author: NESBITT, Judge.

text:
    Nazario ALVAREZ, Martha Alvarez and Marlene Alvarez, both minor children, by and through Nazario Alvarez, Appellants, v. Martha DeAGUIRRE, National American Insurance Company, Indiana Insurance Company, and Jennings Construction Corporation, jointly and severally, Appellees.
    No. 79-731.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Rehearing Denied March 30, 1981.

      Norman N. Zipkin and Bernard I. Rappa-port, John A. Finn, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and James C. Gailey, Bartel, Shu-ford & Dubitsky and Mark Kamilar, Miami, for appellees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   NESBITT, Judge.

This is an appeal from an order granting defendants’ motion to dismiss plaintiffs’ fifth amended complaint for failure to state a cause of action.

The factual allegations of the various causes of action alternatively alleged in the fifth amended complaint showed that the plaintiffs-appellants leased a single-family residence from its owner, defendant-appel-lee, DeAguirre. Co-defendant, Jennings Construction Corporation was the general contractor who built DeAguirre’s house. Roche Electrical Company, Inc., also a co-defendant, had the subcontract to install the electrical system. The amended complaint alleged that a fire was started in the electrical box behind the kitchen stove due to a faulty circuit breaker which caused an overload. It was further alleged that the damages and injuries resulted from a defect created by the general contractor and/or the subcontractor which they should have been aware of and that the owner of the property knew or should have known of the defect.

The fifth amended complaint contained counts against the general contractor and subcontractor under the theories of negligence, strict liability, and breach of warranty. In addition, the defendant-owner was sued on the theories of negligence and breach of implied warranty of fitness. Defendants, DeAguirre and Jennings Construction Corporation, made a motion to dismiss the fifth amended complaint which the trial court granted. The subcontractor, Roche Electrical Company, Inc., did not join in the motion and is therefore not a party to this appeal.

CONTRACTOR’S NEGLIGENCE

The trial court properly dismissed the count of negligence against the contractor, Jennings Construction Corporation. Plaintiffs contend that Slavin v. Kay, 108 So.2d 462 (Fla.1959) permits a third party, more particularly a tenant, to recover for injuries caused by a defect created by a contractor’s original negligence which was latent and not otherwise discoverable. Plaintiff’s position that the Slavin rule would apply to a tenant is correct; however, even a liberal reading of the fifth amended complaint indicates that the plaintiffs failed to allege that the defect was latent.

In the present case, the fifth amended complaint, in the count against the contractor for negligence, alleged that:

On/or about the 27th day of May, 1975, there existed a defect at the premises that the defendant, Martha DeAguirre [owner] and/or Jennings Construction Corporation [contractor], and/or Roche Electrical Company, Inc. [subcontractor] knew or should have known existed. [emphasis supplied].

There was, however, no allegation that the defect was either latent, and therefore not discoverable; or that it was not discovered by the owner. If the defect was discoverable, i. e., not latent, or, in fact, had been discovered, the general rule which relieves contractors of liability for a third party’s injuries resulting from discoverable defects would govern. Slavin v. Kay, supra; Simmons v. Owens, 363 So.2d 142 (Fla. 1st DCA 1978); El Shorafa v. Ruprecht, 345 So.2d 763 (Fla. 4th DCA 1977). This general rule is premised upon the contractor returning control to the owner thereby giving the owner the opportunity and duty to remedy a discoverable defect. Upon acceptance of the work, the contractor is put out of possession and therefore is not held liable to third parties for conditions which the owner has chosen to accept. Upon learning of the defect, it is the owner’s negligence which is the proximate cause of the injury rendering the owner liable and exonerating the contractor. El Shorafa v. Ruprecht, supra.

The fifth amended complaint alleges that DeAguirre, the owner, “knew or should have known” of the existence of the defect. This allegation, accepted as being true, as it must for the purposes of summary judgment, clearly places the contractor within the general rule which frees him from the liability which would otherwise be imposed for injuries to third-party tenants resulting from latent defects.

OWNER’S NEGLIGENCE

The complaint, though inartfully drawn, read in the light most favorable to the non-moving party, does state a cause of action for negligence against the owner, DeAguirre, which should not have been dismissed. It is clear that:

[w]here the landlord surrenders possession and control of the lease premises to the tenant, in the absence of fraud or concealment, the tenant assumes the risk as to the condition of the premises, including the heating, lighting apparatus, plumbing, water pipes, sewers, etc. In other words, the rule of caveat emptor applies, hence the landlord is not liable for any personal injuries or sickness of tenants, although attributable to the defects in the fixtures.

Brooks v. Peters, 157 Fla. 141, 145, 25 So.2d 205, 207 (1946).

However, in the instant case, the complaint alleged: “that there existed latent defects which defendant Martha DeAguirre knew or should have known existed.” Unlike the situation in Brooks, here there was an allegation of knowledge on the part of the owner. A landlord is under no duty to advise a tenant of a condition which is apparent. Butler v. Maney, 146 Fla. 33, 200 So. 226 (1941). However, if the landlord is aware of a dangerous condition on the premises which arises from a latent defect, it is his duty to disclose such a fact and failure to do so or concealment thereof may constitute negligence and render him liable for the resulting injuries. Butler v. Maney, supra. The question as to whether or not the owner had knowledge of the defect as alleged is to be determined by a jury. Consequently, the allegation that the owner knew or should have known of the defect requires us to reverse the granting of the motion to dismiss with respect to the issue of the owner’s liability for negligence.

OWNER’S BREACH OF IMPLIED WARRANTY

Although it is clear that liability may be imposed upon an owner for failure to disclose a known defect on a negligence theory, it is equally clear that: “there is ... no implied warranty on the part of the lessor that the demised premises are safe or reasonably fit for occupation .... ” Butler v. Maney, 146 Fla. at 41, 200 So. at 229 (1941); 49 Am.Jur.2d Landlord and Tenant §§ 768 and 769 (1970). Consequently, the count against the owner for breach of an implied warranty cannot stand.

CONTRACTOR’S BREACH OF IMPLIED WARRANTY AND STRICT LIABILITY

As to the counts against the contractor, Jennings Construction Corporation, for strict liability and breach of implied warranty, it has been settled that no cause of action will lie. Strathmore Riverside Villas Condominium Association, Inc. v. Paver Development Corporation, 369 So.2d 971 (Fla. 2d DCA), cert. denied, 379 So.2d 210 (Fla. 1979); Simmons v. Owens, supra; Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA), aff'd 264 So.2d 418 (Fla.1972).

DISMISSAL OF FIFTH AMENDED COMPLAINT WITH PREJUDICE

This was the sixth attempt by plaintiff to state a cause of action. At the close of the hearing on the motion to dismiss this, the fifth amended complaint, the trial court indicated that the amended complaint would be dismissed with prejudice unless a memorandum of law in support of plaintiff’s position was submitted. Plaintiff chose not to file a memorandum and the fifth amended complaint was dismissed prompting this appeal.

While the policy in Florida is to liberally allow amendments to pleadings where justice so requires, Romish v. Albo, 291 So.2d 24 (Fla.3d DCA 1974), Turner v. Trade-Mor, Inc., 252 So.2d 383 (Fla. 4th DCA 1971), a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished. Ruden v. Medalie, 294 So.2d 403 (Fla. 3d DCA 1974). However, in addition to the desirability of allowing amendments to pleadings so that cases may be concluded on their merits, Turner v. Trade-Mor, Inc., supra, “there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached.” Brown v. Montgomery Ward & Company, 252 So.2d 817, 819 (Fla. 1st DCA 1971), cert. denied, 257 So.2d 561 (Fla.1972).

While we stress that it is not the number of amendments which determines the abuse, it has been held that “[generally three ineffective attempts to state the same cause of action or defense are enough,” Trawick’s Florida Practice and Procedure § 14-2 at 208 (1980 Edition) and the “liberality in permitting amendments decreases as the action progresses and as the number of amended pleading increases.” Trawick’s Florida Practice and Procedure § 14-3 at 210 (1980 Edition). See Airlift International, Inc. v. Linee Aeree Italiane S. p. A,, 212 So.2d 109 (Fla.3d DCA 1968). Additionally, in Florida Gas v. Arida Air Conditioning Company, 260 So.2d 220, 221 (Fla. 1st DCA 1972), it was stated that: ‘three strikes are out’ in a baseball game; [plaintiff] has been at bat four times. Under the most liberal construction of our modern rules, we hold that ample opportunity has been proffered to appellant.” In the, present case, the plaintiffs have had six swings at the cause of action and have yet to connect.

For the foregoing reasons, the order granting defendant’s motion to dismiss plaintiffs’ fifth amended complaint for failure to state a cause of action is affirmed with respect to the counts for negligence, strict liability, and implied warranty against the contractor, Jennings Construction Corporation; and for the count of implied warranty against the owner, DeAg-uirre. The order granting the motion to dismiss is reversed as to the count against the owner for negligence.

Affirmed in part; reversed in part.

      . The allegation that the defects were “latent” is found in the count against the owner which was separate, distinct, and not incorporated by reference or otherwise into the prior count against the contractor and therefore may not be used to remedy the defectively pled count against the contractor, Jennings Construction Corporation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alan V. KIDWELL, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1037.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Rehearing Denied March 30, 1981.
    Gargiulo & McMenimen, Boston, Mass., Mandina & Lipsky, Miami, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen. and Michael A. Van-detty, legal intern, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. State v. Nova, 361 So.2d 411 (Fla.1978).


author: BERANEK, Judge. KAPNER, LEWIS, Associate Judge,

text:
    ITT-NESBITT, INC., a Foreign Corporation, and Air Conditioning Associates, Inc., a Florida Corporation, Appellants/Cross-Appellees, v. VALLE'S STEAK HOUSE OF FORT LAUDERDALE, INC., Appellee/Cross-Appellant.
    No. 79-1864.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.
    Rehearing Denied April 2, 1981.

      Eugene L. Heinrich and Patrick Gent of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellant/cross-appel-lee, ITT-Nesbitt, Inc.

      Anthony A. Balasso of Miller, Zachman & Balasso, P. A., Pompano Beach, for appellant/cross-appellee, Air Conditioning Associates, Inc.
    James D. Adams of Quinton, Lummus, Dunwody & Adams, P. A., Miami, for appel-lee/cross-appellant.
   BERANEK, Judge.

This appeal and cross-appeal follow a complex civil suit involving a defective air conditioning system. From the time of its installation in plaintiff’s building, the system was plagued with problems and numerous attempts to repair it proved unsuccessful. Eventually, plaintiff, Valle’s Steak House of Fort Lauderdale, requested that the manufacturer, ITT-Nesbitt, take back the air conditioning units. When this request was denied, plaintiff replaced thé units with new ones and sued ITT-Nesbitt and Air Conditioning Associates, Inc., which had installed the units and built the remainder of the system, on theories of negligence and breach of implied warranty. An extensive jury trial concluded with a special verdict on each of these claims.

In the negligence verdict, the jury determined that the negligence of ITT-Nesbitt and Air Conditioning Associates had caused damages of $101,108.90 to the plaintiff. The amount was exactly the same as the total verdict in the warranty count which included the total replacement cost of the units. This amount was thereafter reduced to $91,108.90 to reflect the $10,000 salvage value of the equipment which was still in the possession of the plaintiff. Of the total damages resulting from the negligence of the defendants, 80% was found to be attributable to ITT-Nesbitt and 20% to Air Conditioning Associates. The jury also found that the plaintiff was partially responsible for its own damages and set plaintiff’s contributory negligence at 8%.

In its special verdict on the warranty count, the jury found that ITT-Nesbitt had breached its implied warranty running with the air conditioning equipment and that such breach of warranty was the cause of damage to plaintiff, Valle’s. It determined that Valle’s had justifiably replaced the defective units with new units and had properly offered to return the defective air conditioning equipment to ITT-Nesbitt, which offer of return was wrongly refused by ITT-Nesbitt. The jury set the damages due plaintiff from ITT-Nesbitt at $101,108.90. This sum was computed by the jury as follows:

$97,708.90 — the reasonable cost of the substitute equipment purchased to replace the defective units.
3,400.00 — the reasonable expense in caring for the equipment after ITT-Nesbitt refused the return thereof.
$101,108.90 — TOTAL

After receipt of the verdicts, the trial court entered a final judgment, alternative in nature, with the provision that collection on either the negligence or breach of warranty theory would constitute a credit against the judgment entered on the other theory. ITT-Nesbitt and Air Conditioning Associates were also held jointly liable to the plaintiff on the negligence count without regard to the 80%/20% apportionment.

Both defendants appeal and plaintiff cross-appeals. The defendants raise numerous issues which we summarize as follows:

1. The trial court’s refusal to instruct the jury that a partial directed verdict had been entered, thereby leading the jury to believe that the entire negligence count was still to be considered.

2. General insufficiency of evidence of negligence.

3. Failure to instruct the jury that the negligence of the plaintiff would serve to reduce any amounts recoverable under the warranty theory.

4. Denial of the motions for directed verdict on the warranty count.

5. Entry of an improper alternative judgment.

On cross-appeal, the plaintiff asserts that the trial court erred in granting the partial directed verdict on the negligence theory. We find defendants have demonstrated error requiring reversal and remand for a new trial.

As indicated above, the trial court directed a verdict on the issues of negligent design and manufacturing of the air conditioning units built by ITT-Nesbitt, finding that plaintiff had failed to offer sufficient evidence to show any defect in the air conditioning units. Although direction of the verdict should have removed the issue from jury consideration, the court refused to so instruct the jury despite a request by ITT-Nesbitt to do so. The parties to this appeal have found no authority directly on point, but settled law requires the trial judge to fully and fairly instruct on all issues in a cause. Security Mutual Casualty Company v. Bleemer, 327 So.2d 885 (Fla.3d DCA 1976). The test regarding jury instructions is whether, under the particular facts of the case, the instructions misled the jury or prejudiced a party’s right to a fair trial. American National Bank of Jacksonville v. Norris, 368 So.2d 897 (Fla. 1st DCA 1979), cert. denied, 378 So.2d 342 (Fla.1979). Here, the trial court ruled as a matter of law that plaintiff had failed to prove negligent design or negligent manufacturing of the units. Since this issue was presented to the jury in the context of the case, we find the court’s refusal to instruct that a verdict had been directed thereon to be reversible error. We are so convinced by a comparison of the strikingly similar amounts found in the negligence verdict and the warranty verdict. Obviously, the jury concluded that plaintiff had been damaged to the extent of the total replacement cost of the air conditioning units. In the warranty verdict, this was clearly based on a finding that the units were defective. The jury apparently reached the same conclusion in the negligence verdict but the court had already ruled that there was insufficient evidence of a design defect when it directed the verdict. The jury should have been so advised.

We also conclude that the evidence was insufficient to sustain the judgment based on negligence as to Air Conditioning Associates. Under no construction of the evidence could Air Conditioning Associates have been responsible to the plaintiff for the cost of the new air conditioning units. Air Conditioning Associates had not manufactured the units but had only installed them. The final judgment entered in the cause was against Air Conditioning Associates in the total amount of the replacement cost less the salvage value of the units. There was simply no evidence of negligence by Air Conditioning Associates which could have been the proximate cause of this damage.

Appellant, ITT-Nesbitt, also contends that the trial court erred in failing to instruct the jury on comparative negligence as a defense to the implied warranty claim. Appellee concedes the case law of Florida requires an instruction on comparative negligence under such circumstances. West v. Caterpillar Tractor Company, 336 So.2d 80 (Fla.1976); Coleman v. American Universal of Florida, Inc., 264 So.2d 451 (Fla. 1st DCA 1972). However, appellee argues that the problem caused by this omission can be easily remedied without the necessity of a new trial by adopting the approach taken in West v. Caterpillar Tractor Company, supra, i. e., apply the contributory negligence finding of 8% against appellee’s recovery on the breach of warranty claim. The complex procedural setting in the present case precludes such a clear cut solution.

In the warranty count, the jury found the air conditioning units to be defective. In the negligence count, the jury should have properly considered plaintiff’s comparative negligence only in regard to the asserted negligence of the defendants in the installation, maintenance, and repair of the units since the court had directed a verdict as to the negligence of ITT-Nesbitt in designing or manufacturing the units. The finding of comparative negligence may well have been different if the jury had considered it within the warranty count or if the jury had considered it under proper instructions in the negligence count. We, therefore, find that the failure to instruct on plaintiff’s comparative negligence in the breach of warranty count against ITT-Nesbitt constitutes reversible error requiring a new trial rather than a simple 8% reduction on the amount found under the warranty count.

As a further indication of the confusion obvious throughout this case, the jury’s verdict assessed $3400 under the warranty theory as expenses incurred by plaintiff in storing the air conditioning units after ITT-Nesbitt had wrongfully refused to retake them. This same amount was assessed against both the defendants in the negligence count. This is both inconsistent and improper.

After reviewing the record and the verdict of the jury herein, we are convinced that the overall effect of the above errors permeated the entire trial and resulted in confusion on the part of the jury. We, therefore, conclude that the judgment below should be and is hereby reversed and the cause remanded for a new trial. The new trial shall be on all issues between all parties to this appeal and we thus find it unnecessary to consider the appellee’s cross-appeal and additional points raised by appellant.

REVERSED AND REMANDED.

MOORE, J., concurs.

KAPNER, LEWIS, Associate Judge, dissents with opinion.

KAPNER, LEWIS, Associate Judge,

dissenting:

Although I agree the court erred in failing to instruct the jury as to its granting of defendant’s motion to dismiss, I would affirm the jury’s verdict because counsel had full opportunity to explain to the jury that the only issue before it was that of implied warranty, in fact, defense counsel so informed the jury: “That is no longer an issue in this case. The court has directed a verdict on the issue of whether there is negligence in terms of inherent design defects. It has directed a verdict in our favor; ...”

While I agree that it is the court’s and not the attorneys’ responsibility to instruct the jury as to the law, the issue before us is whether the court’s error was harmful. The test, regarding jury instructions, as pointed out in the majority opinion, is whether the instructions (or lack thereof) could have misled the jury or prejudiced a party’s right to a fair trial. American National Bank of Jacksonville v. Norris, 368 So.2d 897 (Fla. 1st DCA 1979), cert. denied, 378 So.2d 342 (Fla.1979).

Actually it is more precise to quote directly from Section 59.041, Florida Statutes (1979), which varies somewhat from the following statement:

No judgment shall be set aside or reversed, ... on the ground of misdirection of the jury ... unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.” (Emphasis added).

It is hard to see how failure to instruct the jury on a point of law results, as a matter of law, in a miscarriage of justice where the jury became aware of the judge’s ruling through other means. See, State v. Freeman, 380 So.2d 1288 (Fla.1980); Tillery v. Ellison, 345 P.2d 434 (Okl.1959) (“Ordinarily a court commits no error in refusing to instruct on an issue or theory that has been taken out of the case.”); Murphy v. Board of County Commissioners, 13 Md.App. 497, 284 A.2d 261 (1971); Nesbitt v. Bethesda Country Club, Inc., 20 Md.App. 226, 314 A.2d 738 (1974) (informing jury of directed verdict ruled discretionary with judge).

At the very most, I would remand to the trial judge with directions to determine whether his error resulted in a miscarriage of justice. He is in a far better position to make this determination than we are and, because he did not believe he committed error, he had no occasion to do so.

With respect to the judgment of negligence against Air Conditioning Associates, Inc., I believe the evidence justified a finding that Air Conditioning Associates, Inc. assumed a continuing duty of care and that they negligently failed to discharge this duty, thus contributing to plaintiff’s damages.

Finally, I agree that the court’s failure to instruct the jury on comparative negligence as a defense to the implied warranty claim was harmful error, but I believe the remedy advanced in West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976), would be fully appropriate.

Accordingly, I would remand to the trial court with instructions to apply the contributory negligence finding of 8% of appellee’s recovery on the breach of warranty claim. In all other respects, I would affirm.

      . Plaintiff originally filed suit against three defendants, but a directed verdict was entered and cross claim was dismissed as to one of these. Thus, the verdict, judgment, and this appeal concern only ITT-Nesbitt and Air Conditioning Associates.

      . The judgment also reduced the verdict by the 8% comparative negligence figure attributable to plaintiff.


text:
    Louie R. McKEE, Appellant, v. CITY OF JACKSONVILLE, a municipal corporation, Appellee.
    No. VV-461.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.
    Rehearing Denied April 2, 1981.

      Jeffery B. Morris and C. Wayne Alford, of Sinoff & Alford, Jacksonville, for appellant.
    David Carter, Jacksonville, for appellee.
   LILES, WOODIE A. (Retired), Associate Judge.

In 1977 Louie R. McKee was injured as a result of Joseph Hatcher running his automobile through an intersection and colliding with the motorcycle being operated by Appellant. He sued both Hatcher and the City of Jacksonville, alleging that the City failed to maintain, replace or erect a stop sign at the corner of the intersection of Wiley Road and Muncie Avenue. Immediately prior to going to trial, Hatcher was dropped as a defendant, leaving only the City, against whom Appellant obtained a verdict awarding him damages in the amount of $8,200.00.

Appellant complains that the court erred in failing to grant his motion in limine prior to the trial. The granting of his motion would have prevented the introduction of evidence of collateral source payments as is required under Section 627.7372, Florida Statutes (1977), wherein Appellant testified that he had medical expenses of $18,256.80 as a result of the accident and that all but $730.00 of this amount had been paid by his group insurance policy. The Legislature enacted Section 627.7372, Florida Statutes (1977), commonly referred to as the Collateral Source Rule, and it requires in pertinent part:

627.7372 Collateral Sources of indemnity.
(1) In any action for personal injury or wrongful death arising out of the ownership, operation, use or maintenance of a motor vehicle, the court shall admit into evidence the total amount of all collateral sources which have been paid to the claimant prior to the commencement of the trial. The court shall also admit into evidence any amount paid by the claimant to secure such collateral source.
(2) For purposes of this section, “collateral sources” means any payments made to the claimant, or on his behalf, by or pursuant to:
(a) The United States Social Security Act; or any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits.
(b) Any health, sickness, or income disability coverage; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits except life insurance benefits available to the claimant, whether purchased by him or provided by others.
(c) Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.
(d) Any contractual or voluntary wage continuation plan provided by employers or any other system intended to provide wages during a period of disability.

The trial judge complied with the statute when he denied the motion and charged the jury pursuant thereto.

McKee first urges that the City’s failure to erect the stop sign was the root cause of the accident, and that it was not an accident within the meaning of the statute, since it was not “arising out of the ownership, operation, use or maintenance of a motor vehicle.” See Section 627.7372(1), Fla.Stat. (1977). McKee maintains it was a premises accident, and therefore he was entitled to his full measure of damages without the set-off of his group medical policy. He goes on to urge that if this Court should find that this was an accident within the purview of Section 627.7372, the statute is unconstitutional for the reasons that it (1) denies him his right to be redressed for his injuries without providing a reasonable alternative as guaranteed under Article I, Section 21, of the Florida Constitution; (2) violates plaintiff’s right to a fair trial; and (3) violates Article II, Section 3, of the Florida Constitution, which is the separation of powers clause.

McKee argues that Kluger v. White, 281 So.2d 1 (Fla.1973), is controlling and thus renders this section unconstitutional under Article I, Section 21, of the Florida Constitution. We believe not. Here there is a diminution of monies recovered from the tortfeasor. The statute bars recovery from the tortfeasor only to the extent that collateral source benefits are received. There is not a denial of a cause of action without an alternative. Hatcher, the tort-feasor, by a fortuitous event, hit a victim who had diligently obtained his own insurance, and assuming that Hatcher was insured, he was thereby able to save his insurance company a sizeable amount of money. The Legislature can constitutionally accomplish this; and while the courts may not agree with the result of a statute, they cannot for that reason alone find it unconstitutional. Rose v. D'Alessandro, 380 So.2d 419 (Fla.1980), reh. denied; Beckwith v. Webb's Fabulous Pharmacies, 374 So.2d 951 (Fla.1979), reh. denied, rev’d on other grounds,-U.S.-, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980).

McKee complains that Section 627.-7372 is a direct abridgement of a plaintiff’s right to recover full damages for his injuries. He has presumptively recovered the full measure of his damages. He simply obtained part from his group insurance policy and part from the tortfeasor. This section is not unconstitutional for the reason that it violates the plaintiff’s right to a fair trial. It affects the amount of money that he receives as a measure of damages from any one tortfeasor and prevents dual recovery.

The statute is not in violation of the separation of powers provision of the Florida Constitution in that it directs the judge to admit evidence of collateral source payments secured prior to trial, as well as the amount of any funds expended to secure the collateral source. Some circuit judges around the state have declared Section 627.-7372 unconstitutional based on Kluger v. White. We cannot read into the section the Kluger findings; and even if we might believe the statute fraught with unfairness, wrong in its intent, and failing to accomplish any of the goals as a reason for passage, it does indeed prevent dual recovery and is not unconstitutional.

Section 627.7372 is not unconstitutional for the reason that it discriminates and treats unequal certain classes of people. While it is true that plaintiffs would be entitled to more damages if they were injured in a slip and fall accident, an airplane accident, or run over by a vehicle other than a motor vehicle, people injured while operating, maintaining, or using an automobile are all equally discriminated against.

AFFIRMED.

ROBERT P. SMITH and THOMPSON, JJ., concur.

      . Under Laws of Fla., Chap. 78-374, §§ 5 and 12, this statute was amended to require that the court instruct the jury to deduct any collateral source benefits from their verdict. Because the amendment applied only to accidents occurring after January 1, 1979, it is not at issue, and we do not reach the issue of the constitutionality of the statute, as amended.


author: SHIVERS, Judge.

text:
    EL VIEJO ARCO IRIS, INC., and American Casualty Company, Appellants, v. Ildefonso LUACES, Appellee.
    No. XX-22.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.
    Rehearing Denied April 2, 1981.
    H. B. Yandle, of Law Offices of Joel R. Teague, Coral Gables, for appellants.
    Rogelio R. Oliver, Miami, for appellee.
   SHIVERS, Judge.

Employer/carrier appeal a workers’ compensation order finding the claimant sustained a compensable accident. We reverse.

Claimant, a plumber’s helper, was injured in an automobile accident while driving home from work after first picking up some materials from a plumbing supply store at the request of his employer. The plumbing materials were to be used at the job site the next day. Although the employer maintained a company shop, the claimant testified that he usually reported directly to the particular job site at 7:30 a. m. and would return home from the job site at 4:00 p. m. The day of the accident, the claimant worked eight hours at the job site. At 3:55 p. m., he left the job site and took his usual route home. Pursuant to his employer’s request, he picked up the plumbing materials at the supply store which was on his route home. After picking up the materials, he resumed his trip home and was involved in the automobile accident at 4:05 p. m.

The deputy commissioner erred in failing to apply the going and coming rule and in finding that the claimant was involved in a special errand for the employer at the time of the automobile accident while on his way home. Injuries sustained by a claimant while going to or coming from his place of work are not considered to have arisen out of and in the course of his employment. George v. Woodville Lumber Company, 382 So.2d 802 (Fla.1980).

The deputy commissioner attempted to justify the award under the special errand exception to the going and coming rule. Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla.1979). Eady, supra, held that a claimant, who was injured while en route from her home to a special assignment from the employer after already working an eight hour work shift that day, was not within the going and coming rule because she was on a special errand for the employer at the time of the injury, the special errand assignment came suddenly, and the particular route to the assignment was not a regular or frequent one. The court noted that if the “particular journey is a regular or frequent one, there is a strong presumption that the going and coming rule applies.” However, since the claimant’s journey in Eady, supra, was a substantial part of the service performed for the employer because the assignment was sudden and the journey was not a regular or frequent one, the going and coming rule was not applicable.

In the present case, unlike Eady, supra, claimant was injured on his customary route home after completing the special errand for the employer and after completing the day’s work. The plumbing supply store at which the claimant had picked up the materials for the employer was on his direct route home. He was injured on a journey that was regular and frequent, not subject to a sudden call by the employer, and the burden of picking up the materials on the claimant was minor when viewed in the context of the claimant’s usual duties and his usual route home. See, United States Fidelity & Guaranty Company v. Rowe, 126 So.2d 737 (Fla. 1961) (holding that a claimant injured while carrying employer funds home pursuant to her employer’s instructions was not entitled to compensation); Sievers v. Friden, FCR 200, cert. denied, 157 So.2d 819 (Fla.1963); Central Florida Carpentry v. Jones, IRC Order 2-2937 (1976) (holding that transportation of employer’s tools at employer’s request was not enough to extend coverage to claimant’s accident occurring on the way to work); Quality Wood Products, Inc. v. Awad, IRC Order 2-2946, cert. denied, 345 So.2d 420 (Fla. 1977).

Had the claimant’s accident occurred pri- or to picking up the plumbing supplies, then the claimant would have still been within the course of his employment and under the special errand exception to the going and coming rule. However, since the claimant had completed the burden of performing the employer’s instructions by picking up the plumbing supplies, he was outside his employment at the time of the accident. Consequently, under the going and coming rule, claimant is not entitled to compensation since his accident occurred while en route home from work.

Accordingly, the appealed order is REVERSED.

SHAW and THOMPSON, JJ., concur.


author: BASKIN, Judge.

text:
    Frankie JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-309.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Rehearing Denied April 3, 1981.

      Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Summary denial of defendant Frankie Jones’ Motion to Vacate Judgment and Sentence filed pursuant to Florida Rule of Criminal Procedure 3.850 is the subject of this appeal. Defendant contends that the sentences he received upon revocation of his probation exceeded the legal maximum. We agree.

Upon revocation of his probation, defendant Jones was sentenced as follows:

Count I — Possession of Controlled Substance, methaqualone; five years prison.
Count II — Sale or Delivery of Controlled Substance, methaqualone; ten years prison, concurrent with Count I.

In addition, he received sentences in Counts III, IV, and V, which are not challenged in this appeal. The order revoking defendant’s probation was never appealed.

We have jurisdiction to entertain this appeal. Florida Rule of Criminal Procedure 3.850 permits the filing of a motion for rehearing. This appeal was filed within thirty days of the denial of the motion for rehearing. Fla.R.Crim.P. 3.850(e).

We vacate the sentence imposed upon the revocation of defendant’s probation as to Count I, possession of methaqua-lone. Defendant Jones was not placed on probation in Count I; instead the entry of sentence was suspended as to that count.

As to Count II, sale or delivery of a controlled substance, methaqualone, the sentence of ten years imprisonment exceeds the maximum penalty in effect on August 10, 1976, the date of the offenses charged. §§ 775.082(3)(d), 893.03(3)(a), 893.13(2), Fla. Stat. (1975). Without a specific statute authorizing its imposition, a sentence cannot stand. See Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979). We therefore reduce the sentence in Count II to five years in the state penitentiary, with credit for time served.

Sentence vacated as to Count I, modified as to Count II.


text:
    Thomas James HUDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1596.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Rehearing Denied April 3, 1981.
    Bennett H. Brummer, Public Defender and Thomas 6. Sherman, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The appellant seeks review of an order of the trial court, revoking his probation and sentencing him to five years’ imprisonment and twelve years’ probation for several counts of violation of narcotics laws.

An affidavit for violation of probation was filed, charging the appellant with aggravated assault. At hearing thereon, the evidence showed the appellant had severely beaten his mother, causing both internal and external injuries, necessitating hospitalization for at least a week, and facial paralysis estimated to remain for a period of at least six months. In beating his mother, the appellant kicked her repeatedly and allegedly struck her on the head with a lamp. After all the evidence was in, the trial judge stated that shoes were a deadly weapon and he entered the order appealed.

The appellant is attempting to gain a reversal on the basis that the evidence fails to prove all the elements of the crime of aggravated assault, in that it failed to show the appellant used a deadly weapon.

There is sufficient evidence from which the trial court could find, in the exercise of its discretion, that the appellant had violated his probation. See: Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); Bernhardt v. State, 288 So.2d 490 (Fla. 1974). In a probation revocation proceedings, the State does not have the same burden of proof as in a prosecution in the first instance. See: Bernhardt v. State, supra; Russ v. State, 313 So.2d 758 (Fla.1975); Snyder v. State, 362 So.2d 971 (Fla. 1st DCA 1978). A condition of the probation was that the defendant would not violate any law. Proof of conviction is not necessary to constitute a violation of probation.

The order under review is affirmed.

Affirmed.


text:
    Lonnie CARSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1668.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Rehearing Denied March 30, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

We affirm on the grounds that the evidence of appellant’s use of a firearm in the commission of a criminal offense properly went to the jury; Styles v. State, 384 So.2d 703 (Fla. 2d DCA 1980); Machado v. State, 363 So.2d 1132 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 459 (Fla.1979); Warren v. State, 332 So.2d 361 (Fla. 3d DCA 1976); and that the state’s identification testimony properly survived appellant’s motion for judgment of acquittal. Zuberi v. State, 343 So.2d 664 (Fla. 3d DCA), cert. denied, 354 So.2d 988 (Fla.1977).

Affirmed.


text:
    INSTITUTE FOR MARINE SCIENCES, INC., Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee.
    No. 79-2436.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Rehearing Denied April 1, 1981.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Tobin & Thomson, Coral Gables, for appellant.
    Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellee.
    Before HUBBART, C. J., and PEARSON, DANIEL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Voelker v. Combined Insurance Co. of America, 73 So.2d 403 (Fla.1954); The Maccabees v. Terry, 67 So.2d 193 (Fla.1953); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978). Compare Wale v. Barnes, 278 So.2d 601 (Fla.1973); Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974).


author: SCHWARTZ, Judge.

text:
    SOUTHEASTERN FIDELITY INSURANCE COMPANY, Appellant, v. Linda Joyce EARNEST n/k/a Linda Castillo, Appellee.
    No. 80-1149.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Rehearing Denied April 1, 1981.
    Haddad & Josephs and Michael Seth Cohen, Miami, for appellant.
    Sidney L. Syna, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

In accordance with our prior opinion in this case, Southeastern Fidelity Ins. Co. v. Earnest, 378 So.2d 787 (Fla. 3d DCA 1979), the lower court conducted a non-juiy trial to determine whether Ms. Earnest could establish that the UM carrier, Southeastern, had not been prejudiced by her unauthorized settlement with and release of the under-insured tortfeasor, Mrs. Bradwell. The trial judge found that an absence of prejudice had been affirmatively established and accordingly entered judgment for Earnest. The judgment is affirmed.

There was overwhelming evidence that the negligent motorist, who was an impoverished maid, was completely judgment-proof. For this reason, the record fully supports the determination that the release was “demonstrably immaterial” to any otherwise-existing ability of Southeastern to recover. Bass v. Aetna Casualty & Surety Co. of Hartford, Conn., 199 So.2d 790, 793 (Fla. 4th DCA 1967), cert. disch., 206 So.2d 212 (Fla.1968); see also, Kaplan v. Phoenix of Hartford Ins. Co., 215 So.2d 893 (Fla. 3d DCA 1968), cert. denied, 220 So.2d 365 (Fla.1969). Based on the twenty year viability of a Florida judgment and the remote possibility that any debtor may eventually secure some funds with which to pay at least a part of it, the appellant argues that depriving a carrier of any judgment, however uncollectible, against any defendant, however insolvent, is necessarily prejudicial. Quite apart from the fact that its acceptance would completely negate the “no-prejudice” rule itself, as adopted in Bass, Kaplan and the earlier decision in this very case, this contention is so utterly contrary to common business sense and commercial reality as to be unworthy of any comment beyond summary rejection. A judgment against Mrs. Bradwell would not have been worth the paper it was printed on and no reasonable person would have expended the costs, let alone the attorney’s fees, it would have required to get it. When Southeastern lost the opportunity to secure the judgment, it lost nothing. Under our law, a technical and illusory “loss” of this kind cannot result in the forfeiture of insurance coverage.

Affirmed.

      . In the light of our intervening decisions in Figueredo v. Leatherby Ins. Co., 392 So.2d 287 (Fla. 3d DCA 1980) and State Farm Mut. Auto. Ins. Co. v. Colonial Penn Ins. Co., 379 So.2d 1036 (Fla. 3d DCA 1980), the carrier does not contest the resolution against it below of the coverage question which remained open at the time of our first opinion. 378 So.2d at 789.

      . It was apparent, and the parties stipulated, that Ms. Earnest’s case had a value of more than $30,000, the total of the tortfeasor’s $10,-000 liability coverage and Southeastern’s $20,-000 UM protection. If the settlement with Mrs. Bradwell had not been effected, therefore, Southeastern’s subrogated $20,000 claim against her would have been junior to Ms. Earnest’s claim for the amount over $30,000 for which she would not have been compensated. Florida Farm Bureau Ins. Co. v. Martin, 377 So.2d 827 (Fla. 1st DCA 1979). This renders it all the more obvious that the potential $20,000 judgment against Mrs. Bradwell would have been entirely worthless.

      . § 95.11(1), Fla.Stat. (1979).


author: COWART, Judge.

text:
    James WESTERMEIER, Appellant, v. STATE of Florida, Appellee.
    No. 80-641.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.
    Rehearing Denied March 17, 1981.

      Michael H. Lambert, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

Appellant entered an unconditional plea of nolo contendere and has appealed the resulting judgment and sentence.

Florida Rule of Appellate Procedure 9.140(b) provides that a defendant may not appeal from a judgment entered upon a plea of nolo contendere without an express reservation of the right of appeal. Section 924.06(3), Florida Statutes (1979), is in accord.

Appellant was charged with being an accessory after the fact (§ 777.03, Fla.Stat. (1979)) to the felony of leaving the scene of an accident involving personal injuries (§ 316.027, Fla.Stat. (1979)) and is intrigued by the fact that he, as an accessory, is guilty of a third degree felony and is subject to five years imprisonment (§ 775.-082(3)(d), Fla.Stat. (1979)), while the person he aided is guilty of a felony subject to no more than one year imprisonment (§ 316.-027(2), Fla.Stat. (1979)). Appellant claims this result thwarts the legislative intent to appropriately differentiate between serious and minor offenses and renders these statutes unconstitutional as applied to him. This sentencing anomaly was apparent before appellant entered his plea, does not render appellant’s sentence illegal and is not one of the few issues arising contemporaneously with, or after, the entry of a plea which can be raised following a plea of guilty or an unqualified plea of nolo conten-dere. See Robinson v. State, 373 So.2d 898 (Fla.1979); Hand v. State, 334 So.2d 601 (Fla.1976).

The appeal of the judgment is dismissed and the sentence is

AFFIRMED.

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

      . See § 775.012(4), Fla.Stat. (1979).


author: PER CURIAM. BERANEK, Judge,

text:
    Judene POST and Russell Post, her husband, Appellants, v. Fred ACQUAVITA and State Farm Mutual Automobile Ins. Co., Appellees.
    No. 80-1209.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.
    Kohl, Springer, Springer & Varner, Palm Springs, for appellants.
    Preston Mighdoll and Elliot Brooks of Weathers, Narkier & Brooks, P.A., West Palm Beach, for appellee, State Farm Mut. Auto. Ins. Co.
   PER CURIAM.

AFFIRMED.

DOWNEY and GLICKSTEIN, JJ., concur.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting.

I dissent. I believe the trial court’s award of $700 as an attorney’s fee herein was inadequate and should be reversed.


text:
    Charles V. ROBERTS, Appellant, v. WPBT and Peninsular Fire Insurance Company, Appellees.
    No. VV-162.
    District Court of Appeal of Florida, First District.
    March 5, 1981.
    Rehearing Denied April 2, 1981.
    Israel Abrams of Abrams & Suskin, North Miami, for appellant.
    John F. McMath, Miami, for appellees.
   TILLMAN PEARSON (Retired), Associate Judge.

The claimant has appealed an order of the Deputy Commissioner which denied him workers’ compensation wage loss benefits. There is no issue on this appeal as to the compensability of claimant’s injury. He has been paid permanent partial disability of 15% of the body as a whole. At the final hearing, the claimant contended that his disability exceeded 15% of the body as a whole and sought permanent total disability benefits. The Deputy’s order denied the additional benefits claimed and dismissed the claim. We reverse and hold that the undisputed evidence in this case shows that the claimant has suffered a permanent and total loss of earning capacity.

This claimant, a 76-year-old man, has a prior work history as a machinist, carpenter and maintenance man. He worked for the employer herein as a plant maintenance supervisor for a television station.

The injury occurred when he was moving a heavy computer component. He had to move this piece of equipment twice a day, as he was remodeling some office space. He was able to move the computer by pressing against it with his body and pushing with his arms and legs. His injury was to his back and legs.

After hospitalization,, a medical evaluation resulted in a finding that he had two herniated discs. An operation was not advised and he was told that he would have to live with the condition. Dr. Monyek opined that claimant suffered a 15% permanent partial disability of the body as a whole. He expressed a belief that rehabilitation was unlikely. Claimant testified that Dr. Monyek told him he should not work or try to lift anything. Dr. Monyek testified that the claimant could perform no task whatsoever that required prolonged standing, walking, sitting, or use of the back.

The remaining medical evidence appears in the reports of Doctors Sigal, Nadler, and Terheyden. Dr. Sigal, a chiropractor, treated claimant for sacro-iliac lesion immediately after the injury. Dr. Nadler, an orthopedic surgeon, examined the claimant at the request of the carrier and found osteoarthritis of the lumbar spine. He estimated a small disability from the injury of approximately 3%. Dr. Terheyden, an orthopedic surgeon who examined the claimant during his hospitalization, also assigned a 15% disability of the body as a whole and opined: “The patient appears to be disabled from any type of machinist work except sitting.”

The unusual aspect of this claim is that the claimant returned to his employment at the television station and worked for ten months. There is no conclusion that can in good sense be drawn from the history of this ten months other than that it was a gesture to a faithful old employee. Claimant testified that he did no real work and this is not refuted by the employer. The claimant’s testimony is strongly reinforced by the letter of discharge given to him in June, 1979, which read in part:

Your fellow employees here at Channel 2 have observed with great admiration the way you have continued to perform your work here in the face of recent medical setbacks and the pain and discomfort which surely have accompanied them.
The demands of your position are such that we feel your continued efforts would only be a hazard to your health. In view of this, we have decided that we must invite your resignation effective tomorrow, June 29.
Your contribution to Channel 2, from the earliest years, has been monumental, and we are all grateful to you for it, particularly those of us whose time with the station goes back far enough to remember it all. A termination bonus of a month’s pay has been authorized for you, and is included in the enclosed check. We wish you a speedy recovery from your present medical difficulties, and much pleasure in the years to come.

The claimant’s unrefuted testimony, when considered with that of the doctors and the import of this letter, leads to the inescapable conclusion that claimant’s return to work was sheltered employment. See Richardson v. City of Tampa, 175 So.2d 43 (Fla.1965); Taylor v. Brennan Construction Company, 143 So.2d 320 (Fla.1962); Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960). Therefore, “it was the burden of the [employer] to prove that a job claimant could perform was available.” Richardson v. City of Tampa, supra. The employer having failed to put forth any evidence that work was in fact available for the claimant, he “is entitled to a finding of total disability.” Id., at 45.

Claimant’s work search was limited but we hold it to be adequate under the circumstances of his physical condition and his age as revealed by the record of the proceedings. See Sizemore v. Canaveral Port Authority, 332 So.2d 23 (Fla.1976); Chicken ‘N’ things v. Murray, 329 So.2d 302 (Fla.1976); Dade County School Board v. Gibavitch, 397 So.2d 1142 (Fla. 1st DCA 1980).

The record mandates a finding that the claimant is permanently totally disabled within the meaning of the Workers’ Compensation Act. The Deputy Commissioner’s order is reversed and the cause remanded with directions to enter a compensation order in accordance with the holding of this opinion. This reversal and remand will require a reconsideration of the question of attorney’s fees. Therefore, we also reverse upon Appellant’s second point which claims the right to an attorney’s fee.

REVERSED AND REMANDED WITH DIRECTIONS.

LARRY G. SMITH, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.


text:
    Brenda C. SMILEY, Appellant, v. STATE of Florida, Appellee.
    No. TT-357.
    District Court of Appeal of Florida, First District.
    March 10, 1981.
    Rehearing Denied March 13, 1981.
    Brian T. Hayes, Monticello, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., and Dan McKeever, Asst. State Atty., for appellee.
   SHIVERS, Judge.

Defendant appeals from her conviction and sentence for attempted first degree murder. We affirm.

From the conviction and sentence, defendant raises the following points on appeal:

(1) Whether the trial court erred in refusing to instruct the jury on the elements of self defense?
(2) Whether defendant’s motion for mistrial should have been granted because of improper comments by the State during final argument?
(3) Whether there was error in allowing the jury to consider proof of attempted murder with a “firearm” where the Information alleged only the use of a .22 caliber pistol?
(4) Whether the imposition of the mandatory minimum sentence under Section 775.087, Fla.Stat., was lawful when the Information did not charge the commission of a crime with a firearm?

Defendant, Brenda C. Smiley, was charged by Information with attempted first degree murder after she shot her husband, John Smiley, with a .22 caliber pistol four times in the early morning hours of July 6, 1979, at their home while he was asleep. Other than the defendant and her husband, there were no witnesses to the shooting. Although the defendant initially reported to the police that her husband had been shot by a burglar who had also assaulted her, she later admitted through her counsel at trial that she shot her husband and gave a false report to the police. The defendant did not testify at trial. Instead, she introduced evidence that the parties had a “stormy marriage,” which included bouts of “overdrinking” by her husband and previous threats and beatings by John Smiley against the defendant. After testifying that the defendant shot him several times with his .22 caliber pistol while he was sleeping, John Smiley denied being an alcoholic and further denied either threatening or beating the defendant over the course of the marriage. He testified that immediately prior to the shooting, the parties did not have an argument and he did not threaten the defendant. Defendant was subsequently convicted of attempted first degree murder with a firearm and sentenced to seven years in prison.

First, the defendant contends that the trial court erred in refusing to instruct the jury on the elements of self-defense although the jury was instructed on justifiable homicide and use of deadly force. She argues that there was sufficient evidence to justify the self-defense instruction in light of testimony concerning the violent character of John Smiley and his prior assaults and threats upon the defendant.

We conclude that the trial court did not commit reversible error in refusing to instruct the jury on the elements of self-defense. A person is justified in the use of deadly force to defend himself only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself. Section 776.-012, Fla.Stat.; State v. Coles, 91 So.2d 200 (Fla.1956). When considering the matter of threats in relation to proof of self-defense, there must be some evidence of an overt act expressing an intention to immediately execute the threats so that the person threatened has a reasonable belief that he will lose his life or suffer serious bodily harm if he does not immediately take the life of his adversary. Delagado v. State, 361 So.2d 726 (Fla. 4th DCA 1978); Coles, supra. However, in order to be entitled to instruction on self-defense, there must be some evidence that the defendant acted out of self-defense.

If any evidence of a substantial character is adduced, either upon cross-examination of State witnesses or upon direct examination of the defendant and/or his witnesses, the element of self-defense becomes an issue, and the jury, as the trier of the facts, should be duly charged as to the law thereon, because it is the jury’s function to determine that issue. Kilgore v. State, 271 So.2d 148, 152 (Fla. 2d DCA 1973).

In the present case, there is no evidence in the record that defendant shot her husband in self-defense. The defendant and her husband were the only witnesses to the shooting and the defendant did not testify. The uncontradicted testimony at trial was that the defendant began shooting her husband while he was sleeping in bed. Two of the four bullets that struck John Smiley entered his body in the back of the head and shoulder. Although there was evidence that the parties had a stormy marriage and conflicting evidence as to threats by John Smiley against the defendant in the past, there was no evidence of an argument or threats on the night of the shooting and no evidence that the defendant was threatened with imminent death or serious bodily harm by her sleeping husband at the time she shot him.

As to the second point on appeal, the defendant contends the trial court erred in denying her motion for mistrial which was based upon the State’s improper comments during final argument on the defendant’s failure to testify. Prom the transcript of the closing arguments, the defendant directs our attention to the following statements by the Assistant State Attorney:

My position is, so that we are perfectly clear with one another, that the State’s case, and Mr. Hayes’ cross-examination, and in Mr. Hayes’ witnesses, in none of that evidence have you heard any reason, any justification whatsoever for shooting a man in his sleep.... Not only does John Smiley say that ain’t the way it went down, but none of the evidence and none of the doctor’s testimony supports that kind of thing. That is how you know that we are talking about a man who was shot in the bed.... Well, I repeat what I said to you in the beginning, if you have heard any testimony from any witness that would justify shooting that man in his sleep because he had a drinking problem then you need to acquit this woman.

The trial court did not err in denying defendant’s motion for mistrial because the above quoted statements during closing argument do not constitute improper comments on the defendant’s failure to testify at trial. A prosecutor may comment on the uncontradicted or uncontroverted nature of the evidence and may point out that there is an absence of evidence on a certain issue during closing argument to the jury. White v. State, 377 So.2d 1149 (Fla.1980). Here, the State was not referring to defendant’s failure to testify. Instead, the statements refer to the evidence as it existed before the jury and were directed to the lack of justification for the shooting of defendant’s husband. Moreover, it was the duty of the State to point out to the jury the absence of evidence to justify the shooting. See Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980).

Defendant also objected to the trial court allowing the jury to consider proof of attempted murder with a firearm because the information only charged the defendant with attempted first degree murder with a “.22 caliber pistol.” She argues that a .22 caliber pistol is not a “firearm” as that term is described in Section 790.001(6), Fla.Stat., and therefore she was convicted of a crime for which she was not tried. Additionally, she argues that since a pistol is not a “firearm,” the trial court improperly imposed the prescribed mandatory prison sentence for persons convicted of a felony in which a weapon or a firearm was used under Section 775.087, Fla.Stat.

We find no merit to defendant’s arguments. A pistol is clearly a “firearm” within the meaning of Section 790.001(6), and the failure to allege that the .22 caliber pistol was a firearm does not invalidate the Information. Martin v. State, 367 So.2d 1119 (Fla. 1st DCA 1979); Harris v. State, 370 So.2d 74 (Fla. 2d DCA 1979); Thorpe v. State, 377 So.2d 221 (Fla. 1st DCA 1979). Since a pistol is a firearm and the defendant was found guilty of attempted first degree murder with a firearm, the trial court lawfully imposed the mandatory minimum sentence under Section 775.087, Fla. Stat. Bryant v. State, 386 So.2d 237 (Fla.1980).

Therefore, it is ordered that the appeal from the judgment of conviction and sentence is AFFIRMED.

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


author: MILLS, Chief Judge.

text:
    STATE of Florida, Appellant, v. Hilda Kathryn Zeitner BISHOP and Robert Stevenson Bishop, Appellees.
    No. XX-47.
    District Court of Appeal of Florida, First District.
    March 10, 1981.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellant.
    Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appel-lees.
   MILLS, Chief Judge.

The State appeals from an order granting a motion to suppress, urging that the trial judge erred in applying this court’s ruling in Orr v. State, 382 So.2d 860 (Fla. 1st DCA 1980). We agree and reverse.

The issue below, as framed by the motion to suppress, was whether the affidavit for the search warrant was sufficient to establish probable cause “as the affidavit fails to set forth specific time or times when the undercover agent observed or purchased cocaine or methaqualone.”

The affidavit for a search warrant asserted, in relevant part, “heretofore and within the past ten days a quantity of controlled substances, to wit: cocaine and methaqua-lone (quaaludes) were purchased, under controlled conditions, from within the above described premises by an undercover agent of the Okaloosa County Sheriffs Department.” The affidavit went on to describe the procedure in making the controlled buy to the effect that the undercover agent and his vehicle were searched and the agent was given money with which to purchase drugs just before the agent went to the described dwelling. After the agent came out, he gave the affiant substances which were field tested and shown to be cocaine and methaqualone. No other drugs were found on the agent. The affidavit then stated, “therefore, your affiant has reason to believe and does believe that controlled substances, as defined by Fla.Stat. 893, to wit: cocaine and methaqualone (quaaludes) are now being kept and distributed within the above described premises in violation of Fla. Stat. 893.”

Reliance on Orr to support a contention that the affidavit was insufficient is misplaced. The factual situation in Orr was that the affidavit stated, “heretofore, within the past ten days a confidential informant, ... advised your affiant that a quantity of marijuana was inside the above described premises and that said marijuana was observed by said confidential informant.” [Emphasis in original] The only thing comparable between Orr and this case is the magic use of the term ten days. Otherwise, it is inapplicable. The problem there was that the wording of the affidavit was that the conversation with the confidential informant took place within the ten days prior to the issuance of the warrant and, therefore, there was no knowledge as to when drugs were observed on the premises. In the instant case, the sale itself took place within ten days of the warrant, not just the conversation with the informant. Under these facts, we agree with the State’s contention that the affidavit in this case did set forth the time element with sufficient particularity.

A second basis for reversal is that the affidavit used language in the present tense which alleged a continuing violation of Chapter 893, Florida Statutes, up to the time the warrant was issued. In Borras v. State, 229 So.2d 244 (Fla.1969), the Florida Supreme Court held that under those circumstances, the failure to specify the date when the drugs were sold to the confidential informant does not render the affidavit defective.

Finally, we note that appellees contend that this court must affirm the decision of the trial court because of the failure of the State to provide a transcript of the hearing on the motion to suppress, relying on Lynch v. State, 155 So. 99, 114 Fla. 599 (Fla.1934). In Lynch the sole issue on appeal was the sufficiency of the information upon which the conviction was based. In spite of the fact that the Attorney General conceded the insufficiency, the court found itself unable to consider the merits of the argument because no “properly prepared transcript of the record” had been filed; thus, the court was compelled, based upon the law and rules in effect at the time, to dismiss the cause for lack of jurisdiction.

The term “transcript of the record” as used in the previous Rule 3.6, Fla.R.App.P., meant the record on appeal and could include, but was not limited to, a transcript of the testimony. In the instant case, this court is not lacking the record on appeal, but only the transcript of a hearing on a motion. If evidence had been adduced at the hearing which formed the major eviden-tiary support for the trial court’s ruling, we might agree that affirmance was appropriate. Jackson v. Granger Lumber Company, Inc., 275 So.2d 555 (Fla. 1st DCA 1973). However, both Granger and current Rule 9.200(b)(3), Fla.R.App.P., recognize and provide alternatives for situations where transcripts are unavailable. Furthermore, under the current appellate rules, “No proceedings shall be determined because the record is incomplete until an opportunity to supplement the record has been given.” Rule 9.200(f)(2), Fla.R.App.P. We find that a transcript of the suppression hearing is unnecessary for our consideration of this case because the order on appeal indicates on its face that the trial court considered only the motion (which incorporated the affidavit in haec verba), the arguments of counsel, and Orr v. State, supra. No evidence was presented. For these reasons we reject appellees’ contention that we are prohibited from reaching the merits of the State’s argument.

Accordingly, the trial court’s order granting the motion to suppress is REVERSED and this cause is REMANDED for further proceedings.

WENTWORTH, J., and BEVERLY, VIRGINIA Q., Associate Judge, concur.


text:
    Earnest GOODMAN, Appellant, v. KENDALL GATE-INVESTCO., INC., Crow Pope and Land of Florida, Inc., and Jay Leshaw, Appellees.
    No. 79-751.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Daniels & Hicks and Sam Daniels, Head-ley & Headley, Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

The appellant, plaintiff below, was rendered a paraplegic when he fell from a building on which he was working. The apparent cause of his fall from an uncompleted high-rise structure was the absence of safety guardrails. In his action, he joined the land owners as defendants and sought to hold them liable for violations of OSHA. See 29 U.S.C.A. § 651 et seq. The trial court granted the defendants’ motion for summary judgment and the plaintiff appeals. We affirm.

Plaintiff recognizes that there is no common law duty on the part Of the owner of the premises to provide a safe place to work for the employees of contractors engaged in construction of the premises. Jacques v. Miami Ice & Cold Storage Co., 73 Fla. 1193, 75 So. 788 (1917); Quinnelly v. Southern Maid Syrup Company, 164 So.2d 240 (Fla.2d DCA 1964); Lonis v. Flagler Federal Savings & Loan Association, 164 So.2d 41 (Fla.3d DCA 1964). However, it is plaintiff’s position that since: (1) Section 8-1 of the Metropolitan Dade County Code has, by reference, adopted the South Florida Building Code; and (2) the South Florida Building Code [§ 516.1(a)], in turn: (a) adopts the OSHA standards requiring safety guardrails; and (b) makes “compliance with this code ... the responsibility of the owner” [§ 304.2(d)]; that, therefore, a cause of action for violation of the OSHA standards may be maintained against the landowners.

The landowner, in turn, argues that statutes and ordinances must not be construed to displace the common law except where they are specifically and plainly pronounced in clear and unequivocal terms. Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977); Allstate Mortgage Corporation of Florida v. Strasser, 277 So.2d 843 (Fla.3d DCA), aff’d, 286 So.2d 201 (Fla.1973).

In an attempt to show this clear expression of intent to displace the common law, the plaintiff directs our attention to Section 304.2(d) of the South Florida Building Code which, as indicated, provides that: “Compliance with this code is the responsibility of the owner.” We find that the plaintiff’s argument is inadequate to overcome the principles of common law above recited.

“Reference statutes” are a convenient way of adopting and incorporating other statutes without needless repetition and such a procedure is proper when it is not in conflict with organic law or enabling statutes. Surrency v. Winn & Lovett Grocery Co., 160 Fla. 294, 34 So.2d 564 (1948). However, such statutes must adopt a “reference statute” or other material by specific and descriptive terminology. Overstreet v. Blum, 227 So.2d 197 (Fla.1969); Hecht v. Shaw, 112 Fla. 762, 151 So. 333 (1933).

“A statute of specific reference, as its name implies, refers specifically to a particular statute by its title or section number” and incorporates the provisions referred to from the statute as of the time of adoption. §§ 51.07- 08, 2A Sutherland Statutory Construction (4th Ed. 1973). “A general reference statute refers to the law on the subject generally.” § 51.07, Sutherland, supra; Steele v. State ex rel. Gorton, 85 Wash.2d 585, 537 P.2d 782 (1975).

Section 8-1 of the Metropolitan Dade County Code only adopts by specific descriptive terminology the “South Florida Building Code.” This is insufficient to incorporate by reference the federal standards for safety, commonly known as OSHA, which are “adopted” by the South Florida Building Code. Indeed, this would be a cataclysmic change in the common law and would dramatically change the responsibility of every land or home owner who makes any addition or repair to his property-

This disposition of the appeal renders it unnecessary to determine whether, had the Metropolitan Dade County Commission in fact specifically adopted the federal OSHA regulations by reference, that would have constituted an impermissible invasion into a matter of federal preemption. 29 U.S.C.A. § 667(a); AFL-CIO v. Marshall, 570 F.2d 1030 (D.C.Cir.1978), n. 22; Five Migrant Farmworkers v. Hoffman, 136 N.J.Super. 242, 345 A.2d 378 (1975). Nor do we decide if violations of properly adopted OSHA safety regulations would create a private cause of action. See, Jeter v. St. Regis Paper Co., 507 F.2d 973 (5th Cir. 1975); Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir. 1974); Russell v. Bartley, 494 F.2d 334 (6th Cir. 1974).

Accordingly, the summary final judgment in favor of the defendant is affirmed.


text:
    The STATE of Florida, Appellant, v. Sergio Miguel MESA, Roberto Leon, Fernando Barbaro Quintana and Federico Felipe DeLaPas, Appellees.
    No. 80-1067.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Janet Reno, State Atty. and Theda R. James, Asst. State Atty., for appellant.
    Raymond J. Takiff, Coconut Grove, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

Holding that the defendants’ right to demonstrate an anticipated entrapment defense had been improperly interfered with, the trial court dismissed the information against the defendants because two confidential informants asserted their privilege against self-incrimination and refused to testify at their depositions. For two reasons, this ruling was palpably erroneous and is reversed.

First, although their counsel stated that entrapment would be raised by the defendants, there was no substantiation of that claim, by way of sworn testimony or otherwise, and no evidentiary indication that the witnesses in question were involved in any such activity. Hence, the defendants did not make the preliminary showing of colorability of the defense which is necessary to require even the disclosure of the names of the informants. Hawkins v. State, 312 So.2d 229 (Fla. 1st DCA 1975); United States v. Gonzales, 606 F.2d 70 (5th Cir. 1979); United States v. Moreno, 588 F.2d 490 (5th Cir. 1979), cert. denied, 441 U.S. 936, 947, 99 S.Ct. 2061, 2168-69, 60 L.Ed.2d 666, 1049, 1050 (1979); see also, Treverrow v. State, 194 So.2d 250 (Fla.1967); compare, State v. Hassberger, 350 So.2d 1 (Fla.1977); State v. Williams, 369 So.2d 416 (Fla. 3d DCA 1979). It is clear beyond question, therefore, that there was no valid basis for taking the ultimate step of dismissing the case outright, after the state had nevertheless revealed the identity of the c. i. s. Elkins v. State, 388 So.2d 1314 (Fla. 5th DCA 1980).

Moreover, even if, as it does not, the record contained some indication of the significance to the defense of the informants’ testimony, the action taken below was unjustified. The state is not ordinarily obliged, at pain of dismissal, even to produce prosecution, much less defense, witnesses for deposition or trial. State v. Merritt, 394 So.2d 531 (Fla. 3d DCA 1981); State v. Ashley, 393 So.2d 1168 (Fla. 3d DCA 1981) (1981); Knight v. State, 373 So.2d 52 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 761 (Fla.1980); State v. Banks, 349 So.2d 736 (Fla. 3d DCA 1977); State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977); State v. Roig, 305 So.2d 836 (Fla. 3d DCA 1974); State v. Velasquez, 305 So.2d 837 (Fla. 3d DCA 1974), cert. denied, 315 So.2d 196 (Fla.1975). A fortiori the prosecution cannot be held responsible for the fact that a witness invokes the fifth amendment. See, United States v. Turkish, 623 F.2d 769, 773-74 (2d Cir. 1980), and cases cited. The upshot of the situation below is simply that the testimony of two witnesses who may or may not be favorable became unavailable, at least pre-trial, to the defense because of the invocation of their constitutional rights. The state has done nothing which, at this stage, calls for any judicially-imposed sanction whatever. Dismissal of the entire prosecution was manifestly inappropriate.

The order below is reversed for reinstatement of the information and further proceedings consistent herewith.

Reversed.

      . There is no indication that the prosecution improperly induced the witnesses to take the fifth. Cf., Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); United States v. Morrison, 535 F.2d 223 (3d Cir. 1976).

      . It has been suggested that a possible remedy in analogous situations is to require that the fifth amendment defense witness be granted immunity by the state or the court. But see United States v. Turkish, supra, and the authorities cited therein, which generally reject the practice. Without intimating any view on that issue, we note that even those authorities which have approved such a requirement, e. g., Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980), do so only under severely limited conditions and circumstances which do not remotely appear in this case.
      See also, People v. Thomas, 51 N.Y.2d 466, 434 N.Y.S.2d 941, 415 N.E.2d 931, 28 Crim.L. Rptr. 2439 (N.Y.1980) (no right to jury charge that defense witness has invoked privilege against self-incrimination).


text:
    Joseph Olmedo PALACIOS, Appellant, v. The FLORIDA DEPARTMENT OF INSURANCE, Appellee.
    No. 80-1233.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Rehearing Denied April 3, 1981.

      Lawrence & Daniels and Bonnie Daniels, Miami, for appellant.
    Daniel Y. Sumner, Jacksonville, for ap-pellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

We affirm the decision of the Florida Department of Insurance revoking appellant’s license as an insurance agent based upon our holding that no prejudice to the licensee was shown by the noncompliance with Section 120.60(6), Florida Statutes (1979), and no prompt objection was presented by appellant who was originally represented by counsel. Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA 1980). We reject as without merit appellant’s contentions that he was denied due process of law by the attitude of the hearing examiner during the administrative hearing concerning misappropriation of premium funds at which he waived counsel.


author: HENDRY, Judge.

text:
    WINN-DIXIE STORES, INC., Appellant, v. Harry GUENTHER and Audrey Guenther, his wife, Appellees.
    No. 80-1323.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.

      Vernis, Bowling, West, Montalto & Goodman and Bradley P. Goodman, Fort Lauder-dale, for appellant.
    Krupnick & Campbell and Richard A. Barnett, Fort Lauderdale, for appellees.
    Before HENDRY and DANIEL S. PEARSON, and FERGUSON, JJ.
   HENDRY, Judge.

Appellant Winn-Dixie, the defendant below, seeks review of an adverse judgment entered pursuant to a jury verdict awarding the Guenther’s damages in this negligence action.

While shopping in appellant’s store with his wife and daughter, Mr. Guenther slipped on a clear liquid substance, fell, and injured his knee. There was no evidence submitted as to how the liquid got on the floor nor how long it had been there. Testimony from Mr. Guenther’s wife and daughter established, however, that the liquid, which made a puddle about three feet long, appeared dirty and had scuff marks and several grocery cart tracks running through it. It was also brought out at trial that the store manager occupied an elevated platform within the store and that by looking at the spot where the appellee fell, would have been able to see the liquid. In rebuttal, appellant introduced evidence that the floor was swept and mopped several times a day as necessary. At the close of all the evidence, appellant moved for a directed verdict on the issue of liability. The trial judge reserved ruling on the motion, allowing the case to go to the jury. After a jury verdict was rendered for the appellees, appellant moved for judgment notwithstanding the verdict. This motion too was denied, and this appeal followed.

Appellant’s sole contention on review is that the motion for directed verdict should have been granted because there was insufficient evidence of negligence to submit the case to the jury. We disagree.

This court, in Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So.2d 212, 213 (Fla. 3d DCA 1979), reiterated the law with respect to slip and fall cases:

the well established general rule is that the owner of the premises will not be held liable if the record fails to show either how the condition was created, the length of time the condition existed before the accident or that the store owner was responsible for the condition.

The evidence is insufficient to establish liability under this standard; however, we find that the instant case falls within the rule’s recognized exception:

the owner of the store may be held liable for a customer’s injuries if the dangerous condition on the floor existed for a sufficient length of time to charge the defendant owner with constructive knowledge, [e. s.]

371 So.2d at 213.

Proof that the condition existed long enough so that it should have been discovered may, like any other fact, be established by circumstantial evidence. Winn-Dixie Stores, Inc. v. Williams, 264 So.2d 862 (Fla. 3d DCA 1972).

Viewing the evidence, as we must, most favorably to the appellees, Little v. Publix Supermarkets, Inc., 234 So.2d 132 (Fla. 4th DCA 1970), we find that the testimony by appellees’ witnesses created a pri-ma facie case for presentation and consideration by the jury. Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla.1973).

In Montgomery v. Florida Jitney Jungle Stores, Inc., supra, the Florida Supreme Court provides a comprehensive discussion and summary of “slip and fall” cases and holds that the condition of the floor and the substance on which the injured party fell may be relied upon to circumstantially prove that the perilous state existed long enough to charge a defendant with constructive notice. Winn-Dixie Stores, Inc. v. Williams, 264 So.2d 862 (Fla. 3d DCA 1972); Winn-Dixie Stores, Inc. v. Burse, 229 So.2d 266 (Fla. 4th DCA 1969), cert. denied, 237 So.2d 180 (Fla.1970).

Here, testimony that the liquid was dirty and scuffed and had several tracks running through it was, in our opinion, adequate to impute constructive notice of the hazardous condition to the store manager. Furthermore, evidence that the manager could have seen the spilled substance from his vantage point within the store bolsters our conclusion.

Based on the foregoing reasons, the issue of appellant’s liability was properly presented to the jury for resolution. We therefore affirm the judgment below.

Affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    SAVE BRICKELL AVENUE, INC., a Florida Corporation et al., Appellants, v. The CITY OF MIAMI, Florida and Santa Maria Development Group, Appellees.
    No. 80-1709.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for appellants.
    Robert Clark, Acting City Atty. and Terry V. Percy, Asst. City Atty., Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Anthony J. O’Donnell, Jr., Miami, for appellees.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The Appellate Division of the Circuit Court, upon motion of Santa Maria Development Group, the developer of certain property at 1643 Brickell Avenue, dismissed with prejudice an appeal and alternative petition for certiorari filed by Save Brickell Avenue, Inc., seeking review of a City of Miami zoning resolution affecting such property. While the developer’s motion to dismiss was grounded on assertions that Save Brickell Avenue, Inc. (a) lacked standing to seek review and (b) was es-topped from complaining of defects in any public hearing notices, we find nothing in the order of dismissal or the proceedings below indicating that the Circuit Court determined the issue of estoppel, and conclude, therefore, that the dismissal order was based solely on the standing issue. Accordingly, this case is controlled by our recent decision in Save Brickell Avenue, Inc. v. The City of Miami, Florida, 393 So.2d 1197 (Fla.3d DCA 1981), where in a substantially identical setting we held that Save Brickell Avenue, Inc. had standing. We clarify that the statement in the cited case that Save Brickell Avenue, Inc. had “standing to attack the enactment in question on the ground, which was asserted below, that it is void or invalid because the ‘required notice was not given’ ” was meant to confirm that Save Brickell Avenue, Inc. had standing to attack on the precise ground involved in that case, but was not meant to limit the standing of an “affected citizen” to an attack based exclusively on the ground that “required notice was not given.” An affected citizen such as Save Brickell Avenue, Inc. has standing to attack the resolution on the ground that it is void or invalid by reason of departure from any essential procedure preceding its enactment. It may, in short, attack how the resolution was enacted, but not what was enacted. See Save Brickell Avenue, Inc. v. The City of Miami, Florida, supra, n. 2.

For the reasons set forth in Save Brickell Avenue, Inc. v. The City of Miami, Florida, supra, we treat this appeal as a petition for certiorari, quash the order under review, and remand the cause for further proceedings consistent herewith.

Certiorari granted.

      . We do not address and express no opinion on the merits of Save Brickell’s position, on the respondent-developer’s contention of estoppel, or the respondent-City’s contention that required procedures leading to the enactment of the resolution were followed.


text:
    Abe RUDNER, Appellant, v. James LYONS and Fannett Lyons, a/k/a Fannett Clarke, Appellees.
    No. 80-1730.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    William J. Brown, Miami, for appellant.
    Ser, DeCardenas, Levine, Busch & Allen and Alexander M. Weinberg, Miami, for appellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. § 95.11(2)(c), Fla.Stat. (1979); § 95.281(3), Fla.Stat. (1979); Carpenter v. Florida Central Credit Union, 369 So.2d 935 (Fla.1979); see Conner v. Coggins, 349 So.2d 780 (Fla. 1st DCA 1977).


text:
    CAMPBELL-SETTLE PRESSURE GROUTING & “GUNITE” CO., INC., Appellant, v. DAVID M. ABEL CONSTRUCTION CO. et al., Appellees.
    No. 80-2305.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.

      Weiner & Walton, Coral Gables and Charles M. Fahlbusch, Michael I. Rose, Cornelius E. Cunningham, Miami, for appellant.
    Tobin & Thomson and John M. Thomson, Coral Gables, for appellees.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

At hearings on motion for summary judgment, the trial court, over appellant’s objection, considered oral testimony. While this procedure is clearly impermissible, Fla.R.Civ.P. 1.510; Ogden Trucking Company v. Heller Bros. & Co., 130 So.2d 295 (Fla. 3d DCA 1961), the appellees, in whose favor partial summary judgment was entered, contend that Campbell-Settle waived its objection by thereafter eliciting testimony from its own witnesses. We need not decide whether, faced with an apparent Hobson’s choice, Campbell-Settle’s failure to stand pat and take its chances constituted a waiver. Cf. City of Miami v. Kory, 394 So.2d 494 (Fla. 3d DCA 1981) (holding that one under a perceived coercion who resigns, waives the right to thereafter contest unlawful discharge). We hold instead that even assuming Campbell-Settle waived its right to object to the taking of oral testimony, (1) the trial court erred when it resolved admittedly genuine issues of material fact and entered the partial summary judgment in appellees’ favor, Plescow v. Gulf States Zayre, Inc., 350 So.2d 1147 (Fla. 3d DCA 1977); see also Rice v. Mercy Hospital Corporation, 275 So.2d 566 (Fla. 3d DCA 1973); and (2) a waiver of the right to object to the taking of oral testimony at a summary judgment proceeding is not, as appellees suggest, a waiver of Campbell-Settle’s previously demanded right to a jury trial, so as to convert such proceeding into a non-jury trial, and thus sanction the trial court’s resolution of disputed fact issues, Barth v. Florida State Constructors Service, Inc., 327 So.2d 13 (Fla.1976); see also Padgett v. First Federal Savings and Loan Association of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979).

Reversed and remanded.


text:
    KERR McGEE CHEMICAL CORPORATION, Appellant, v. Doris LIPFORD and Ronald Lipford, Appellees.
    No. WW-164.
    District Court of Appeal of Florida, First District.
    March 11, 1981.
    H. Guy Green, Marianna, for appellant.
    John E. Roberts of Roberts & Sheffield, Marianna, for appellee Ronald Lipford.
   ON MOTION TO DISMISS

PER CURIAM.

This Court’s Order of December 3, 1980, directing H. Guy Green, Esquire, to show cause why he should not be held in contempt is discharged. However, we do not condone Mr. Green’s failure to comply with the rules of appellate procedure, specifically his failure to serve an initial brief until it was over two months late and only after appellee had filed a motion to dismiss based on appellant’s disregard of the appellate rules.

Mr. Green states that the problem was “an unusual delay in receiving the transcripts from the trial”. However, it is appellant’s duty to ensure that the record is properly prepared and transmitted. Rule 9.200(e), Fla.R.App.P. Further, the trial transcript is not included in the record on appeal transmitted to this Court and Mr. Green has not moved to supplement the record with the transcript.

H. Guy Green, Esquire, is hereby publicly reprimanded for his failure to properly conduct the prosecution of this appeal. However, since dismissal is a harsh sanction which is to be used sparingly, appellee’s motion to dismiss is denied. Winstead v. Adams, 363 So.2d 807 (Fla. 1 DCA 1978).

Appellant shall have thirty (30) days to supplement the record on appeal with the trial transcript. Rule 9.200(f), Fla.R.App.P. If the supplemental record is transmitted within that time, this appeal will be determined on its merits; if it is not, the appeal will be dismissed.

MILLS, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


author: ERVIN, Judge.

text:
    H. L. A., a child, Appellant, v. STATE of Florida, Appellee.
    No. TT-52.
    District Court of Appeal of Florida, First District.
    March 11, 1981.
    Michael E. Allen, Public Defender and Thomas Presnell, Jr., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Doris E. Jenkins, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

H.L.A. appeals an order adjudicating him a delinquent child. He argues, relying upon King v. State, 317 So.2d 852 (Fla. 1st DCA 1975), that the specific ground for adjudication, attempted uttering of a forged instrument, does not exist in Florida; therefore, the order should be vacated and he should be discharged from custody. We agree and reverse.

The evidence at the delinquency hearing showed that appellant presented a stolen payroll check, made payable to a person other than himself, to a clerk at a grocery store. The clerk took certain information from the juvenile, a street address and a telephone number, and wrote them on the reverse side of the check. The information so obtained was later determined not to be the correct address and telephone number of the true payee. The check was not endorsed. When it was ascertained that appellant was not employed at the place of employment stated on the face of the check, appellant was arrested, and later confessed that he had obtained the check from another person, who had agreed with him to split equally the proceeds from the check once it was cashed. The true payee of the check testified that he had never received it from his employer.

At the close of the hearing, appellant moved for a judgment of acquittal on the ground that the state had not established a prima facie case. The trial court ruled that the state had not proven the charge of uttering, but reduced the charge to attempted uttering and adjudicated him delinquent of such offense.

The appellee concedes that attempted uttering is a non-existent crime in Florida, but suggests that the adjudication may appropriately be vacated and the cause remanded with instructions to the lower court to enter a new adjudication based on the offense of uttering, since uttering is established by an attempt to issue a forged instrument. While the offense of uttering is committed by the mere offer of a false instrument with fraudulent intent, Revels v. State, 62 Fla. 83, 56 So. 416 (1911), it is necessary that the instrument be forged. See Harrell v. State, 79 Fla. 220, 83 So. 922 (1920); Forbes v. State, 210 So.2d 246 (Fla. 3d DCA 1968). The check was not shown to be forged. The face of the check was correctly made payable to its payee. Had appellant endorsed the name of the payee on the reverse side of the check, it then would have become a false or forged instrument, and the evidence would have been sufficient to adjudicate appellant a delinquent child for the offense of uttering. Compare Davis v. State, 364 So.2d 19 (Fla. 1st DCA 1978), which approved a conviction for forgery upon facts showing that the defendant had possession of a stolen check which had not been signed by its purported maker, and that defendant and his accomplice had entered into an agreement to cash the check and to divide the proceeds from it.

In the case at bar, appellant clearly could not have been convicted of the greater offense of uttering. Moreover, a verdict of guilty of a lower degree of a crime constitutes an acquittal of any higher degree of the crime charged and so bars any subsequent prosecution as to the higher offense. Sanford v. State, 75 Fla. 393, 78 So. 340 (1918); Greene v. City of Gulfport, 103 So.2d 115 (Fla.1958).

It appears that appellant was incorrectly charged; that he should have been charged either with obtaining property by false pretenses, now embraced under the Florida Anti-Fencing Act, Sections 812.012-812.037, Florida Statutes, or with obtaining property by false impersonation, Section 817.02, or with cheating, Section 817.29. Compare State v. Peterson, 192 So.2d 293 (Fla. 2d DCA 1966). For former jeopardy purposes, there would appear to be no bar to the state’s charging appellant with a separate and unrelated offense to that of uttering so long as the facts that would convict on the second prosecution would not necessarily have sustained a conviction on the former prosecution for the crime there charged, although both offenses may have arisen from the same transaction. See State v. Bowden, 154 Fla. 511, 18 So.2d 478 (1944); State v. Shaw, 219 So.2d 49 (Fla. 2d DCA 1969).

The adjudication of delinquency as to the offense of attempted uttering is reversed.

SHAW and WENTWORTH, JJ., concur.

      . The state also argues that appellant did not properly preserve the point on appeal relating to there being no offense of attempted uttering due to his failure to make a specific objection below. This is an incorrect statement. Florida Rule of Juvenile Procedure 8.190(n) provides, similar to its counterpart under the Rules of Criminal Procedure, Rule 3.380(a), that “if at the close of the evidence for the petitioner, the court is of the opinion that the evidence is insufficient to warrant an adjudication, it may, and on the motion of any party, shall enter an order dismissing the petition for insufficiency of the evidence.” It was not necessary for appellant to preserve the issue on appeal by filing a motion for new trial, because the denial of a motion for judgment of acquittal at a non-jury trial is considered sufficient to raise the issue for appellate purposes. See Mancini v. State, 273 So.2d 371 (Fla.1973).


text:
    Phyllis GEATHERS, Appellant, v. STATE of Florida, Appellee.
    No. PP-276.
    District Court of Appeal of Florida, First District.
    March 13, 1981.
    Elion Krugman-Kadi and Bradley S. Hartman of Barton & Cox, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Carolyn Snur-kowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal of a judgment of conviction of aggravated battery. The basis for the appeal is the contention that appellant was actually incompetent to stand trial, although appellant’s appointed trial counsel did not move for a competency hearing or in any way suggest that appellant was incompetent to stand trial. Further, the record reveals no reasonable grounds for a belief that appellant was incompetent to stand trial.

Appellate counsel have sought to introduce before this court evidence of appellant’s actual incompetence which was not part of the record below and therefore cannot be considered on appeal. The proper course for appellant to follow in order to obtain consideration of this additional evidence is to file with the lower court a motion for post-conviction relief. The judgment of conviction is affirmed without prejudice to the appellant to file a motion pursuant to Rule 3.850, Florida Rules of Criminal Procedure.

McCORD and LARRY G. SMITH, JJ., and OWEN, WILLIAM C., Jr., Associate Judge (Ret.), concur.