author: DANIEL S. PEARSON, Judge.

text:
    Verna STEVENS, Appellant, v. MOUNT VERNON FIRE INSURANCE COMPANY and Sayed George Deeb, d/b/a Swifty Enterprises, Limited, Appellees.
    No. 80-2074.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Rehearing Denied April 14, 1981.

      Keyfetz & Poses and Jay Halpern, Miami, for appellant.
    Dolan, Fertig & Curtis and David William Boone, Fort Lauderdale, for appellees.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Verna Stevens, age 65, fell and broke her wrist in the defendant’s laundromat. She incurred $600 in medical bills, neither the reasonableness nor necessity of which were challenged. She quite obviously suffered some pain, she complained of pain nearly a year after the accident, and her complaints were consistent with the physical findings of a medical witness, who stated that Verna would suffer increasing pain in the future. Additionally, the medical witness testified that Verna suffered a ten per cent permanent disability as a result of her wrist injury-

A jury found the defendant one hundred per cent at fault and, although instructed, inter alia, to consider pain and suffering and permanent disability as elements of damages, returned a verdict for Verna in the exact amount of her medical bills, that is, $600. Verna’s motion for a new trial on the ground that the damage award was inadequate was denied, and she appealed.

We reverse and remand upon a holding that where, as here, a jury awards the plaintiff the exact amount of medical expenses incurred by her, despite indisputable evidence that the plaintiff suffered at least some pain from her injury, and uncontro-verted evidence that the pain continued and would continue well after the injury, the damage award is grossly inadequate, and a new trial on the issue of damages is required. Pickel v. Rosen, 214 So.2d 730 (Fla. 3d DCA 1968). See also Short v. Grossman, 245 So.2d 217 (Fla.1971); Griffis v. Hill, 230 So.2d 143 (Fla.1970); Anderson v. Chirogianis, 384 So.2d 1289 (Fla. 5th DCA 1980).

Reversed and remanded for a new trial on damages only,


source: Caselaw Access Project

author: HERSEY, Judge.

license: Public Domain

text:
    Cassandra MELLINS, Appellant, v. STATE of Florida, Appellee.
    No. 80-594.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Rehearing Denied April 15, 1981.

      Martin J. Schwartz, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellant was convicted of and sentenced for battery on a police officer. She appeals that conviction ascribing as reversible error the refusal of the trial court to give a jury instruction on the defense of voluntary intoxication. That instruction should have been given and we therefore reverse and remand the case to the lower tribunal for a new trial.

Several police officers responded to a disturbance call in the city of North Lauder-dale on the evening of October 23, 1979. They discovered appellant lying on the ground and determined that she had been the victim of a beating. Police Officer Ca-vallo attempted to assist her to a friend’s apartment and noticed a strong odor of alcohol on appellant’s person. At that time she indicated that she would not prosecute her assailant. Subsequently, the purported perpetrator of the beating returned to the scene, whereupon appellant reemerged screaming obscenities. She refused to go back inside, was placed under arrest for disorderly intoxication and proceeded to strike and kick the arresting officers. She was then charged with battery on a police officer and she was tried on that charge only.

Testimony at trial indicated that she was intoxicated at the time of the incident. When she was asked whether she was intoxicated at that time, she testified that she was not.

At the charge conference defense counsel requested an instruction on the defense of voluntary intoxication. The request was denied because of appellant’s testimony to the effect that she had not been intoxicated. Conviction and this appeal followed.

Appellant takes the position that there was some evidence of intoxication so that she was entitled to an instruction on this theory of defense.

Appellee counters by pointing out that while inconsistent defenses are permissible this is so only so long as proof of one does not disprove the other. In addition, appel-lee maintains that even if there was error in this regard it was harmless because defense counsel “fully and completely argued the meaning of intent and intoxication.” Therefore, the jury had an opportunity to consider the effect of intoxication in this context so that the failure to instruct could not have “injuriously affected the substantial rights of the appellant” citing Paulk v. State, 376 So.2d 1213, 1214 (Fla. 3d DCA 1979).

There were no scientific tests made to determine whether appellant was intoxicated at the time of the alleged offense. There could therefore be no empirical evidence of intoxication. The only evidence on this issue was the testimony of the police officers. We have concluded in a previous case, however, that evidence elicited solely in the cross-examination of the state’s witnesses may be sufficient to give rise to a duty to instruct on a defense suggested by that testimony. To hold otherwise would seriously jeopardize the right of the accused to refrain from testifying. Weaver v. State, 370 So.2d 1189 (Fla. 4th DCA 1979).

Voluntary intoxication is a defense to the crime of battery on a police officer, Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979), as in other crimes requiring a specific intent. Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979). Where intent is a requisite. element of the offense charged and there is some evidence to support this defense, the question is one for the jury to resolve under appropriate instructions on the law. Frazee v. State, 320 So.2d 462 (Fla. 3d DCA 1975).

The law is very clear that the court, if timely requested, as here, must give instructions on legal issues for which there exists a foundation in the evidence. Laythe v. State, 330 So.2d 113 (Fla. 3d DCA 1976).

It is not a sufficient refutation of appellant’s argument to suggest that her counsel’s summation sufficiently apprised the jury of the effect of intoxication on the scienter required to support the charge to relieve the Court of its duty to give an appropriate instruction. The jury is admonished to take the law from the court’s instructions, not from argument of counsel. It must be assumed that this admonition is generally followed. For this reason the error may not be considered harmless.

There is one further aspect of the State’s position that requires brief analysis. Relying on two cases out of the federal courts, the state argues that a defendant’s specific denial negates the necessity for a jury instruction on a defense possibly raised by other evidence. Harris v. United States, 400 F.2d 264 (5th Cir. 1968); Marko v. United States, 314 F.2d 595 (5th Cir. 1963). In each of those cases the defendant denied committing the act which constituted the crime charged, and it was held that no jury instruction on the defense of entrapment was appropriate or required. We have no quarrel with the rule announced by those cases. The rule is that the defense of entrapment is not available to one who denies commission of the criminal act with which he is charged. Pearson v. State, 221 So.2d 760 (Fla. 2d DCA 1969); Ivory v. State, 173 So.2d 759 (Fla. 3d DCA 1965). However, we find it inapplicable here.

More in point is the rationale underlying the court’s determination that a defendant could deny being involved in a conspiracy while at the same time relying on the defense of entrapment as to certain specific acts. Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977). The distinguishing feature is that the defendant could and did admit the commission of certain acts, relying on entrapment as a defense as to those, and at the same time deny that such acts were part of a conspiracy. The rule enunciated by the Stripling court, applicable in the instant case, is that “inconsistencies in defenses in criminal cases are allowable so long as the proof of one does not necessarily disprove the other.” Id. at 191.

Appellant did not deny that she had been drinking. It was her opinion that she was not intoxicated. The question of intoxication is a mixed question of law and fact. If appellant denied that she had been drinking, then the defense of voluntary intoxication would not have been available to her. On the other hand, her opinion as to her state of intoxication does not have that effect for the reasons just stated.

Accordingly, we reverse appellant’s conviction and remand for a new trial.

REVERSED AND REMANDED.

LETTS, C. J., and BERANEK, J., concur.


author: SCHWARTZ, Judge.

text:
    Jonathan WORTHEY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-713.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Rehearing Denied April 13, 1981.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

The defendant was accused of robbery and convicted of attempted robbery. Although he did not object to the omission, his sole contention on appeal is that fundamental error was committed because the trial court’s jury instructions did not include in the definition of robbery the specific intent to deprive which was held in Bell v. State, 394 So.2d 979 (Fla.1981) to be an element of that crime. We are not required to address that specific issue in this case. This is because, in defining the lesser-included offense of attempted robbery, of which Worthey was actually found guilty, the jury was explicitly told that the charge required a finding that “the defendant formed an intent to commit the crime of robbery.” The elements of robbery, in turn, were said to include the taking of property by force from the possession and against the will of the victim. Under these circumstances, the court’s failure specifically to include the intent element in the definition of the greater crime — of which the defendant was impliedly acquitted — -was not only not fundamental error, but was affirmatively shown to have been harmless. Section 924.33, Florida Statutes (1979); James v. State, 393 So.2d 1138 (Fla. 3d DCA 1981); Bolen v. State, 375 So.2d 891 (Fla. 4th DCA 1979).

Affirmed.

      . Compare Hodge v. State, 393 So.2d 1188 (Fla. 3d DCA 1981), in which the issue was properly preserved, and the defendant’s conviction of robbery was therefore reversed.

      . We similarly did not directly pass upon the - question in Smith v. State, 375 So.2d 864 (Fla. 3d DCA 1979) since our decision in Beil that intent was not an element of robbery was still extant. In Smith, however, we did intimate a possible rejection of the fundamental error position by citing cases which require a contemporaneous objection to preserve a point for review. 375 So.2d at 865, n.l. For what it may be worth, we note that the supreme court denied certiorari in Smith after it decided, in its initial opinion in Bell, that our view of the intent issue in both Bell and Smith was incorrect. Smith v. State, 383 So.2d 1202 (Fla. 1980).
      See also, Taylor v. State, 386 So.2d 825, 829 (Fla. 3d DCA 1980) (no fundamental error to omit intent element in defining robbery as underlying felony of felony-murder charge.)

      . All attempts are necessarily specific intent crimes, whether the relevant completed offense is or not. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923); Hogan v. State, 50 Fla. 86, 39 So. 464 (1905); Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967), cert. denied, 207 So.2d 452 (Fla.1967); § 777.04, Fla.Stat. (1979); R. Anderson, 1 Wharton’s Criminal Law and Procedure, § 73 (1957).

      . E. g., Smith v. State, 330 So.2d 59 (Fla. 1st DCA 1976).

      . To show that the failure to charge that intent is an element of robbery itself had a harmful effect upon the present conviction, the defendant would have to demonstrate that the jury should have been instructed that attempted robbery requires an intent to intend to take property from another. Putting aside the facts that no “error” of this kind could remotely be deemed fundamental and that the concept itself would probably elude even the Kantian grasp, there is no such thing in the criminal law as an intent to intend. See, Adams v. Murphy, 394 So.2d 411 (Fla.1981), and cases cited; Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975).


text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Keith K. WALN, Appellee.
    No. 80-239.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Rehearing Denied April 15, 1981.

      Steven Billing of Hainline & Billing, P. A., and Nancy Little Hoffmann of Nancy Little Hoffmann, P. A., Fort Lauderdale, for appellant.
    Dewey A. F. Ries, Fort Lauderdale, and Joel Berman, Plantation, for appellee.
   HERSEY, Judge.

This appeal presents two questions of statutory interpretation involving Section 627.727(1) Florida Statutes, pertaining to Uninsured/Underinsured Motorist coverage.

Appellant Insurance Company first issued an automobile liability policy to appellee in 1970. A renewal policy was issued each year thereafter containing uninsured motorist coverage. The policy for 1974-1975 provided bodily injury liability coverage of $100,000 per person and $300,000 per occurrence. Uninsured motorist coverage of $15,000/$30,000 was included. Because of a change in the law applicable to that year and policy, appellee was advised by appellant that his policy was required to contain uninsured motorist coverage equal to his bodily injury liability limits unless he specifically elected another alternative. He was requested to select one of three available options: (1) to increase uninsured motorist coverage to equal bodily injury liability limits, at an additional cost of $84.00; or (2) to continue the coverage contained in his policy; or (3) to reject uninsured motorist coverage entirely. Appellant specifically elected the second alternative.

A policy containing the same coverages was issued for 1975-1976. Two days after the effective date of this policy, a “change in automobile policy” went into effect, deleting one automobile and adding another. As a result of this substitution there were slight changes in premium caused by differences in values of the two cars, so that collision and comprehensive coverages required adjustment.

Appellee was involved in an automobile accident and made a claim under his uninsured motorist coverage. The parties stipulated that whatever the amount of coverage available, appellee was entitled to stack his coverage since he owned two insured automobiles. The disagreement arose over the amount involved.

Appellant takes the position that the 1975-1976 policy was a “renewal” rather than a new policy. The applicable statute with the pertinent portion emphasized provides:

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage. When a vehicle is leased for a period of 1 year or longer and the lessor of such vehicle, by the terms of the lease contract, provides liability coverage on the leased vehicle in a policy wherein the lessee is a named insured or on a certificate of a master policy issued to the lessor, the lessee of such vehicle shall have the sole privilege to reject uninsured motorist coverage. Unless the named insured, or lessee having the privilege of rejecting uninsured motorist coverage, requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy when the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer. § 627.727(1), Fla.Stat. (1976 Supp.)

Under appellant’s view there was no requirement to obtain another written waiver from appellee in connection with the “change in automobile policy” and the coverage remained at $15,000/$30,000.

Appellee takes the view that substitution of automobiles required a “new” policy and since appellant failed to require a new waiver from him the uninsured motorist coverage was automatically increased to $100,000/$300,000.

The trial court agreed with appellee’s position and rendered judgment finding coverage after stacking of $200,000.

The controlling law was established in Hartford Accident and Indemnity Co. v. Sheffield, 375 So.2d 598 (Fla.3d DCA 1979). In that case a policy containing lower liability limits than a preceding one, as to which uninsured motorist coverage had been expressly waived, was not a renewal policy within the contemplation of the statute. Accordingly, uninsured motorist insurance was available in the same amount as the bodily injury liability coverage. The test established by the Sheffield court, which we adopt, was whether the original policy has been changed “in any material respect.” If it has, then the policy is “new” rather than a “renewal” and the insurance company is required to provide the insured with an opportunity to reject uninsured motorist coverage or to elect a decreased amount. This interpretation is based upon public policy favoring uninsured motorist coverage. Hodges v. National Union Indemnity Co., 249 So.2d 679 (Fla.1971).

We have previously held that the addition of an automobile by endorsement to an insurance policy required the insurance company to afford the insured a new opportunity to reject uninsured motorist coverage. United States Fire Insurance Co. v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977). By implication that case stands for the proposition that the addition of an automobile, requiring the establishment of new and different insurance coverages, constitutes a material change in the policy. Thus, the “renewal policy” exception does not apply.

The issue here is whether a substitution of automobiles similarly constitutes a material change. This question has recently been answered in the negative. State Farm Mutual Automobile Insurance Co. v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980). We agree.

We hold that in the absence of additional specifically requested changes, in the case of a simple substitution of automobiles, where the number of automobiles remains the same and there is no change in the bodily injury liability coverages the policy has not been changed in any material respect. That being so, the policy in effect here at the time of the accident was a renewal policy and the amount of available uninsured motorist coverage, after stacking, was $30,000.

Another question on appeal is whether appellant is entitled to setoff against the available uninsured motorist entitlement that amount of workers’ compensation insurance actually paid to appellee or whether the present value of future payments may also be included in the total to be set off. Section 627.727(1), Florida Statutes (1976 Supp.) provides in pertinent part:

The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured under, any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident. Such coverage shall not inure directly or indirectly to the benefit of any workmen’s compensation or disability benefits carrier or any person or organization qualifying as a self-insurer under any workmen’s compensation or disability benefits law or any similar law.

The fact that appellant incidentally furnishes both uninsured motorist insurance to appellee and workers’ compensation insurance to appellee’s employer has no bearing on the resolution of this issue. It is our view that this issue is appropriately put to rest by the rationale in Government Employees Insurance Co. v. Lang, 387 So.2d 976, 977 (Fla. 2d DCA 1980), in which the court, discussing “benefits available” under Section 627.727(1), stated:

We can find no authority for appellee’s contention that only benefits “actually received” by the insured can be applied as an offset against his uninsured/underin-sured motorist coverage. There is nothing in the statute or elsewhere suggesting that the word “available” in Section 627.727(1) was not used intentionally. We believe that a tortfeasor’s liability insurance coverage is “available” to one injured at the hands of the former, even though proceedings have not yet been instituted against the tortfeasor.

There is little to distinguish an entitlement to future damages under a tort-feasor’s liability insurance policy from future benefits to be received from workers’ compensation insurance in the context of this legal issue.

Although not raised by either party-, we note that Section 627.727(1) was amended in 1979 to include the following sentence “Only the underinsured motorist’s automobile liability insurance shall be set off against underinsured motorist coverage.” This language precludes a setoff for workers’ compensation benefits. However, there is. a split in our appellate courts on the question of whether the 1979 version applies retroactively. The First District is of the view that to retroactively apply the statute to an insurance contract entered into before its enactment would be an unconstitutional impairment of contract. Carter v. Government Employees Insurance Co., 377 So.2d 242 (Fla. 1st DCA 1979). On the other hand, the Fifth District determined that the 1979 statute applied retroactively and interpreted Section 627.727(1) as it existed prior to the 1979 change to harmonize with the amended statute. State Farm Mutual Automobile Insurance Co. v. Bergman, supra.

We agree with Carter v. Government Employees Insurance Co., supra, on this issue and conclude that appellant was entitled to a setoff for future workers’ compensation benefits. However, this setoff should not result in an automatic reduction of appellee’s uninsured motorist benefits. Rather, the setoff should be only for those benefits actually covered by workers’ compensation and appellee should be given the opportunity to prove other damages, such as pain and suffering. Lackore v. Hartford Accident & Indemnity Co., 390 So.2d 486 (Fla. 4th DCA 1980).

We therefore reverse the judgment on both issues and remand for further appropriate proceedings.

REVERSED AND REMANDED.

GLICKSTEIN, J., and WETHERING-TQN, GERALD T., Associate Judge, concur.


author: MOORE, Judge.

text:
    STATE of Florida, Petitioner, v. Larry D. OWENS, Respondent.
    No. 80-2230.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Rehearing Denied April 15, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for petitioner.
    John A. Friedman of Casoria, Goff & Friedman, Fort Lauderdale, for respondent.
   MOORE, Judge.

Petitioner, the State of Florida, seeks a writ of certiorari to quash an order of the trial court transferring the pending prosecution against the respondent from the criminal division of the circuit court to the juvenile division.

Respondent, a juvenile, was charged by direct information, pursuant to Section 39.-04(2)(e)(4), Florida Statutes (1979), with the commission of the felony of burglary of a conveyance. Section 39.04(2)(e)(4) states that the state attorney may:

With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of the child, the case shall be transferred for adjudicatory proceedings as a child pursuant to Florida Statute Section 39.04(1) if it is shown by the child that he had not previously, been found to have committed two delinquent acts one of which involved an offense classified under Florida Law as a felony.

The respondent subsequently filed a motion to transfer the case to the juvenile division, alleging that his prior juvenile adjudications of delinquency could not be considered as “delinquent acts” within the purview of Section 39.04(2)(e)(4) because he was not represented by counsel at the time the adjudications were rendered. The respondent concedes that the previous adjudications would otherwise suffice to constitute the delinquent acts necessary to allow the state attorney to directly file against him in the criminal division. The issue, then, is whether respondent’s uncounseled adjudications may be “counted” as delinquent acts under Section 39.04(2)(e)(4). Respondent contends that a prosecution in the criminal division, based on his prior, uncounseled juvenile adjudications, runs afoul of the recent Supreme Court decision in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). We reject this contention because we find the circumstances presented by this case to be distinguishable from the factual situation in Baldasar. Respondent’s reliance on Baldasar, as a basis for invalidating the State’s efforts to prosecute him in the criminal division, is therefore misplaced. In Baldasar, the defendant was convicted of petty theft without benefit of counsel and sentenced to a term of probation. Subsequently, Baldasar was once again prosecuted and convicted for a second petty theft. However, pursuant to Illinois law, a second conviction for petty theft may be treated as a felony and is punishable by a prison term of one to three years. Baldasar was sentenced to a term of confinement in accordance with the enhanced felony offense. On review, the Supreme Court found the felony conviction and sentence to be invalid because the enhancement of Bal-dasar’s second offense was based upon his prior, uncounseled misdemeanor conviction. The Court held Baldasar’s judgment and sentence to be violative of its prior decisions in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530.

Unlike Baldasar, the respondent has not yet encountered the immediate prospect of an incarceration that is derivative of a pri- or, uncounseled conviction or other adjudication of guilt. Simply stated, the trial court prematurely determined that a violation of the mandate of Baldasar had occurred in this case. The mere fact that the respondent is prosecuted in the criminal division does not render the eventuality of incarceration absolute. It is altogether possible that a criminal prosecution against the respondent will result in his acquittal. Furthermore, even if the respondent were convicted, it does not necessarily follow that he will be sentenced to a term of incarceration. The trial court has the discretion to place the respondent on probation if it finds this to be an appropriate sanction. In fact, because of his youth, the respondent may be eligible for the lenient treatment afforded under Section 39.111(6), Florida Statutes (1979) (providing for sentencing as a child even though convicted in the criminal division) and Section 958.04, Florida Statutes (1979) (the Youthful Offender Act).

Under these circumstances, we hold that the issue of whether a violation of the Bal-dasar decision has occurred in this case is not ripe for our review, nor was the issue ripe for a determination by the trial court. Therefore, we grant the writ of certiorari and quash the order of the trial court transferring the respondent to the juvenile division. No decision is reached as to whether Baldasar, supra, will be applicable in the event of conviction and sentencing to incarceration.

DOWNEY and BERANEK, JJ., concur.

      . In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Court held that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated. cf. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).


author: PER CURIAM.

text:
    TAMPA WHOLESALE COMPANY, Appellant, v. Eddie M. DIAZ, Appellee.
    No. UU-149.
    District Court of Appeal of Florida, First District.
    March 18, 1981.
    Rehearing Denied April 21, 1981.
    Mark E. Hungate of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., St. Petersburg, for appellant.
    John A. Williamson of Barrs, Melendi, Williamson & Levens, Tampa, for appellee.
   PER CURIAM.

The compensation order appealed from is affirmed except as to the finding relative to maximum medical improvement. The parties agreed that the date as found by the deputy is error. The claimant, cross appellant, argues that maximum medical improvement occurred on August 7, 1979. The employer/carrier, cross appellee, voluntarily paid temporary total disability benefits until September 6, 1979, and requests this court to amend the order to reflect such payment of benefits. The order is modified to reflect a maximum medical improvement of September 6, 1979.

ERVIN, SHAW and WENTWORTH, JJ., concur.


author: PER CURIAM. THOMPSON, Judge,

text:
    FLANIGAN'S ENTERPRISES, INC.; Corporate Group Service, Inc., Appellants, v. Ira PONT, Appellee.
    No. VV-445.
    District Court of Appeal of Florida, First District.
    March 18, 1981.
    Rehearing Denied April 21, 1981.

      Robert H. Gregory, Miami, for appellants.
    Israel Abrams of Abrams & Suskin, North Miami Beach, for appellee.
   PER CURIAM.

AFFIRMED.

SHIVERS and SHAW, JJ., concur.

THOMPSON, J., dissents with opinion.

THOMPSON, Judge,

dissenting:

I dissent. I would reverse the order reserving jurisdiction to determine wage loss benefits.

The Deputy Commissioner (“the Deputy”) entered an Order, finding that the claimant had received a compensable injury on August 1, 1979. But the Deputy also found that without evidence of permanent partial physical impairment based upon the AMA Guide to the Evaluation of Permanent Impairment (AMA Guide), the claimant had failed to prove that he was entitled to wage-loss benefits under § 440.15(3)(b)(l), Fla.Stat. (1979). The Deputy ruled that such a failure of proof did not bar the claimant from submitting proper proof in the future, within the time limitations of Chapter 440, Fla.Stat. (1979). Jurisdiction was reserved to hear further evidence on this issue.

The employer/carrier (“the E/C”) appealed, arguing that the Deputy erred in failing to rule on the issue of wage-loss benefits. The claimant agrees that the Deputy erred in not ruling on this issue. The problem arises from the fact that the E/C contends that the Deputy should have denied wage-loss benefits because the claimant failed to prove his case. In contrast, the claimant submits that the Deputy should have granted wage-loss benefits because it was not necessary for the claimant to have a permanent partial physical impairment based upon the AMA guide as a prerequisite to an award of wage-loss benefits.

I agree with the parties that the Deputy should have ruled on the issue of wage-loss benefits. The claimant filed a claim for wage-loss benefits and other benefits on October 18,1979. On February 15,1980 the parties entered into a pre-trial stipulation that the benefits being claimed were wage-loss benefits and others. At the commencement of the final hearing on February 21, 1980, the Deputy told the attorneys for the parties to carefully look over the pre-trial stipulation, saying “we are going to trial on these issues and these issues alone.” Subsequent hearings were held on April 1, 1980 and April 16, 1980. Wage-loss benefits were at issue in the case from the time the claim was filed until the claimant’s attorney rested his case. Thus, the issue of wage-loss benefits was properly before the Deputy and was mature and ripe for adjudication. The Deputy should have ruled on the issue based on the evidence before him. See Garitson v. Rifenburg, 380 So.2d 1311 (Fla. 1st DCA 1980). He was not authorized to reserve jurisdiction or take further evidence on the question. Maffitt v. Hendersons Portion-Pak, Inc., 132 So.2d 410 (Fla.1961); Action Pool Builders, Inc. v. Grant, IRC Order 2-3743 (1979); Coe v. Kentucky Fried Chicken, 393 So.2d 1156 (Fla. 1st DCA 1981).

The remaining issue on appeal is whether there must be a finding of permanent partial impairment based on the AMA guide, before an award of wage-loss benefits can be made. Section 440.15(3)(a), Fla.Stat. (1979), covers permanent impairment and § 440.15(3)(b), Fla.Stat. (1979) covers wage-loss benefits. Section 440.15(3)(a)(3), Fla. Stat. (1979), requires that the AMA Guide be used for the purpose of determining permanent impairment until the division establishes a schedule in this regard. Section 440.15(3)(b)(l), Fla.Stat. (1979) provides in part that

Each injured worker who suffers any permanent impairment, which permanent impairment is determined pursuant to the schedule adopted in accordance with sub-paragraph 3. of paragraph (a), may be entitled to wage-loss benefits under this subsection, (e. s.)

The schedule referred to above was, at the time of the accident, the AMA guide. The language from the foregoing statute relating to wage-loss benefits requires that before wage-loss benefits may be awarded, the claimant must have established a permanent partial physical impairment based on the AMA guide.


text:
    Eric MACKLIN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-11.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The multiple offenses with which Macklin was charged in a single information and upon which he was brought to trial arose out of two separate criminal episodes which occurred five days apart, at locations less than one block apart, and had in common the ultimate object of robbing taxicab drivers who in both instances had been dispatched to the area by a prior phone call. Macklin’s primary contention is that the offenses arising out of the first episode on January 29, 1977, were misjoined with the offenses arising out of the second episode on February 2, 1977. We agree and reverse.

The offenses of January 29, 1977, were not “acts or transactions” connected to the offenses of February 2, 1977. Paul v. State, 385 So.2d 1371 (Fla.1980), partially adopting the dissenting opinion of Judge Smith in Paul v. State, 365 So.2d 1063 (Fla. 1st DCA 1979). The sameness of the location and the fact that the offenses on these separate dates were both taxicab holdups create, at most, a similarity in circumstances which does not justify joinder under Florida Rule of Criminal Procedure 3.150(a). Compare Johnson v. State, 222 So.2d 191 (Fla.1969); Hall v. State, 66 So.2d 863 (Fla.1953), cert. denied, 346 U.S. 931, 74 S.Ct. 321, 98 L.Ed. 422 (1954); Moore v. State, 259 So.2d 179 (Fla. 3d DCA 1972). Where joinder is improper under Florida Rule of Criminal Procedure 3.150(a), upon timely motion under Florida Rule of Criminal Procedure 3.152(a)(1), severance is mandatory, see Tyson v. State, 379 So.2d 1321 (Fla. 1st DCA 1980); accord, United States v. Marionneaux, 514 F.2d 1244 (5th Cir. 1975); Tillman v. United States, 406 F.2d 930 (5th Cir.), cert. denied, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969) (construing the Federal counterpart, Federal Rule of Criminal Procedure 8, as mandatorily requiring severance in the case of misjoin-der), as prejudice is conclusively presumed. Paul v. State, 385 So.2d 1371 (Fla.1980); Tyson v. State, supra; United States v. Marionneaux, supra; compare Fla.R.Cr.P. 3.152(a)(2) [providing for severance of properly joined offenses if prejudice is shown and giving the trial court discretion to make this determination, see, e. g., Abbott v. State, 334 So.2d 642 (Fla. 3d DCA 1976), cert. denied, 431 U.S. 968, 97 S.Ct. 2926, 53 L.Ed.2d 1064 (1977)].

Ordinarily, it would be unnecessary to consider Macklin’s other points on appeal. However, since this case must be retried, we note that a substantial amount of the evidence introduced by the State concerned a taxicab holdup which occurred on February 12, 1977, an “offense” for which Mack-lin was not on trial. Assuming, but not deciding, that there was sufficient similarity between the collateral crime of February 12, 1977, and the crimes for which Macklin was on trial, but see Bradley v. State, 378 So.2d 870 (Fla. 2d DCA 1979); Davis v. State, 376 So.2d 1198 (Fla. 2d DCA 1979); Henry v. State, 356 So.2d 61 (Fla. 4th DCA 1978), we consider Macklin's involvement in the criminal episode of February 12, 1977, to have become a feature not an incident of his trial in violation of the caveat in Williams v. State, 117 So.2d 473 (Fla.1960); accord, Ashley v. State, 265 So.2d 685 (Fla. 1972), so as to deprive him of a fair trial. Matthews v. State, 366 So.2d 170 (Fla. 3d DCA 1979); Smith v. State, 344 So.2d 915 (Fla. 1st DCA 1977); Banks v. State, 298 So.2d 543 (Fla. 1st DCA 1974).

We reverse the convictions and order new trials, with the offenses contained in Counts I, VI, VII, and VIII to be tried separately from the offenses contained in Counts XI, XVI, and XVII.

Reversed and remanded with directions.

      . Macklin was accused and convicted of burglary of a conveyance, robbery, possession of a firearm during the commission of a felony, and kidnapping as a result of a taxicab holdup on January 29, 1977 (Counts I, VI, VII, and VIII, respectively, renumbered on the verdict form as Counts I through IV). He was accused and convicted of burglary of a conveyance, attempted robbery, and possession of a firearm during the commission of a felony as a result of an aborted taxicab holdup on February 2, 1977 (Counts XI, XVI, and XVII, respectively, renumbered on the verdict form as Counts VI through VIII). He was found not guilty of carrying a concealed firearm (Count X, renumbered on the verdict form as Count V). He pleaded guilty to Count XXIV, a separate robbery, and was sentenced to life on that count. All other counts were dismissed at the State’s request.

      . Paul v. State involved a construction of Florida Rule of Criminal Procedure 3.151(a), which allows for consolidation of charges based, inter alia, on “two or more connected acts or transactions.” As Judge Smith’s dissent correctly points out, there is no difference between Rule 3.150(a) and Rule 3.151(a), insofar as the meaning to be given to “connected acts or transactions.” In short, if offenses cannot be joined, they cannot be consolidated; and if they cannot be consolidated, they cannot be joined.

      . Even under Federal Rule of Criminal Procedure 8(a), which unlike Florida Rule of Criminal Procedure 3.150(a) authorizes the joinder of “similar” offenses, the similarity required is that the offenses must be so alike as to constitute a hallmark or signature of the perpetrator. See, e. g., United States v. Foutz, 540 F.2d 733, 737 (4th Cir. 1976). Here the offenses on January 29, 1977, were allegedly committed by the defendant and two others, with one of the defendant’s confederates armed with a shotgun. The offenses on February 2, 1977, were allegedly committed by the defendant alone, armed with a rifle. Moreover, the sameness of location is of tenuous similarity, since the location is in the heart of a high crime area in the City of Miami. See Henry v. State, 356 So.2d 61 (Fla. 4th DCA 1978).

      . The overwhelming majority of the Federal circuit courts of appeal have held that a mis-joinder under Rule 8 cannot be treated as harmless error. See cases collected in United States v. Graci, 504 F.2d 411, 413 (3d Cir. 1974). As is pointed out in United States v. Park, 531 F.2d 754, 760 n. 3 (5th Cir. 1976), some courts have confused the issue of mis-joinder with the issue of prejudicial joinder of properly joined offenses.

      . The caveat in Williams is that the inquiry concerning the similar crime must be an incident not a feature of the trial “... for the very good reason that in a criminal prosecution such procedure devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant whose character is insulated from attack unless he introduces the subject.” 177 So.2d at 475-476.


author: BARKDULL, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Edward CARONIA, Jr., Edward Caronia, Sr., and Indiana Insurance Company, Appellees. Edward CARONIA, Jr., Edward Caronia, Sr., and Indiana Insurance Company, Appellants, v. TRAVELERS INSURANCE COMPANY, Appellee.
    Nos. 79-1994, 79-2261 and 79-2241.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.

      Weissenborn & Burr, Miami, for Allstate Ins. Co.
    Alboum & Furlong and Estelle Furlong, Miami Beach, for Caronias.
    Ponzoli & Wassenberg, Miami, for Indiana Ins. Co.
    High, Stack, Lazenby, Bender Palahach & Lacasa and R. Scott Boundy, Miami, for Travelers Ins. Co.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

Subsequent to our opinion, reported in Indiana Insurance Company v. Collins, 359 So.2d 916 (Fla. 3d DCA 1978), this matter reoccurred in the trial court.

After Indiana had settled the claim of the Collins’ and became subordinated to their rights, it ultimately filed a second amended third-party complaint seeking relief against the Caronias (Junior and Senior); Foster (the owner of the motorcycle which was being operated by Caronia, Jr. when the minor Collins, plaintiff in the original action, was injured); against Caronia, Jr. (as the driver); Caronia, Sr. (as the driver’s father, pursuant to an authorization to secure a motor vehicle license executed pursuant to Section 322.09 Florida Statutes (1975), Caronia, Jr. being under 16 years of age at the time of the issuance of this license, it was restricted as to the operation of a motorcycle); against Travelers (the auto insurance carrier for Coronia, Sr.); against Allstate (insurance carrier for Caro-nia, Sr. on his home); against Fuchs Bakery (as the owner of the other vehicle in the accident); against Liberty Mutual (Fuchs’ automobile insurance carrier); and Alton Ansley (Fuchs’ driver). Cross-claims were filed by the Caronias against Travelers and Allstate.

Thereafter, the matter came on to be heard before the trial court on motions for summary judgment filed by Indiana, Travelers, Allstate, and the Caronias.

The trial court granted Caronias’ motion for summary judgment against Allstate, finding coverage under its homeowners policy. It granted Travelers’ motion for summary judgment, finding no coverage under its policy. It denied Caronias’ motion for summary judgment as against Travelers and against Indiana. It denied Indiana’s motion for summary judgment against Travelers, Allstate, and the Caronias. Thereafter, Indiana appealed the order denying its motion for summary judgment. The Caronias appealed the order denying their motion for summary judgment against Travelers, and Allstate appealed the summary judgment finding coverage in favor of the Caronias. These appeals were consolidated, briefed and oral argument was held thereon. After oral argument, this court, on November 17, 1980, relinquished jurisdiction to the trial court for thirty days to enter a nunc pro tunc order granting a final summary judgment. The Caronias and Indiana failed to comply with this order and, on January 13, 1981, this court entered its order dismissing their appeals in Cases Nos. 79-2241 and 79-2261 for failure to comply with this court’s order of November 17, 1980.

On Allstate’s appeal we reverse the summary judgment finding coverage or liability to the Caronias. The policy specifically excluded coverage for “land vehicles”; a two-wheeled motorcycle is obviously a land vehicle. Therefore, it was within the exclusion and no coverage was afforded under this homeowner’s policy. Dorrell v. State Fire and Casualty Company, 221 So.2d 5 (Fla. 3d DCA 1969); Lamos v. Consolidated Mutual Insurance Company, 274 So.2d 552 (Fla. 3d DCA 1973). The September 9, 1979 order appealed by Allstate in Case No. 79-1994 be and the same is hereby reversed, and the cause is remanded to the trial court for further proceedings.

Reversed and remanded with directions.

      . See earlier opinion.

      . The question of the father’s liability for violation of restriction by son remains open. See and compare: Farrier v. Thompson, 234 So.2d 11 (Fla. 4th DCA 1970).

      . This was a non-appealable order and the appeal was dismissed. See: Shupack v. Allstate Insurance Company, 356 So.2d 1298 (Fla. 3d DCA 1978); Aetna Casualty & Surety Co. v. Meyer, 385 So.2d 10 (Fla. 3d DCA 1980); Let’s Help Florida v. DHS Films, Inc., 392 So.2d 915 (Fla. 3d DCA 1980).

      .See footnote 3.

      .
      “This policy does not apply:
      1. Under Coverage X — Family Liability and Coverage Y — Guest Medical Payments:
      (a) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
      (1) any aircraft: or
      (2) any motor vehicle owned or operated by, or rented or loaned to ‘any’ Insured ...”
      Page 14 of said policy provides:
      “3. ‘motor vehicle’ means a land motor vehicle, trailer, or semitrailer designed for travel on public roads (including any machinery or apparatus attached thereto) but does not include, except while being towed by or carried on a motor vehicle, any of the following: utility, boat, camp or home trailer, recreational motor vehicle, crawler or farm type tractor, farm implement or, if not subject to motor vehicle registration, any equipment which is designed for use primarily off public roads.”


text:
    Joseph J. LIBERTUCCI, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2158.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Rehearing Denied April 13, 1981.

      Joel Hirschhorn, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Libertucci, the City Manager of the City of Miami Springs during a pertinent twenty-two month period from 1977 to 1979, was prosecuted and convicted on multiple counts of grand theft and grand larceny of City funds. The State contended that throughout the nearly two years covered by the offenses charged in the information, Liber-tucci ordered construction materials for the City from an outfit called General Supply Company (GSC); the City paid some $30,-000 for these materials; the materials were not delivered; and Libertucci was paid off by GSC.

The evidence showed that Howard Herring, owner of GSC, received and cashed checks from the City of Miami Springs for materials that were never delivered to the city; that Libertucci, in his capacity as City Manager, did, in fact, authorize the purchase of these materials; and that during the time when the alleged scheme was in operation, Libertucci deposited in his bank account more than he earned from his salary as City Manager. But evidence that Libertucci knew when he authorized payments to GSC that the materials had not been delivered or received, and evidence of any temporal or quantitative relationship between the payments made to GSC, the withdrawals of cash from GSC, and the deposits into Libertucci’s account, was, at best, extremely tenuous. In short, the case against Libertucci more closely resembled a proceeding to oust him from office for derelictions in administration than a prosecution for theft and larceny.

To bolster its languishing prosecution, the State called Travis, one of Herring’s employees. Over Libertucci’s objection, Travis was asked:

“Did Howard [Herring] ever tell you that he was worried about what Sandra [Herring’s wife] knew about his connections with the City of Miami Springs and the business that he was doing with them?”

Travis’ answer was, “yes.”

The State concedes, as it must, that Travis’ testimony, as against Libertuc-ci, is rank hearsay and comes within no recognized exception to the hearsay rule. However, the State speciously argues that this hearsay was not prejudicial, because the statement makes no direct reference to Libertucci and could therefore be received by the jury simply as Herring’s admission that he was involved in some wrongdoing with the City of Miami Springs. This argument is belied by the fact that in a trial of Libertucci alone, the only probative value, and thus relevancy, of this testimony is that the declaration could be taken to mean that Herring was involved in some wrongdoing with Libertucci, who in the context of this case, was the personification of the City. Thus, the very equation between the City and Libertucci, which, ab initio, makes this testimony arguably relevant, is the same equation that just as arguably makes it prejudicial. Since, in the fragile circumstantial case before us, the hearsay testimony was the only evidence which tended to cast Libertucci’s activities in a sinister light, we conclude that the error in admitting this testimony injuriously affected substantial rights of Libertucci, see § 924.33, Fla.Stat. (1979); Salvatore v. State, 366 So.2d 745 (Fla.1979), and that therefore we must reverse for a new trial.

Reversed and remanded for a new trial.

      . Herring was charged as a co-defendant with Libertucci. Libertucci was granted a severance from Herring on the ground that the State was committed to introducing Herring’s out-of-court declarations to others which would prejudice Libertucci. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Herring was separately tried, found guilty, and in August 1979, a month before Libertucci’s trial commenced, sentenced. Herring’s appeal was pending in this court during Libertucci’s trial. We affirmed Herring’s conviction in July 1980. See Herring v. State, 386 So.2d 1326 (Fla. 3d DCA 1980). In the absence of a grant of immunity, Herring’s right to assert his Fifth Amendment privilege, if called by the State to testify in Libertucci’s trial, continued throughout the pendency of his appeal. King v. State, 353 So.2d 180 (Fla. 3d DCA 1977). [The rule of King is otherwise in those jurisdictions which provide use, but not transactional, immunity. Compare In re Liddy, 506 F.2d 1293 (D.C.Cir.1974), with Frank v. United States, 347 F.2d 486 (D.C.Cir.1965). See also United States v. Kelly, 464 F.2d 709 (5th Cir. 1972)]. The State did not call Herring as a witness in Libertucci’s trial. See n. 5, infra.

      . The evidence concerning Libertucci’s bank deposits was admitted without objection, and the propriety of its admission is not before us. We note, however, that the lack of nexus as to time and amounts between the City’s payments and Libertucci’s deposits not only makes the proof tenuous, but arguably makes it inadmissible. See, e. g., Astrachan v. State, 158 Fla. 457, 28 So.2d 874 (1947); Thompson v. State, 58 Fla. 106, 50 So. 507 (1909); Harrison v. State, 104 So.2d 391 (Fla. 1st DCA 1958); Annot., 91 A.L.R.2d 1046 (1963). Libertucci’s explanation as to the innocent source of these additional funds was unrebutted.

      . Ironically, this very testimony, inter alia, was the basis of Libertucci’s severance motion.

      . There was no independent proof of a conspiracy between Herring and Libertucci, but had there been, Herring’s out-of-court declaration is facially not one made in furtherance of the conspiracy and would not, therefore, be admissible. See Tresvant v. State, 396 So.2d 733 (Fla. 3d DCA 1981).

      . The prejudice was, in our view, exacerbated by the prosecutor’s comments in his closing argument to the jury, “Mr. Herring is not here. 1 cannot call him. If I call him I immunize him. He has already been to trial, and that is the end of it.” The clear inference of these comments is that but for the inability of the prosecutor to call Herring as a witness, the prosecutor would have called him, which, in turn, suggests that Herring’s testimony would lend support to the State’s case. We perceive little difference between a prosecutor’s statement to the effect that he could have brought forth additional witnesses, but chose not to, so clearly condemned, see Richardson v. State, 335 So.2d 835 (Fla. 4th DCA 1976); Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975); United States v. Humer, 542 F.2d 254 (5th Cir. 1976); Wagner v. United States, 263 F.2d 877 (5th Cir. 1959); Ginsberg v. United States, 257 F.2d 950 (5th Cir. 1958); Annot., 90 A.L.R.3d 646 (1979), and a prosecutor’s statement, as here, that he would have brought forth an additional witness, but was prevented from doing so. Additionally, albeit indirectly, the prosecutor’s comments violated the rule against disclosing that a co-defendant was previously convicted, see Salvatore v. State, 366 So.2d 745 (Fla.1979); Thomas v. State, 202 So.2d 883 (Fla. 3d DCA 1967); see also Moore v. State, 186 So.2d 56 (Fla. 3d DCA 1966), which rule has the prophylactic effect of insuring that the jury will not infer from the guilt of the co-defendant the guilt of the defendant on trial.

      . The weaker the case, the greater the danger that the inadmissible evidence unfairly tipped the scales against the defendant. See Richardson v. State, supra.

        . We perceive no meaningful difference between the “injuriously affects substantial rights” standard for determining harm found in Section 924.33, Florida Statutes (1979) (applicable to the review of criminal cases only) and the “results in a miscarriage of justice” standard found in Section 59.041, Florida Statutes (1979) (applicable to the review of both civil and criminal cases), assuming that Section 59.-041 has any continued viability in a criminal appeal.


author: BASKIN, Judge. SCHWARTZ, Judge

text:
    Waltraud Mary Sexsmith CLARK and Richard J. Clark, her husband, Appellants, v. The BOEING COMPANY, a foreign corporation doing business in Florida and Government Products Division of Pratt and Whitney, a Subsidiary of United Technology, Inc., a foreign corporation doing business in Florida, Appellees.
    No. 80-127.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.

      Ezzo, Garel & Saylor and Bruce Saylor, Miami, for appellants.
    Paul & Thomson and Jon W. Zeder 'and Jerold I. Budney and Saturnino E. Lucio, II and Richard Ovelmen, Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Appellants challenge the dismissal with prejudice of their amended complaint against the Boeing Company as aircraft manufacturer and against United Technologies, Inc. as engine manufacturer. They seek to recover damages for injuries sustained by Mrs. Clark, a flight attendant, when she opened the aft door at the captain’s insistence in order to assist a passenger who arrived late. When Mrs. Clark opened the door, the engines were running and the pilot was preparing for takeoff. Mrs. Clark contends the trauma occasioned by the noise and jet fuel emission led to her contracting multiple sclerosis. Her husband seeks damages for medical costs, loss of his wife’s services, companionship and affection, and for mental strain and anguish. We find no error in the trial court’s dismissal of the Clarks’ complaint, and we affirm.

The amended complaint charged that the Boeing Company was negligent in its design of the aircraft. According to the complaint, Boeing should have known that the B-727 rear-mounted engines were too close to the door and stairway and should have foreseen that under normal circumstances people using the door and stairway would suffer injury. The complaint contended that Boeing had a duty to install an interlocking device to prevent the door from opening while the engines were operating, and that its failure to do so constituted negligence.

In a second count, predicated upon strict liability, the amended complaint charged that Boeing sold the aircraft in an unsafe, defective condition without warnings. The amended complaint alleged, in addition, breach of express warranties as well as of implied warranties of merchantability and fitness for a particular purpose, also predicated upon the aircraft’s defective design.

United Technologies, claim the Clarks, was also negligent in selling its engines without warnings or a safety system and should be held strictly liable. In addition, United is charged with liability for breach of warranties resulting from defective engine design. Neither the airline nor the captain employed during that flight were named as parties to the action.

I. Negligence.

In order to establish negligence, appellants must prove the existence of a duty to protect them, a breach of that duty, and injury sustained as a proximate cause of the breach. Blackton Building Supply Co. v. Garesche, 383 So.2d 250 (Fla.5th DCA 1980); Welsh v. Metropolitan Dade County, 366 So.2d 518 (Fla.3d DCA 1979); Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla.2d DCA 1976).

After careful examination of the allegations contained in the amended complaint, we are unable to find either the existence of a duty owed the Clarks by appellees, or the breach of a duty owed them. Appellees had no duty to warn users of obvious dangers. Brown v. General Motors Corp., 355 F.2d 814 (4th Cir.1966), cert. denied, 386 U.S. 1036, 87 S.Ct. 1474, 18 L.Ed.2d 600 (1967); Wickham v. Baltimore Copper Paint Co., 327 So.2d 826 (Fla.3d DCA), cert. denied, 339 So.2d 1173 (Fla. 1976); Reyes v. Zbin, 217 So.2d 150 (Fla.3d DCA), appeals dismissed without opinion, 225 So.2d 530 (1969); May v. Allied Chlorine & Chemical Products, Inc., 168 So.2d 784 (Fla.3d DCA 1964). Mrs. Clark was aware that opening the door would expose her to noise and fumes. She voiced her objections to the captain. Appellees had no duty to warn under these circumstances.

II. Strict Liability.

In order to establish strict liability, appellants must allege and prove the manufacturer’s relationship to the product in question, the defect, the unreasonably dangerous condition of the product, and the existence of a proximate causal connection between the condition and the user’s injuries or damage. The test is whether or not the product was reasonably safe for its intended use as manufactured and designed when it left the plant of the manufacturer. West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976) (quoting the Restatement (Second) of Torts § 402A (1965)). The concept of strict liability does not make the manufacturer or seller an insurer. West v. Caterpillar Tractor Co., Inc., supra.

Pleadings must contain ultimate facts supporting each element of the cause of action. Woodcock v. Wilcox, 98 Fla. 14, 122 So. 789 (1929). Mere conclusions are insufficient. Maiden v. Carter, 234 So.2d 168 (Fla.1st DCA 1970). The amended complaint fails to plead ultimate facts establishing the elements of strict liability, that is, that the product was defectively designed or unreasonably unsafe for its intended use when it left the manufacturer.

It is not itself a breach of duty to supply materials which are reasonably safe and customarily used, even though the material might conceivably be made more safe, nor must the manufacturer make his product 'more’ safe when the danger to be avoided is obvious to all. See Evans v. General Motors Corporation, 359 F.2d 822 (7th Cir.1966); Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950).

Royal v. Black and Decker Manufacturing Co., 205 So.2d 307, 310 (Fla.3d DCA), cert. denied, 211 So.2d 214 (Fla.1968) (footnote omitted). The claim that defects in the engine or aircraft were the proximate cause of appellant’s multiple sclerosis appears only as a conclusion and not through well-plead allegations.

A knowing misuse of a manufacturer’s product creates no liability on the part of the manufacturer. Under that circumstance, the sole cause of the injury is the misuse of the product. Orfield v. International Harvester Co., 535 F.2d 959 (6th Cir. 1976); Kroon v. Beech Aircraft, 465 F.Supp. 1223 (M.D.Fla.), aff’d, 628 F.2d 891 (5th Cir.1980). Watson v. Lucerne Machinery & Equipment, Inc., 347 So.2d 459 (Fla.2d DCA), cert. denied, 352 So.2d 176 (Fla.1977). Appellant, an experienced flight attendant, was well aware of the danger.

III. Breach of Warranties.

The amended complaint fails to plead a cause of action for breach of warranties, either express or implied. There is no allegation that the aircraft failed to carry its passengers safely or that noise-free engines were warranted by the manufacturer. Furthermore, the engine manufacturer, United, merely sold the engines and is not alleged to have placed them on the aircraft. No warranty exists as to the use of the aircraft in the manner attempted by Mrs. Clark; operation of the airplane during the boarding of passengers is not an alleged standard of use. Unreasonable exposure to a known and appreciated risk bars recovery in an action based upon implied warranty as well as in an action for negligence. West v. Caterpillar Tractor Co., Inc., supra.

The allegations of the amended complaint, if taken as true, are insufficient to sustain a recovery under any theory. For these reasons, we affirm the trial court’s dismissal.

Affirmed.

SCHWARTZ, Judge

(specially concurring).

I concur in affirmance on the sole ground that the amended complaint failed to allege either that the airplane was “defective” in any way or that there was any danger concerning which a warning need be given. The plaintiffs’ theory seems to be that Boeing should not have placed the jet engines on the wing so close to the cabin where an occupant would be affected by their noise and fumes. It is a simple fact, however, that jet engines do, and, by their nature, must make noise and emit vapors. Neither exposing persons on the plane (any more than those on the ground who may be near the engines), nor the lack of “warning" concerning these obvious attributes even arguably creates a cognizable claim under any theory of products liability of which I am aware. See Royal v. Black and Decker Manufacturing Co., 205 So.2d 307 (Fla.3d DCA 1967), cert. denied, 211 So.2d 214 (Fla.1968); W. Prosser, Law of Torts, § 96 (4th ed. 1971) (“[Tjhere is certainly no usual duty to warn ... that a knife or an axe will cut, a match will take fire, dynamite will explode, or a hammer may mash a finger.”)

      . The statement in the concurring opinion that the accuracy of the quoted passage from Royal v. Black and Decker is “obviously now in grave doubt” is subject to dispute. Evans v. General Motors Corporation was repudiated on the narrow issue of liability for injuries resulting from a “secondary collision” in an automobile accident. The broader holding of the Evancho court, that “[t]he manufacturer must use reasonable care in design and manufacture of its product to eliminate unreasonable risk of foreseeable injury”, does not disturb the quoted language of Royal v. Black and Decker. The Auburn court established that obviousness of danger is a mitigating factor in defense. Neither Evancho nor Auburn eviscerates the quoted passage.

      .In particular, I disagree with the court’s treatment of the pleading requirements in a case such as this, contra, Fla.R.Civ.P. 1.110(g) (“All pleadings shall be construed so as to do substantial justice”); and with the statement, especially as applied to this case, that “[a] knowing misuse of a manufacturer’s product creates no liability on the part of the manufacturer.” First, it is inaccurate to characterize Ms. Clark’s actions, which she was ordered to take by her superior, as involving the kind of wilful misconduct which can constitute the “sole proximate cause” of a subsequent accident. Compare, Watson v. Lucerne Machinery & Equipment, Inc., 347 So.2d 459 (Fla.2d DCA 1977), in which the plaintiff deliberately disobeyed his employer’s instructions not to approach a dangerous piece of machinery. Moreover, I believe that this expression is in conflict with the supreme court’s abolition of assumption of risk in Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977), and of the “open and obvious danger” doctrine in Auburn Machine Works Co. v. Jones, 366 So.2d 1167 (Fla. 1979). In my view, Kroon v. Beech Aircraft Corp., 628 F.2d 891 (5th Cir.1980) is also in conflict with these decisions and consequently that it was wrongly decided. I therefore disagree with its citation by the majority with apparent approval. I take some comfort, however, in the likelihood that the “misuse” language is simply dictum. Since the court correctly holds that the defendants are not liable in the first instance, any discussion of the effect of the plaintiff’s misuse of their product is not necessary to the result.

      . Since the manufacturer of the engines, Pratt and Whitney, was in no way responsible for the alleged impropriety in their location on the completed plane, its non-liability is even more plain than Boeing’s. Shelton v. Wisconsin Motor Corp., 382 So.2d 1270 (Fla.3d DCA 1980).

      . The essential holding of Royal, necessitating either a product “defect,” that is, an unreasonably dangerous condition, or a product characteristic which reasonably requires warning or direction in its use, remains unimpaired. It should be noted, however, that both cases cited in the statement at 205 So.2d 310 which is quoted in the court’s opinion have since been repudiated by the supreme court; Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966) in Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla. 1976), and Campo v. Scofield, 301 N.Y 468, 95 N.E.2d 802 (1950) in Auburn Machine Co. v, Jones, supra. The accuracy of the discussion which precedes those citations is obviously now in grave doubt.


text:
    Richard PIPERATO, Appellant, v. Kirk C. ZUELCH, as State Attorney, Appellee.
    No. 80-1756.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Leonard J. Cooperman, Marathon, for appellant.
    Kirk C. Zuelch, State Atty. and L. E. Brown, Asst. State Atty., Key West, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In Golden v. McCarty, 337 So.2d 388 (Fla. 1976), the Florida Supreme Court upheld the constitutionality of Section 877.04, Florida Statutes (1979), against the attack, inter alia, that the statute is void for vagueness. In holding the language of the statute to be “susceptible to the understanding of a reasonable person,” the court stated:

“The statute requires that tattoo artists work subject to the direction of a licensed physician or dentist as defined by the act.” 337 So.2d at 391 (emphasis supplied).

In this appeal, we are called upon to decide the meaning of “subject to the direction” or, more accurately, the meaning of the statutory words “under his direction.”

Piperato, desirous of engaging in the business of tattooing others, brought an action for declaratory judgment and injunction against the State Attorney of Monroe County, whose office allegedly informed Pi-perato that he would be subject to arrest and prosecution for violation of Section 877.04, Florida Statutes (1979), should he tattoo anyone without a licensed physician, osteopath, or dentist being in attendance during the tattooing operation. Piperato sought a declaration that the statutory requirement that he perform tattooing “under [the] direction” of a described licensee is satisfied when (1) the premises in which the tattooing business is conducted are regularly inspected by a doctor, osteopath, or dentist to assure the maintenance of proper standards of hygiene, and (2) a doctor, osteopath, or dentist regularly consults with Piperato in the operation of the business to insure that public safety and health are protected. The trial judge determined that mere inspection and consultation were not what the Legislature intended by the words “under his direction”:

“While the intention of the Legislature may be somewhat obscure in connection with this section, it is apparent on the face that the Legislature intended to protect the public for reasons of sanitation and health. The suitability of a customer for tattooing can only be determined if the physician actually comes into personal contact with the customer and the methods and procedures used can only be overseen by the supervisor if he is personally present when the tattoo is applied. Accordingly, if the Statute is to have any meaning, it must be construed in such a way that the supervising doctor or dentist has personal contact with the customer who is to receive the tattoo, and be present when the tattoo is applied.”

We agree and affirm the judgment below, which, in pertinent part, declares:

“The application of a tattoo to the human body is unlawful unless applied by a person licensed to practice medicine [osteopathy] or dentistry or by a person who does so after a person who is licensed to practice medicine [osteopathy] or dentistry has had personal contact with the customer and determined that such application will not be harmful to the health of the customer and is personally present during the application to assure that the application is done in a sanitary manner. Plaintiff’s application for an Order enjoining the State Attorney of the Sixteenth Judicial Circuit In and For Monroe County from enforcing Section 877.04 (Fla.Statutes 1979) is accordingly denied.”

Affirmed.

      . The statute provides, in pertinent part:
      “It is unlawful for any person to tattoo the body of any human being; except that tattooing may be performed by a person licensed to practice medicine or dentistry under Chapters 458, 459 or 466, Florida Statutes, or by a person under his direction.”

      . Piperato is neither a licensed physician, osteopath, or dentist and, therefore, may only administer tattoos under the direction of one of these licensed persons.

      . Piperato also sought a declaration that Section 877.04, Florida Statutes (1979), is unconstitutional. The trial court properly held that Golden v. McCarty, supra, was dispositive of this claim.


text:
    Harry CARMAN, Appellant, v. CITY OF MIAMI BEACH and the Director of the Department of Code Enforcement of Miami Beach, Appellees.
    No. 80-1867.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.

      John G. Fletcher, South Miami, Kenneth P. Carman and Raymond V. Perosino, Fort Lauderdale, for appellant.
    John A. Ritter, City Atty., and Lucia T. Allen, Asst. City Atty., Miami Beach, for appellees.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Board of Public Instruction of Taylor County v. State ex rel. Reaves, 171 So.2d 209 (Fla. 1st DCA 1964); Hennessy v. City of Fort Lauderdale, 101 So.2d 176 (Fla. 2d DCA 1958).


text:
    FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF LICENSING, Appellant, v. Ingrid WEINSTEIN, Appellee.
    No. 79-666.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.
    Edwin E. Strickland, Gen. Counsel, and Michael J. Alderman, Asst. Gen. Counsel, Dept, of Highway Safety and Motor Vehicles, Tallahassee, for appellant.
    No appearance for appellee.
   MOORE, Judge.

The appellant, the Florida Department of Highway Safety and Motor Vehicles, appeals from a permanent injunction compelling it to issue the appellee a driver’s license. The appellee has made no appearance on appeal. We reverse.

The sole issue in this case is whether the Department may refuse to issue a driver’s license to a new Florida resident whose out of state driver’s license is under suspension at the time of making application in Florida. The trial court held that such refusal violated the appellee’s “Constitutional Right to travel under the Fifth and Fourteenth Amendment to the United States Constitution”, answered the question in the negative, and permanently enjoined the appellant from refusing to issue the appellee a driver’s license. We summarily find no constitutional infirmity and reverse. See, Califano v. Torres, 435 U.S. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 (1978).

Pursuant to Sections 322.05(3) and 322.44, Florida Statutes (1977), the appellant correctly denied issuance of a driver’s license to the appellee. Accordingly,' the trial court’s permanent injunction is reversed.

REVERSED.

ANSTEAD and GLICKSON, JJ., concur.


text:
    Dale M. SCHUPPENER and Gladys C. Schuppener, his wife, Appellants, v. Andrew F. BRUNO and Frances A. Bruno, his wife, Appellees. Dale M. SCHUPPENER and Gladys C. Schuppener, his wife, Appellants/Cross-Appellees, v. Andrew F. BRUNO and Frances A. Bruno, his wife, Appellees/Cross-Appellants.
    Nos. 78-2652, 79-909.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.

      Linda 0. MacLaren of Law Offices of Eugene W. Murphy, Jr, Palm Beach, and Thomas A. Barba, Boca Raton, for appellants/cross-appellees.
    Bill T. Smith, Jr, of George A. Patterson, P. A, Deerfield Beach, for appellees/cross-appellants.
   HERSEY, Judge.

These consolidated appeals are brought by the appellants as sellers of certain real property of which appellees were the buyers. Summary final judgment granting specific performance of the purchase and sale agreement to appellee-buyers is the subject of Case Number 78-2652. A final judgment awarding damages to appellees for breach of that contract is the subject of Appeal Number 79-909.

Subsequent to entry of the summary final judgment and filing of the notice of appeal the parties closed the transaction pursuant to court order, exchanging funds and a mortgage for a warranty deed. Ap-pellees are in possession and have renovated the premises. Appellants have accepted the purchase price and recorded a mortgage. Under these circumstances the issues in appeal number 78-2652 appear to us to be moot. In any event, appellants have knowingly and voluntarily accepted benefits under the summary final judgment and they are therefore estopped to seek reversal of that judgment. Rayle v. Merrill, 141 So.2d 288 (Fla. 1st DCA 1962). We dismiss that appeal.

The award of damages was calculated to compensate appellees for loss of rentals and miscellaneous expenses incurred by reason of appellants’ failure to exercise due diligence to remove a title defect so that a timely closing might be effectuated. There is sufficient evidence in the record to support that award.

Appellee cross-appeals the amount of the award. We conclude that no abuse of discretion has been demonstrated.

No reversible error appearing in the record, we affirm the final judgment.

Appeal No. 78-2652: DISMISSED.

Appeal No. 79-909: AFFIRMED.

DOWNEY and HURLEY, JJ, concur.

       Did not participate in oral argument.


text:
    Robert N. MASER, Appellant, v. Diane L. MASER, Appellee.
    No. 79-1862.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.
    Andrew M. Chansen, Fort Lauderdale, for appellant.
    Harold Peter Barkas, Miami, for appellee.
   PER CURIAM.

The appellant seeks reversal of an order dismissing his petition to set aside a property settlement agreement that had been ratified in a final judgment of dissolution of marriage.

We have carefully considered appellant’s contentions regarding undue influence, overreaching, and other improprieties and find them unsupported by the record.

Accordingly, no error having been demonstrated the order appealed from is affirmed.

AFFIRMED.

DOWNEY, HERSEY and GLICKSTEIN, JJ, concur.


text:
    Floyd Norton WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 79-2190.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

In this appeal from a conviction of sexual battery, defendant, appellant here, attacks the trial court’s refusal to instruct the jury on the defense of alibi. Before reaching the merits, we must first determine whether trial counsel made an objection and preserved this point for appeal pursuant to the requirements of Rule 3.390(d) Fla.R.Crim.P.

During the jury instruction conference the following colloquy occurred:

THE COURT: I have not changed my mind. You may file an objection at this point, but I am not satisfied that the instruction as far as alibi would be properly given, and I am not planning to give it. You may speak to this.
DEFENSE COUNSEL: Your Honor, for the record, I would ask that the instruction on alibi be given based on the testimony that was elicited from the witness stand. I believe that the testimony from the stand does qualify as an alibi arid would respectfully request that instruction ....
THE COURT: I am not going to give it. I just wanted to give each of, you the opportunity to speak to it.

There was no further discussion on the matter. At the conclusion of its charge to the jury the court inquired whether there were “any additional objections to the charges.” Defense counsel objected on another point but did not again raise the court’s failure to give the alibi instruction.

Rule 3.390(d) is quite specific:

No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.

In a recent application of this rule, we held that appellate review of a trial court’s refusal to give a special requested jury instruction was precluded because-although counsel had submitted a written instruction, he failed to object and list the grounds for objection when that instruction was rejected. Smith v. State, 378 So.2d 117 (Fla. 4th DCA 1980). To dispel the expressed concern that Smith elevates form over substance and requires an over-technical reading of the rule, we revisit that decision in the context of a clarification of the rule’s parameters.

The civil counterpart to Rule 3.390(d) states in part:

[T]he parties shall file written requests that the court charge the jury on the law set forth in such requests.... No party may assign as error the giving of any charge unless he objects thereto at such time or the failure to give any charge unless he requested the same.

Fla.R.Civ.P. 1.470(b). Under this language, error in failing to give an instruction is preserved as long as a written jury instruction is tendered to the trial court. Although explicit in its requirements, Rule 3.390(d) does not contain such language. Thus, it is evident that preserving error pursuant to the criminal rule necessitates more than submission of a request for an instruction.

If a jury instruction is requested and the basis for the request verbalized to the court and made a part of the record, failure to object to rejection of the instruction or to repeat the grounds in the form of an objection does not preclude appellate review. The underlying purpose of Rule 3.390(d) has been met; the trial court is placed on notice that refusal to give the requested instruction may be error. However, if, as in Smith, a jury instruction is tendered without further explanation, the subsequent failure to object on specific grounds to its denial is fatal and the issue has not been preserved for review.

Rule 3.390(d) governs the preservation of error not only as to the court’s failure to give a requested instruction, but also as to the giving of an erroneous or inappropriate instruction. In either event, it is essential that at some point in the proceedings the trial court be informed of possible error. Thus, it is unnecessary to raise objections both at the charge conference and at the end of the court’s instruction to the jury. The primary reason that opportunity to lodge objections must be afforded after the jury has been instructed is so that possible errors in charging the jury may be brought to the court’s attention. Accordingly, when feasible, objections should be specified during the conference on instructions and when so indicated need not be repeated after the jury has been charged.

In applying the above stated principles to the instant case, we determine that the trial court’s refusal to give an instruction on the defense of alibi was preserved for review. Having made that determination we now proceed to the merits of the issue.

A defendant is entitled to have the jury instructed on the law applicable to his theory of defense if there is any evidence introduced to support the instruction, however disdainfully the trial judge may feel about the merits of such defense from a factual standpoint. Laythe v. State, 330 So.2d 113 (Fla. 3d DCA 1976). Specifically, the alibi instruction should be given where there is sufficient evidence to present the issue to the jury. Hudson v. State, 381 So.2d 344 (Fla. 3d DCA 1980).

[Ejvidence in support of an alibi need not be absolutely clear. It is sufficient if there is enough to produce in the minds of the jury a reasonable doubt as to the presence of the prisoner at the scene of the killing. Neither do we think that the evidence of an alibi should in any case make it absolutely impossible for the prisoner to be present at the killing. It is sufficient if it raises a reasonable doubt in the minds of the jury ....

Adams v. State, 28 Fla. 511, 542, 10 So. 106, 114 (1891).

The victim’s testimony in the instant case places the time of the sexual battery approximately between 1:30 a. m. and 2:30 a. m., March 1, 1977. Her testimony further reveals that for about forty-five minutes to an hour before the attack she was either in appellant’s presence or being followed by him. On the other hand, the testimony of both appellant and his alibi witness is that appellant joined a celebration of the witness’s birthday at about 12:30 a. m. that night and stayed until after 2:00 a. m.

Obviously, the evidence of alibi was sufficient to raise a reasonable doubt as to appellant’s presence at the scene of the sexual battery. Therefore, the trial court committed reversible error in failing to instruct the jury on alibi pursuant to appellant’s request. Accordingly, we reverse the judgment of conviction and remand for new trial.

REVERSED AND REMANDED.

BERANEK and GLICKSTEIN, JJ., concur.


author: DOWNEY, Judge.

text:
    CIGARETTE RACING TEAM, INC., Appellant, v. PARLIAMENT INSURANCE COMPANY, Appellee.
    No. 80-388.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.

      Cynthia L. Augustyn, of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for appellant.
    Anthony Reinert, of Underwood, Gillis, Karcher, Reinert & Valle, P. A., Miami, for appellee.
   DOWNEY, Judge.

Appellant, Cigarette Racing Team, Inc., seeks review of an order granting a summary judgment in favor of appellee, Parliament Insurance Company.

The factual background of the case appears to be that Cigarette manufactured and sold to Cowan a boat which was damaged when it fell from a davit into the water during a storm. The mishap occurred on September 15, 1976, when a stern-lift eye ring broke and the stern of the boat plunged into the water and became submerged. Upon learning of the incident Cigarette notified its insurance agent and was assured by the agent that Parliament would investigate the matter. Thereafter, Parliament did handle the matter for some sixteen months.

On February 18, 1977, Cowan demanded that Cigarette pay for his damages. Cigarette, in turn, referred the matter to Parliament, which accepted the claim and proceeded to handle it without any reservation of rights or other notice that it denied coverage. In July, 1977, Cowan filed suit against Cigarette and Parliament proceeded to defend that suit. However, on January 3, 1978, Parliament notified Cigarette it was withdrawing its defense on the grounds that its policy did not cover the type of loss involved. Consequently, Cigarette secured private counsel to defend itself in the suit against Cowan and to file a third party complaint against Parliament.

Parliament maintained as a defense that it was not liable on the policy as coverage did not extend to the circumstances involved herein. Cigarette asserted that Parliament was estopped to raise the coverage defense because of the insurer’s actions in representing Cigarette on the claim for a sixteen month period and to now allow a withdrawal by Parliament at this late date would substantially prejudice the rights of Cigarette.

The issue on appeal is whether this case is controlled by the general rule that insurance coverage cannot be extended by waiver or estoppel or the exception to the rule that, when an insurance company assumes the defense of an action with knowledge of the lack of coverage, it may be estopped to raise the coverage defense.

Admittedly, the general rule is that the doctrines of waiver and estoppel will not operate to create coverage in an insurance policy where none originally existed. Six L's Packing v. Florida Farm Bureau Mutual Insurance Co., 268 So.2d 560 (Fla. 4th DCA 1972), cert. discharged, 276 So.2d 37 (Fla.1973). There is an exception to the rule, however, which provides that “when an insurance company assumes the defense of an action, with knowledge, actual or presumed, of facts which would have permitted it to deny coverage, it may be es-topped from subsequently raising the defense of non-coverage.” City of Carter Lake v. Aetna Casualty and Surety Co., 604 F.2d 1052, 1059 (8th Cir. 1979). Accord, Pacific Indemnity Co. v. Acel Delivery Service, Inc., 485 F.2d 1169 (5th Cir. 1973), cert. denied, 415 U.S. 921, 94 S.Ct. 1422, 39 L.Ed.2d 476 (1974); Fidelity and Casualty Company of New York v. Riley, 380 F.2d 153 (5th Cir. 1967); Insurance Company of North America v. National Steel Service Center, Inc., 391 F.Supp. 512 (N.D.W.Va. 1975), aff'd, 529 F.2d 515 (4th Cir. 1976). See also: 7C J. Appleman, Insurance Law and Practice, § 4692 (1979).

In our view, the case at bar fits squarely within the above exception. Parliament Insurance Company assumed the defense of its insured, Cigarette, without a reservation of rights or notice to Cigarette of possible non-coverage. Some sixteen months after it had assumed responsibility for Cigarette’s defense, Parliament notified its insured that the policy did not provide coverage and therefore it would no longer defend the action.

Cigarette claimed that it was prejudiced by Parliament’s untimely withdrawal and filed an affidavit specifying instances of prejudice in opposition to Parliament’s motion for summary judgment. See Consolidated Mutual Insurance Co. v. Ivy Liquors, Inc., 185 So.2d 187 (Fla. 3rd DCA 1966), cert. denied, 189 So.2d 633 (Fla.1966). Parliament asserts that the alleged prejudice is non-existent and, of course, it may be correct. However, since an allegation of prejudice generally requires a factual determination, we believe the trial court erred in granting summary judgment to Parliament.

Accordingly, the summary judgment in favor of Parliament is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED, with directions.

HERSEY and HURLEY, JJ., concur.


text:
    In the Matter of the ADOPTION of Toni Anita SERPE nee Toni Anita Gravina.
    No. 80-1179.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.

      Stephen J. King of Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appellant Joseph Gravina.
    Charles T. Whitelock of Feinstein & Whitelock, Fort Lauderdale, for appellee James Serpe.
   PER CURIAM.

This is an appeal from a final judgment granting a stepfather’s petition for adoption over the objection of the child’s father. We reverse.

The child’s mother and father were divorced in 1974 and the mother was awarded custody. For several years thereafter the parties were involved in an active dispute over the father’s visitation rights with the child. At one point, apparently because of the mother’s refusal to allow visitation, the father was awarded custody of the child for a short period of time. However, in late 1976 the father was imprisoned and at the time of the final adoption hearing was still serving a seven and one-half year sentence at the Glades Correctional Institute. Prior to the filing of the current petition the mother was married to another man who also had initiated but subsequently dropped proceedings to adopt the child.

In the final judgment the trial court predicated its decision on a finding that the adoption “would promote and protect the well being of the minor child by providing the Petitioner as a fit and proper person to afford the minor child with the benefit of a family life.”

The legal relationship between a parent and a child should not be terminated without the parent’s consent unless it is demonstrated that the parent has abandoned the child. In re the Adoption of Noble, 349 So.2d 1215 (Fla. 4th DCA 1977). Also see Section 63.072(1), Florida Statutes (1979). It is not enough to demonstrate that the adoption would be in the best interests of the child. Noble, supra. In Noble, we adopted a strict standard as to the proof required to justify a finding of abandonment:

Adoption completely severs parental ties. Such permanent termination of parental rights and responsibilities must not be ordered without parental consent except upon clear and convincing proof that the natural parent has conducted himself in such a way as to show a complete abandonment of the child. La Follette v. Van Weeldon, 309 So.2d 197 (Fla. D.C.A. 1st 1975).
We decline to follow Jones v. Allen, 277 So.2d 599 (Fla. D.C.A. 2nd 1973). That case held that something less than complete and total abandonment by natural parents was sufficient to permit adoption by strangers. Neglect by the natural parents or disinterest and failure to carry out parental obligations does not justify adoption of a child by strangers over the natural parents’ objection. Temporary failures and derelictions of parents, while possibly justifying deprivation of custody, will not support judgment of adoption.

at 1216-1217.

Applying this standard to the case at hand, we are unable to find the clear and convincing proof required. It is true that there was substantial evidence presented indicating that the adoption would be in the best interest of the child and that the evidence was in dispute as to the father’s post-divorce attempts to continue his relationship with the child. However, even construing the evidence in a light most favorable to the appellee, we are unable to conclude that such evidence constituted a showing of abandonment. On the other hand, we find ourselves in agreement with the trial court’s concerns as to the well being of the minor child. These concerns, however, while sufficient to support an award of custody, are not sufficient to justify a complete and permanent termination of the parental relationship.

Accordingly, this cause is reversed and remanded with directions for further proceedings consistent herewith.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


author: COBB, Judge.

text:
    Curtis V. EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 81-159.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    Curtis V. Evans, in pro. per.
    No appearance for appellee.
   COBB, Judge.

This case is before us on an appeal of the trial court’s denial of the appellant’s motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Appellant attacks his sentence on two grounds. We find his argument with regard to his mandatory three-year minimum without merit. We agree with appellant that the phrase “at hard labor” should be stricken. That phrase is hereby stricken as surplusage. In all other respects, the judgment is affirmed. Stacey v. State, 370 So.2d 75 (Fla.2d DCA 1979); Beard v. State, 369 So.2d 1024 (Fla.1st DCA 1979).

DAUKSCH, C. J., and ORFINGER, J., concur.


text:
    Paul Elton TURNER, Appellant, v. STATE of Florida, Appellee.
    No. UU-133.
    District Court of Appeal of Florida, First District.
    March 25, 1981.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace All-britton, Asst. Atty. Gen., Tallahassee, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Appellant was on probation with adjudication withheld, a condition of probation being that he reside at the Men’s Probationers Restitution Residence Center in Jacksonville. Probation was revoked for violation, after which Appellant was sentenced to three years in prison without credit for the time spent by Appellant in the restitution center. Appellant seeks review of the order denying his motion to correct sentence in this and another respect.

The court, finding that Appellant was free to leave the center every morning and to remain at liberty until he returned each night (after which he was required to be at the center during the night except by special authorization), held that this did not amount to Appellant being incarcerated, as the word “incarcerated” is defined in Sims v. State, 369 So.2d 431 (Fla. 2nd DCA 1979). While we feel that the restrictions placed upon Appellant would marginally meet the Sims definition of being “incarcerated”, we decline to follow the Sims case (and similar decisions by the Second District Court of Appeal ) but rather prefer to align ourselves with the Fourth District Court of Appeal on this point as reflected by its decisions in Pennington v. State, 4th DCA, Case No. 78-1302, Opinion filed January 16, 1980, and Levin v. State, 348 So.2d 1189 (Fla. 4th DCA 1977).

Credit for punishment already exacted is mandated by the Fifth Amendment to the U. S. Constitution and by statute. But as Justice England pointed out in Dorfman v. State, 351 So.2d 954 (Fla.1977), there is an obvious difference between confinement in a prison as part of a criminal sentence and a period of treatment in a mental hospital for the purpose of helping the individual to return to society. Paraphrased, there is clearly an obvious difference between confinement in prison (or in the county jail before sentence) and the limited restrictions placed on one at the probation restitution center. And as Judge Downey pointed out in Pennington v. State, supra, the statute mandating credit “refers only to ‘credit for all of the time he spent in the county jail before sentence.’ ”

The other error asserted by Appellant is also without merit, and the order is, therefore,

AFFIRMED.

LARRY G. SMITH, and THOMPSON, JJ., concur.

      . Singleton v. State, 373 So.2d 713 (Fla. 2nd DCA 1979); Barron v. State, 369 So.2d 669 (Fla. 2nd DCA 1979); Graham v. State, 366 So.2d 498 (Fla. 2nd DCA 1979); Johnson v. State, 334 So.2d 334 (Fla. 2nd DCA 1979).

      . On August 27, 1980, the Supreme Court entered an order accepting jurisdiction of this case and dispensing with oral argument, Case No. 58,648.

      . See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

      . Section 921.161, Florida Statutes (1979).


text:
    Charlie James TAITE, Appellant, v. BAPTIST HOSPITAL and the Medical Center Clinic, Appellees.
    No. VV-228.
    District Court of Appeal of Florida, First District.
    March 25, 1981.
    Thomas R. Peppier of Shimek & Sutherland, Pensacola, for appellant.
    G. Edison Holland, Jr., of Beggs & Lane and Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appel-lees.
   PER CURIAM.

Affirmed with directions that a reasonable bond be set and forthwith posted and that a speedy hearing be held on a motion to dissolve if filed and requested. See Florida Rule of Civil Procedure 1.610, effective January 1, 1981.

McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.