text:
    Nelson L. CORREAL, Appellant, v. STATE of Florida, Appellee.
    No. 79-2445.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    Bernard Berman of Roderman & Berman, P. A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

In a two count information appellant was charged with delivery of cocaine and possession of cocaine. He entered a plea of nolo contendere to delivery of cocaine, was convicted and sentenced, and now contends error in the denial of his motion for discharge on speedy trial grounds, and in the denial of his motion to suppress the contraband. The State entered a nolle prosequi as to Count II, possession of cocaine. We affirm.

This is a perplexing case with which we have more than a passing concern. It is perplexing because counsel for the State and counsel for the appellant briefed and argued the case on the basis that appellant had been convicted of possession of cocaine. It gives us concern because counsel for the appellant, at oral argument, twice emphasized that appellant entered a plea to possession, as opposed to delivery, of cocaine. Under the facts of this case this is not a distinction without a difference. A mere cursory examination of the judgment of conviction and sentence, or a brief review of the transcript of the plea proceedings, would have informed all counsel of the actual plea.

The cocaine which appellant was charged with delivering was not the cocaine he was charged with possessing. His motion to suppress was directed to the contraband he was charged with possessing. Thus, that motion is not dispositive of the legal issue involved in the delivery conviction and the conviction may not be appealed after a nolo contendere plea. Brown v. State, 376 So.2d 382 (Fla.1979); see also, Section 924.06(3), Florida Statutes (1979).

In accepting the appellant’s plea of nolo contendere to delivery of cocaine the trial court explicitly advised appellant and his counsel that there was no reservation of the right to appeal the denial of the motion for discharge. Both agreed. Pursuant to Section 924.06(3), Florida Statutes (1979) this alleged error is not subject to direct appeal.

Having determined that appellant’s conviction must be affirmed for the reasons expressed above, we now direct counsel’s attention to Lawrence v. State, 385 So.2d 167 (Fla.5th DCA, 1980) where Judge Dauksch speaks of the time and money wasted on frivolous appeals. Those comments are equally applicable here. Such conduct in the future will be met with appropriate sanctions.

AFFIRMED.

MOORE and BERANEK, JJ., and LEWIS KAPNER, Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lonnie ROSS, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 79-2538.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    Ross G. Baylor of O’Connor, Baylor, Callas & Elliott, Palm Beach, for appellant.
    Joseph R. Boyd, Tallahassee, and Edna L. Caruso and Oxner, Brown & Pickett, West Palm Beach, for appellee.
   PER CURIAM.

The appellee, State of Florida, Department of Health and Rehabilitative Services, filed a complaint to have appellant declared the father of an illegitimate child and to require support payments on behalf of the child.

The complaint filed by appellee claimed appellant should pay $128 per month. After hearing the testimony of the parties the trial court entered the order appealed from, finding appellant was the father of the subject child and ordering him to pay $250 per month.

The thrust of appellant’s argument on appeal is that the trial court erred in awarding more child support than the complaint demanded. It is not contended that the amount awarded was too high or that the appellant was unable to pay said amount.

Section 742.041, Florida Statutes (1979), provides, in pertinent part, that the court shall order the defendant to pay $40 a month for the care and support of a child from birth until the sixth birthday. However, the statute authorizes the court to increase or decrease the amount in its discretion depending upon the circumstances and ability of the defendant.

We hold that the court was not bound by the amount claimed in the complaint. We have not undertaken to determine whether the record justified the amount of the award because appellant has not contended it is excessive.

Accordingly the judgment appealed from is affirmed.

AFFIRMED.

DOWNEY, BERANEK and HERSEY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    STATE of Florida, Appellant, v. Gregory Anthony COBB, Appellee.
    No. 80-297.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    David H. Bludworth, State Atty., and Stephen E. Lubin, Asst. State Atty., West Palm Beach, for appellant.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

We commence our discussion of this case by pointing out that the trial judge did not have the benefit of the supreme court’s decision in Doerr v. State, 383 So.2d 905 (Fla.1980), at the time he rendered his decision. Instead, he relied on the then recently decided case of Fields v. State, 371 So.2d 223 (Fla. 1st DCA 1979). We reverse.

Appellee, a juvenile, was taken into custody and interrogated before any determination had been made as to whether or not to detain him. During the interrogation, after being read his Miranda rights, the juvenile confessed to the crime of robbery. He moved to suppress the confession on the ground that the custodial interrogation was conducted without any prior notification to the juvenile’s parents. The trial court granted the motion and the State filed this appeal.

Section 39.03(3), Florida Statutes (1979), provides, inter alia :

If the person taking the child into custody determines, pursuant to s. 39.032(2), that the child should be detained or placed in a crisis home, that person shall make a reasonable effort to immediately notify the parents or legal custodians of the child and shall, without unreasonable delay, deliver the child to the appropriate intake officer or, if the court has so ordered, to a detention home or crisis home.

As can be seen from the language of the statute, the requirement of notification does not arise until it has been determined by the officer taking the juvenile into custody that the juvenile shall be detained or placed in a crisis home. The supreme court confirmed that conclusion in Doerr v. State, supra:

The legislature has done nothing more than establish a procedure to be followed in the event the person taking a child into custody determines that he should be detained or placed in shelter care. Section 39.03(3)(a) clearly makes a distinction between taking the child into custody and subsequent determination that he should be detained or placed in shelter care. Notification of the child’s parents or legal custodians is required only after it is determined that the child will be detained or placed in shelter care. If, after the child has been taken into custody, a determination is made that he will not be detained or placed in shelter care, notification is not required. The purpose of notification is simply to advise the child’s parents or custodians that the child has been detained or placed in shelter care. This section does not prohibit interrogation after the child is taken into custody but before a determination is made to release or detain. Obviously, some interrogation may be necessary to initially determine whether the child should be detained or released. It likewise does not prohibit interrogation after a decision to detain is made. Lack of notification of a child’s parents is a factor which the court may consider in determining the volun-tariness of any child’s confession, but is not a statutory prerequisite to interrogation. [emphasis added].

Id. at 907-908.

Sub judice, by stipulation of the parties the trial court entered an order that a sworn letter from the interrogating officer would be admitted as part of the State’s case on the juvenile’s motion to suppress the confession. In pertinent part the letter says:

In reference to our conversation pertaining to the defendant, Gregory Cobb and his arrest by myself on the 26th of November, 1979, subject Cobb was in custody at the time and had been arrested by Det. Sgt. Cleveland Barber.
In reference to the robbery of Burt Lay-ton, until the time that this writer interviewed Cobb there was insufficient evidence to arrest Cobb for this robbery. Cobb was a suspect only because it was believed that he had been in possession of certain credit cards belonging to the victim, Burt Leighton. Had Cobb not confessed to the robbery, he would not have been arrested. Following his confession, he was arrested for this robbery.

This letter establishes that the decision to detain the juvenile had not been made by the interrogating officer, nor could it have been made by him, until the confession had been given. Accordingly, the juvenile was not entitled to have his parents or legal guardian notified that he was in custody.

We therefore reverse and remand.

REVERSED and REMANDED.

DOWNEY and HERSEY, JJ., concur.


author: HURLEY, Judge.

text:
    STATE of Florida, Appellant, v. John TRIMEL, Appellee.
    No. 80-410.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    James R. Holmes, Jr., Oakland Park, for appellee.
   HURLEY, Judge.

The state appeals from an order granting defendant’s motion for discharge on speedy trial grounds. The trial court’s order was based on the mistaken impression that a defendant must be brought to trial within 90 days of the refiling of an information following a nolle prosequi. Defendant, however, waived his speedy trial rights in the initial prosecution and, as this court has previously held, a defendant’s waiver of speedy trial rights under a nolle prossed information carries over and is effective under the refiled information. State v. Luck, 336 So.2d 464 (Fla. 4th DCA 1976); Clark v. State, 318 So.2d 513 (Fla. 4th DCA 1975).

The prior waiver being applicable, the stringent time periods under Rule 3.191, Fla.R.Crim.P., give way to broader constitutional guidelines and the operative question becomes whether defendant was brought to trial within a reasonable period of time. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla. 1971); State v. Kurtz, 354 So.2d 890 (Fla. 4th DCA), cert. denied, 360 So.2d 1249 (Fla. 1978). In answering this question, the trial court should consider the criteria set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), specifically, length of delay, reason for the delay, defendant’s assertion of his right, and prejudice to the defendant.

The order is therefore reversed and the cause is remanded for a determination as to whether defendant’s constitutional right to a speedy trial has been impaired.

Reversed and remanded.

MOORE and BERANEK, JJ., concur.


text:
    Gregory ISOM, Appellant, v. The STATE of Florida, Appellee.
    Nos. 79-145, 80-399.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1980.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven L. Bo-lotin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and HUBBART, JJ.
   PER CURIAM.

The appellant appeals his conviction of robbery and aggravated battery, and an order revoking probation.

The appellant was charged by a two-count information with the crime of robbery and aggravated battery. The jury returned a verdict of guilty on both counts, entered a judgment and conviction and sentenced him accordingly. The trial court also revoked his probation, which he was serving pursuant to a prior conviction. This appeal ensued.

The appellant contends the trial court erred in denying a judgment of acquittal because of a variance between the date set forth in the information upon which the alleged crime occurred and that as testified to by the victim. The defendant in the trial court filed no bill of particulars; he was on notice long before the trial of the two-day discrepancy in the date and he demonstrated no prejudice. Therefore, we find no error in this ruling by the trial judge. Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972); State v. Beamon, 298 So.2d 376 (Fla.1974); Holland v. State, 359 So.2d 28 (Fla. 3d DCA 1978); Hoffman v. State, 372 So.2d 533 (Fla. 4th DCA 1979); State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980).

The appellant also contends the evidence was insufficient to sustain the robbery conviction. We find no merit in this point. DeLaCova v. State, 355 So.2d 1227 (Fla. 3d DCA 1978); Daley v. State, 374 So.2d 59 (Fla. 3d DCA 1979).

Appellant next contends the trial court erred in revoking his probation. We find no merit in this contention, except in one particular hereinafter referred to. The affidavit of probation violation was re-filed after an original one was dismissed for lack of witnesses. The trial court indicated he was going to consider the matter at the time of the trial in chief. Counsel for the defendant in the trial court made no objections; acquiesced in the proceedings, and we find no error occurred. Egantoff v. State, 208 So.2d 843 (Fla. 2d DCA 1968); Fuller v. State, 294 So.2d 367 (Fla. 3d DCA 1974); State v. Spratling, 336 So.2d 361 (Fla.1976); Hobbs v. State, 378 So.2d 321 (Fla. 2d DCA 1980). However, we find the trial court erred in basing one of its grounds for revocation because of an alleged robbery of one Willie Daniels. This was an allegation of the re-filed affidavit of probation violation, but was not proved by the evidence.

Therefore, so much of the order revoking probation that found a violation of the terms of the probation in regard to the robbery of Willie Daniels be and the same is hereby stricken. See: Hobbs v. State, supra.

Affirmed as modified.


text:
    MIAMI COMMONWEALTH REALTY CORP., a Florida Corporation, Appellant, v. RINEHART VOLKSWAGEN, INC., a Florida Corporation, Appellee. RINEHART VOLKSWAGEN, INC., a Florida Corporation, Appellant, v. MIAMI COMMONWEALTH REALTY CORP., a Florida Corporation, Appellee.
    Nos. 80-477, 80-551 and 80-577.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1980.

      Layne & Brill and Richard Bernstein, for Rinehart.
    Lee, Schulte, Murphy & Coe and Jack M. Coe, Jupiter, for Miami Commonwealth.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This consolidated appeal is before us to review the trial court’s order denying the motion of Rinehart Volkswagen, Inc. to set aside the default final judgment and the amended default final judgment entered against it. We reverse the order on the grounds that: (1) the motion, as aided and amended by the deposition and affidavit before the court, indicated that Rinehart Volkswagen, Inc. had demonstrated a meritorious defense to the allegations in the complaint filed by Miami Commonwealth Realty, Corp., which sought recovery of a brokerage commission; and (2) excusable neglect was demonstrated based upon a showing that the summons and complaint had been forwarded to a vice president but not received by the law firm. North Shore Hospital Inc. v. Barber, 143 So.2d 849 (Fla. 1962); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976); Renuart-Bailey-Cheely Lumber and Supply Company v. Hall, 264 So.2d 84 (Fla. 3d DCA 1972). A greater showing is required to reverse a trial court’s granting of a motion to vacate a default than is needed to reverse the trial court’s denial of a motion to vacate a default. Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977).

Our disposition of this appeal makes it unnecessary to pass upon the remaining issues presented.

Reversed and remanded.


author: DOWNEY, Judge.

text:
    CITY OF WEST PALM BEACH, Appellant, v. Charles A. MANN, Robert Gleason and Cambridge Mutual Fire Insurance Company, Appellees.
    No. 79-1304.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.

      William P. Doney, Asst. City Atty., West Palm Beach, for appellant.
    Larry Klein and Stuart E. Kocha, West Palm Beach, for appellee, Charles A. Mann.
   DOWNEY, Judge.

While acting as a police officer for appellant, City of West Palm Beach, appellee Charles Mann was shot by a person named Gleason. Mann and his wife sued Gleason and Gleason’s insurance carrier in the Circuit Court of Palm Beach County, and the case was settled for $35,000. During the pendency of the case, however, appellant filed in the cause a “Notice of Payment of Compensation and Medical Benefits” for Workmen’s Compensation benefits paid and to be paid to appellees.

Appellees filed a motion for equitable distribution to appellant pursuant to Section 440.39(3), Florida Statutes (1979), which motion was noticed for hearing by appellees on May 3rd at 8:45 a. m. The hearing did not commence until 9:47 a. m., at which time, after admonition by the trial judge that the time remaining for the motion appeared inadequate, the appellees adduced the testimony of two witnesses as to the value of appellant’s claim. Without reciting in detail what transpired, we find it clear that the hearing was terminated abruptly because the parties had imposed upon the trial judge’s other commitments for that morning, and the matter never was fully presented and argued. Although the appellant’s claim of lien was properly filed and was present in the court file, appellees argued appellant’s claim for equitable distribution should be denied, relying upon Alfar Creamery Company v. Williams, 366 So.2d 458 (Fla. 4th DCA 1979). As applied here that case stands for the proposition that a compensation carrier is not entitled to equitable distribution if it does not file a claim of lien in a cause as provided by Section 440.39(3)(a), Florida Statutes (1979). Appellant was not afforded a chance to respond to appellees’ argument concerning the applicability of Alfar Creamery, supra, so as to point out that the claim of lien was in the court file because, the parties having long since consumed all of their motion hearing time, the trial judge ended the proceeding and took the matter under advisement. Several days later the court entered the order appealed from, finding appellant was not entitled to an equitable distribution on authority of Alfar Creamery, supra. Appellant’s petition for rehearing, which called the court’s attention to the recording of the claim of lien and the filing thereof in the court file, was denied.

Obviously, the problem in the case stems from the attempt by appellees’ counsel to present the matter in an inadequate time frame. As the trial judge indicated, the matter never should have been set on the Uniform Motion Calendar. Be that as it may, appellant was entitled to a determination on the merits of its claim for equitable distribution. Since every court will take judicial notice of its own records appearing in a case before it for consideration, the proper recording and filing in this cause of appellant’s claim of lien precluded application of Alfar Creamery, supra, to this case.

Accordingly, the order appealed from is reversed and the cause is remanded to the trial court for further proceedings to determine appellant’s entitlement to equitable distribution and the amount thereof.

REVERSED AND REMANDED, with directions.

MOORE and HERSEY, JJ., concur.

      . By Administrative Order the Circuit Court in the Fifteenth Judicial Circuit holds Uniform Motion Calendar and Ex Parte hearings from 8:45 until 9:30 a. m. four days a week. The parties are limited to five minutes per side.

      . Tower Credit Corporation v. State, 183 So.2d 255 (Fla. 4th DCA 1966).


text:
    CITY OF WEST PALM BEACH, Appellant, v. PALM BEACH COUNTY POLICE BENEVOLENT ASSOCIATION, Appellee.
    No. 79-1520.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    James R. Wolf, Asst. City Atty., West Palm Beach, for appellant.
    Melanie C. Jacobson of Panza, O’Donnell & Jacobson, Fort Lauderdale, for appellee.
   PER CURIAM.

The City of West Palm Beach appeals a judgment of the circuit court refusing to vacate an arbitration award. We find no error and affirm.

At all material times, appellant, City of West Palm Beach, and appellee, Palm Beach County Police Benevolent Association, were parties to a labor-management agreement that permitted binding arbitration of disputes. In addition, the parties entered into a letter agreement submitting the particular dispute in question here to binding arbitration.

At issue was a transfer of Sergeant David Houser from the position of sergeant in the Detective Division of the West Palm Beach Police Department to the complaint desk in the Administrative Division. The employee attacks the transfer as punitive, alleging that it was solely in retaliation for his efforts on behalf of the Association of which he was an officer. The City’s defense was predicated upon the fact that this was a lateral transfer, solely within the province of the chief of police. Employee’s second complaint involved a denial of his application for transfer back to the original position, but this complaint was rejected by the arbitrator and is not involved in this appeal.

The arbitrator found that the employee’s initial complaint was justified and that the transfer had been punitive. The remedy awarded was to require the City to reinstate the employee in his previous position for a length of time not less than the length of time he was improperly required to serve at the complaint desk.

In the circuit court and here, the City takes the position that the arbitrator lacked jurisdiction over the subject matter or, in the alternative, that the arbitrator exceeded his jurisdiction in making the award.

With regard to subject matter jurisdiction, appellant urges that jurisdiction over the subject matter cannot be conferred on a tribunal by either failure to object or by consent. Appellant then suggests that this rule is equally applicable to arbitration proceedings. We concur in the first suggestion but reject its extension to arbitration proceedings. The jurisdiction of courts arises from constitutional, statutory or common law authority. The parties may not confer jurisdiction by waiver, failure to object, or consent, where none is given by law. Wilds v. Permenter, 228 So.2d 408 (Fla. 4th DCA 1969); Dicaprio v. State, 352 So.2d 78 (Fla. 4th DCA 1977). On the other hand, jurisdiction in arbitration proceedings is conferred by the agreement of the parties and is circumscribed by the terms of that agreement. Accordingly, jurisdiction may and does arise by waiver, failure to object and consent. The New Jersey case cited by appellant for the contrary view actually lends support to the concept of consensual jurisdiction. New Jersey Manufacturers Insurance Company v. Franklin, 160 N.J.Super. 292, 389 A.2d 980 (1978).

The question, then, is whether, under the terms of the two agreements between the parties and applicable law, the arbitrator either lacked jurisdiction or exceeded his jurisdiction.

Initially we note that the basic agreement between the City and the Association is sanctioned by statute. § 447.401 Fla. Stat. (1979). Nor do we find any conflict with the Florida Arbitration Code. Chapter 682, Fla.Stat. (1979).

The standard of judicial review applicable to challenges of awards made by arbitrators is very limited and “a high degree of conclusiveness attaches to an arbitration award because the parties themselves have chosen to go this route in order to avoid the expense and delay of litigation The arbitrator is the sole and final judge of the evidence and the weight to be given it.” Affiliated Marketing, Inc. v. Dyco Chemicals & Coating, Inc., 340 So.2d 1240, 1242 (Fla. 2d DCA 1976), cert. den. 353 So.2d 675 (Fla.1977). The Supreme Court of Florida stated in Johnson v. Wells, 72 Fla.290, 73 So. 188, 190-91 (1916):

The reason for the high degree of conclusiveness which attaches to an award made by arbitrators is that the parties have by agreement substituted a tribunal of their own choosing for the one provided and established by law, to the end that the expense usually incurred by litigation may be avoided and the cause speedily and finally determined. To permit the dissatisfied party to set aside the award and invoke the judgment of the court upon the merits of the cause would be to destroy the purpose of the arbitration and render it merely a step in the settlement of the controversy, instead of a final determination of it.

Also instructive on the issue of the propriety of engaging the arbitrator to resolve the dispute in the first place as well as the propriety of the award, is the following language of the Supreme Court of New Jersey in Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 405 A.2d 393, 399-400 (1979):

An arbitrator’s award is not to be cast aside lightly. It is subject to being vacated only when it has been shown that a statutory basis justifies that action. However, as we have previously pointed out, an arbitrator’s award in the public sector should be consonant with the criteria peculiarly applicable in this area. No showing was made here that the arbitrator acted contrary to the inherent guidelines applicable to public sector arbitration. In that event (the underlying facts being virtually undisputed) the scope of judicial review is limited to determining whether or not the interpretation of the contractual language is reasonably debatable. ... If so, then we should adhere to the parties voluntary agreement to engage an arbitrator to resolve their dispute.

Our review of the record indicates that the matter presented to the arbitrator under the collective bargaining agreement was properly before him despite the City’s dissatisfaction with the arbitrator and the City’s claim that the arbitrator exceeded his power and jurisdiction.

In light of these findings and the fact that the trial court limited its inquiry to whether or not the award conformed to the matters presented to the arbitrator by joint letter of submission, and whether the interpretation of the contractual language was reasonable since it arrived at affirmative responses to these inquiries, we hold that the trial court did not err in confirming the arbitrator. See City of Waterbury v. Police Union Local 1237, 407 A.2d 1013 (Conn. 1979).

Accordingly, we affirm.

AFFIRMED.

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


author: BERANEK, Judge. LETTS, Chief Judge,

text:
    John MacNab ALLEN, Appellant, v. George H. GORE, Nancy F. Lundy and Richard F. Nelson, Appellees.
    No. 79-1895.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.

      Oliver Addison Parker, Fort Lauderdale, for appellant.
    Donald H. Norman of Ross, Norman & Cory, P.A., Fort Lauderdale, for appellees.
   BERANEK, Judge.

John McNab Allen, testatrix’s son, appeals from an order denying his petition for revocation of the order admitting her will to probate. We affirm.

Decedent, Dorothy Milliken Allen, a seventy-eight year old widow when she died in 1978, devised her entire estate to Nancy F. Lundy, formerly Nancy L. Nelson, and Richard F. Nelson, leaving nothing to her children and grandchildren. Following the circuit court’s admitting the will to probate on July 11, 1978, appellant/son filed his petition seeking revocation of the court’s order on grounds that decedent lacked testamentary capacity and was unduly influenced. In its order denying appellant’s petition, the court made the following findings of fact and conclusions of law:

B. The Will of DOROTHY MILLIKEN ALLEN, dated January 30,1979 [sic], devised her estate to two friends, NANCY F. LUNDY, formerly NANCY L. NELSON, and her former husband, RICHARD F. NELSON. The decedent was survived by two children, JOHN McNAB ALLEN and MARY ALLEN PYPER, and four grandchildren. Decedent’s date of birth was June 24, 1900; she died on July 4, 1978.
C. Decedent was a widow, living in Fort Lauderdale. Her children lived in the area of New York City. Decedent was a vivacious, out-going lady, of strong will and determination. She was active in business, and had an extensive social life with many friends.
D. Decedent became ill in March of 1973, requiring hospitalization and surgery in Broward General Medical Center. Subsequent to the surgery, the decedent was hospitalized for convalescence in Essex Towers Nursing Home in Fort Laud-erdale, being discharged in July, 1973.
E. Decedent made a recovery from her hospitalization, returning to her home and resuming her life. She continued social contacts with many of her friends and neighbors, and attempted to resume her business of real estate.
F. Decedent had been represented before her hospitalization by George H. Gore of Fort Lauderdale, who handled several routine business transactions for her. The decedent made an appointment to see George H. Gore of her own volition in August of 1973, and consulted with him on the 30th of August concerning the making of a new Will.
G. Decedent instructed George H. Gore to prepare a new Will disinheriting her children and grandchildren, and devising all of her property to NANCY F. LUNDY, formerly NANCY L. NELSON, and RICHARD F. NELSON, her husband.
H. Decedent was a patient of Floyd A. Osterman, M.D., a Board-certified specialist in internal medicine, experienced in treatment of geriatric patients since 1959. Dr. Osterman was not only the physician of DOROTHY MILLIKEN ALLEN, but was her friend as well. Decedent saw Dr. Osterman on August 24, 1973, November 1, 1973 and January 31, 1974, spanning the period of time during which DOROTHY MILLIKEN ALLEN was making her Last Will and Testament. Dr. Osterman found her to be lucid and in possession of her faculties on all of these occasions. Dr. Osterman testified regarding the decedent’s testamentary capacity between August 30, 1973 and January 31, 1974.
I. Although some evidence was presented relating to some of her eccentricities, at the time she made her Will, the decedent was aware of the nature and extent of her property, the natural objects of her bounty, and knew and understood the nature and act of making a Will.
J. Decedent was taking a sleeping pill, seconal, and a tranquilizer, meproba-mate, during the period from August, 1973, through January, 1974, under her physician’s supervision, but was not taking excessive quantities of either medication so as to affect her judgment and testamentary, capacity.
K. Decedent called her attorney to insist upon executing the Will in January of 1974, and did so in his office in the presence of two members of his lawfirm as subscribing witnesses.
L. Although NANCY F. LUNDY, formerly NANCY L. NELSON, and her former husband, RICHARD F. NELSON, were friends of the decedent, and NANCY F. LUNDY was employed as a legal secretary of attorney George H. Gore, neither of these beneficiaries had any part in the making of decedent’s Will, nor did they influence her in any respect to devise her property to them. There was no conspiracy to obtain any benefits from decedent, nor any active procurement of her Will by any beneficiary or other person.
M. Decedent announced her intention to devise her property to the NELSONS, both prior and subsequent to the making of her Will, to other persons, and clearly made this decision of her own volition.
N. Decedent was subsequently hospitalized in December of 1975, and January of 1976, at which time she was diagnosed as suffering from organic brain syndrome. The decedent used larger quantities of seconal and meprobamate toward the end of her life, subsequent to July, 1974. Nevertheless, the decedent’s faculties were not impaired during the period of time from August 30, 1973, through January 30, 1974.
O. The Court finds that the Petitioner, JOHN McNAB ALLEN, neither raised a presumption of undue influence, nor carried this issue by preponderance of the evidence. There was no undue influence exerted upon decedent by anyone.
P. The Court finds that the decedent, DOROTHY MILLIKEN ALLEN, possessed testamentary capacity at the time of the making of her Will, and that the Petitioner, JOHN McNAB ALLEN, has failed to carry his burden of proof on any of the issues presented in this cause, including fraud in the execution of the Will.
Q. The Court finds that although the Will may have been an unusual disposition of the decedent’s property, unnatural in the sense that she disinherited her children and grandchildren in favor of two young friends, she possessed testamentary capacity, was free of undue influence, and made the Will as her own free act and deed, as she had a legal right to do.
R. Decedent may have been incompetent in her last years, particularly subsequent to December, 1975, and thus unable to change her Will, but the Will was valid when made on January 30, 1974.

We find no merit to appellant’s contention regarding testamentary capacity, but deem it necessary to discuss the issue of undue influence. Established Florida law provides that if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises. In re Estate of Carpenter, 253 So.2d 697, 701 (Fla.1971); Zinnser v. Gregory, 77 So.2d 611 (Fla.1955). Confidential relationship encompasses a broad range of technical, fiduciary and informal relations where one man simply trusts in and relies upon another. In re Estate of Carpenter, supra. Ms. Lun-dy had been one of George Gore's secretaries for ten years and was working for him when he drafted the will. This evidence supports an inference of a confidential relationship between George Gore and Ms. Lundy which can be imputed to Ms. Lundy and decedent, as the trial court found. See Cline v. Larson, 234 Or. 384, 383 P.2d 74 (1963); In re Lekos’ Estate, 109 Cal.App.2d 42, 240 P.2d 387 (1952). The mere existence of a confidential relationship between decedent and beneficiary, however, does not raise a presumption of undue influence unless accompanied by the element of active procurement. In re Estate of Carpenter, supra; In re Joiner’s Estate, 156 So.2d 161 (Fla.1963).

In determining the existence of active procurement, courts apply several criteria: (a) the presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution. In re Estate of Carpenter, supra, 702. Not all criteria need be present for the presumption to arise. Application of these factors to the instant case reveals minimal evidence at most. The trial court found no active procurement as a factual matter and this conclusion has a clear basis in the evidence. The beneficiary and the testatrix were not strangers. Testatrix’s relationship with her children had deteriorated and she had become a close personal friend of the Nelsons. In fact, she spent numerous holidays with them over a period of years.

Appellant simply failed to carry his burden of proving that appellees actively procured the will; consequently, the presumption never arose. In re Estate of Robertson, 372 So.2d 1138 (Fla.3d DCA 1979). Even if the proofs were sufficient to raise the presumption, appellees satisfied their burden of coming forward with a reasonably credible explanation for the disposition of the property. In re Estate of Carpenter, supra. Accordingly, the order appealed from is AFFIRMED.

AFFIRMED.

WESSEL, JOHN D., Associate judge, concurs.

LETTS, C. J., concurs specially.

LETTS, Chief Judge,

concurring specially:

I concur completely in the majority opinion. However for future reference I find it worthwhile to add that lawyers are well advised not to draw wills for clients if an employee of that same lawyer is a beneficiary thereunder, especially when it must be remembered that disinherited relations are not surprisingly looking for any ammunition to set aside an instrument of their exclusion. I might also add that this advice is the worst form of Monday morning quarterbacking for I well remember drafting a will myself which contained a small remembrance for my own secretary.

In this case it is clear from the record that there really was no credible handle for the excluded relatives to grab hold of, other than that the substitute beneficiary worked in the draftsman’s office. However that was a credible handle otherwise there would be no room for a court contest, never mind an appeal.


author: DAUKSCH, Chief Judge.

text:
    Charles HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 78-1205/T4-125.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 1980.
    Stewart I. Cohen of Meyers, Mooney & Adler, P. A., Orlando, for appellant.
    Phillip H. Trees of Gray, Adams, Harris & Robinson, P. A., Orlando, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order denying an acquitted defendant in a criminal case the reimbursement of taxable costs in the preparation of his defense. Section 939.06, Florida Statutes (1979), allows and requires the county to pay those reasonable and necessary costs expended by the criminally accused when he is acquitted or discharged from the criminal charges. Warren v. Capurano, 282 So.2d 873 (Fla.1973); Dinauer v. State, 317 So.2d 792 (Fla.1st DCA 1975); Powell v. State, 314 So.2d 788 (Fla.2d DCA 1975).

The trial court denied the cost refund and reimbursement “under authority of Benitez v. State,” 350 So.2d 1100 (Fla.3d DCA 1977), cert. denied 359 So.2d 1211 (Fla.1978). The county, which we have allowed to appear here at its request as the real party in interest, concedes Benitez should not control.

We agree and reverse the order denying the costs and remand this matter to the trial court for entry of an order requiring payment of the subpoena costs (praecipe and service), witness fee and mileage costs, court reporter and deposition costs and the costs for the filing of this appeal and the preparation of the record on appeal. The appellant shall not be entitled reimbursement for his attorney’s car rental charge.

The county has requested this court to order that in the future the county be given notice of all hearings in all courts where any cost orders are under consideration. The county says since it must ultimately pay the costs, it should be given notice of the hearing and be heard. That question is interesting but not properly before us.

REVERSED AND REMANDED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Some of the costs were paid to the county sheriff and court clerk.


text:
    Rodney THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 78-2566/T4-311.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, Chief, App. Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

In this appeal from a conviction for possession and sale of heroin, we affirm the judgment and sentence except that the requirement that appellant, while on probation, submit to a search by any law enforcement officer, is stricken from the sentence. The further condition that appellant submit to physical or chemical examinations “upon the request of . any law enforcement officer” is also stricken. Grubbs v. State, 373 So.2d 905 (Fla.1979); Wood v. State, 378 So.2d 110 (Fla. 5th DCA 1980).

AFFIRMED AS MODIFIED.

ORFINGER and COBB, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Lucinda BARBER, Appellant, v. STATE of Florida, Appellee.
    No. 78-2665/T4-330.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 1980.

      Richard L. Jorandby, Public Defender, and Gary S. Israel, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from an order withholding an adjudication of guilt and placing appellant on probation for five years.

Appellant questions the court’s imposition of condition 12 of the probation order which provided:

You will consent to search, without a warrant of your person, automobile, or premises upon request of any law enforcement officer or probation officer and/or submit to chemical or specimen analysis for evidence of drugs.

The provision is valid insofar as it permits appellant’s probation supervisors to make these searches, but is not valid insofar as it grants blanket permission for warrantless searches to any law enforcement officer. Grubbs v. State, 373 So.2d 905 (Fla. 1979); Smith v. State, 383 So.2d 991 (Fla. 5th DCA 1980); Wood v. State, 378 So.2d 110 (Fla. 5th DCA 1980).

Condition 12 of the probation order is modified to apply only to probation supervisors and as modified, the order is AFFIRMED.

ORFINGER and COBB, JJ., concur.


author: WALKER, GRISSIM H., Associate Judge.

text:
    Honorable Emerson R. THOMPSON, Jr., Judge of the County Court of the Ninth Judicial Circuit, Appellant, v. OFFICE OF the PUBLIC DEFENDER OF the NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, Florida, Appellee.
    No. 79-361.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 1980.
    Jim Smith, Atty. Gen., and Bruce Bark-ett, Asst. Atty. Gen., Tallahassee, for appellant.

      Harry W. Carls, III, Public Defender, and H. Scott Gold, Asst. Public Defender, Orlando, for appellee.
   WALKER, GRISSIM H., Associate Judge.

Appellant County Judge upon finding a defendant charged with a violation of section 316.193, Florida Statutes (1979), (driving while under the influence of alcoholic beverages) to be insolvent, appointed the Public Defender of the circuit to represent him. The Public Defender moved the court to allow his office to withdraw on the ground that violations of section 316.193, are neither felonies nor misdemeanors by the express terms of section 775.08(2), Florida Statutes (1979), and that therefore, under section 27.51, Florida Statutes (1979), which defines the authority of the Public Defender, there was no authority for the Public Defender to represent the insolvent defendant. The court denied the motion, and the Public Defender filed a petition in Circuit court for a writ of prohibition. The circuit court granted the petition, vacated the order appointing the Office of the Public Defender, and ordered the county court to grant the motion to withdraw. The circuit court entered identical orders in four cases, which were consolidated in this appeal.

Article V, section 18, of the Florida Constitution provides that the Public Defender “shall perform duties prescribed by general law.” Section 27.51, enumerates the specific classes of people who are eligible for representation by the Office of the Public Defender. These classes cover insolvent persons who are charged with (1) a felony, (2) a misdemeanor, (3) a violation of municipal or county ordinances, and (4) those alleged to be delinquent children in any juvenile proceedings.

Section 316.193, Florida Statutes, reads in part as follows:

(1) It is unlawful and punishable as provided in subsection (2) for any person who is under the influence of alcoholic beverages, model glue, or any substance controlled under Chapter 893, when affected to the extent that his normal faculties are impaired, to drive or be in the actual physical control of any vehicle within this state.
(2) Any person who is convicted of a violation of subsection (1) shall be punished:
(a) For first conviction thereof, by imprisonment for not more than six (6) months or by fine of not less than $25 or more than $500, or by both such fine and imprisonment.
(b) For a second conviction within a period of three (3) years from the date of a prior conviction for violation of this section, by imprisonment for not less than 10 days nor more than six months and, in the discretion of the court, a fine of not more than $500.
(c) For a third or subsequent conviction within a period of five years from the date of conviction of the first of three or more convictions for violation of this section, by imprisonment for not less than 30 days nor more than 12 months and, in the discretion of the court, a fine of not more than $1,000.

Thus, persons violating the statute are punishable by imprisonment for up to 12 months.

Section 775.08, Florida Statutes, in pertinent part provides as follows:

(2) The term ‘misdemeanor’ shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by a term of imprisonment in a county correctional facility, except an extended term, not in excess of 1 year. The term ‘misdemeanor’ shall not mean a conviction for any violation of any provision of chapter 316 or any municipal or county ordinance.
(3) The term ‘noncriminal violation’ shall mean any offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by no other penalty than a fine, forfeiture, or other civil penalty. A noncriminal violation does not constitute a crime, and conviction for a noncriminal violation shall not give rise to any legal disability based on a criminal offense. The term ‘noncriminal violation’ shall not mean any conviction for any violation of any municipal or county ordinance. Nothing contained in this code shall repeal or change the penalty for a violation of any municipal or county ordinance.
(4) The term ‘crime’ shall mean a felony or misdemeanor.

It is readily seen that the offense of driving under the influence described in section 316.193, Florida Statutes (1979) squarely fits the definition of a misdemean- or under subsection 775.08(2) above, except for the last sentence of 775.08(2), and this is where the public defender seeks to hang his hat.

The word “noncriminal” in 775.08(3) above was inserted by the editor of the 1974 statutory supplement “in the interest of clarity.” The court is of the opinion that this helped create confusion rather than clarity. If the word “noncriminal” was to be added, it should have also been added before the word “violation” in the last sentence of subsection 775.08(2).

As we continue to wind our way through the statutes we next examine section 316.-655, Florida Statutes (1979), which reads in part:

(1) A violation of any of the provisions of this chapter, except criminal offenses enumerated in subsection (4), shall be deemed an infraction, as defined in § 318.13(3).
(4) Any person convicted of a violation of s. 316.027, s. 316.061, s. 316.067, s. 316.-072, s. 316.192, s. 316.193 or s. 316.1935 shall be punished as specifically provided in such sections.

Thus, these sections read together state that a violation of section 316.193 is a “criminal offense.” We do not believe it can be seriously questioned that a “criminal offense” is a crime. Section 775.08(4) states that the “term ‘crime’ shall mean a felony or misdemeanor.”

Section 316.655(1) refers to section 318.-13(3). (Chapter 318 is the statute which decriminalized most traffic offenses). Section 318.13(3) reads:

318.13(3) ‘Infraction’ means a noncriminal violation which is not punishable by incarceration and for which there is no right to trial by jury or a right to court appointed counsel.

Thus, the offense described in section 316.193 is not an infraction or noncriminal violation, for a violation of section 316.193 is punishable by incarceration. But as pointed out above, it is a “criminal offense” and therefore, a crime, and based on the punishment it is a misdemeanor.

The Public Defender in this case does not question the right to counsel of an indigent defendant charged under section 316.193 but insists the trial court must appoint special public defenders for such persons. The Office of the Public Defender was created as a result of the U. S. Supreme Court cases requiring counsel for all indigent defendants charged with crimes punishable by incarceration. It is inconceivable that the legislature would deliberately single out driving while under the influence cases (and other criminal offenses under Chapter 316 where incarceration is a penalty) and impose upon the counties of this state the additional cost of paying private attorneys to serve as special public defenders for indigent defendants in driving under the influence cases. From the foregoing analysis of the various statutes it seems clear that such was not the intent of the legislature. When the statutes in pari materia are construed together we find that the Office of the Public Defender has both the duty and the authority to represent indigent defendants charged with violations of section 316.-193.

The 1980 Florida Legislature amended section 27.51 Florida Statutes (1979) to provide that the Public Defender shall represent any indigent defendant who is:

(b) Under arrest for, or is charged with, a misdemeanor, a violation of Chapter 316 which is punishable by imprisonment. (emphasis added)

Therefore, it is clear that since the enactment of this amendment (which became law in July of 1980), it is the duty of the Public Defender to represent those charged with violations of section 316.193. It is the opinion of the court that this was a clarifying amendment and did not change the pre-ex-isting law.

The orders of the circuit court in the four cases consolidated for appeal are reversed, and the cases are remanded to the circuit court with directions to deny the petitions for writ of prohibition with the result that the orders of the county judge appointing the Public Defender in each case shall be reinstated.

ORFINGER and SHARP, JJ., concur.

      . Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), holding that Gideon applies to misdemeanors.


author: COBB, Judge.

text:
    Carolyn ROSENFELT, William Rosenfelt and Fireman’s Insurance Company, Appellants, v. Frank S. HALL, Appellee.
    No. 80-10.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 1980.
    Neal P. Pitts and Stephen W. Beik of Pitts, Eubanks & Ross, P. A., Orlando, for appellants.

      James R. Lavigne, P. A., Winter Park, for appellee.
   COBB, Judge.

The defendant below appeals the granting of a new trial by the trial judge following a jury verdict finding no liability on the plaintiff’s claim of injury by a dog pursuant to section 767.01, Florida Statutes (1977). We reverse.

The facts, construed most favorably for the defendants, were: The plaintiff and his son were test-driving a sports car, which stalled. The plaintiff pushed the car down a hill with the son steering it in an unsuccessful effort to start it. The son turned off of the public street into the defendant’s private driveway, coming to a stop about five feet from her garage door. The defendant, Carolyn Rosenfelt, who had been working in her back yard, saw the car pull into her driveway. Since it did not then back out and leave, Mrs. Rosenfelt, with her two dogs, a boxer and a springer spaniel, came to the front yard to investigate.

Mrs. Rosenfelt approached the automobile and asked the son, Mark Hall, what he was doing. As she did so, the plaintiff, Frank Hall, came running across the yard and through the flower bed. He told the defendant in a loud voice to “get the dogs out of here.” Mrs. Rosenfelt offered to call the police, and then, apparently, she and Frank Hall engaged in mutual shouting, and plaintiff flailed his arms in the process. He was about fifteen feet away from her at the time. The dogs, which were not leashed, began to bark and snarl at plaintiff.

Hall then began to push the car out of the driveway. While he was doing so, one of the dogs, according to Hall’s testimony, leaped on his right leg. He turned and said, “The dog bit me.” The defendant responded that the dog was nowhere near him, and Hall retorted, “Well, then, the dog kicked me.” The defendant also denied that this had occurred. After this verbal exchange, Hall pushed the car out of the driveway into the street.

At the jury trial the defendants relied, inter alia, on an affirmative defense of provocation, per the provisions of section 767.04, Florida Statutes (1977), and the trial court gave a requested defense instruction in regard to provocation. The defendants also contended that any injury to the plaintiff’s leg was not caused by the dog. It was agreed by both sides that plaintiff was not bitten. The jury was not given special interrogatories, but rather a general verdict form, to which neither party objected.

After a defense verdict was returned, plaintiff’s motion for new trial was granted by the trial judge in a written order, which stated:

The evidence was not sufficient to sustain such a charge to the jury. At best and in the light most favorable to the defendants, the evidence showed that prior to the time that the dog in question jumped on or near plaintiff’s leg while he was pushing a car which his son was steering in order to get the car out of the defendants’ yard, that the plaintiff came running across the defendants’ yard, flailed his arms, and yelled in a very loud voice to the defendant, Carolyn Rosenfelt, to get her two dogs out of there, including the dog in question. There is no evidence that the plaintiff kicked, teased, or shoved the dog in question, (emphasis added).

The issue on appeal is whether the trial judge abused his broad discretion in granting the new trial. See Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla. 1980); Cloud v. Fallis, 110 So.2d 669 (Fla. 1959).

We are asked, then, to review the legal correctness of the trial court’s assumption that the provocation and aggravation referred to in the statute is restricted to acts physically directed to the dog and excludes such acts directed toward the dog’s master in the dog’s presence. This is a point of law, not a factual determination, and, therefore, the discretion of the trial judge is drastically diminished, if not entirely eliminated. Florida Power Corp. v. Smith, 202 So.2d 872 (Fla. 2d DCA 1967); Boutwell v. Bishop, 194 So.2d 3 (Fla. 1st DCA 1967).

We find no basis for the stringently circumscribed interpretation of careless provocation adopted by the trial court. Surely it was not the legislative intent to punish a dog owner through the imposition of civil damages for the actions of a dog protecting its owner on private property from a screaming intruder flailing his arms at her. See Rattet v. Dual Security Systems, Inc., 373 So.2d 948 (Fla. 3d DCA 1979); and Donner v. Arkwright-Boston Mfgs. Mut. Ins. Co., 358 So.2d 21 (Fla.1978). We believe a jury properly could conclude that such action met the statutory test, as this jury did. The instruction was proper and the granting of a new trial because of it was error.

Moreover, even if the provocation instruction had been erroneous, as the trial judge concluded, the motion for new trial still should have been denied. Since the jury returned a general verdict, there is no way of knowing if this resulted from a finding of careless provocation of the dog or from a finding that Hall’s leg injury was not proximately caused by the dog. Where there is no objection to the use of a general verdict, reversal is improper where no error is found as to one of two bases upon which that verdict may rest. Whitman v. Castlewood Int'l. Corp., 383 So.2d 618 (Fla.1980).

The order granting new trial is quashed, and the cause remanded for entry of a judgment for the defendants.

QUASHED and REMANDED.

ORFINGER, J., and GREEN, OLIVER L., Associate Judge, concur.

      . Owners Responsible. Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons. § 767.01, Fla.Stat. (1977).

      . The defenses set forth in section 767.04, which concerns dog bites, are also applicable to other damages caused by a dog under section 767.01. See Rattet v. Dual Security Systems, Inc., 373 So.2d 948 (Fla. 3d DCA 1979). Section 767.04 reads:
      Liability of owners. The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners’ knowledge of such viciousness. A person is lawfully upon private property of such owner within the meaning of this act when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon invitation, expressed or implied, of the owner thereof: provided, however, no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage; nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words “Bad Dog.”


text:
    Shirley M. POWER, Appellant, v. Shirley L. POWER, Appellee.
    No. 80-59.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 1980.

      Jon S. Rosenberg, Orlando, for appellant.
    Stephen M. Stone of Segal, Woods & Stone, Orlando, for appellee.
   WALKER, GRISSIM H., Associate Judge.

Husband brought a suit for partition, following an earlier dissolution of marriage in 1973 wherein the husband was awarded custody of the minor children and was given possession of the marital home:

until the youngest child reaches majority, dies, marries or otherwise becomes self-supporting, at which time the parties may dispose of said home as they mutually agree, and if they cannot agree, then either party may petition the Court to partition said home and upon the sale of the same to divide the net proceeds equally between them.

The youngest child reached majority in June, 1979. The parties could not agree on a disposition of the home and the suit for partition followed.

In the partition proceeding, the husband sought reimbursement for one-half of the amount he had expended during his occupancy for reduction of principal on the first and second mortgages on the property and for taxes. The wife sought reimbursement for one-half of the fair rental of the property during the husband’s occupancy. The trial court rejected the claim of the wife and awarded the husband credit for one-half of his payments on mortgage principal and taxes. The wife appealed the trial court’s denial of her request for reimbursement. We affirm.

The trial court was correct in awarding the husband reimbursement for one-half of his payments of principal on the mortgages and taxes. Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979). Indeed, the wife does not contest this reimbursement.

The trial court was equally correct in denying reimbursement to the wife of one-half of the rental value of the home. The husband was awarded custody of the children and no monetary support was ordered to be paid by the wife to the husband for the support of the children. However, as the wife’s contribution to the support of the children, the husband was awarded possession of the residence during the minority of the children. In Duncan v. Duncan, 379 So.2d 949 (Fla.1980), the Supreme Court stated that “exclusive possession of property subject to disposition in a dissolution proceeding [may be awarded where it is] directly connected to the obligation to pay support or temporarily necessary to prevent reduction in the value of the subject property." The award of the residence in the case sub judice was a facet of child support. Such an award to the husband by the court did not amount to an ouster of the wife by the husband. It was not an ouster of one co-tenant by another co-tenant. Thus the rule applied in Adkins v. Edwards, 317 So.2d 770 (Fla.2d DCA 1975), and other cases cited in that opinion, does not apply to this case. None of those cases involved the award of exclusive possession of a marital residence to a spouse awarded custody of the minor children with the exclusive custody terminating when the minor children reached their majority.

Where the court awards custody of the minor children and exclusive possession of the marital home during minority of the children to one spouse, the spouse out of possession is not entitled to reimbursement for any part of the rental value of the property while occupied by the spouse and minor children, unless the court in the judgment of dissolution has specifically provided otherwise.

The trial court ordered the husband to pay $750.00 towards the wife’s attorney’s fee. Section 64.081, Florida Statutes (1979). The husband filed a cross-appeal. We find no abuse of the trial judge’s discretion in this regard.

Affirmed.

ORFINGER and SHARP, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    PROFESSIONAL LENS PLAN, INC., a Kansas Corporation, Appellant, v. DEPARTMENT OF INSURANCE, State of Florida, Appellee.
    No. PP-244.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1980.

      Frederick M. Bryant and Everett P. Anderson of Pennington, Wilkinson, Gary & Dunlap, Tallahassee, for appellant.
    Donald A. Dowdell, Tallahassee, for ap-pellee.
   LARRY G. SMITH, Judge.

Professional Lens Plan, Inc. appeals a declaratory statement issued by the Department of Insurance holding that the Company’s offering of its Professional Lens Plan (PLP) in Florida would be subject to regulation as “insurance” under the Florida Insurance Code (Chapters 624-632, Florida Statutes), or, if not insurance, that the operation of the plan in Florida would be prohibited by Part I of Chapter 637, Florida Statutes. Appellant contends basically that its plan, under which participating optometrists agree to furnish replacement contact lenses to their patients for an annual fee plus a fixed sum representing costs of the lenses, is simply a purchase arrangement, not insurance; and further, that Chapter 637 does not apply because appellant does not contract with the patient for the furnishing of “optometric service or care” as contemplated by the statute. Based upon these and other contentions which will be more fully discussed, we reverse.

The essential details of the plan can be extracted from the hearing officer’s carefully drawn order which was adopted by the Department. Optometrists desiring to participate in PLP are furnished application forms and related materials. The optometrists’ patients who desire to participate in the plan complete an application which is forwarded to Professional either by the patient or the optometrist, together with an annual fee which is set by the optometrist. These fees, at the time of the hearing, averaged approximately $21.00; however, Professional exercises no control over the size of the annual fee set by each optometrist. Upon receipt of the application, Professional completes the patient’s copy and the optometrist’s copy, and returns copies to the respective parties. Professional deducts an amount from the annual fee paid by the patient as consideration for its furnishing the optometrist with agreement forms, information, brochures, annual patient notification and other administrative functions. Professional’s usual deduction was $6.00 or, for optometrists who submitted a large number of patient applications, $4.00.

Under the agreement between the optometrist and the patient, in consideration of payment of the annual fee and payment of an agreed dispensing fee for each lens, the patient is allowed to obtain as many lenses during the year as he desires, either because of loss or damage to his contact lenses, or by reason of a prescription change, or any other reason, such as the desire for an extra set or sets, or for cosmetic reasons, such as change in color. The dispensing fee, which is not subject to change during the year covered by the agreement, is set by the individual optometrist and in most instances is an amount equal to or slightly above the cost of the lens to the optometrist, which is generally about 50% of the retail cost of the lens. Professional has no control over the amount of the dispensing fee charged by the optometrist, and it does not receive any part of the sums paid by patients as dispensing fees. Under the agreement, the patient must pay the optometrist for any needed eye examinations, and no part of these examination fees are paid to Professional.

The agreement between the optometrist and Professional provides for Professional to notify each patient when it is time for an annual eye examination, and to remind him to make an appointment. Professional also agrees to provide patients with renewal applications. If the patient desires to continue the agreement for another year, the dispensing fee is again set by the optometrist, the patient pays the annual fee, application is forwarded to Professional, and the same process as above described is repeated.

Under the hearing officer’s interpretation of the testimony, only in a relatively small percentage of cases are replacement lenses provided for other than the fortuitous reasons of loss, damage or prescription change. He concluded that since the primary object of the agreement is to secure and provide protection against the cost of securing replacement lenses as a result of loss, damage or prescription change, the contract is one of indemnity, and must be treated as a contract of insurance, citing State v. DeWitt C. Jones Co., 147 So. 230 (Fla.1933); Guaranteed Warranty Corp., Inc. v. State ex rel. Humphrey, 23 Ariz.App. 327, 533 P.2d 87 (1975); Jordan v. Group Health Assoc., 107 F.2d 239 (D.C. Cir. 1934); Attorney General Opinion 055-225 (Fla.1955). He found similarities between the plan and contact lens insurance programs presently offered in the state, except, however, the insurance plans do not provide for replacement of lenses for any reason desired by the patient, but provide only for indemnity against loss or damage beyond repair.

. Florida Statutes, Section 624.02 (1979), defines “insurance” as follows:

“Insurance” is a contract whereby one undertakes to indemnify another or pay or allow a specified amount or a determinable benefit upon determinable contingencies.

Going beyond this abbreviated statutory definition, the court in Guaranteed Warranty Corp. v. Humphrey, supra, cited by both parties, stated that five elements are normally present in an insurance contract, which are (533 P.2d at 90):

1. An insurable interest.
2. A risk of loss.
3. An assumption of the risk by the insurer.
4. A general scheme to distribute the loss among the larger group of persons bearing similar risks.
5. The payment of a premium for the assumption of risk.

The parties obviously disagree upon application of these definitions. Our analysis begins with the recognition that a patient may obviously have an “insurable interest” in his contact lenses. Admittedly there is a “risk of loss” of his lenses. It must also be recognized, however, that the contract pro-* vides terms upon which lenses may be purchased entirely apart from any question of “insurable interest,” or loss or damage to the patient’s existing lenses. Even if it is conceded, as the Department argues, that the “primary object” of the agreement is to provide for replacement of lost or damaged lenses, we cannot agree that the PLP is thereby transformed into a contract of insurance. The contractual arrangement is lacking in the other elements, viz, assumption of risk by the insurer, distribution of a loss, and payment of a premium for assumption of a risk-the “contract . to indemnify” aspect of the statute (Section 624.02).

As between Professional and the patient, there is no contractual obligation or duty. This determination alone would, in our opinion, dispose of the contention that Professional is engaging in a business of “insurance.” Evidence was presented to the hearing examiner indicating that thirty-seven other states have determined that Professional is not engaged in the business of insurance. Furthermore, the contract between the optometrist and his patient is not one of indemnity, but rather, it is one providing for the purchase of additional or replacement contact lenses by a patient. Neither Professional nor the optometrist suffers any “loss” by virtue of a patient’s exercise of his option, under the contract, to purchase as many additional sets of lenses as he desires. We find a perhaps inadvertent acceptance of this reasoning in the legal memorandum submitted by the Department's counsel in the proceeding below, in which appears the following:

Even though the PLP plan operates to dramatically reduce a patient’s loss in the event he needs new lenses, it does not eliminate his costs altogether. He must still pay for the actual cost of the lenses. (emphasis supplied)

There is no “distribution of loss” under this arrangement, no is there payment of a “premium,” since no part of the annual fee paid by the patient is utilized in paying the cost of the replacement lenses. The annual fee paid by each patient resembles more closely a consideration paid for an option to purchase lenses at a fixed price, and can reasonably be considered in part as compensation to the optometrist for the service provided in explaining the plan, assisting in filling out forms, etc., although, as disclosed by the testimony, some participating optometrists retain no portion of the application fee whatsoever. We find nothing in the facts nor in the law stated in State v. DeWitt C. Jones Co., supra, which would indicate a result contrary to one we reach here.

We find no merit in the contention that Professional’s PLP plan is subject to regulation under Chapter 637, dealing with “Nonprofit Optometric Service Plan Corporations.” Professional does not bind itself in any way to provide “optometric service or care” to the public, so as to bring it within the purview of this statute. We agree with appellant that Professional’s role is to provide services to the optometrist, consisting of the furnishing of forms, renewal and re-examination notices, and like administrative functions. Service contracts of this type, referred to in the trade as “provider agreements,” do not constitute the business of insurance. See Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979). Moreover, we find nothing in this statute which purports to limit or restrict an optometrist in his relations with his individual patients, in which he agrees to furnish replacement lenses at an agreed upon price.

While we have determined that the PLP plan does not constitute the business of “insurance” so as to warrant regulations under the Florida Insurance Code, we express no opinion concerning the effect of any other law or regulations purporting to govern the practice of optometry in this state.

The order appealed is REVERSED.

SHAW, J., and LILES, WOODIE A. (Ret.), Associate Judge, concur.


author: SHAW, Judge.

text:
    Blanche A. McGRAW, Appellant, v. COLONIAL ACRES and Zurich Insurance Company, Appellees.
    No. RR-68.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1980.

      Eric E. Wagner, P.A., Ocala, for appellant.
    James B. Cantrell of Pitts, Eubanks & Ross, P.A., Orlando, for appellees.
   SHAW, Judge.

The appellant is a domestic worker who customarily fills out her work week by allotting days to various employers. In November of 1978 she was employed on a once-a-week basis by Colonial Acres to perform general housecleaning chores normally confined to the main house and the office, but she was subsequently approached by Mr. Dennis, the general manager, and agreed to clean a house trailer previously occupied by a former maid. It was during this cleaning that she was injured.

The carrier defended the claim on the basis that the claimant was not within the definition of employment or employee as set forth in § 440.02, Florida Statutes; the claimant was a domestic servant, or in the alternative a casual laborer, or in the alternative an independent contractor.

The Deputy Commissioner made a finding that the appellant was a domestic worker in a corporate entity at the time of her injury, but denied benefits upon his further finding that at the time of the injury she was engaged in casual labor and, for that reason, not covered under Florida’s Workers’ Compensation Act. The obvious inference to be drawn from the Deputy’s order is that even though the claimant was an employee of Colonial Acres at the time of her injury she cannot recover benefits because her employment was casual. This is error. The disqualifying provision provides that the term “employee” shall not include a person whose employment is both casual and not in the course of the trade, business, profession, or occupation of the employer. Section 440.02(2)(d)2, Florida Statutes. It is the obvious intent of the statute that the disqualifying employment must be both casual and not in the course of the trade, business, profession, or occupation of the employer. Having found the claimant to be a domestic worker in the corporate entity, the Deputy cannot now deny her benefits on the sole basis that her employment was casual.

The order denying benefits is reversed thereby mooting issues raised in Points 1 and 3 and the cause is remanded to the Deputy Commissioner for further proceedings.

ERVIN, J., and WOODROW M. MELVIN (Ret.), Associate Judge, concur.


author: McCORD, Judge.

text:
    K-MART CORPORATION, Appellant, v. Gregory Davidson SELLARS, Appellee.
    No. TT-15.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1980.

      Harold H. Catlin of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellant.
    Peter J. Fryefield of Allen, Margol, Frye-field & McCauglie and Roy Lewis, Jacksonville, for appellee.
   McCORD, Judge.

Appellant was found liable for malicious prosecution and false arrest, the jury awarding $50,000 compensatory damages $150,000 punitive damages. On appeal, K-Mart raises two points: that the denial in the criminal trial of Sellars’ motions for judgment of acquittal constituted findings of probable cause barring the malicious prosecution action, and that the facts did not justify punitive damages for the false arrest.

In May 1978, the assistant manager and security officer for K-Mart's Neptune Beach store suspected that Sellars, a Flowers Industries delivery man, was leaving less bread each morning than he billed to the store. They devised a plan whereby they took inventories before and after a particular delivery. Having thus determined that Sellars cheated K-Mart, the two detained him for arrest on a petit theft charge.

By subsequent agreement, K-Mart representatives said charges would be dropped and Sellars signed a release holding appellant harmless. The charges, however, were not dropped and Sellars stood trial. The trial judge twice denied motions for acquittal, but it took the jury only seven minutes to find appellee not guilty. He then filed this suit.

The assistant manager testified on cross-examination in the civil trial that the inventory figures used as the basis for the accusation against Sellars were inaccurate, that he knew them to be inaccurate at the time but did not so inform the prosecutor, and that he lied about the inventories during a deposition taken for the criminal proceedings.

Lack of probable cause is essential to a cause of action for malicious prosecution. S. H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757 (1938). Appellant therefore argues that the denials of motions for judgment of acquittal should be equated to finding probable cause. K-Mart's argument is founded on an analogy to the rule of law set forth in Gallucci v. Milavic, 100 So.2d 375 (Fla.1958). There the court held that when a justice of the peace binds a defendant over for trial, such action amounts to a determination of probable cause and bars a subsequent malicious prosecution claim.

Even if we agreed with appellant’s premise that such an analogy can be made, we would be constrained to affirm on the basis of the entire Gallucci rule and the facts of this case:

. the presence of probable cause was adjudicated when the justice of the peace held that the appellant should answer the charges. This ruling was not an absolute rule but it raised a presumption of the existence of probable cause which could have been overcome by proof that the appellee had resorted to fraud or other improper means in securing the committal .

Gallucci, supra, at 377. Here, of course, there was evidence that K-Mart’s agent used “fraud or other improper means” to force Sellars to go though the ordeal of an unjustified criminal trial.

Appellant’s second point also lacks merit. K-Mart cites Powell, supra, 180 So., at 764, to the effect that because its agents did not use insulting language or violence in detaining Sellars, punitive damages could not lie. The examples of aggravating behavior listed in Powell are not exhaustive, however. Nor can appellant find solace from Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936), because that case involved honest mistakes by Winn & Lovett’s employees. Here the assistant manager knew the inventories were inaccurate yet participated in appellee’s detention. “A wrongful act without reasonable excuse is malicious within the legal meaning of the term.” Farish v. Smoot, 58 So.2d 534, 538 (Fla.1952).

AFFIRMED.

MILLS, C. J., and WENTWORTH, JJ., concur.


author: ORFINGER, Judge.

text:
    CORAL CONTRACTORS, INC., etc., and Arthur R. Simmons, etc., Petitioners, v. The Honorable Maurice PAUL, etc., Respondent.
    No. 80-869.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 1980.
    Larry A. Karns of Lunny, Tucker & Heidgerd, Fort Lauderdale, for petitioners.
    James E. Foster of Fishback, Davis, Dominick & Bennett, Orlando, for respondent.
   ORFINGER, Judge.

The petition for writ of prohibition is denied. Prohibition is an extraordinary writ and cannot be resorted to when ordinary and usual remedies are available and are adequate and complete. 25 Fla.Jur. Prohibition, § 8 (1959). Prohibition will not lie to prevent or correct an error by a lower court that has jurisdiction over the case. 25 Fla.Jur., Prohibition, § 6 (1959).

In the proceeding supplementary to execution below, the trial court first required defendants in execution (petitioners here) to appear in Orange County, although the record reflects that the individual defendant is a Broward County resident and the corporate defendant has its principal place of business in Broward County. Although contending that such requirement was erroneous under section 56.29(2), Florida Statutes, petitioners nowhere contend that the trial court lacked jurisdiction over the proceedings, the judgment upon which execution was sought having been rendered by that court. That the court which renders the judgment retains jurisdiction over the supplementary proceedings is clear. Schwartz v. Capitol City First National Bank, 365 So.2d 181 (Fla. 1st DCA 1979).

The record shows that the trial court rescinded the requirement that defendants appear in Orange County. Thus this point is moot. If petitioners contend that any other error has been committed, ordinary appellate remedies are available.

Petition DENIED.

SHARP and COBB, JJ., concur.

      . § 56.29(2), Fla.Stat. (1979):
      On such plaintiffs motion the court shall require the defendant in execution to appear before it or a master at a time and place specified by the order in the county of the defendant’s residence to be examined concerning his property.


text:
    STATE of Florida, Appellant, v. Dane Montel HAMILTON, Appellee.
    No. 79-2043.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellee.
   PER CURIAM.

The state appeals from the dismissal “for lack of prosecution” of its information charging the appellee with possession of marijuana with intent to sell or deliver. The appellee failed to file a brief in this appeal but after carefully reviewing the record containing the transcript of the hearing below which resulted in the dismissal, we reverse.

The state, on the day of trial, orally moved for continuance on the ground that a law enforcement officer needed for trial was attending a two week intelligence school somewhere on the east coast of the state. The state had been granted another continuance two months previously when the case was first set for trial. That continuance was apparently necessitated when the suppression of a confession by the ap-pellee caused the state to need a witness they did not originally anticipate using, and who, at the earlier trial date, was in Idaho. On the second trial date, when the state again moved for continuance because of the lack of the presence of the law enforcement officer attending intelligence school, two weeks remained before the time for speedy trial would have run.

While we recognize and sympathize with the apparent frustration of the trial judge with the lack of diligence of the state in preparing for trial, we believe that dismissal of an otherwise valid information is too extreme a sanction where there is no showing of prejudice or unfairness to the appellee. Cf., State v. Smith, 342 So.2d 1094 (Fla.2d DCA 1977). The court could have properly within its discretion denied the state’s motion for continuance. If the state was then unable to prove a prima facie case because of the unavailability of the witness, a directed verdict for the ap-pellee would have been in order.

We, therefore, reverse and remand for treatment consistent with this opinion.

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


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Keith BRITTON, Appellee.
    No. 80-384.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   DANAHY, Judge.

Keith Britton was charged by information with armed robbery. He filed a motion to suppress in-court identification by witness Ruth Collinett, which the trial court granted. The state appeals.

At the suppression hearing, Mrs. Collinett testified that she noticed a car in the Best Bar’s parking lot at about 11:15 p. m. She noticed the car because she thought the occupant was a friend of hers. He appeared to be taking clothes off or putting them on. Mrs. Collinett returned to the bar and asked the barmaid to check out the car. The barmaid went out to the parking lot, returned, and told Mrs. Collinett that it was their friend. They then waited for the friend to come into the bar. When no one entered the bar, they went back outside and determined it was not the friend’s car. A few minutes later, Mrs. Collinett went outside and again noticed the car. Unconvinced that it was not her friend, she went over to speak to the occupant of the car. When she touched him and asked him why he wasn’t coming in, the man-who she now discovered was not her friend-stated that she had frightened him. When she inquired why he was wet, he explained that he had walked across some fill dirt. She stood face to face with the man, and they spoke for five to ten seconds.

Mrs. Collinett testified that she spoke with Sergeant Bland on the day after the incident and was shown two photographs, both of the appellee. Sergeant Bland inquired whether either looked like the man she saw on the night in question. She told Sergeant Bland that one looked like the man, but she really wasn’t sure and would rather have a better picture. Subsequently, Mrs. Collinett inspected a “photo-pak” containing five photographs (which did not include either of the photographs she was shown previously) and she positively identified the photograph of the appellee. She testified that she recalled his looks from their conversation in the parking lot, not from the prior photographs. She described the man that she spoke with as having “long hair, a small moustache, and a stubby, unshaven face.”

After indicating that she was nearsighted, she stood up, walked to the defense table, and identified appellee as the man she had confronted in the parking lot.

Sergeant Bland testified that he interviewed Ruth Collinett at the Best Bar within a few days of the robbery. He testified that he showed her two photographs, both of appellee. She told him that the mouth looked similar and it could be the man. Later in the day, he presented the “photo-pak” containing five photographs to Mrs. Collinett. She selected the photograph of appellee and stated that she did not remember the beard, but that the eyes and the features were the same. She showed no hesitation or difficulty in making the identification.

The court found the identification procedures suggestive and granted appellee’s motion to suppress. We reverse.

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court stated that in determining whether it is necessary to suppress an in-court identification “the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U.S. [377], at 384, 88 S.Ct. [967], at 971, [19 L.Ed.2d 1247].” 409 U.S. at 198, 93 S.Ct. at 381, 34 L.Ed.2d at 410. The Court then set out guidelines to aid in establishing the relationship between suggestiveness and misidentification. The Court determined that the basis for the exclusion of tainted identification testimony is mis-identification and that

the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411.

The Neil decision was relied on by this court in State v. Sepulvado, 362 So.2d 324 (Fla. 2d DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979).

Applying the Neil criteria to the facts in the instant case, it becomes apparent that there was no substantial likelihood of irreparable misidentification:

(1) The Opportunity to View. Ruth Collinett stood face to face with the man in the parking lot for five to ten seconds.
(2) The Degree of Attention. She approached the man because she thought he was a friend of hers. She conversed with him briefly upon discovering that he was not her friend.
(3) The Accuracy of the Prior Description. Mrs. Collinet was able to remember the man’s features from their conversation in the parking lot and accurately describe him to the police.
(4) The Witness’ Level of Certainty. During the first photographic display, she indicated that one photograph resembled the man but she was not sure and wanted to see a better photograph. After inspecting the five-photograph pack, she had no difficulty selecting appellee’s photograph. "After she observed appellee closely at the hearing, she had no difficulty identifying him.
(5) The Time Between the Crime and the Confrontation. Mrs. Collinett testified that she inspected the first set of photographs the next day and the second set a couple of days later. Sergeant Bland testified that he displayed both “photopaks” to Mrs. Collinett within the same day.

Assuming arguendo that the procedure of initially displaying to Mrs. Collinett two photographs of the appellee and then displaying to her a “photopak” of five photographs including one of the appellee was suggestive, it was not so impermissibly suggestive as to create a substantial likelihood of misidentification under the totality of the circumstances of this case.

Because we hold that a jury should be permitted to consider and weigh witness Collinett’s testimony, we reverse the order of the trial court and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

OTT, Acting C. J., and RYDER, J., concur.

      . The trial court denied the state’s motion for extension of speedy trial time pending appeal. This court reviewed and vacated the trial court’s order; therefore, speedy trial time has been extended. We anticipate a reduction in problems in the area of speedy trial beginning January 1, 1981, as a result of new Florida Rule of Criminal Procedure 3.191 which becomes effective on that date. The new rule is previewed in State v. Jenkins, - So.2d - No. 52,484 (Fla., July 24, 1980), in which the supreme court addressed current problems in this area.


author: HOBSON, Judge.

text:
    In re the ESTATE of Mattie LOCKWOOD, Deceased. Ozella McMAHON, as Guardian for Henry Rosemond Johnson, Appellant, v. I. W. WILLIAMS, as Administrator of the Estate of Mattie Lockwood, Deceased.
    No. 79-2063.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1980.

      Edson L. Garrabrants, Jr. of Phillips, McFarland, Gould, Wilhelm & Wagstaff, P.A., Port Richey, for appellant.
    Douglas A. Mulligan of Williams & Milton, St. Petersburg, for appellee.
   HOBSON, Judge.

The appellant appeals a final order of the trial court discharging the personal representative of the Estate of Mattie Lockwood. The appellant raises two points on appeal, one of which contains merit. The appellant alleges that there was a $1,000 discrepancy in the accountings of the personal representative. This was confirmed by the record on appeal and this court relinquished jurisdiction to the trial court for determination as to such discrepancy.

The trial court has now entered its order finding that the $1,000 was “lost from the account of the personal representative.” It further ordered that “[njotwithstanding the ‘loss’ of the money, . . . ” the appellant was entitled to the receipt of said $1,000 as of November 7, 1978, the date of the order of distribution. It further ordered that the appellant is entitled to interest at the rate of 8% from and after that date.

We approve the trial court’s findings and upon remand the trial court shall enter a judgment in favor of the appellant in accordance with its findings,

The order appealed discharging and re-]jev¡ng the personal representative and his surety from any further responsibility or liability to the estate or the heir is reversed as to the above discussed $1,000 and affirmed as to the real property.

SCHEB, C. J., and GRIMES, J., concur.


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Harry Lorenzo McCRAY, Appellee.
    No. 80-537.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, Bar-tow, and Susan G. Sexton, Asst. Public Defender, Tampa, for appellee.
   GRIMES, Judge.

The state appeals the dismissal of its information charging appellee with murder in the second decree.

Appellee’s motion to dismiss, filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), set forth the following facts:

1. Witnesses will place the Defendant and the victim in the parking lot of the New Orleans Baptist School at 12th and Osborne, Tampa, Florida, on the afternoon of April 30, 1979.
2. Witness Barbara Dietrich will state that as she drove up into the parking lot of the school she heard a bang and thought it was a car backfiring.
3. As she began to get out of her car she saw a man and a woman, a black couple, standing in back of a car.
4. The woman started walking away and began to yell, “help me, I’ve been shot.”
5. She then observed the Defendant to stand motionless for approximately two minutes, whereupon he got into his car and drove off.
6. At no time did she see a gun in the hand of either the victim or the Defendant.
7. Witness Patricia Fanning will testify that on that afternoon she was working at the school when she heard what she thought was a car backfire.
8. She then heard somebody yell they had been shot.
9. Upon going outside to investigate, she saw the victim in the courtyard of the school with blood all over the front of her.
10. When the victim asked, “Help me”, the witness went to her and saw that the victim held a pistol in one hand.
11. She took the pistol from the victim and rendered assistance.
12. At no time did the victim make any other statements to either of the above listed witnesses.
13. Detective Reynolds, of the Tampa Police Department, will testify that he went to Tampa General Hospital and interviewed the victim in the emergency room, but that because the victim was about to go into surgery, her only statement was that her husband Harry had shot her.
14. The Defendant, Harry L. McCray, was the husband of the victim.
15. While at Tampa General Hospital, Detective Reynolds received information that the Defendant had surrendered to Major John S. Kirk of the Hillsborough County Sheriff’s Office.
16. Detective Reynolds was subsequently advised by the operating room physician that the victim had survived surgery and was in stable condition.
17. There was no further investigation of the case, other than to determine that the gun taken from the victim had not been fired.
18. Major John Kirk will testify that on that afternoon the Defendant entered his office and stated, “I’ve shot my wife.”
19. Upon determining that the Defendant was not armed, Major Kirk advised the Defendant to make no further statements and to call his lawyer, which he did.
20. Approximately two weeks after the shooting, on May 13, 1979, the victim died in Tampa General Hospital as a result of complications from her wounds.
21. Dr. Lee Miller, Medical Examiner, will testify that there was one bullet wound, entry from the rear and exit from the chest.

The state admitted these facts but added that the victim and appellee had commenced dissolution proceedings.

The motion to dismiss in criminal practice is similar in many respects to the summary judgment in civil proceedings. State v. J. T. S., 373 So.2d 418 (Fla. 2d DCA 1979). The motion should be granted only where the most favorable construction of the facts to the state does not establish a prima facie case of guilt. State v. Smith, 348 So.2d 637 (Fla. 2d DCA 1977). If there is any evidence upon which a jury of reasonable men could convict, the court should deny the motion. State v. Hires, 372 So.2d 183 (Fla. 2d DCA 1979). Proof of state of mind for the purpose of second decree murder is a jury question which cannot be resolved on a motion to dismiss. State v. Rogers, 386 So.2d 278 (Fla. 2d DCA 1980).

We find the undisputed facts under consideration in this case more than enough to withstand the motion to dismiss. While no one actually saw the shooting, appellee admitted that he had shot his wife, and she said the same thing in a statement which may be admissible at trial as a dying declaration. At least one witness saw appellee in his wife’s presence immediately following the firing of the shot and then saw him leave the scene shortly thereafter. Finally, the gun which was found in the hand of the victim had not been fired, and she had been shot in the back. The undisputed facts made a prima facie case for the state.

REVERSED and REMANDED.

HOBSON, Acting C. J., and CAMPBELL, J., concur.