text:
    THE FLORIDA BAR, Complainant, v. Spencer D. STOLPEN, Respondent.
    No. 59904.
    Supreme Court of Florida.
    Feb. 5, 1981.
    Harris K. Solomon, Branch Staff Counsel, Fort Lauderdale, for complainant.
    Robert J. O’Toole, Fort Lauderdale, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of article XI, Rule 11.02(4)(b) and (c) of the Integration Rule of The Florida Bar and Disciplinary Rule 9-102(B)(3) of the Code of Professional Responsibility of The Florida Bar. We approve the Petition, and Respondent, Spencer D. Stolpen, is hereby disbarred from the practice of law in the State of Florida. All clients and the clients' security fund shall be reimbursed as a prerequisite to the filing of a petition for readmission.

The Order of Temporary Suspension in The Florida Bar v. Spencer D. Stolpen, Case No. 59, 127 entered by this Court on May 6, 1980, is hereby dissolved.

Costs in the amount of $938.55 are hereby taxed against the Respondent.

SUNDBERG, C. J., and ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. MOORE, Judge,

license: Public Domain

text:
    Cynthia PROCTOR, Appellant, v. Paul KRAMER, M.D., Appellee.
    No. 79-1324.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.
    Rehearing Denied March 3, 1981.
    Gary L. Wilkins of Wotitzky, Wotitzky, Johnson, Mandell & Batsel, Punta Gorda, for appellant.
    K. Scott Dwyer and John A. Thompson, Jr. of Preddy, Kutner & Hardy, P.A., Miami, for appellee.
   PER CURIAM.

Affirmed.

LETTS, C. J., and HERSEY, J., concur.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

I respectfully dissent. In my opinion, we should follow the reasoning in Limond v. Llanio, 349 So.2d 214 (Fla. 3rd DCA 1977) and hold that the termination of the medical mediation panel’s jurisdiction did not occur, until the expiration of six months following the filing of the claim. By so holding, the common law complaint was filed within the applicable statute of limitations and the summary, final judgment in favor of the defendant was erroneous.


author: LARRY G. SMITH, Judge.

text:
    Linda HARMON, Appellant, v. STATE of Florida, Appellee.
    No. LL-336.
    District Court of Appeal of Florida, First District.
    May 9, 1980.

      Michael J. Minerva, Public Defender and Margaret Good, Asst. Public Defender for appellant.
    Jim Smith, Atty. Gen. and Lee Mandell, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

Linda Harmon appeals her conviction of robbery with a weapon. Although numerous grounds for reversal are presented, all of which we have considered, we find it necessary to elaborate upon only three of these in reaching our decision to reverse the conviction.

Appellant’s counsel objected to statements made by the prosecuting attorney during voir dire examination of the jury, and moved for a mistrial, which was denied. The complained of activity began during the initial stages of jury selection, after six prospective jurors had been seated and generally examined, at which time the prosecuting attorney addressed the jury collectively, as follows:

Now, I want to ask you this question and, normally, we don’t go into the facts of the case and I don’t intend on going into the facts of this particular case but I think it is important to tell you what I would anticipate some of the evidence may be in this case and ask how it’s going to affect you.
Now, testimony will be elicited, I think that the defendant some four days prior to her being interviewed by robbery detectives in this case was arrested by a uniformed police officer and that after this particular arrest and while being transported to the jail, she performed a sexual act on this officer in hopes of lenient treatment. I believe that is what the testimony is going to be. That has nothing to do with the armed robbery. What I want to know is this: Now, certainly, this action is abhorrent to me and all right — thinking people and can’t be tolerated.

Defense counsel’s objection, motion for mistrial, and the court’s ruling were as follows:

MR. WILLIAMS: Your honor, I object to this dialogue by Mr. Greene. I believe its improper and I believe the phraseology as to the state of facts would be improper for the purpose of voir dire and, at this time, I would move it be stricken from the record and also move for a mistrial.
THE COURT: I will deny your motion for a mistrial and I would indicate that it is proper for voir dire because if it does come out, it will be important to know what feelings the jurors might have about it, both from the state’s standpoint and the defendant’s standpoint.

The prosecuting attorney continued:

Thank you. Now, what I want to know is this: if you believe that is true, ... I want to know whether or not you will be able to — I want to know one or two things: whether or not that fact, the fact that happened and you believe it did happen between this uniformed officer and this woman, would that — and the police officer, by the way, is not the victim of this robbery in any way, shape or form— would that fact so automatically affect you that you would be unable to return a verdict of guilty, even if you believe the defendant were guilty? Would you still be able to return a verdict of guilty if you believe the defendant was in fact guilty of armed robbery on the victim, Michele Zappone? ...

After receiving the assurance of each individual juror that they would be able to find the defendant guilty, the prosecuting attorney rephrased the question as follows:

In other words, and I will phrase it a different way: I represent the State of Florida. I work for the State of Florida. The police in Jacksonville work for Jacksonville. They are part of the Jacksonville Sheriff’s Office. What I want to know in essence, I am asking you: would that act by that police officer so offend you that you’d take it out on the State of Florida and find her not guilty, even if you believe she was guilty? You wouldn’t do that, would you?

During a side bar conference shortly after the above quoted statement, defense counsel renewed the motion for mistrial, stating:

Your honor, at this time, I would ask for a mistrial. He’s told them she’s been arrested by uniformed police and has said that incident has nothing to do with the robbery charged before the issue has even been raised by the testimony and he’s bringing in evidence of a collateral, unrelated crime and, at this time, I would move for a mistrial.
THE COURT: All right. The motion is denied.

At a sidebar conference which followed the above mentioned ruling, the prosecuting attorney made clear the state’s position, which was that since defense counsel, prior to trial, had announced his intention to present evidence of the sexual assault in defense, and the court had denied the state’s motion in limine to prohibit the use of such evidence, the state felt fully justified in addressing questions on the issue to the jury on voir dire. The trial court fully agreed with the state’s position.

The voir dire examination continued, during which defense counsel also referred to the sex incident, but to a far lesser extent, and in less graphic detail than the prosecuting attorney. The prosecuting attorney repeatedly restated the facts and renewed the question, stressing from time to time that the arrest incident had nothing to do with the robbery, and that defendant’s participation was in furtherance of her desire to receive favorable treatment through the assistance of the police officer. The sex episode easily became the feature of voir dire examination, the record of which consumed some 135 pages of the transcript, followed by the trial which contained only about 110 pages of testimony. The issue demonstrably engaged the interest of the jurors. Their attention was focused on little else, so far as the particulars of the case were concerned, during the entire jury selection process. Several jurors individually responded to questions concerning the incident, and some were excused because of their display of concern, one way or the other, as to how their view of the case might be affected.

The statements and questions by the prosecuting attorney were improper, prejudicial, and grounds for reversal. The rules governing questions on voir dire are stated in the early case of Dicks v. State, 83 Fla. 717, 93 So. 137 (1922), at 137:

Prospective jurors are examined on their voir dire for the purpose of ascertaining if they are qualified to serve, and it is not proper to propound hypothetical questions purporting to embody testimony that is intended to be submitted, covering all or any aspects of the case, for the purpose of ascertaining from the juror how he will vote on such a state of the testimony. Such questions are improper, regardless of whether or not they correctly epitomize the testimony intended to be introduced.
To propound to a juror a question purporting to contain an epitome of the testimony subsequently to be introduced, and ask whether he would acquit or convict upon such testimony, would have the effect of ascertaining his verdict in advance of his hearing the sworn testimony of the witnesses.
Such a procedure would revolutionize jury trials.

In Smith v. State, 253 So.2d 465 (Fla. 1st DCA 1971), this court held that neither counsel for the State nor the defendant should question prospective jurors as to the kind of verdict they would render under any given state of facts or circumstances, and the trial court should not permit such questioning. In that case objection was made to questioning by the state, of prospective jurors, whether the jurors would convict on the testimony of a person who has been granted immunity, if the state proved its case beyond a reasonable doubt.

The above stated principles, and our application of them in this case, are not altered by the holding of Pope v. State, 84 Fla. 428, 94 So. 865 (1922), that questions may be “so varied and elaborated as the circumstances surrounding the jurors under examination in relation to the case on trial would seem to require, in order to obtain a fair and impartial jury, whose minds are free of all interest, bias or prejudice.” These statements must be interpreted in the light of the paragraph of the opinion which immediately follows these quoted portions (opinion, 94 So. page 869):

Hypothetical questions having correct reference to the law of the case that aid in determining whether challenges for cause or peremptory are proper, may, in the sound and reasonable discretion of the trial court, be propounded to veniremen on voir dire examination, (emphasis supplied)

Here, statements by the prosecuting attorney that the defendant had been arrested on a charge unrelated to the robbery for which she was on trial, and reference to her commission of a sex act upon the arresting officer in hopes of receiving favorable treatment, cannot be argued as having “reference to the law of the case.” In Pope v. State, supra, the court distinguished the Dicks case, supra, observing that even if such hypothetical questions on voir dire are not a good practice, “no right of the defendant was violated in propounding the question objected to,” and “the question could not reasonably have harmed the defendant.” Applying these tests, we are compelled to find that reference to the defendant’s arrest on a collateral criminal charge, aggravated by further reference to her alleged meretricious conduct in engaging in a sex act with the arresting officer in return for promised favorable treatment, violated the fundamental rights of the defendant to a fair trial before an impartial jury. Harm to the defendant is apparent on this record. It was error to allow the state to proceed with this prosecution after the injection of these collateral issues into the trial, and the motion for mistrial should have been granted.

In our ruling on the foregoing issue we have not overlooked the possibility, even probability, that the evidence of the sexual assault would have been brought out, in any event, by the defense. Our first response is that whether the defendant testifies or not is a matter of choice for the defendant to make, and the state is not justified in injecting highly prejudicial and inflammatory collateral issues into the trial in anticipation of the defendant’s testimony. The state may well have considered it advisable to “pull the fangs” by its own early mention of this incident, but it is not entitled to do so at the defendant’s expense. Furthermore, appellant’s version of the incident in question indicates that she was forced to commit the sex act while handcuffed to another female arrestee, who cried hysterically while the officer fondled her sexual organs. The voir dire statements by the prosecuting attorney, either by design or inadvertence, gave the impression that appellant was the instigator, rather than the unwilling victim of the affair.

Turning to a second issue, we find error in the trial court’s ruling restricting defense counsel’s cross-examination of Detective Geisenburg. Geisenburg was the state’s principal investigating officer with respect to the crime. He interviewed appellant and obtained her signature to a purported confession which he had himself written. Geisenburg was present when appellant was brought to the interview room by Officer Miller, on January 20, 1978, at which time, according to appellant, she complained to the officers present about the sexual assault by Officer Strubbie, which occurred on January 16. Detective Geisen-burg was also responsible for photographic identification shown to the robbery victim, as well as to the victim of a robbery that took place at Furchgott’s on the same day. Appellant testified that her signing of the alleged confession was coerced under various threats and coercion, including that of being charged with both robberies.

The prosecuting attorney objected to defense counsel’s question directed to Detective Geisenburg: “And do you know Officer Strubbie, sir?” The court sustained the objection. On proffer, Geisenburg indicated that he was aware of the fact that Officer Strubbie had been discharged from the department and was facing criminal charges based upon the incident with appellant. He denied knowing about the Strubbie incident at the time of his questioning of appellant on January 20, in sharp conflict with appellant’s later testimony that Geisenburg was angry and hostile on that occasion, and told her she was telling a “damn lie” about the Strubbie matter. The court denied defense counsel’s proffer and restricted inquiry into this area. We find this to be error. Geis-enburg’s knowledge of and acquaintance with Officer Strubbie was a legitimate subject of inquiry by appellant’s attorney, and he should have been allowed to fully explore the relationship. A defendant should be afforded wide latitude to demonstrate bias or a possible motive of the witness to testify as he has. Blair v. State, 371 So.2d 224 (Fla. 2nd DCA 1979). All witnesses are subject to cross-examination for the purpose of discrediting them by showing bias, prejudice or interest. Brown v. State, 362 So.2d 437 (Fla. 4th DCA 1978). In Lutherman v. State, 348 So.2d 624 (Fla. 3rd DCA 1977), it was held error to deny defense counsel’s question of a police officer whether he was under investigation for police brutality. In Webb v. State, 336 So.2d 416 (Fla. 2nd DCA 1976), it was determined to be error for the court to refuse testimony by the defendant and another witness concerning a civil action brought by the defendant against the police chief and the city for false arrest. This testimony was relevant, the court found, as having an important bearing on the bias or prejudice of the witnesses against the defendant. The court stated (opinion, page 418):

We make no comment on the merits of appellant’s defense, that he was “framed” by the police department because of his civil suit, but we hold that he was entitled to have that evidence presented to the jury.

This court, in Lombardi v. State, 358 So.2d 220 (Fla. 1st DCA 1978), reversed a conviction because of the court’s refusal to allow the defendant to testify concerning a complaint he had filed against the sheriff’s department in a civil suit, where one of the officers against whom the complaint was filed was also involved in the case for which he was under prosecution. Although there are factual differences distinguishing these cases from the one under consideration, we nevertheless find that the principles announced are applicable to show that restriction of cross-examination in this instance was error.

Another charge of prosecutorial overreaching involving the injection of other arrests into the trial of this case merits discussion. On cross-examination of appellant, the prosecuting attorney asked the question: “What were you arrested for on the 16th of January?” Appellant answered, “fraudulent use of a credit card.” There was no objection at this point. However, shortly thereafter the prosecuting attorney again referred to a collateral arrest when he questioned the appellant: “Didn’t you tell Lieutenant Williams that you told Officer Strubbie that you didn’t want to go to the Duval County Jail because there was a capias for your arrest?” Immediately following her negative answer to this question, defense counsel moved for a mistrial based upon references to collateral crimes and arrests, unrelated to the charge of armed robbery. The trial court denied the motion. Following this, defense counsel’s objection to a question concerning an unrelated robbery was sustained by the court. Notwithstanding this ruling, the prosecuting attorney continued the same line of questioning concerning unrelated robberies, forcing another objection, which was again sustained.

Appellant contends that references to the collateral crimes were prejudicial to the defendant. We find it unnecessary to determine whether defense counsel’s single motion for mistrial was adequate to preserve the putative error for appeal. Compare, German v. State, 379 So.2d 1013 (Fla. 4th DCA 1980), Opinion filed February 13, 1980 [1980 FLW 302], since the case must be remanded for a new trial based upon the errors previously discussed infra. However, for the guidance of the trial court upon retrial, it is well to point out that we view the aforementioned line of questioning by the prosecutor as highly improper. Arrest, without more, does not, in law any more than in reason, impeach the integrity of a witness. Michaelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168 (1948). It is permissible to interrogate witnesses only as to previous convictions, not mere former arrests or accusations of a crime. Jordan v. State, 107 Fla. 333, 144 So. 669, 670 (1932).

We have determined that the trial court did not err in admitting evidence of the pre-trial photographic identification, nor in the ruling allowing appellant’s alleged confession to go to the jury for consideration. We have also found no error in admission of the “Williams Rule” testimony concerning the Furchgott’s robbery, Williams v. State, 110 So.2d 654 (Fla.1959), nor in the denial of a mistrial because of the prosecuting attorney’s comments in closing argument relating to absence of witnesses available to appellant. In view of our determination that reversal on other grounds is required, we have found it unnecessary to consider the remaining points argued by appellant.

For the reasons stated, the judgment of conviction and sentence are hereby reversed, and the case is remanded for further proceedings consistent with this opinion.

McCORD, J., concurs.

BOOTH, J., dissents.


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

text:
    In the Interest of R. J. B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 79-242/T4-383.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 10, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

ON MOTION TO DISMISS

Appellant R. J. B., a child, has filed a notice of appeal from an order of the Juvenile Court of Osceola County waiving juvenile jurisdiction and certifying him for trial as an adult.

The question presented by this motion is whether the order is a final order from which an appeal will lie.

We hold that it is not and dismiss.

Rule 9.140(b), Florida Rules of Appellate Procedure, governs appeals by a defendant in a criminal case. Under subsection (1), a defendant may appeal the following:

(A) a final judgment adjudicating guilt;
(B) an order granting probation, whether or not guilt has been adjudicated;
(C) orders entered after final judgment or finding of guilt, including orders revoking or modifying probation;
(D) an illegal sentence; and
(E) a sentence when required or permitted by general law.

The Committee Notes on the Rule specifically state that these are the only matters which may be appealed and that subsection (b)(1) is intended to supersede all other rules of practice and procedure. The order from which the instant appeal is taken is not within those enumerated above.

Appellant relies on Rice v. State, 311 So.2d 193 (Fla. 2d DCA 1975), as establishing the order as a final appealable order. In Rice, however, the court merely held that the failure of the juvenile court to follow mandatory provisions of the rules of juvenile procedure in certifying defendant’s case for trial as an adult rendered the criminal division of the circuit court without jurisdiction to enter a judgment and sentence against defendant. Mitchell v. State, 351 So.2d 1142 (Fla. 1st DCA 1977), refutes appellant’s position for there the court stated that an order transferring prosecution from the juvenile division contemplates further prosecution and is interlocutory.

Appellant further contends that two statutes are applicable and specifically provide authority for this appeal. Section 39.-09(2)(e), Florida Statutes (1979), provides that an order waiving juvenile jurisdiction, “shall be reviewable on appeal pursuant to section 39.14 and the Florida Appellate Rules.” Section 39.14(1), states:

[A] child . . . affected by an order of the court may appeal to the appropriate district court of appeal within the time and in the manner prescribed by the Florida Appellate Rules.

While numerous appeals have been permitted by district courts of appeal from waiver orders, none of these courts expressly based their jurisdiction upon these statutes or discussed the basis of their jurisdiction to hear the appeal. None were decided under the 1977 appellate rules.

If we accept the court’s determination in Mitchell that a waiver order is interlocutory, these statutes are ineffective to provide appellate review on their own since the Florida Constitution does not authorize the legislature to provide for interlocutory review. State v. Smith, 260 So.2d 489, 490 (Fla.1972). In Smith, the Florida Supreme Court, adopting the First District Court of Appeal’s opinion, held that a statute authorizing interlocutory appellate review was unconstitutional and therefore ineffective unless the supreme court “breathes life” into it. The court stated that any statute purporting to grant interlocutory appeals is clearly a declaration of legislative policy and nothing more.

This court may consider the appeal as a petition for common law certiorari. Fla.R.App.P. 9.040(c). However, such review would not be proper since appellant fails to show an essential departure from the law and irreparable harm or that an appeal of a final order will not give complete and adequate relief. In Re Adoption of Stinebaker, 382 So.2d 413 (Fla. 5th DCA 1980).

DISMISSED.

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

      . See O. A. H. v. State, 332 So.2d 641 (Fla. 3d DCA 1976); R. W. v. State, 330 So.2d 239 (Fla. 3d DCA 1976); D. A. B. v. State, 329 So.2d 40 (Fla. 3d DCA 1976); Gagliano v. State, 234 So.2d 159 (Fla. 1st DCA 1970).


author: GLICKSTEIN, Judge.

text:
    Maxwell DAUER and Reva B. Dauer, his wife, and the Lauderdale Lakes Medical Center, Inc., Appellants, v. SAFECO INSURANCE COMPANY OF AMERICA, Appellee.
    No. 79-94.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1980.
    Rehearing Denied March 17, 1981.
    John B. DiChiara of Di Giulian, Spellacy & DiChiara, Fort Lauderdale, for appellants.
    Dan B. Guernsey of Welbaum, Zook, Jones & Williams, Miami, for appellee.
   GLICKSTEIN, Judge.

This is a timely appeal by Maxwell Dauer and Reva B. Dauer, his wife, hereinafter called the Dauers, and Lauderdale Lakes Medical Center, Inc., hereinafter called the hospital, from a final judgment and order denying rehearing. We affirm.

Peninsular Supply Company brought an action against the Dauers, the hospital, Standard Systems Corporation and the latter’s surety, Safeco Insurance Company of America, to foreclose a mechanic’s lien. Final judgment of foreclosure recited that Peninsular was due $23,377, plus interest, from the hospital, Standard and Safeco. Also included in the final judgment was an award to Safeco of $9,856.01, plus interest, on its crossclaim against the hospital. A subsequent cost judgment of $8,098.14 was entered in favor of Peninsular against the Dauers and the hospital for attorney’s fees and costs.

The facts reflect the hospital to be the lessee of real property in Broward County, Florida, owned by the Dauers. On March 25,1974 the hospital entered into a contract with Standard for plumbing work in the expansion of the former’s medical center located on the subject property. Standard ran into financial difficulty in late September 1974. On November 1, 1974 Standard informed the hospital that all payments due it should be paid to its surety, Safeco. Without any additional written agreement with the hospital other than the March 25th contract and surety bond, prior to November 6, 1974 Safeco paid out over $42,000 to parties who had supplied labor or material to Standard on this job. Then, on the last mentioned date, Safeco executed and tendered to the hospital a written agreement acknowledging Safeco’s obligation to complete the contract, and providing, inter alia:

(1) Lauderdale Lakes agrees that the unpaid balances of the contract prices at the date hereof, including retainages, is in the amount of $29,542 and that it will pay that amount to Safeco for the performance of the contract and the completion of the PROJECT in accordance with the terms of the contract.

The hospital eventually executed the agreement but did not pay any of the retainage to Safeco, allegedly because the contract had not been completed.

The hospital’s basic contention was that since the specifications required domestic water and fire pumps on the ground floor of the mechanical room located in a one-story building connected to the hospital, Standard-and Safeco-were obligated to furnish and install them. The pumps appear to have cost almost $17,000, plus installation. The hospital also contended that it completed other required work and expended funds for material and labor in doing so.

Mr. C. W. Ackerman, whose firm Safeco had hired to complete Standard’s contract, disputed the hospital’s contentions. He testified that the pumps were not part of Standard’s contract; that the entire cost of his firm’s completion of the job exclusive of the pumps, did not exceed $4,500; and that his firm completed it.

In its final judgment the trial court found that the express language in Standard’s contract with the hospital eliminated any obligation of Standard below the fourth floor slab. Consequently, the court determined that any work on the ground floor pumps was not part of the contract. As shall be discussed later, this finding was essential to Peninsular’s recovery in the trial court.

Peninsular was one of the materialmen Standard had been using. Although, as noted above, Safeco paid out in excess of $42,000 to Standard’s creditors prior to November 6, 1974, it did not pay Peninsular most of its invoices because it learned that Peninsular had neglected to file a Notice to Owner. Peninsular attempted to correct its error by serving a notice to owner on December 20, 1974. It thereafter filed a Claim of Lien on January 8, 1975. Apparently, Peninsular prevailed in the trial court because it sent its belated Notice to Owner on December 20, 1974 when the Hospital was still holding the retainage. Crane Co. v. Fine, 221 So.2d 145 (Fla.1969). Had the trial court found the pumps were part of the contract, the necessary corollary of that would have been to reduce the retainage that had been held by the hospital by whatever the pumps had cost to purchase and install.

On appeal the Dauers and the hospital do not dispute the trial court’s awards to Peninsular, but they raise two other points:

I. The attorney’s fees and cost judgment of $8,098.14 in favor of Peninsular and against appellants should have been set off against Safeco’s judgment on the latter’s crossclaim against the hospital.
II. The attorney’s fees and costs incurred by appellants in the defense of the mechanic's lien foreclosure brought by Peninsular should have been awarded to them and against Safeco.

I.

In support of their first point, appellants rely upon the language of the bond and Standard’s March 25,1974 sub-contract with the hospital, Section 713.29, Florida Statutes (1973), and the theory of indemnity as a matter of law. Notwithstanding the forcefulness of appellants’ arguments, there remains in our minds one overriding and determinative fact in this case; namely, the failure of the hospital to pay the retainage to Safeco prior to Peninsular’s notice of December 20, 1974. The trial court ultimately found this retainage to be $33,233.01, and, as stated above, awarded Peninsular $23,377.00 of it and the balance of $9,856.01 to Safeco because of the sums expended by the surety. Had the retainage been paid by the hospital to Safeco prior to December 20th, it follows that neither award would have been necessary or appropriate. Peninsular could not have prevailed because of its failure to send a timely notice to owner as required by Section 713.06, Florida Statutes (1973), and Safeco would have been relieved of any necessity to cross-claim for the funds rightly due it.

As between Safeco and the hospital, the latter would have us look only to the original sub-contract and bond and ignore the agreement of November 6, 1974. This we cannot do. There were three, not two, instruments which governed the relationship of the parties. While it has been said that one cannot recover on a single contract unless one performs his material obligations thereunder, when there are interdependent contracts or instruments, we hold that one cannot enforce obligations under one in the absence of performing interdependent obligations under the others. Accordingly, the hospital was not entitled to a set-off of the judgment for cost and attorney’s fees in favor of Peninsular.

II.

As to the second point, appellants again rely on the sub-contract as well as the theory of indemnity, and also contend that Sections 627.428 and 627.756, Florida Statutes (1973), apply. The same principle governs this point as did the first. Had the hospital performed, paid over the re-tainage to Safeco and tendered to it the defense of the foreclosure, the hospital would not have incurred attorney’s fees. Similarly, the Dauers would have been the beneficiaries of such performance because their obligation for attorney’s fees arose out of their failure to prevail in the foreclosure action. It naturally follows that they would have prevailed against Peninsular in the event the hospital held no retainage on December 20, 1974.

We are all blessed with 20/20 hindsight. Perhaps by this decision we are attributing to the hospital the obligation of foreseeing the necessity of delivery of the retainage to Safeco prior to December 20, 1974, because it is so clear to us now what should have been done. Nevertheless, the hospital “stonewalled” the issue of whose obligation it was to purchase and install the pumps and took a similar stance on not paying over the retainage to Safeco, which had paid out over $42,000 to Standard’s creditors. The resulting effects appear not only logical but appropriate. Accordingly, we affirm.

AFFIRMED.

DOWNEY and BERANEK, JJ., concur.

      . The sub-contract bond expressly provides that it remains in full force and effect if Standard does not fully perform all of its obligations under its sub-contract and pay for all labor and materials furnished in the prosecution of the work. The obligee of the bond is Lauderdale Lakes Medical Center, Inc., not Maxwell Dauer and Reva B. Dauer.

      . Article Xll of the Standard sub-contract provides, in pertinent part:
      If at any time there shall be evidence of any lien or claim for which, if established, the Contractor or the Owner might become liable, and which is chargeable to the Sub-Contractor, the Contractor shall have the right to retain out of any payment due or to become due, an amount sufficient completely to indemnify the Contractor or the Owner against such lien or claim. Should any claim or lien develop after all payments are made, the Sub-Contractor and his Surety shall refund to the Contractor all money that the latter may be compelled to pay in discharging such claims on the premises made obligatory in consequence of the Sub-Contractor default. The Sub-Contractor and his Surety shall pay all costs, expenses and attorneys’ fees incurred by the Owner and the Contractor, or either of them, in defending any suit brought to enforce any lien or to establish any claim against them or either of them on account of work done or materials furnished pursuant to the terms of this agreement, whether said work be done or materials be furnished by the Sub-Contractor or by others and shall pay all judgments and decrees which may be rendered against the Owner and Contractor or either of them in such suits, whether such liens or claims arise before or after final payment. No payment for work under this agreement shall be made to the Sub-Contractor until the Owner shall have paid the Contractor therefor.

      . Section 713.29, Florida Statutes (1973) provided:
      In any action brought to enforce a lien under part I of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as part of his costs.

      . Travelers Indemnity Company v. Howell & King, Inc., 336 So.2d 1 (Fla.4th DCA 1976), cert. denied 341 So.2d 1086 (Fla.1976); Midway Shopping Mall, Inc. v. Corky Corp., 257 So.2d 905 (Fla.3d DCA 1972).

      . Section 713.06(2)(a), Florida Statutes (1973) provided, in pertinent part:
      All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner setting forth the lienor’s name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. This notice must be served before commencing or not later than forty-five days from commencing to furnish his services or materials but in any event before the date of furnishing the affidavit under subsection (3)(d)l., of this section, or abandonment, whichever shall occur first. ...

      . Chatlos v. Morse Auto Rentals, Inc., 183 So.2d 854 (Fla.3d DCA 1966); cert. denied 188 So.2d 823 (Fla. 1966); Cheezem Development Corp. v. Intracoastal Sales and Service, Inc., 336 So.2d 1210 (Fla.2d DCA 1976).

      . Article IX of the Standard sub-contract provides:
      Should the Sub-Contractor at any time refuse or neglect to supply a sufficiency of proper skilled workmen, or materials of the proper quality, or equipment, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, or if the Contractor is advised of any claim against the Sub-Contractor and is advised that the same is due and unpaid-the Contractor, after three (3) days’ notice to the Subcontractor by United States Mail addressed to the Sub-Contractor at the address last known to the Contractor or delivered to any employee of the Sub-Contractor shall be at liberty to provide any such labor or materials, or equipment, or satisfy any such claims, and to deduct the cost thereof from any money then due or thereafter to become due to the Sub-Contractor under this agreement. In the event of any such payment by the Contractor under this contract the Sub-Contractor and his surety jointly and severally agree to repay the same to the Contractor, on demand, with interest at the rate of six per cent per annum from the respective dates of payment, with attorneys fees, without relief from valuation or appraisement laws.

      . Pender v. Skillcraft Industries, Inc., 358 So.2d 45 (Fla.4th DCA 1978); Borg Warner Acceptance Corp. v. Philco Finance Corp., 356 So.2d 830 (Fla. 1st DCA 1978); Morse Auto Rentals, Inc. v. Dunes Enterprises, Inc., 198 So.2d 652 (Fla.3d DCA 1967).

      . Section 627.428(1), Florida Statutes (1973) provided:
      Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

      . Section 627.756(2), Florida Statutes (1973) provided:
      Section 627.428 (attorney fee) shall also apply as to suits brought by owners, sub-contractors, laborers and material men against a surety insurer under payment or performance bonds written by the insurer under the laws of Florida to indemnify such owners, sub-contractors, laborers and material men against pecuniary loss by breach of a building or construction contract; except, that the amount to be so recovered for fees or compensation of such a plaintiffs attorney shall not be more than twelve and one-half per cent of the amount which the judgment or decree awards such plaintiff under the bond (exclusive of the costs of suit and attorney fees or compensation), [sic] nor shall it be less than one hundred dollars where the judgment or decree is for more than five hundred nor less than fifty dollars where the judgment or decree is five hundred dollars or less. Such owners, sub-contractors, laborers and material men shall be deemed to be “insureds” or “beneficiaries” for the purposes of this section.


author: PER CURIAM. PER CURIAM.

text:
    Carola D. ALLEN, Appellant, v. In re The ESTATE of Ellen C. DUTTON, deceased et al., Appellees.
    No. 79-1040/T4-542.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    Rehearing Denied Feb. 25, 1981.

      Ernest J. Rice, Orlando, for appellant.
    Leon H. Handley, David W. Roquemore, Jr., Francis E. Pierce, III, Orlando, and Russell Troutman, Winter Park, for appel-lees.

      . Megdell v. Wieder, 327 So.2d 781 (Fla.3d DCA 1976).

   PER CURIAM.

The appellant, Carola D. Allen, the stepdaughter of Ellen C. Dutton, deceased, appeals from a final judgment denying her any relief in her suit to revoke the probate of Dutton’s will because of undue influence. The trial court struck numerous paragraphs of the appellant’s petition, and based the final judgment on a summary judgment and a judgment on the pleadings. We conclude this case should not have been decided by summary judgment at that stage. Accordingly we reverse the judgment.

Allen raises seven points in this appeal which must be dealt with because of our disposition of the case:

1. Whether the court erred in granting motions to strike allegations from the amended petition;
2. Whether the court erred in granting appellees’ motion for judgment on the pleadings;
3. Whether the court erred in granting a summary judgment;
4. Whether the court erred in granting appellees’ attorney fees in the amount of $55,000.00 against the appellant;
5. Whether the court erred in awarding certain costs to the appellees against the appellant;
6. Whether the court erred in striking appellant’s motion for a jury trial; and
7. Whether the court erred in denying appellant’s motion to require the withdrawal of the law firm (whose senior member allegedly exercised the undue influence) from representation of the estate in these proceedings.

POINTS 1, 2 and 3

The basic question is whether the pleadings and the record clearly show an absence of any genuine issue which could prove or establish undue influence. We must make this determination after reviewing the record in a light most favorable to the appellant.

Although the record contains conflicting statements in depositions and affidavits, for purposes of these summary motions the record establishes the following facts. Ellen married Harry C. Dutton, the appellant’s father, in 1938. Ellen and Harry executed various wills from 1961 to 1969. Harry divided his estate into two trusts, a “marital” trust called the Ellen C. Dutton trust, and a “non-marital” trust called the Dutton Family Trust. Ellen was to receive the income for life from both trusts, and she had a power of appointment over the corpus of the marital trust, exercisable by her will. Ellen refrained from exercising this power in her earlier wills. If she failed to exercise this power, the principal of the trust would pour over to the beneficiaries of the non-marital trust-to appellant and her daughter. Harry died in March of 1971.

Thomas Gurney, Sr. had prepared Harry’s last will, and he represented the estate. He also prepared Ellen’s will which is contested in these proceedings. She executed it in June of 1971. In the new will, Ellen exercised her power of appointment over the trust, and she failed to make any provision for the appellant or the appellant’s daughter. Ellen’s will named Gurney as executor and recommended the hiring of his law firm to represent her estate. She left specific bequests to three charitable beneficiaries: Stetson University, the Children’s Home Society, and the Florida Baptist Orphanage of Lakeland. She had no prior knowledge about, nor interest in, these legatees. Mr. Gurney suggested them to her, and acquainted her with them. The balance of her estate, (which totaled approximately $427,377.00) was to be distributed to such “charitable” beneficiaries as Gurney determined in his absolute discretion.

Ellen’s mental and physical health were poor at the time the contested will was executed. She had arteriosclerosis and was senile. Although she was wealthy, she was apprehended for shoplifting in 1971 and once thereafter. Following Harry’s death she was particularly depressed. She relied extensively on Gurney and his secretary to cope with ordinary business decisions. They spent a lot of time with her. In 1976 and thereafter, Ellen told the appellant that she (Carola) would inherit from Ellen’s estate. She was confused about whether appellant was a beneficiary under her will. Ellen had a close affectionate relationship with appellant which continued until she died in 1978.

These allegations and proofs are sufficient to raise a presumption of undue influence. Florida precedents hold that three elements cause this presumption to arise: (1) the existence of a confidential or fiduciary relationship between the decedent and the procurer of a will; (2) the active participation of the procurer in the planning and drafting of the will; and (3) the realization by the procurer of a substantial benefit under the provisions of the will. In Re Estate of Carpenter, 253 So.2d 697 (Fla. 1971); In Re Estate of Nelson, 232 So.2d 222 (Fla. 1st DCA 1970).

Gurney clearly had a fiduciary or confidential relationship with Ellen, and he was shown to have participated in making substantive decisions concerning the disposition of her estate. Appellees urge, however, that he was not a “substantial beneficiary” and therefore the presumption should not arise. Merely naming himself as executor or trustee, and suggesting the hiring of his law firm would not be sufficient to make Gurney a substantial beneficiary. However, Gurney’s absolute discretion to distribute the bulk of Ellen’s estate to charities endows him with sufficient collateral benefits to make him a substantial beneficiary of the will. In Re Estate of Nelson, 232 So.2d 222 (Fla. 1st DCA 1970); Zeigler v. Coffin, 219 Ala. 586, 123 So. 22 (1929).

When a presumption of undue influence arises, the proponent of the contested will must come forward with a reasonable explanation of his active role in the decedent’s affairs. When that happens, the presumption vanishes, and the trial court is left to decide the case in accordance with the greater weight of the evidence. However once the presumption arises, the undue influence issue cannot be determined in a summary judgment proceeding. In Re Knight’s Estate, 108 So.2d 629 (Fla. 1st DCA 1959). In remanding this matter for trial we do not intend to suggest in any way the proper disposition to be made by the trial court in the light of such evidence as may be formally presented. Id.

The paragraphs of the amended petition which furthered the appellant’s theory of undue influence were relevant and should not have been stricken. Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Accordingly, the allegations of paragraphs 5B, 5D, 5E, the first clause of 5F, 6C, and 9 should not have been stricken. But the second clause of paragraph 5F and paragraph 6B appear irrelevant and immaterial and they were properly excised from the petition.

POINT 4

The award of attorney fees to a party pursuant to section 57.105, Florida Statutes (1979) is appropriate only if the trial court finds there was a complete absence of a justiciable issue of law or fact. City of Miami Beach v. Town of Bay Harbor Island, 380 So.2d 1112 (Fla.3d DCA 1980). We would not sustain such a finding in the case at this point, had it been made. Further in a related appeal we held the appellant’s law suit was not frivolous and insubstantial so as to warrant an award of attorney fees pursuant to section 57.105.

Accordingly, we reverse the award of attorney fees. .

POINT 5

The award of costs appears premature and it is accordingly reversed without prejudice to request payment after trial of this cause. We note that the $1,682.94 travel expense award appears questionable without further explanation. Butler v. Borowsky, 120 So.2d 656 (Fla.3d DCA 1960).

POINT 6

We find no error in the trial court’s decision to strike appellant’s request for a jury trial of the undue influence issue. Probate matters were never submitted to jury trials at common law, or under the prior probate law of Florida. Estate of Fanelli, 336 So.2d 631 (Fla.2d DCA 1976); In Re Duval’s Estate, 174 So.2d 580 (Fla.2d DCA 1965).

The “new” Florida probate code which became effective January 1, 1976 makes no express change concerning the availability of jury trials. Florida Rule of Probate & Guardianship Procedure 5.025(a)(1) characterizes proceedings to revoke a will as “adversary proceedings.” Rule 5.025(b)(2) says such proceedings will be conducted “similar to suits of a civil nature,” and the Rules of Civil Procedure shall govern their conduct. But Florida Rule of Civil Procedure 1.430(b) provides only that a “party may demand a trial by jury of any issue triable of right by a jury.” (Emphasis added).

Under the Code, probate matters which were traditionally the proper subject of jury trials, such as may arise in the resolution of claims, may be resolved by jury trials. However, issues such as undue influence and testamentary capacity, which are traditionally resolved by probate judges, continue to be appropriately resolved without juries. Estate of Fanelli, 336 So.2d 631 (Fla.2d DCA 1976); see Cooley v. Cody, 377 So.2d 796 (Fla. 1st DCA 1979).

We reject appellant’s view that the new probate code makes jury trials mandatory to resolve all fact issues. Such a drastic departure from prior law should not be based on inferences from language employed by the Code.

POINT 7

The appellant argues the trial court should have required Gurney’s firm to withdraw as counsel for Ellen Dutton’s estate pursuant to Florida Bar Code of Professional Responsibility, D.R. 5-102. This Rule provides:

(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial.... (Emphasis supplied)
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client. (Emphasis supplied)

D.R. 5-102(A) and (B). The “client” in this litigation is the “estate”-not the deceased person. Gurney’s testimony concerning Ellen’s mental capacity would not be “on behalf of” the estate. Therefore section (B) applies rather than section (A). Section (A) would mandate withdrawal of the attorney and his firm.

Section (B) allows the attorney or his firm to continue the representation until it becomes apparent the attorney’s testimony will be “prejudicial” to the client. In Pantori, Inc. v. Stephenson, 384 So.2d 1357 (Fla. 5th DCA 1980), we held that an attorney could be barred by the trial court from representing a party in litigation if the court determines the attorney’s representation would breach a former client’s confidences. The record in this case fails to establish that Gurney’s testimony will be “prejudicial” to the estate, or involve breach of client confidences.

Although not properly raised in this appeal, it appears to us that Gurney’s and his firm’s representation of the estate, in litigation involving the validity of this will, poses a more substantial problem under Florida Bar Code of Professional Responsibility, D.R. 5-101(A) and D.R. 5-105(C). On remand, the trial court shall not be foreclosed from considering that matter.

REVERSED in part and REMANDED.

DAUKSCH, C. J., and COBB and SHARP, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

The appellee has filed a lengthy petition for rehearing urging that this court resolved conflicts in the evidence and made findings of fact germaine to the ultimate issues to be tried. As stated in our opinion, we reviewed the propriety of the lower court’s entry of a summary judgment and judgment on the pleadings. In that context the record and the allegations of the pleadings must be read in the light most favorable to the party against whom the judgment was entered. We did so and found there were genuine issues of fact which required resolution by trial on the merits. In remanding the case for trial we expressly cautioned “we do not intend to suggest in any way the proper disposition to be made by the trial court in the light of such evidence as may be formally presented.” No determination of “fact” was intended nor made by this Court. Accordingly, the petition for rehearing is

DENIED.

DAUKSCH, C.J., and COBB, and SHARP, JJ., concur.

      . Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla. 1977).

      . “Qualified” for purposes of receiving federal estate tax deduction pursuant to 26 U.S.C. § 501(c)(3).

      . Zinnser v. Gregory, 77 So.2d 611 (Fla.1955).

      . In Re Estate of Carpenter, 253 So.2d 697, 704 (Fla.1971).

      . Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980).

      . See also § 733.109(l)(b), Fla.Stat. (1979).

      . See also § 733.705(5), Fla.Stat. (1979).

      . In Re Integration Rule of The Florida Bar, 235 So.2d 723 (Fla. 1970).

      . The Florida Bar v. Shannon, 376 So.2d 858 (Fla. 1979); see § 733.612(20), Fla.Stat. (1979).

      . Live and Let Live, Inc. v. Carlsberg Mobile Home Properties, Ltd., 388 So.2d 629 (Fla. 1st DCA 1980).

      . It is apparently not uncommon for an attorney who drafted a will to handle the probate of the estate and related litigation concerning the testator’s mental capacity. See Zinnser v. Gregory, 77 So.2d 611 (Fla.1955) and In Re Estate of Nelson, 232 So.2d 222 (Fla. 1st DCA 1970).

      . Florida Bar Code of Professional Responsibility, D.R. 5-101(A) provides: Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.

      .Florida Bar Code of Professional Responsibility D.R. 5-105(C) provides: In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.


text:
    John Clyde LUHRS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1559/T4-661.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.
    On Rehearings Feb. 18, 1981.

      Sam E. Murrell and Charlene D. Kelley of Sam E. Murrell & Sons, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., and Barbara Ann Butler, Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from an order withholding adjudication of guilt and placing appellant on probation for five years for aggravated child abuse. Appellant pleaded no contest, specifically reserving for appeal the trial court’s denial of his motion for discharge for violation of the speedy trial rule.

The time period for speedy trial expired November 23, 1978. After various events, the trial was reset for November 16, 1978. Trial was not held on that date but reset for February 6,1979. Defendant then filed his motion for discharge which was denied.

Notice of appeal was filed on June 17, 1979. On June 29, 1979, the trial judge entered an order, nunc pro tunc to November 17, 1978, granting the state’s oral motion for continuance, attributing the delay to defendant for providing his witness list within one week of the proposed trial and rescheduling the trial for February 6, 1979.

The question is whether a trial judge, after notice of appeal has been filed, may enter an order nunc pro tunc which is material to the basis for the appeal. Without the nunc pro tunc order, defendant was clearly entitled to discharge because the 180-day period had expired well before the February 6, 1979 trial date.

This court has recently held that the state’s properly granted motion for continuance takes the matter out of the operation of the speedy trial rule and a defendant is entitled to a speedy trial only within constitutional guidelines as expressed, for example, in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980). The only manner by which the rule is brought back into operation is if the defendant files a motion for discharge; in that event, he must be brought to trial within ninety days after that motion is filed. Bufford at 930. See also State v. Kurtz, 354 So.2d 890 (Fla. 4th DCA 1978). Contra, State v. Reese, 359 So.2d 33 (Fla. 4th DCA 1978).

A court order entered before expiration of the speedy trial time is required to extend or toll the speedy trial periods. Ru-biera v. Dade County ex rel. Benitez, 305 So.2d 161,163 (Fla.1974); State v. Wise, 336 So.2d 3 (Fla. 4th DCA 1976); Mullin v. State, 307 So.2d 829 (Fla. 3d DCA 1974); Esperti v. State, 276 So.2d 58 (Fla. 2d DCA 1973). If the nunc pro tunc order here is effective as of the date it proclaims to have been ordered, defendant was not entitled to discharge. Appellant contends a valid order of continuance was not entered and the omission cannot be corrected nunc pro tunc after the fact. We disagree and affirm.

The judgment of a court may be corrected at any time to reflect what was, in fact, done by the court. 15 Fla.Jur.2d Crim.Law § 905 (1979). A judgment nunc pro tunc presupposes a judgment actually rendered at the proper time but not properly entered. Dunkle v. State, 98 Fla. 985, 124 So. 725 (1929). A nunc pro tunc order is also used to supply an omission in the record of an action previously done but omitted through inadvertence or mistake. Boggs v. Wainwright, 223 So.2d 316 (Fla.1969); Applestein v. Alberring, 291 So.2d 206 (Fla. 3d DCA 1974).

In Becker v. King, 307 So.2d 855, 859 (Fla. 4th DCA 1975), the court said:

Nunc pro tunc means ‘now for then’ and when applied to the entry of a legal order or judgment it normally does not refer to a new or fresh (de novo) decision, as when a decision is made after the death of a party, but relates to a ruling or action actually previously made or done but concerning which for some reason the record thereof is defective or omitted. The later record making does not itself have a retroactive effect but it constitutes the later evidence of a prior effectual act.
* * * * * *
[I]t was also a proper use of a nunc pro tunc order to establish a final and appeal-able written record of the court’s previous decision orally rendered. To correct the form of the first nunc pro tunc judgment was also a proper use of the second nunc pro tunc — ‘to make the record speak the truth.’

Prior to the time the record on appeal is transmitted, the lower tribunal has concurrent jurisdiction with the appellate court to render orders on any procedural matter relating to the cause. Fla.R.App.P. 9.600(a). The correction of an error or omission properly falls within this category of procedural matters.

The order of June 29, 1979, recites that the state made an oral motion for a continuance based on prejudice and after a hearing, the motion was granted. Counsel for appellant was not defendant’s trial counsel and he has not presented any facts to suggest that the hearing did not take place. To speculate that the event did not take place would necessarily imply a charge of bad faith and deliberate circumvention of the speedy trial rule by the prosecution and the trial judge. Such serious charges should be supported by more than speculation.

AFFIRMED.

COBB and COWART, JJ., concur.

ON MOTION FOR REHEARING OR CLARIFICATION

The state’s petition calls to our attention a transcript of a hearing which took place November 16,1978. The pertinent remarks were:

THE COURT: Luhrs, I am going to grant the State’s continuance on that matter, but I’m charging that to the defendant, in that you provided them with witnesses two days prior to trial. Witnesses which were apparently known to your client throughout the period.
[PUBLIC DEFENDER]: Yes, Your Hon- or.
THE COURT: And it was beyond the fifteen days for your response.
[PUBLIC DEFENDER]: I don’t concede the motion, but I will concede the factual basis.
THE COURT: All right sir. Thank you.

The record was supplemented after oral argument to include these remarks at our request. Our opinion can be interpreted as leaving the question whether the hearing took place unanswered. We therefore clarify our opinion by stating the motion for rehearing was made and acted upon.

COBB and COWART, JJ., concur.

      . The civil rules specifically provide that clerical mistakes may be corrected before the record on appeal is docketed in the appellate court and thereafter while the appeal is pending with leave of the appellate court. Fla.R.Civ.P. 1.540(a). No comparable criminal rule specifically providing for the correction of clerical errors appears; however, Boggs, cited above, a criminal case, adopted the rule concerning correction of errors after term from a civil case. See Boggs at 317, quoting R. R. Ricou & Sons Co. v. Merwin, 94 Fla. 86, 113 So. 745, 746 (1927).


author: BERANEK, Judge.

text:
    Judith Marsha GLAZER, Petitioner, v. Ira M. GLAZER, Respondent.
    No. 80-1833.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.
    As Modified On Rehearing March 11,1980.
    James Fox Miller, Miller & Schwartz, P. A., Hollywood, for petitioner.
    Howard I. Weiss, Sachs & Weiss, P. A., Boca Raton, for respondent.
   BERANEK, Judge.

By petition for writ of certiorari we are asked to review an order of the trial court granting respondent/husband’s motion for a bifurcated trial of the property, alimony, and support issues from the dissolution of marriage.

Petitioner/wife filed her petition seeking dissolution of the marriage, alimony, child custody and support and other relief in May of 1980. Several months later a hearing was conducted before a general master on wife’s claim for temporary relief. Prior to entry of the general master’s report, husband moved to bifurcate the property, alimony, and child support issues from the dissolution of the marriage alleging that since neither party contested that marriage’s being irretrievably broken, Section 61.052(2)(b), Florida Statutes (1979), required the court to dissolve the marriage immediately. Husband also asserted the parties had been separated since October of 1978, and to compel them to remain married until final adjudication of the property, alimony, and child support issues, would prejudice husband. He further noted that since the general master had already conducted the temporary relief hearing wife could not be prejudiced. Wife objected to the motion contending that her property and financial interests would be prejudiced. The trial court granted husband’s motion on October 16, 1980, and, on October 22, 1980, entered its order enjoining husband from liquidating any principal assets without wife’s consent before the final hearing and from reducing wife’s medical insurance benefits under his policy. Also, on October 22,1980, the trial court ratified and approved the general master’s report recommending, inter alia, that wife have temporary exclusive possession of the marital home, that husband pay periodic alimony and child support of $2,350 per month, and that he maintain all existing insurance.

Wife filed her petition in this Court on October 27, 1980, raising the same objections to entry of the bifurcation order that she argued below.

Because we find that wife has failed to demonstrate any wrong which cannot be remedied on appeal from an eventual judgment of dissolution reserving determination of property, alimony, and support issues, we deny her petition for certiorari. However, the parties should be aware that this split procedure should not be used unless “it is clearly necessary for the best interests of the parties or their children.” Claughton v. Claughton, 393 So.2d 1061 (Fla.1980). In this case the Supreme Court reaffirmed the split procedure but also stated:

The general law and our procedural rules at both the trial and appellate levels are designed for one final judgment and one appeal. Splitting the process can cause multiple legal and procedural problems which result in delay and additional expense to the litigants. This split procedure should be used only when it is clearly necessary for the best interests of the parties or their children. The convenience of one of the parties for an early remarriage does not justify its use.

See also Hyman v. Hyman, 310 So.2d 378, 380 (Fla. 2d DCA 1975), cert, discharged, 329 So.2d 299 (Fla.1976). We will not hesitate to reverse a judgment dissolving a marriage and reserving jurisdiction to determine property matters if the case has been improperly bifurcated over the objection of one of the parties. It is only in exceptional circumstances that a trial court should exercise its discretion to bifurcate the case. See Behar v. Southeast Banks Trust Co., 374 So.2d 572 (Fla. 3d DCA 1979), cert. denied 379 So.2d 202 (Fla.1980), and Hyman v. Hyman, supra. Any judgment dissolving a marriage (with or without a property reservation) is subject to appeal within 30 days of rendition. If that judgment results from an erroneously bifurcated proceeding then the dissolution may be subject to reversal.

CERTIORARI DENIED.

LETTS, C. J., and MOORE, J., concur.


author: PER CURIAM.

text:
    LAVALLE, WOCHNA, RUTHERFORD, MAKER & TRUESDELL et al., Appellants, v. Wilbur C. STEVENS, Appellee.
    No. TT-5.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.
    Rehearing Denied March 9, 1981.

      Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellants.
    Janet W. Freeman of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellee.
   PER CURIAM.

The employer/carrier appeals an order of the deputy commissioner finding claimant's recurrent hernia compensable and awarding compensation in excess of the six weeks mandated by Section 440.15(6)(f). The carrier argued that the hernia was not com-pensable, but if it was compensable, then compensation should not have been paid for more than six weeks as provided in § 440.-15(6)(f). We affirm the deputy’s finding of compensability but reverse the order as to the compensation awarded in excess of the statutory maximum of six weeks.

Claimant suffered a compensable hernia on January 3, 1977 which was repaired and compensation paid pursuant to Section 440.-15(6)(f). The claimant did not return to work for the employer, but started a business as an insurance adjuster, resuming normal activities.

In February 1979, claimant was diagnosed by Dr. Wolfe as having a recurrent hernia. Dr. Wolfe stated that the hernia was the result of a breakdown of the previous repair. He stated that a recurrent hernia could be caused by just a breakdown of the previous repair without any intervening strain or accident. Based on this testimony, the deputy correctly found that claimant’s recurrent hernia was causally related to his prior injury which caused the first hernia.

The claimant, relying on Patrylo v. Nautilus Hotel, 4 FCR 234 (1960); Patrylo v. Nautilus Hotel, 5 FCR 27 (1961), cert. denied 142 So.2d 279 (Fla.1962); and Bryant v. Virginia Carolina Chemical Company, 1 FCR 20 (1953), argued that the recurrent hernia was an aggravation of the prior hernia and therefore compensation was not limited to Section 440.15(6)(f). The carrier, on the other hand, relying on Plant City Steel v. Grace, 381 So.2d 738 (Fla. 1st DCA 1980), argued that recurrent hernias must be governed by Section 440.15(6)(f). We agree with the employer/carrier’s position that recurrent hernias must be restricted to Section 440.15(6)(f).

In Bryant, supra the claimant suffered from a preexisting hernia which had not been repaired. His compensable injury aggravated this preexisting hernia. Accordingly, compensation was allowed pursuant to § 440.02(19), as it would be for any other aggravation of a preexisting condition.

In Patrylo, supra the claimant suffered a hernia in September 1959 which was repaired. He suffered a recurrent hernia in November 1959. This hernia was repaired surgically in December 1959. The claimant suffered another hernia immediately after the operation as he was pulled from the operating table to a gurney. The commission recognized that his hernia repair was aggravated by his surgical procedure and, therefore, allowed compensation in excess of that allowed by the hernia section.

The medical testimony in Patrylo was to the effect that the claimant would have to wait ten to twelve months before a third hernia repair could be undertaken. Compensation was awarded in Patrylo because the third operation had not yet been performed. “Since the operation is yet to be performed, it is our view that the last sentence of the hernia section should govern in this cause.” Patrylo, 4 FCR 234, 238. The last sentence of the hernia section stated “Compensation shall be allowed for temporary total disability as provided by Subsection (2) of this section for such disability before the operation.” (emphasis supplied); see also Vecchione v. Little River Bank and Trust Company, 5 FCR 292 (1964). Thus it is clear that compensation was awarded in Patrylo for aggravation of a primary injury by medical treatment rather than aggravation of a preexisting unrepaired hernia causing the need for medical treatment. “The great majority of American courts now hold that aggravation of a primary injury by medical treatment is compensa-ble.” Patrylo, 4 FCR 234, 238.

Patrylo underwent a third hernia operation which also was unsuccessful. The deputy commissioner awarded him 25% permanent partial disability as a result of sustaining a hernia by accident upon which three unsuccessful surgical procedures had been performed. The commission quashed the deputy’s order because there were insufficient findings of fact as to whether there had been an aggravation of a preexisting hernia. 5 FCR 27, 29.

In denying the petition for certiorari, the Supreme Court in Patrylo, 142 So.2d 279 stated:

If the hernia were the sole cause of the disability, then the amount of the claim would be governed by F.S. Section 440.-15(6), F.S.A. ... The deputy commissioner, however, grounded his award on Section 440.02(19), which covers the aggravation of a preexisting disease .... The findings of the deputy here are also insufficient because they do not determine the extent of the relationship, if any, between the operating room accident following the second repair and the ultimate disability....
The problem here revolves around the presence or absence of occurrences other than the original industrial accident which have aggravated and allegedly produced in part the nonrepairable hernia condition.

Id. at 282.

In the instant case, claimant merely suffered a recurrent hernia. This recurrent hernia was the sole cause of his disability. He did not suffer an aggravation of a primary injury by a surgical procedure as in Patrylo. As stated in Empire Furniture Factory v. Kuczynski, IRC Order 2-3544 (Sept. 20, 1978):

There is a difference between the aggravation of a preexisting hernia and a recurrent hernia. The record is clear that claimant’s 1972 hernia was well healed by July 5, 1972 and he was released by his treating physician to return to full time activity. In 1975 there was no hernia to aggravate, but merely a weakness at the site of the 1972 surgery. This proclivity is not a preexisting hernia subject to aggravation. ...
The recurrent hernia in this instance can only be compensated for under Section 440.14(6) Florida Statutes 1975.

In addressing a similar situation this court in Plant City Steel v. Grace, supra, stated:

In the present case the evidence indicates that the claimant’s prior hernia had been successfully repaired and that his present injury was a recurrent hernia. Compensation should thus be governed by Section 440.15(6)(f), since we find no evidence of aggravation of any condition other than a weakness at the site without which “any hernia, whether an ‘initial hernia’ or a ‘recurrent hernia’, ordinarily does not appear.” Cataldo v. Reliable Plasterers, 5 FCR at 79.

Accordingly, the deputy’s award of compensation in excess of the six weeks maximum allowed by the § 440.15(6)(f) is reversed. This cause is remanded for proceedings consistent with this opinion.

WENTWORTH and JOANOS, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: CAMPBELL, Judge.

text:
    Arthur D. CARPENTER, Appellant, v. STATE of Florida, Appellee.
    No. 80-469.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1981.
    Rehearing Denied Feb. 23, 1981.
    Jack 0. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, and Steve Houchin, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen. Tampa, for appellee.
   CAMPBELL, Judge.

Appellant appeals his convictions and separate concurrent sentences for battery upon a law enforcement officer and resisting arrest with force against the same officer.

Appellant was arrested for driving while under the influence of intoxicating beverages. The arresting officer directed appellant to get into the police vehicle, but appellant hesitated to do so. As the arresting office attempted to get him into the vehicle, the appellant jumped out and began choking the officer to the extent that an auxiliary officer had to assist in subduing him. As a result, the state charged appellant by information with one count of battery upon a law enforcement officer and another count of “offering and doing violence” to the officer “by grabbing him by the throat and trying to choke him.”

Following a jury trial, appellant was found guilty of both counts and sentenced to concurrent sentences.

Appellant urges the impropriety of a conviction and sentence on both charges and cites in support Walker v. State, 386 So.2d 630 (Fla. 5th DCA 1980). Walker presents the same issues with which we have been presented and we agree with the result of our sister court in Walker. The court, however, made what we feel is an incorrect statement of the law on lesser included offenses that we must address in deciding this case.

As was the appellant in the instant case, Walker was charged with battery upon a law enforcement officer and resisting arrest with violence. The acts constituting each charge resulted from the same conduct during the same episode. The Walker court held that a resisting charge could occur without a battery since section 843.01, Florida Statutes (1979) proscribes not only the doing of violence but also the offer to do violence. However, since in Walker there was no offer, but only an attack, which constituted both the battery and the resisting, the court held that the appellant could only be convicted and sentenced on one of the charges. We agree. However, we believe the Walker court incorrectly stated, “Here, neither crime is ‘lesser’ because both are third degree felonies.... ” Id. at 631. If it were a correct statement of the law, the court should have applied section 775.-021(4), Florida Statutes (1979) and sustained the convictions on both counts, since section 775.021(4) permits separate sentences where the same conduct constitutes a violation of two or more statutes except where one is a lesser included offense of the other.

Our disagreement with our sister court arises over whether an offense is a lesser included offense of another offense whenever lesser elements are required to prove the offense even though both offenses carry penalties of equal severity. Although we cannot determine that this exact question has been addressed by the courts of this state before, except in the quoted statement from Walker, we find that it is correctly answered in the affirmative. Other jurisdictions have clearly spoken to the issue and taken the position which we take here. State v. Habhab, 209 N.W.2d 73 (Iowa 1973); Brown v. State, 261 Ind. 169, 301 N.E.2d 189 (1973); State v. Caudillo, 124 Ariz. 410, 604 P.2d 1121 (1979).

The state argues that, even conceding that resisting may be a category four lesser included offense of battery upon a law enforcement officer, both convictions should be affirmed in this case because the evidence showed that appellant, in addition to doing violence, offered to do violence, which is not in any way a lesser included offense of battery upon a law enforcement officer. Therefore, the exception to section 775.021(4) regarding lesser included offenses would not apply, and section 775.-021(4) would permit the imposition of separate sentences on each conviction.

We agree that under the facts of this case appellant could have been charged so as to support convictions of both battery and resisting arrest by offering to do violence. The auxiliary officer testified that after the appellant was in the police vehicle and on the way to the hospital, he offered in strong language to do violence to both officers and their families. However, the state’s information is drawn in language which limits the resisting arrest charge to specific acts, i. e., “grabbing him [the officer] by the throat and trying to choke him;” therefore, the charge of resisting arrest is a category four lesser included offense of battery upon a law enforcement officer on the facts pleaded, and section 775.021(4) prohibits separate sentences for two offenses when one is a lesser included offense of the other.

Since both convictions cannot be sustained, we reverse the conviction and sentence of resisting arrest with violence, affirm the conviction of battery upon a law enforcement officer and remand for treatment consistent with this opinion.

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


author: ROBERT P. SMITH, Jr., Judge.

text:
    Marina Lastra ZAFRILLA, as personal representative of the Estate of Manuel Zafrilla, deceased, Appellant, v. VOLARE SHOES, INC. and United States Fidelity and Guaranty Company, Appellees.
    No. VV-15.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1981.
    Rehearing Denied March 12, 1981.
    L. Barry Keyfetz of Keyfetz & Poses, P. A., Miami, for appellant.
    Summers Warden, Miami, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Zafrilla’s personal representative, whom we recognize as the party in interest succeeding to that of the worker who was injured in a compensable accident and then died, urges on this appeal that the deputy commissioner should have awarded interest at the statutory legal rate on doctors’ and hospital bills unpaid by the employer/carrier during the more than six years this claim was contested. We agree with appellant’s contentions and remand the case for the calculation and award of interest on the amount of the unpaid bills from the date or dates the employer/carrier should have paid them, at the statutory legal rate. Section 687.01, Florida Statutes (1979).

We acknowledge that the legislature has not provided for the assessment of interest on unpaid benefits of this class, that Section 440.20(6) and (7), Florida Statutes (1978 Supp.) provides for assessment of monetary penalties when compensation “payable under the terms of an award” or as an “installment of compensation” due is not paid. Nevertheless, the Supreme Court in Parker v. Brinson Constr. Co., 78 So.2d 873, 875-76 (Fla.1955), held that a Chapter 440 debt for compensation, like any other debt ex con-tractu, draws “lawful interest thereon from the date it should have been paid,” at the legal rate specified for contracts by statute. That principle was later held to sustain an award of interest at the legal rate on attorney’s fees awarded by a deputy commissioner, payable from the date of award. Stone v. Jeffres, 208 So.2d 827 (Fla.1968). And the same principle was later held to require the payment of interest at the legal rate on an insurer’s debt for the insured’s medical expenses — a debt which “may have been due even prior to [the insured’s] death,” but which was “in any event” due at the time payment was later claimed in Nationwide Mut. Ins. Co. v. Griffin, 22 So.2d 754 (Fla. 4th DCA 1969).

For the reasons stated at greater length by the Supreme Court in Parker and Stone, we hold that interest is now due and payable at the statutory rate of six per cent for medical and hospital bills unpaid when, after a reasonable period of investigation, they should have been paid by the employer/carrier. The deputy may direct payment to the claimant’s estate or to the physicians or hospital, or to both as their interests may appear.

REVERSED.

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