgment for Mr. Rileigh, the contestant, on the grounds that certain votes cast were invalid because the individuals who cast them had not been residents of the Town for six months immediately preceding the election, as Section 165.12 required. The district court of appeal reversed and entered judgment for Mr. His-gen, holding that the undisputed evidence showed the legislature intended the special act to grant sufferage to certain nonresident freeholders notwithstanding the residential requirements of Section 165.12 and that the special act therefore prevailed over the general act. 115 So.2d at 718-719.

The Hisgen case does not require affirmance. Section 165.12, the general act involved in that case, specified “that state or county registration shall not be required to qualify an elector of a city or town.” Under the law as it existed when the His-gen case was decided, an individual could register to vote in a municipality having a charter similar to that of Bellair Shore without being registered as a Florida voter. However that law has been changed. Section 98.041, Florida Statutes 1974 (effective January 1, 1974), by making state registration mandatory for voting in all elections (specifically including municipal elections) the legislature implicitly repealed Section 165.12. See 30 Fla.Jur., Statutes, § 158. The legislature allayed any possible doubt about an implied repeal by explicitly repealing Section 165.12 in section one of Chapter 74-192, Laws of Florida. The present case was tried before the effective date of Chapter 74-192, but that chapter became effective during the pendency of this appeal. This court must decide this case on the law as it now exists (Summerlin v. Tramill, 290 So.2d 53 (Fla.1974); Ingerson v. State Farm Mutual Automobile Insurance Company, 272 So.2d 862 (Fla.App.3d 1973); Arick v. McTague, 292 So.2d 31 (Fla.App.1st 1974), therefore it is clear that Section 165.12, Florida Statutes 1973, is not controlling in this case. Section 166.032, Florida Statutes 1974, does not revitalize the Hisgen holding, because that section (as Section 165.12 specifically did not) makes state registration and residence in a municipality requirements for voting in municipal elections.

Finally, appellees contend that the title to Chapter 73-155 is defective. On the contrary we think the title is sufficient to meet constitutional requirements, but in all events any deficiency has been cured by subsequent revisions of the Florida Statutes. As the Supreme Court stated in Spangler v. Florida State Turnpike Authority, 106 So.2d 421, 423 (Fla.1958):

“Any defect in the title of the original act as it passed the Legislature has been cured by the inclusion of the act in the revised statutes and the subsequent adoption of the revisions by the Legislature.”

Of course, our holding means that appellee Alex MacWilliam, Jr., a nonresident of the Town of Indian River Shores, is not qualified to hold the office of Councilman in that Town.

For the foregoing reasons the judgment appealed from is reversed and the cause is remanded with directions to enter a judgment consistent with this opinion.

Since the question involved herein is one of great public interest throughout this state, we certify the following question to the Supreme Court of Florida:

Does Section 1 of Chapter 73-155, Laws of Florida 1973, implicitly repeal Article VI, § 2, of Chapter 29163, Laws of Florida 1953, so that only residents of a municipality may vote in a municipal election?

Reversed and remanded.

CROSS and DOWNEY, JJ., and Associate Judge SCHULZ, concur.

      . “Any person who is a resident of a municipality, who has qualified as an elector of this state, and who registers in the manner prescribed by general law and ordinance of the municipality shall be a qualified elector of the municipality.”


text:
    Peter J. BAILER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1782.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1976.
    Richard L. Jorandby, Public Defender, and Daniel T. O’Connell, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s conviction of Obtaining Property in Return for Worthless Check, in violation of Section 832.05(3), Florida Statutes (1973), is reversed because of the trial court’s refusal to instruct the jury that intent to defraud is an indispensable element of this offense. Prince v. State, 333 So.2d 63 (Fla. 4th DCA 1976).

REVERSED AND REMANDED for a new trial.

MAGER, C. J., ALDERMAN, J., and DURANT, N. JOSEPH, JR., Associate Judge, concur.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Robert PASKEL et al., Appellants, v. Sharon I. HIGGINS, etc., Appellees.
    No. 75-2283.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1976.
    A. Craig Cameron, Gosney, Haas, Cameron & Parsons, Orlando, for appellants.
    Sammy Cacciatore, Nance & Cacciatore, Melbourne, for appellees.
   SCHWARTZ, ALAN R., Associate Judge.

The defendant-dog owner appeals from a partial summary judgment on the issue of liability entered against him in a dog-bite case brought under the provisions of Fla. Stat., Sec. 767.04. While, on the authority of Sand v. Gold, 301 So.2d 828 (3 DCA Fla.1974), cert. den., 312 So.2d 752 (Fla.1975), we hold that the 6-year-old plaintiff was conclusively shown not to have “mischievously . . . provoke[d] or aggravate[d] . . . ” the dog in question, we have concluded that plaintiffs-appellees did not meet this burden, of course necessary to sustain a summary judgment, to establish that the child was on the defendants’ premises, where the bite occurred, “. upon invitation, expressed or implied, of the owner thereof . . . .” Since recovery under Fla.Stat., Sec. 767.04 requires such a showing, we reverse for a trial on this liability issue and, if appropriate, on that of damages.

AFFIRMED in part; REVERSED in part, with directions.

DOWNEY, J., and MORROW, RUSSELL 0., Associate Judge, concur.


author: MORROW, RUSSELL 0., Associate Judge.

text:
    Joseph BROWN, Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Appellee.
    No. 76-120.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1976.

      Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   MORROW, RUSSELL 0., Associate Judge.

The defendant-appellant was charged with possession of controlled substances, phencyclidine and cannabis, in violation of Florida Statute 893.13(l)(e).

On March 21, 1974, a search warrant, pursuant to an affidavit for search warrant, was issued, to search the premises known as the “ABC Lounge” in Orlando. The warrant alleged that the premises were under the control of Clifford Barrett and that cocaine was being kept on the premises in violation of Florida Statute 893.13. On March 22, 1974, said warrant was executed and certain property was taken and inventoried.

The appellant filed a Motion to Suppress Evidence, a hearing was held on the motion. The only testimony presented was that of the appellant, who stated that on March 22, 1974, he was sitting at the bar in the ABC Lounge when “a guy” ran up to him with a gun and told him not to move. He was searched, nothing was found and he was told to sit down and keep his hands on the bar. About fifteen minutes to one-half hour later he was searched again and cannabis was taken from him, and he was arrested.

The search warrant directed police to search a certain ABC Lounge and “any persons thereon reasonably believed to be connected with said illegal activity.” The trial court denied the Motion to Suppress.

The question presented is whether the trial court erred in denying appellant’s Motion to Suppress evidence.

There is nothing in the record which sets forth facts and circumstances to warrant a prudent man’s believing that the defendant was committing an offense. Nor does the record disclose that the police had probable cause to search and seize articles of a person lawfully on the premises. Further, there is no evidence by which one could reasonably believe the defendant to be connected with the illegal activity set forth in the affidavit on which said warrant was issued, to-wit: “that there is now being kept on said premises and curtilage certain controlled substance, to-wit; cocaine in violation of Florida Statutes 893.13.” We find error in the denial of the motion to suppress evidence.

Accordingly, the order appealed from is reversed and the cause is remanded with directions to grant the motion to suppress and further proceedings consistent with this opinion.

REVERSED AND REMANDED, with directions.

DOWNEY, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: STOKES, ROBERT G., Associate Judge.

text:
    MUTUAL OF OMAHA INSURANCE COMPANY, Appellant, v. Fred J. EAKINS, Appellee.
    No. 75-952.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1976.
    Stephen F. Myers, of Shackleford, Farri- or, Stallings & Evans, Tampa, for appellant.
    James S. Moody, Jr., of Trinkle, Redman, Clawson, Alley & Swanson, Plant City, for appellee.
   STOKES, ROBERT G., Associate Judge.

Appellant contends the court erred in entering a summary judgment to which we concur.

The facts reflect that in August, 1973, an agent of Mutual, Don Capelletti, met with the appellee, Fred J. Eakins to discuss an application for insurance. The meeting took place at the home of Mr. Eakins. Since Mr. Eakins has about a third grade education and has difficulty reading, Don Capelletti read the questions from the application form and Mr. Eakins responded to the questions. Mr. Eakins explained about his medical condition and told the agent that he had been given a physical exam by Dr. Rizzo in 1972 for a gastritic stomach and, that Dr. Rizzo was presently treating him for “arthritic gout”, and even showed Don Capelletti the pills that Dr. Rizzo had prescribed for him. Don Capelletti filled out the application for insurance and sent it in to Mutual, together with the first years premiums.

Two policies, # 100VBB-473050-73M being a health insurance policy and # 7VBS-479817073M being a disability policy, were issued to Mr. Eakins by Mutual on August 14, 1973. Subsequently, Mr. Eakins was injured on the job when a piece of plywood kicked out of a power saw hitting him in the stomach and caused a hernia. The hernia was repaired in January of 1974 and Mr. Eakins made claim for benefits under both policies at the end of that month. On or about July 3, 1974, after several demands for payment by Mr. Eakins, Charles Hughes, another Mutual agent, advised Mr. Eakins through his counsel, James S. Moody, Jr., that- Mutual was disputing liability under the policies on the grounds of certain misrepresentations allegedly made by Mr. Eakins in his application for the aforementioned policies. At the same time, Charles Hughes tendered a refund of premiums to Mr. Eakins’s counsel, James S. Moody, Jr., and the same were refused.

In August 1974, two premium notices for annual renewal premiums, one for each policy, were sent to Mr. Eakins from Mutual’s Omaha, Nebraska, office. Mr. Eakins paid the premiums with two money orders. Said payments were received and accepted by Mutual on or before September 1, 1974.

After Mutual’s continued delay in paying claims, Mr. Eakins filed suit for recovery of benefits under the terms of said policies on October 14, 1974. In January 1975, Mutual tendered all premiums previously paid to it by Mr. Eakins into the registry of the Court.

Appellee moved for summary judgment on the theory that by sending the renewal premium notices and accepting the premiums, Mutual had waived the right and was estopped to contest the validity of the policy. For purposes of the hearing on motion for summary judgment, the attorneys for both parties agreed that there was a material factual dispute on the issue of misrepresentation. Thus, the ruling below was predicated upon waiver and estoppel.

Summary proceedings under Florida Rules of Civil Procedure, 1.510(c) specifically provides: “. . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . . ”

The function of the Court in passing on a motion for summary judgment is to determine whether there is a genuine issue of any material fact and not to determine any issues of fact. Therefore, factual issues may not be tried or resolved in such proceedings.

An insurer is not deemed to have waived its right to contest the validity of an insurance policy by the acceptance of a premium unless it is shown that it has acted with full knowledge of the facts. Johnson v. Life Ins. Co. of Georgia, Fla.1951, 52 So.2d 813. Likewise, estoppel can only be invoked against an insurer when its conduct has been such as to induce action in reliance upon it. Reliance Mutual Life Insurance Company of Illinois v. Booher, Fla.App.2d, 1964, 166 So.2d 222. There is a reasonable inference in this record that the premium renewal notices were sent by mistake from a company office not involved in the contest of Mr. Eakins’ policy. Cf. Schrader v. Prudential Insurance Company of America, 5th Cir. 1960, 280 F.2d 355. The evidence is also susceptible of an inference that Mr. Eakins had reason to believe that the renewal notices had been sent by mistake and decided to pay the premiums in the hope that their acceptance would create an es-toppel. Of course, we do not by any means suggest that these are the only inferences which may be drawn.

Although it might well be that the trial judge could resolve these conflicts in favor of the appellee, this would involve an evaluation creditability process which is not an aspect of the summary judgment proceeding, Harvey Building, Inc. v. Haley, Fla.1965, 175 So.2d 780. It is also well established that the initial burden is on the movant to demonstrate the non-existence of a genuine issue of a material fact. To fulfill this burden he must offer sufficient admissible evidence to support his motion.

It is apparent that the evidence is in conflict, and the summary judgment proceeding could not properly-be utilized.

Although we sympathize with the trial court’s desire to expeditiously dispose of this case, a summary judgment was not the proper method to utilize in disposing of this matter.

Reversed with directions to proceed further in accordance with this opinion.

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


text:
    Edward J. GILL et ux., Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY et al., Appellees.
    No. 76-272.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1976.
    David T. Henniger, of Lloyd & Henniger, St. Petersburg, for appellants.
    William Duane Wood, III, of Lyle, Skipper, Wood & Anderson, St. Petersburg, for appellees.
   BOARDMAN, Judge.

In an action for damages brought by appellants/plaintiffs against appellees/de-fendants the theory for recovery was alleged in the third amended complaint as follows:

The Defendant, W. E. WALLACE, performed surgery upon a patient who occupied the same room with the Plaintiff, EDWARD J. GILL. The Defendant, W. E. WALLACE, knew, or should have known, that the infection that his patient had was highly contagious, however, the Defendant, W. E. WALLACE, failed to undertake any steps to prevent the spread of said infection to the Plaintiff, EDWARD J. GILL, or failed to warn the Plaintiff or the Hospital authorities or the physician of EDWARD J. GILL, causing an unreasonably [sic] increase in the risk of injury to the Plaintiff.
As a result of the negligence as aforesaid of the Defendant, W. E. WALLACE, the Plaintiff has suffered injuries causally related to the negligence of the Defendant, W. E. WALLACE.

After hearing, the court granted the motion to dismiss.

We hold that the said complaint does state a cause of action and alleges a duty and a breach of that duty.

Accordingly, we

REVERSE.

McNULTY, C. J., and HOBSON, J., concur.


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Larry SMAIL, Appellee.
    No. 76-486.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Wilbur C. Smith, III, Smith & Carta, Fort Myers, for appellee.
   GRIMES, Judge.

In State v. Snail, Fla.App.2d, 1975, 323 So.2d 626, this court affirmed an order dismissing a charge of sale of marijuana but reversed the dismissal of two counts charging possession of marijuana and psilocybin. Following remand, the court entered an order suppressing evidence of the marijuana and psilocybin which was in Smail’s possession at the time of his arrest. The state now appeals this order.

The pertinent facts of this case are discussed in more detail in our previous opinion. Suffice it to say, we affirmed a dismissal of the sale charge because it was apparent that the state was unable to furnish a witness' who could dispute Smail’s sworn statement that he had been entrapped into making the sale. At the same time, we reinstated the information on the possession charges because there was no evidence in the record from which we could conclude as a matter of law that the state had lured Smail into possession of the narcotics. The premise upon which the court below then entered its order of suppression was that the evidence seized was a direct result of the “illegal entrapment activities” referred to in our prior opinion. We find it necessary to reverse this order.

In our opinion we included the following quotation from Koptyra v. State, Fla.App.2d, 1965, 172 So.2d 628, which sets forth the applicable law on the defense of entrapment to possess contraband.

“In determining whether or not there is evidence tending to prove entrapment, the distinction to be observed on the facts in this case is wl. ether there was evidence tending to show that the inspector enticed the defendant to possess the marijuana in question when the defendant would not have possessed it without such enticement, thus showing the requisite elements, or whether the defendant, while engaged in the unlawful enterprise of possession of marijuana, was merely enticed to possess it in the presence of the inspector so that his possession could be proven by direct evidence.”

Admittedly, it is the law of the instant case that Smail was entrapped into making the sale of marijuana, but can it be said as a matter of law that he was entrapped into possessing it, or to put it another way, that he would not have possessed it without the enticement of the law enforcement officers? Reference to Smail’s affidavit which is quoted in our prior opinion reflects that in the course of the undercover agent’s efforts to get him to make the sale, Smail admitted that he had some marijuana. When Smail finally succumbed to the agent’s persuasion, they went to Smail’s house where the sale took place. A search warrant was later obtained, and the narcotics in question were seized.

Clearly, it cannot be said as a matter of law that Smail was enticed to possess the marijuana as contrasted to being enticed to sell the marijuana. Moreover, the missing agent who was an essential witness, if the defense of entrapment to sell was to be contradicted, is not necessarily essential to the state’s proof of possession, because another agent accompanied them when they went to Smail’s house.

Smail’s reliance on Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, is misplaced. In Wong Sun, the U. S. Supreme Court ruled that verbal evidence obtained as the result of an unlawful search should be excluded as fruits of the unconstitutional action of the police. However, that same court has rejected the contention that all prosecutions stemming from police involvement in criminal activity must be constitutionally prohibited. United States v. Russell, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. It is well settled that deception and artifice may, under certain circumstances, properly be employed to catch those engaged in criminal activity. Langford v. State, 1933, 111 Fla. 506, 149 So. 570; see 33 A.L.R.2d 883. Moreover, entrapment, as such, is not a crime.

In the final analysis, we cannot see how the entrapment to sell marijuana could taint a conviction for possession of marijuana which Smail has admitted that he had all along. The doctrine of entrapment precludes a person from being convicted of an offense which he was induced to commit. However, the activities which constituted the entrapment ought not taint conviction of a separate offense committed without entrapment. The charges stand separately and a defense to one may not necessarily be sufficient to defeat the other. Suppose Smail had not been charged with the sale of marijuana, in which event there would never have been an adjudication that he was entrapped into selling it. Then, even though the agents had obtained access to his house by inducing him to make a sale, all he could argue in defense of the charge of possession was that he was tricked into exposing the drugs of which he was possessed.

Accordingly, the order is reversed, and the case is remanded for further proceedings consistent with this opinion.

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

      . Apparently appellee’s proper name is Smail, and he will hereafter be called by that name.


text:
    B. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1899.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1976.

      Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant, a fifteen year old juvenile, was charged in a petition for delinquency with robbery, use of a firearm during commission of a robbery, two counts of false imprisonment, use of a firearm during commission of false imprisonment and conspiracy to commit robbery. The juvenile was adjudicated delinquent on all counts except false imprisonment and use of a firearm during commission of false imprisonment.

The record reflects that the juvenile was arrested at approximately 10:30 at night, and was transported to the Public Safety Department Homicide Office where he remained throughout the night in the company of two detectives. At approximately 6:30 the next morning, the investigating officer returned to the Homicide Office from interviewing the victims at the hospital, and proceeded to transport the juvenile to Youth Hall. The investigating officer and the juvenile arrived at Youth Hall at approximately 7:00 A. M. At 7:15 A. M., the juvenile was read his rights and interrogated, at which time a formal statement was taken.

At trial, the court denied the juvenile’s motion to suppress the statement he gave at Youth Hall after having spent the night at the Public Safety Department Homicide Office. The statement was admitted into evidence, and the juvenile was adjudicated delinquent.

As points on appeal, the juvenile contends that the court erred in denying the motion to suppress where the confession was the product of unreasonable delay in transporting the juvenile to Youth Hall in violation of Section 39.03(3)(a), Florida Statutes; where the State failed to prove the confession was voluntary and where the court failed to make a clear and unequivocal determination of voluntariness.

Section 39.03(3)(a), Florida Statutes, provides in pertinent part that when a child is taken into custody, he shall, without unreasonable delay, be delivered to the appropriate intake officer, or if the judge has so ordered, to a detention home or shelter. This is a legislative directive to the courts and other law enforcement agencies that juveniles shall be treated differently from other suspected criminals in that they shall not be taken to a police station or jail for interrogation. In Interest of A.J.A., a child, 248 So.2d 690, 692 (Fla.App.3d 1971). The purpose of the directive is that a juvenile, presumed to be inexperienced in the ways of crime, should not be subjected to the “intimidating influences of an adult police station or jail.” A.J.A., supra.

The record reflects that the juvenile court merely stated that the motion to suppress the confession is denied. This statement does not meet the requirement that the trial judge’s conclusion that the confession is voluntary appear from the record with unmistakable clarity, as provided in McDole v. State, 283 So.2d 553 (Fla.1973).

Therefore, in order to dispose of the issue of the court’s making an unequivocal and explicit finding of voluntariness, this court will relinquish jurisdiction and remand the case to the trial judge to consider and then rule explicitly on the voluntariness of the defendant’s confession with or without oral argument thereon as the judge shall choose. Promptly after an order is made on the issue of voluntariness, counsel for the juvenile shall file in this court a certified copy of such order. Further proceedings shall be taken by this court on this appeal as indicated or required by the juvenile court’s order making an explicit finding of volun-tariness of the confession. See Husk v. State, 305 So.2d 19 (Fla.App. 1st 1974).

Clearly, the reasonableness of the delay in transporting the juvenile to Youth Hall, and the effect such delay may have had on him insofar as influencing him to confess, are questions for the trier of fact to decide in making his determination of voluntariness.

It is so ordered.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Ruben BIAS.
    No. 57458.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      James B. Supple, Robertson & Supple, Morgan City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Edward M. Leonard, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to thirty-five years at hard labor, without benefit of parole, probation or suspension of sentence. He appealed and filed eight assignments of error, one of which has been abandoned.

On the evening of September 24, 1974, William Pace, who was hitchhiking on Highway 90 near Morgan City, accepted an offer of a ride from three men in a light colored Plymouth. Shortly after entering the vehicle he was taken to a side road, threatened with a knife, beaten and robbed of $31 and his wedding ring. Pace narrowly escaped further physical abuse and perhaps death by breaking away from his assailants and running into some nearby woods. Later he was found crawling on the side of a road by a truck driver who took him to a pipe yard in the vicinity and called the police.

In addition to Pace’s positive identification of the defendant as one of the robbers, the State presented the following evidence:

The defendant and two companions were seen at a bar soon after the robbery. At this time one of the companions was wearing a wedding ring resembling the one taken from Pace in the robbery. The defendant and his companions were together most of that evening and they were traveling in a Plymouth automobile similar to the one described by Pace. Later, when the automobile was searched, Pace’s false teeth were found on the back floorboard. When one of the defendant’s companions was arrested he had Pace’s wedding ring in his possession.

ASSIGNMENTS OF ERROR NOS. 1 and 3

A deputy sheriff testified that he was at a hospital interviewing Jack Jason, the victim of a different armed robbery, which occurred on the same night, when he was instructed to proceed to the pipe yard to see Pace. Defendant’s motion for a mistrial, based on the ground that the State had introduced evidence of another crime committed by the defendant, was denied. Later in the trial, the deputy was recalled by the State for the. purpose of testifying that there was no evidence which would connect the defendant with the robbery of Jack Jason and that it was merely coincidental that he was at the hospital interviewing Jason when he was summoned to investigate the robbery of Pace. Before the deputy was recalled, defendant objected on two grounds: that the State should not be allowed to recall him because he had finished his testimony; and that his testimony would give the jury the impression that defendant was implicated in the crime against Jason. At this point the judge instructed the jury to disregard the testimony of the deputy regarding the robbery of Jack Jason and admonished the jury to draw no inference that the defendant was connected with the offense involving Jason.

The State’s apparent motive in introducing the deputy’s testimony about his seeing Jason at the hospital was to counteract the testimony which it anticipated would be given by one of defendant’s witnesses. Edward Welch was called as a witness by the defendant, and he testified that he was at the hospital on the night of the robbery and heard Pace say he was robbed by some persons in a gold GTO whom he could not identify as being either black or white. Therefore, the State undoubtedly was attempting to establish that there were two robberies on the same evening, that both victims were brought to the same hospital, but that Welch had confused Jason with Pace and, consequently, was mistaken when he attributed what he overheard to Pace.

Defendant argues that the trial judge committed reversible error for several reasons. First, he contends that the State was permitted to introduce evidence of a prior offense committed by the defendant without giving notice as required by State v. Prieur, 277 So.2d 126 (La.1973). Next, he argues that the deputy’s remarks, intentionally elicited by the district attorney, referred directly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible, and therefore constituted grounds for a mandatory mistrial. La.C.Cr.P. art. 770. Finally, defendant complains that, at the very least, the State’s tactics were improper because the deputy’s testimony was introduced in anticipation of his defense, which he contends is not allowed by La.R.S. 15:446.

Under the circumstances of this case, we find no merit in defendant’s arguments. Taking the record as a whole we do not think that any suggestion was intended or made to the jury that defendant had robbed Jason or any person other than Pace. The safeguards set forth in State v. Prieur, 277 So.2d 126 (La.1973) and La.C.Cr.P. art. 770 afford an accused protection in cases where the State seeks to expose the jury to evidence or remarks relating to his previous offenses or conduct. Since the jury in the instant cáse was not exposed to any such material we conclude these safeguards were not abridged and that defendant was not entitled to a mistrial on either of these grounds.

La.R.S. 15:446, the statute cited by defendant, affords no basis for defendant’s argument that the State’s evidence concerning the presence at the hospital of the second robbery victim, Jason, was improperly admitted during the prosecution’s case in chief. Instead, the statutory basis, if any, for defendant’s contention is supplied by the following provisions:

La.R.S. 15:282 provides:
“The prosecution has the right to rebut the evidence adduced by the defendant, but the defendant is without right to rebut the prosecution’s rebuttal.” La.Code of Criminal Procedure art. 765(5) provides:
“The normal order of trial shall be as follows:
"* * *
“(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;
"* * *."

In State v. White, 206 La. 744, 20 So.2d 10 (1944), we held that the introduction by the State of rebuttal evidence during its case in chief was irregular but harmless because the defendant subsequently introduced evidence in contravention thereof. Here, a similar sequence of events occurred. The State improperly introduced in chief rebuttal evidence showing the existence of a second robbery victim, but the subsequent introduction by the defense of Welch’s testimony casting doubt on Pace’s ability to identify his assailant served to clarify for the jury the reason for the earlier introduction of the State’s evidence. We do not condone the State’s action in this instance, but we cannot find that the defendant was prejudiced by it, because the prosecution properly could have offered the same testimony in rebuttal at the close of the defendant’s case.

Defendant presented two subsidiary arguments in which we find no merit. He contends that the trial judge’s action forced him to call Welch as a witness, but we find nothing harmful whatsoever to defendant’s case in Welch’s testimony, and we cannot conceive of any reason why Welch would not have been used in any event as a witness for the defense. Defendant complains that the State should not have been allowed to recall the deputy for the purpose of testifying that there was absolutely no connection between the defendant and the Jason robbery. However, the recalling of a witness lies within the sound discretion of a trial judge, which clearly was not abused in this instance. La.C.Cr.P. art. 765(5). See, State v. McLean, 211 La. 413, 30 So.2d 187 (1947).

These assignments of error are without merit.

ASSIGNMENT OP ERROR NO. 2

During his direct examination relating to the events leading to the armed robbery, Pace testified:

“Q. All right, sir. Who was sitting in the front? How many in the front and how many in the back?
“A. There were two in the front and one in the back.
“Q. Okay. And you sat in the back also?
“A. Yes, sir.
“Q. Where did you sit, on the right-hand side or—
“A. I sat on the righthand side; yes, sir.
Q. That would be on the passenger side if you were in the front seat, is that correct?
“A. Yes, sir.
“Q. All right. Did you talk to them or did they talk to you?
“A. Well, not immediately. We started going and the one in the front seat just right after we started going turned around and looked at me and he had a bent spoon in his hand. Now, I wasn’t seeing things, and it was a burned bent spoon. The first thing that came to my mind was ‘Oh God, that’s “horse,” you know. ■ I’m in trouble. We’re going to get killed.’
“Q. That was what came to your mind?
“A. Yes, sir; that’s the first thing that came to my mind.”

At that time defense counsel moved for a mistrial on the grounds that Pace’s reference to “horse,” a colloquial term for heroin, was an improper reference to another crime committed by defendant. This motion was refused.

La.Code of Criminal Procedure article 770 makes a mistrial mandatory when the judge, district attorney or a court official refers to another crime committed by defendant as to which evidence is not admissible. In this case the contested remark was made by a witness, and there is no indication that the State intended to elicit his reference to “horse.” Furthermore, Pace testified that the bent spoon was in the possession of a man in the front seat of the automobile, whereas he stated that defendant was seated beside him in the back seat. Clearly, article 770 was inapplicable. See State v. Lepkowski, 316 So.2d 727 (La.1975), and State v. Demourelle, 332 So.2d 752 (La.1976). When the trial judge denied the motion for a mistrial, defense counsel did not request an admonition to the jury, nor do we think that Pace’s remarks warranted it. See La.C.Cr.P. art. 771. This unsolicited and cryptic allusion to heroin in the possession of someone other than the defendant was not of such a nature that it might create prejudice against the defendant in the mind of the jury.

Again, the need for Prieur notice was obviated by the fact that the “other crimes” evidence, if it can be labelled as such, did not relate to the defendant.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5

This assignment relates to the court’s refusal to allow Edward Welch’s wife to testify for the defense because she had not been sequestered during the trial.

At defense counsel’s request, all of the witnesses were placed under the rule of sequestration. Ms. Welch, who was not expected to be called as a witness, remained in the courtroom throughout the trial. Edward Welch, a defense witness, testified that he was at Lakewood Hospital when Pace was admitted for the treatment of his injuries and overheard Pace telling a nurse that he was unable to identify his assailants. During the course of this testimony, defense counsel learned that Ms. Welch had also been at the hospital and subsequently called her to the stand to corroborate her husband’s statements. The State objected on the basis that Ms. Welch had not been sequestered and the objection was sustained.

La.Code of Criminal Procedure article 764 regulates the sequestration of witnesses:

“Upon its own motion the court may, and upon request of the state or the defendant shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.”

The jurisprudence interpreting this article has held that it vests in the trial judge the authority to disqualify a witness who has violated the sequestration order. State v. Holmes, 305 So.2d 409 (La.1974); State v. Barnard, 287 So.2d 770 (La.1974); State v. Coleman, 254 La. 264, 223 So.2d 402 (1969).

The order of sequestration is intended to insure that a witness will testify as to his own knowledge of the case without being influenced by the testimony of other witnesses, and to strengthen the role of cross-examination in developing the facts. State v. Holmes, supra; State v. Barnard, supra. Both of these objectives would have been thwarted by permitting Ms. Welch to testify, as she had been present during the testimony and cross-examination of her husband. We find no abuse of the trial court’s discretion in excluding her as a witness.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 6

Defendant claims that the trial court should have suppressed the victim’s identification of him in a line-up at which he was not offered the assistance of counsel.

The line-up was conducted almost a month before a bill of information was filed charging defendant with armed robbery and thereby initiating formal criminal proceedings against him. The law is well settled that counsel is not required at pre-in-dictment line-ups. State v. Nero, 319 So.2d 303 (La.1975); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 7

The denial of defendant’s motion for a new trial, alleging the discovery of material new evidence, forms the basis of this assignment of error. The newly discovered evidence consisted of the affidavit of Calvin Turner, a former co-defendant of the accused, which was executed following Turner’s conviction of simple battery. Turner stated that there was no weapon involved in the robbery of Pace, and that defendant had been drunk and unconscious and did not participate in the beating or robbery. Turner had been unwilling to cooperate with defense counsel until he had negotiated a guilty plea after the conclusion of defendant’s trial.

La.Code of Criminal Procedure article 851 sets forth the grounds for which a new trial may be granted:

“The court, on motion of the defendant, shall grant a new trial whenever:
"* * *
“(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
"* * *."

Motions for a new trial made on the basis of newly discovered evidence are received with extreme caution, and a verdict will not be set aside unless the new evidence is “so material that it ought to produce a different result.” State v. Ferguson, 307 So.2d 361 (La.1975); State v. Jackson, 253 La. 205, 217 So.2d 372 (1968). The hearing judge is not compelled to credit new evidence which he considers suspicious or incredible. State v. Jackson, supra.

In determining that defendant’s newly discovered evidence would not have affected the jury’s decision, the court below noted:

“ * * * The newly discovered evidence upon which defense counsel seeks a new trial is inconsistent with the evidence presented by the defense at the time of trial. At trial the defense was alibi. The defendant was supposed to have been at home at the time of the crime. This new evidence puts the defendant in the car at the time of the crime but so intoxicated that he could not participate in the robbery.”

Under the circumstances, we find no abuse of the trial court’s broad discretion in denying the motion for a new trial.

This assignment is without merit.

Assignment of error number 8 has been abandoned.

ASSIGNMENT OF ERROR NO. 4

During the trial, the jury was removed from the courtroom so that the State could lay a foundation for introducing an inculpatory statement made by defendant. The arresting officer testified that he had twice informed defendant of his Miranda rights, once at the time of his arrest and later when he was transported to the police station where he shortly thereafter made the incriminating remarks. The officer stated that he had made no threats or promises to defendant nor coerced his statement in any way. On cross-examination, he further claimed that defendant had appeared to be sober and in control of his faculties during questioning. Although it was established that defendant had not signed a waiver of rights form, the officer explained that this form had not been available to him at that time.

Following this testimony, the court heard arguments of counsel, then advised defense counsel that unless he had additional evidence the statement would be admitted. Thereafter, the following exchange took place between defense counsel and the court:

“[DEFENSE COUNSEL]:
Well, Your Honor, I could put the defendant on the stand to testify that his rights weren’t read to him and if they were that he didn’t understand it, and he was drunk at the time.
“BY THE COURT:
“That wouldn’t—
“[DEFENSE COUNSEL]:
“That wouldn’t change your mind?
“BY THE COURT:
“That wouldn’t change the Court’s impression on that.
“So the Court will rule that the other statement is admissible.
“[DEFENSE COUNSEL]:
“Of course, Your Honor, to protect the record, I would object to the ruling.”

Defendant argues that the court erred in refusing to consider his testimony in determining whether his statement was freely and voluntarily given. The trial judge maintains in his per curiam opinion, however, that he did not preclude defendant from testifying but merely informed counsel that he “could not see how the defendant’s testimony would render the statement inadmissible assuming that the defendant would testify in a manner similar to the police officer.” This assumption was clearly erroneous in light of counsel’s representation to the court that defendant would testify he was not given or did not understand his rights.

Before a confession may be admitted into evidence, the State has the burden of proving affirmatively and beyond a reasonable doubt that the statement was made freely and voluntarily by the defendant and not through coercion. La.R.S. 15:451-52, La.C.Cr.P. art. 703(C), State v. Peters, 315 So.2d 678 (La.1975). Our jurisprudence is replete with cases in which we held that the State had failed to carry its burden because it did not rebut the defendant’s specific allegations of involuntariness, despite the general testimony by State’s witnesses that the statement was freely and voluntarily given. State v. Peters, supra. Had defendant aired his specific complaints, the arresting officer’s initial testimony may not have been sufficient to rebut them; thus we cannot assume from the incomplete record before us that the State would have sustained its heavy burden of proof no matter what defendant alleged on the stand.

Although defense counsel did not forcefully assert his right to present defendant’s testimony to the court, we find that he was discouraged from doing so by the court’s stated predetermination of the issue before it. We are satisfied that the court did not intentionally curtail defendant in the presentation of his proof, but nevertheless conclude that because his remarks had that natural effect the case must be remanded to give defendant an opportunity to testify as to the voluntariness of his statement.

Since we find no other trial error, it is not necessary at this time to reverse the conviction and order a new trial, because the error might be eliminated at another hearing on the voluntariness of defendant’s confession. We reserve to the trial judge the power to grant a new trial should he determine the confession inadmissible (a matter on the merits of which we express no opinion). If, on the other hand, the trial judge determines that the confession was freely and voluntarily given, defendant may appeal that decision to this Court if he chooses. In the absence of such an appeal, the conviction and sentence will be affirmed. See, State v. Simmons, 328 So.2d 149 (La.1976).

The case is, therefore, remanded to the district court for further proceedings in accordance with this opinion.