author: BOOTH, Judge.

text:
    Louis R. SMITH, Sr., Appellant, v. FORTUNE INSURANCE COMPANY, Appellee.
    No. TT-268.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.

      Brent M. Turbow and Arthur T. Boone, Jacksonville, for appellant.
    Robert T. Hyde, Jr. of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for ap-pellee.
   BOOTH, Judge.

This cause is before us on appeal from a judgment entered on a jury verdict against appellant Smith on his claim under a homeowner’s policy issued by appellee, Fortune Insurance Company. Approximately one year after the policy was issued, a fire completely destroyed Smith’s mobile home and its contents. An investigation by the Bradford County Sheriff’s Department revealed that Smith’s 19-year-old daughter, Cathy, apparently acting deliberately, had set fire to the mobile home. Fortune refused to pay out proceeds under the policy, citing the following exclusionary provision:

This company shall not be liable under Section I of this policy:
10. For loss due to acts of malicious mischief or vandalism perpetrated by any member of the household or a person in lawful possession or custody of the mobile home.

Smith brought suit for recovery under the policy. After a jury trial, judgment was entered in favor of Fortune.

At trial, Cathy Smith was called by Fortune as an adverse party witness. She denied starting the fire and also denied any knowledge of how or where the fire started. Fortune then called Lieutenant Moore of the Bradford County Sheriff’s Department, who testified, over objection, concerning an interview he had with Cathy at the home of one of her friends on the day after the fire. He testified that, during the interview, Cathy told him she had been “playing with matches” in her bedroom and the bed cover caught fire. Lieutenant Moore further stated that Cathy told him she did not attempt to put out the fire and that, although she knew her family was in the trailer, it did not really matter to her because “she had had all she could stand, all she wanted was out.”

Other evidence adduced at trial indicated that the fire had started in what appeared to be a bedroom area of the mobile home and that, when the fire started, Cathy took three packed suitcases from her room and fled the scene.

On appeal, Smith contends that Lieutenant Moore’s testimony regarding Cathy’s out-of-court statements should not have been allowed because Cathy, not a party to the lawsuit, was not an “adverse party,” and, under Rule 1.450, Florida Rules of Civil Procedure and Florida Statutes, Section 90.-09, Lieutenant Moore’s testimony was improper as impeachment of one’s own witness and as hearsay.

We find that Cathy was an “adverse party,” even though not a “party” named in the pleadings. Accordingly, Fortune’s impeachment of her testimony was proper under Rule 1.450(a), and Lieutenant Moore’s testimony regarding Cathy’s out-of-court statements came within the “admissions” exception to the hearsay rule. Florida Statutes, Section 90.803(18)(a); Hunt v. Seaboard Coastline Railroad Company, 327 So.2d 193 (Fla.1976). Cathy’s admissions constituted substantive evidence that she started the fire, upon which the jury could base an inference that she did so willfully and maliciously.

One need not be named in the pleadings or aligned in the pleadings in opposition to the party calling him, to be called as an adverse party witness. Rubin v. Kapell, 105 So.2d 28, 32 (Fla.3d DCA 1958). Rather, the test is whether the party sought to be called “occupied an adverse position toward” the party seeking to call him, Degelos v. Fidelity and Casualty Company, 313 F.2d 809, 815 (5th Cir. 1963), and could have been named as a party. Chumbler v. Alabama Power Company, 362 F.2d 161, 163 (5th Cir. 1966).

In the instant case, all of Cathy’s belongings, which she did not take with her, were in the mobile home and destroyed by the fire. Under the terms of the policy being sued upon, Cathy was an “insured;” and, therefore, she stood to gain financially by a resolution of the case favorable to her father. Also, Cathy was the alleged “wrongdoer” whose conduct caused the loss for which Fortune was potentially liable and which gave rise to the instant action.

Accordingly, the judgment is AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and SHAW, J., concur.

      . Under the heading “Definitions — Section I,” the insurance policy provides, in pertinent part:
      1. Insured: The unqualified word “Insured” includes:
      (a) The Named Insured stated in the Declarations of this policy; and
      (b) If residents of his household, his spouse, the relatives of either, and any other person under the' age of 21 in the case of any Insured.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    Frederick Joseph HERRON, Appellant, v. STATE of Florida, Appellee.
    No. WW-399.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.

      David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Herron appeals his conviction and sentences for burglary and grand theft and urges error by violation of U.S. Constitution, Fourteenth Amendment, rights in denial of his motion to suppress statements by him after he requested an attorney.

Herron was arrested by an officer acting on radio dispatch information and description from another policeman who, in a pursuit following a burglary of a garage, observed the driver jump from the suspect vehicle just before it hit a house. The critical statement by Herron occurred after he was advised of his Miranda rights and had told the officer he wanted an attorney. At that point the arresting officer, while escorting Herron to the police car, said, “Don’t you know you could have hurt somebody jumping out like that,” and Herron then “said he wasn’t going fast enough to hurt nobody.” Shortly before that exchange, immediately after being told he was under arrest and before his request for counsel, Herron had stated he “ain’t stolen no car; he had borrowed a car.”

The controlling principles are those recently stated in the opinions in Edwards v. State of Arizona, - U.S. -, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Brewer v. Williams, 430 U.S. 387, 51 L.Ed.2d 424, 97 S.Ct. 1232 (1977). We conclude that in the recited context of the present case the words of the officer following “Don’t you know ...” need not be regarded as interrogation or its functional equivalent. Although the opinion in Edwards clearly prohibits “authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel,” it concludes that “[ajbsent such interrogation .. . there would be no occasion to determine whether there had been a valid waiver.” - U.S. at -, 101 S.Ct. 1885, 68 L.Ed.2d at 387. The officer’s comment in the circumstances of the case before us may therefore be regarded as an off-hand remark or rhetorical admonition not calculated or reasonably likely to elicit an incriminating response even if, as required by Innis, we focus primarily upon “the perceptions of the suspect rather than the intent of the police.” 446 U.S. at 301, 100 S.Ct. at 1690, 64 L.Ed.2d at 308.

Affirmed.

BOOTH and SHAW, JJ., concur.


author: JOANOS, Judge.

text:
    Duane Hubert DENNY, Appellant, v. STATE of Florida, Appellee.
    No. XX-138.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.

      Charles A. Wade, Fort Walton Beach, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Denny appeals his conviction for first degree murder. He alleges error in the use of certain photographs, in an alleged improper closing argument by the prosecutor, and in the playing to the jury of a tape recording of a statement made to the police by a witness the day of the crime. Denny did not dispute the allegations that he shot and killed the victim. Instead his defense was that he was intoxicated at the time and had no premeditated intent to kill the victim. He contends that the jury would not have convicted him of “anything higher than second degree murder” but for the alleged errors in the trial. We find no error, and, therefore, affirm.

Denny argues that photographs of the victim taken at the morgue should not have been admitted, contending that the state breached discovery rules because a police officer allegedly broke a pretrial promise to send the defense lawyer a copy of any such photographs that might be printed. It is undisputed that the existence of the photographs (or negatives) was properly disclosed long before trial and that they were continuously available for inspection or copying by the defense. Fla.R. Crim.P. 3.220(l)(xi). However, the defense attorney never contacted the prosecutor to exercise his right to copy or inspect. Therefore, Denny has not demonstrated that the state violated the rules of discovery. See Floyd v. State, 361 So.2d 802 (Fla.3d DCA 1978).

The claim that the State’s closing argument was improper is also without merit. In his closing comments, the defense counsel argued that Denny lacked the ability to form the intent to kill on the night of the crime. In rebuttal, the prosecutor reminded the jury about statements made that night by Denny that he was going to kill Wellman, and the prosecutor recounted that Denny had the mental acuity to find a gun and shells, locate Wellman, and shoot him. Denny claims this was improper rebuttal because it went beyond the scope of defense closing argument and deprived the defense of an opportunity to respond. However, the prosecutor’s remarks were directed at the issue of premeditation, which was the focus of the defense argument.

We also find no error in the prosecutor playing for the jury a tape recorded statement made by state witness Linda Denny, the appellant’s former wife, shortly after the killing. In an effort to rehabilitate Linda after she was impeached by the defense, the prosecutor attempted to introduce a written copy of her statement. The defense attorney objected but told the court: “You can bring the officer in and question him on it and if he says that’s all she said, Your Honor, I’ll have no objection.” With the officer on the stand and the prosecutor again attempting to introduce the written statement, the defense attorney objected but then suggested he would not object “(i)f he (the officer) could testify that this was every word she said which I’ll ask him a question on that now, if Your Honor wants me to.” Eventually, defense counsel objected on the grounds that he was not present at the taping and-was thereby denied his right of cross-examination. Finally, in an apparent attempt to allay defense fears that the written statement might be incomplete, the judge ordered the tape played before the jury. Neither at trial nor in this appeal has Denny objected to the statement on the ground of improper impeachment.

Under proper circumstances, prior consistent statements of a witness are admissible to rehabilitate his trial testimony when that testimony has been impeached by his prior inconsistent statements. See § 90.801(2)(b), Fla.Stat.(1979); see generally Kellam v. Thomas, 287 So.2d 733 (Fla. 4th DCA 1974) and authorities cited therein. It is not a requirement of admissibility that defense counsel be present at the time of the prior consistent statement. However, certain portions of Linda Denny’s statement were prejudicial and unrelated to rehabilitative purposes. But because the record does not indicate any attempt by defense counsel to excise this extraneous material, he cannot now complain. At trial, defense objections regarding the authenticity and completeness of the written statement encouraged the judge to order the tape played in its entirety for the jury. We cannot permit an appellant to argue an error he precipitates.

Accordingly, judgment of the trial court is AFFIRMED.

ROBERT P. SMITH, Jr., Chief Judge, and LARRY G. SMITH, J., concur.


author: MILLS, Judge.

text:
    Alan R. MOLINE, Appellant, v. STATE of Florida, Appellee.
    No. YY-199.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.

      Michael E. Allen, Public Defender, Theodore E. Mack, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Moline appeals the denial of his motion to suppress controlled substances found in his car. We affirm.

However, we expressly decline to affirm the “good-faith” exception to the exclusionary rule as found by the trial court. We note specifically this court’s opinion in Walden v. State, 397 So.2d 368 (Fla. 1st DCA 1981), 1981 F.L.W. 833, which held that we are precluded from considering such an exception until it is adopted by the Florida Supreme Court.

We find that the police officer’s command for Moline to sit up from his prone position on the car seat, considering the furtive movements of Moline, the area where the vehicle was located, the time of night, and the fact that Moline appeared to be trying to stuff something between the car seats, was such a limited intrusion that there was no constitutional violation by the officers. Once Moline sat up, the contraband was in “open view” and subject to seizure under the automobile exception to the warrant requirement. Ensor v. State, 403 So.2d 349 (Fla.1981), Case No. 57,817, opinion filed June 4, 1981.

Accordingly, the trial court’s order is affirmed.

ROBERT P. SMITH, Jr., C. J., and McCORD, J., concur.


author: PER CURIAM.

text:
    Lawrence Patrick BURKE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2086.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Under Tibbs v. State, 397 So.2d 1120 (Fla.1981), we are powerless to accept the appellant’s position that, while the testimony introduced below supports the finding of his guilt, it is so inherently incredible and contrary to the weight of the evidence as to require a new trial “in the interest of justice.”

Affirmed.


text:
    Dale William HANDWERK, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 80-712.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

We affirm on the grounds that the testimony of the expert witness — a medical doctor qualified as an expert in matters of involuntary sexual battery — that there was injury to the child’s anal cavity and that the injury was inconsistent with accident or self-infliction, but was consistent with an intentional penetration by another person sufficiently established the corpus delicti as a predicate for admitting defendant’s confession, see e.g., Vaillancourt v. State, 288 So.2d 216 (Fla.1974); Holland v. State, 359 So.2d 28 (Fla.3d DCA 1978), cert. denied, 367 So.2d 1124 (Fla.1979); Eierle v. State, 358 So.2d 1160 (Fla.3d DCA 1978), cert. denied, 364 So.2d 884 (Fla.1978). The time period stated within the indictment as the date of offense is not a necessary element to establishing the corpus delicti.

Affirmed.


text:
    EAST COAST INSURANCE COMPANY, Appellant, v. W. H. BROWNYARD CORPORATION, Appellees.
    No. 80-2054.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Greene & Cooper and Robyn Greene and Joan Bolotin, Pyszka & Kessler, Miami, for appellant.

      Fowler, White, Burnett, Hurley, Banick & Strickroot and A. Blackwell Stieglitz, Miami, for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Town of Medley v. Scott, 285 So.2d 663 (Fla.3d DCA 1973), cert. denied, 293 So.2d 360 (Fla.1974); Isenberg v. Ortona Park Recreational Center, Inc., 160 So.2d 132, 134 (Fla. 1st DCA 1964).


author: NESBITT, Judge.

text:
    Geraldine E. WINTER, Appellant, v. ARVIDA CORPORATION, Sabal Chase Condominium II Association, Inc. and Sabal Chase Homeowners Association, Inc., Appellees.
    No. 80-2056.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Gary Gerrard, Miami, for appellant.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Albert G. Carua-na and David M. Wells, Miami, Becker, Po-liakott & Streitfeld and Robert J. Manne, Fort Lauderdale, for appellees.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

The appellant, plaintiff below, appeals from an order granting defendant Arvida’s motion to compel arbitration and dismissing the plaintiff’s complaint without prejudice.

The plaintiff filed a complaint on November 21, 1979 alleging that a condominium which she purchased from Arvida was defective due to inadequate drainage capacity of the common ways. This allegedly caused her particular unit to be inundated with water. She claimed that Arvida knew or should have known of this prior to the sale of the condominium. A motion to dismiss the complaint for failure to state a cause of action was filed on behalf of Arvida on December 19, 1979, and said motion was denied on March 20, 1980. Before filing its answer, the defendant deposed the plaintiff and made an inquiry regarding the existence of a homeowner’s warranty contract for the unit. On April 21, 1980, Arvida filed its' answer including affirmative defenses and discovery continued. On August 5, 1980, Arvida filed a motion to dismiss alleging that the arbitration clause of the homeowner’s warranty precluded the instant suit. One week after the filing of this motion, Arvida served interrogatories upon the plaintiff. Subsequently, the lower court granted Arvida’s motion to dismiss without prejudice to plaintiff’s refiling of her complaint after she had pursued the remedies of conciliation and arbitration. Plaintiff appeals.

Due to the portion of the order which dismisses the complaint, we have jurisdiction to review the lower court’s order. Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla.3d DCA 1980). We find that there was a waiver of the right to arbitrate and therefore we reverse.

It is Arvida’s contention that it did not knowingly give up its right to arbitrate. However, before an answer was filed, the defendant recognized the possibility that there was an agreement, as evidenced by the questions to the plaintiff at the deposition. Further, four months passed between the time the complaint was filed and the answer was received. There was certainly enough time for the defendant to act upon its suspicions that the agreement existed. The affidavits attached to the motion to dismiss show that the defendant’s knowledge came directly from its own salesperson and controller. Consequently, we find that Arvida knew or should have known of the existence of the homeowner’s warranty and of the arbitration clause.

In King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235 (Fla.4th DCA 1977), the court held that the filing of an answer to the complaint without demand for arbitration constituted a waiver of the right to arbitrate and was consent to submission of the controversy to the court. In Ojus Industries, Inc. v. Mann, 221 So.2d 780, 782 (Fla.3d DCA 1969), the court stated that “waiver in this connection does not depend on timing to compel arbitration (where not unreasonably delayed), but rather on the prior taking of an inconsistent position by the party moving therefor.” Action taken by the movant subsequent to the motion to compel arbitration was sufficient to constitute a waiver in Klosters Rederi A/S v. Arison Shipping Company, 280 So.2d 678 (Fla.1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 869, 38 L.Ed.2d 755 (1974).

The defendant, having knowledge of the arbitration clause, filed an answer and proceeded with discovery before moving to dismiss for failure to arbitrate. After the motion was filed, the defendant continued to proceed with the lawsuit. Because these actions were inconsistent with the right to arbitrate, we find that there was a waiver by the defendant.

For these reasons, the order compelling arbitration and dismissing the complaint is reversed and the cause remanded for further proceedings.

      . Plaintiff also sued Sabal Chase Condominium II Association, Inc. and Sabal Chase Homeowners Association for negligence. Cross-claims were filed by Arvida and Sabal Chase. These claims are not at issue on this appeal.

      . This decision makes it unnecessary to reach the question of whether, in the absence of a waiver, there was a right to arbitration before a lawsuit was filed.


text:
    The STATE of Florida, Appellant, v. D. L., a juvenile, Appellee.
    No. 81-938.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for appellee.
    Before DANIEL S. PEARSON, FERGUSON AND JORGENSON, JJ.
   PER CURIAM.

The appellee having confessed error to the trial court’s dismissal of the Petition of Delinquency and such error clearly appearing, see, e.g., State ex rel. Hardy v. Blaunt, 261 So.2d 172 (Fla. 1972); State v. Mach, 187 So.2d 918 (Fla. 2d DCA 1966); DiBona v. State, 121 So.2d 192 (Fla. 2d DCA 1960), the order of dismissal is reversed and the cause remanded for further proceedings.

Reversed and remanded.


author: HENDRY, Judge.

text:
    Joseph G. FINKELSTEIN, as Personal Representative of the Estate of Ralph T. Bailey and Nationwide Insurance Company, a foreign corporation, Appellants, v. Jefferson GODARD, Jr., Kenneth Vincent and Jean Vincent, his wife, Appellees.
    No. 81-1144.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Goodwin, Ryskamp, Welcher, Carrier & Donoff and Fulvia A. Morris, Miami, for appellants.
    Daniels & Hicks and Patrice A. Talisman, Rentz & Haggard, Miami, for appellees.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   HENDRY, Judge.

This is an appeal by the defendants from a non-final order of the Circuit Court of Dade County denying a change of venue in a negligence action which arose out of an automobile accident that occurred in Lee County, Florida. The accident resulted in the death of Ralph Bailey, the driver of the automobile who, plaintiffs allege, caused their injuries.

It is the defendants’ contention on appeal that the trial court erred in denying their motion to transfer the cause from Dade County to Lee County because of improper venue and under the forum non conveniens statute, section 47.122, Florida Statutes (1979).

The probate court of Lee County, at the suggestion of plaintiffs’ counsel, named Joseph Finkelstein, a resident of Dade County, as personal representative of Mr. Bailey’s estate. Plaintiffs amended their pending action in Dade County by naming the personal representative together with Nationwide Insurance Company, Mr. Bailey’s insurer. It was alleged that Nationwide was a foreign corporation doing business in Dade County, Florida. Service was made upon the personal representative and the insurance company. Whereupon the personal representative filed an answer and both defendants filed a joint motion to dismiss and transfer the cause to Lee County on the grounds that the accident occurred in Lee County and Mr. Bailey’s estate was being probated in Lee County. The motions were denied. It is from the denial of these motions that this appeal is taken.

Appellants argue that the venue statutes are for the protection of the defendant and unless waived, the defendant can compel that the action be brought in his county of residence or where the cause of action accrued, Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975); that since the cause of action admittedly arose in Lee County, venue is in Lee County- — venue would be in Dade County only if Nationwide has a representative or agent in Dade County, Section 47.051, Florida Statutes (1979); that the record does not reflect that Nationwide has an agent in Dade County, the complaint contains only an allegation that Nationwide is doing business in Dade County and that “doing business” is not the test, Walt Disney World Co. v. Leff, 323 So.2d 602 (Fla. 4th DCA 1975).

Appellants further argue that Nationwide’s pleadings alleging improper venue were not rebutted by plaintiffs’ showing in opposition to the various motions to change venue, thus the trial court was required to dismiss for improper venue, Majestic II, Enterprises, Inc. v. Butler, 372 So.2d 548 (Fla.3d DCA 1979); Perry Building Systems, Inc. v. Hayes & Bates, Inc., 361 So.2d 443 (Fla. 1st DCA 1978). Appellants further contend that they were entitled to a transfer of the action on the ground of forum non conveniens since almost all of the witnesses are in Lee County and the trial there will cause the least amount of inconvenience and expense to parties required to answer and defend the action, Gaboury v. Flagler Hospital, Inc., supra; Peterson, Howell & Heather v. O’Neill, 314 So.2d 808 (Fla.3d DCA 1975); section 47.-122, Florida Statutes (1979).

The appellees argue that the authorities relied upon for reversal are not controlling under pleadings and facts in the instant case. We agree and affirm upon a holding that: (1) the defendant-appellants waived any exception to venue by not timely asserting their objection, Fixel v. Clevenger, 285 So.2d 687 (Fla.3d DCA 1973); (2) the venue chosen by plaintiffs was proper since one of the two defendants, appellant Fink-elstein (the personal representative of the estate of Ralph Bailey), resides in Dade County, O’Brien v. Mitchell, 190 So.2d 189 (Fla. 1st DCA 1966); section 47.021, Florida Statutes (1979); (3) appellants have failed to demonstrate the impropriety of appel-lees’ selection of venue, Bassett v. Talquin Electric Cooperative, Inc., 362 So.2d 357 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla. 1979); Davis v. Dempsey, 343 So.2d 950 (Fla.3d DCA 1977); (4) appellants have failed to demonstrate that the trial court abused its discretion in refusing the transfer, Gaboury v. Flagler Hospital, Inc., supra; section 47.122, Florida Statutes (1979).

Affirmed.


text:
    LOWER FLORIDA KEYS HOSPITAL DISTRICT d/b/a Florida Keys Memorial Hospital, Petitioner, v. Galen SKELTON, a minor, by and through her parents and next friends, Sanetta J. Skelton and James C. Skelton, individually; The Public Health Trust of Dade County, Florida, d/b/a Jackson Memorial Hospital, Stanley Coira, M.D., Stanley Coira, P.A., Richard C. Walker, M.D., Richard Walker, P.A., and Florida Patient’s Compensation Fund, Respondents.
    No. 81-1236.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.

      Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for petitioner.
    Simons & Schlesinger and Carole A. Gardiner, Fort Lauderdale, for respondents.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Respondents (Skelton) commenced a medical malpractice action against the petitioner and the other respondents herein. The respondent, Dr. Coira, propounded interrogatories requesting collateral source information. Respondents (Skelton) objected to such interrogatories on the grounds that same was unconstitutional and deprived the respondents of due process. The trial court declared Section 768.50, Florida Statutes (1979) to be unconstitutional as depriving respondents of due process, and sustained respondents’ objections to subject interrogatories. Petitioner seeks review of that order via certiorari.

We quash the order under review under the reasoning of the decision of the Supreme Court of Florida in Pinillos v. Cedars of Lebanon Hospital Corporation, 403 So.2d 365 (Fla.1981), 1981, holding Section 768.50, Florida Statutes (1979) constitutional.

      . This opinion is not to be construed as an open invitation to file petitions for certiorari when a trial court has held a statute unconstitutional prior to a final determination. In our discretion we entertain this petition because the impact of the trial court’s order, if not reviewed until after final judgment, prohibits certain discovery which the Supreme Court has approved.

      . We note that this decision was rendered after the trial court entered the order under review in this case.


author: BASKIN, Judge.

text:
    Charles SHOATS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1877.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Charles Shoats, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

In his appeal from the trial court’s denial of a motion filed pursuant to Florida Rule of Criminal Procedure 3.850, defendant Charles Shoats correctly maintains that the sentence he received for the offense of burglary of structure, charged in Count I of the Information in Case No. 79-21237, exceeds the maximum and improperly imposes a mandatory minimum. We agree and correct the sentence by reducing the term of confinement in the state penitentiary to the lawful maximum of five years, concurrent with the sentence imposed in Case No. 80-11865, and vacate the mandatory minimum imposed in Count I of Case No. 79-21237. In all other respects, the conviction and the sentence are affirmed.

Conviction affirmed, sentence affirmed as corrected.


text:
    Alan CHEEK, Appellant, v. McGOWAN ELECTRIC SUPPLY COMPANY, Appellee.
    No. XX-37.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.

      M. Stephen Turner of Culpepper, Beatty & Turner, Tallahassee, for appellant.
    William C. Owen and J. Klein Wigginton of McClure, Wigginton & Owen, P. A., Tallahassee, for appellee.
   PEARSON, TILLMAN (Retired), Associate Judge.

The defendant, Alan Cheek, appeals a final judgment entered by the court without a jury. The single question presented is whether he was entitled to a jury trial upon the issues raised by the complaint and the answer. We hold that the trial judge improperly took the case from a duly impan-elled jury and tried all of the issues without a jury.

The suit began as a common law action to collect an account stated which was evidenced by a promissory note. The defenses pleaded, with the exception of failure of consideration, were claims for equitable relief. They were: (1) The promissory note was mistakenly given as payment of an account balance for which the defendant had no liability since charges to the account in excess of payments were not in compliance with the conditions and restrictions of the account or defendant’s guaranty; (2) the defendant should be discharged from liability because of the plaintiff knowingly making charges to the account which were not included in the guarantee of the defendant. The answer concluded with an equitable counterclaim that the defendant be found not liable to the plaintiff in any amount; that he be returned with interest any amounts paid to reduce the balance of the account in excess of his actual liability.

The alleged indebtedness and the promissory note arose out of the following facts. The plaintiff is an electrical materials supplier. The defendant is a general contractor who regularly used Thomas Cook, an electrical subcontractor, on defendant’s construction projects. Cook became indebted to the plaintiff so that his credit with the plaintiff, supplier, was terminated. In order to keep Cook at work on defendant contractor’s jobs, the defendant agreed to furnish his credit to Cook for those specific jobs where Cook was working for defendant. This was accomplished by establishing a special account with the plaintiff for those jobs where defendant was the contractor. Defendant guaranteed the payment of this special account. When the special account reached an amount of some $20,000.00 and Cook could not make payment, the special account was terminated. Cook and defendant signed a promissory note for the amount of the account. Suit was instituted on the note, when after a few payments both Cook and the defendant defaulted.

The defendant regularly demanded a jury trial and the cause proceeded for a jury trial. A pretrial order was entered which contained the following notation:

The parties have not reached complete agreement as to which issues will be tried by the Court and which issues will be tried by the jury, except that the parties agree the issue of usury shall be submitted to the Court. The Court reserves ruling on whether the affirmative defense of mistake creates an issue to be tried by the jury.

The cause came on for trial and a jury was regularly impanelled and the trial proceeded to the conclusion of all the evidence. The evidence was complicated and often technical as to the terms and practices of the building trades. After lengthy argument, the court decided to withdraw the case from the jury, noting that it was going to come down to a decision on equitable principles. In its judgment the court noted:

The claim and defenses to that claim posed certain legal and equitable issues, some of which the court initially felt should be heard by a jury. After the court and the jury heard the testimony of the parties, expert witnesses and other lay witnesses and having received into evidence the exhibits submitted by the parties, the court concluded that the legal and equitable issues, facts and arguments relating thereto were so intertwined and that the testimony and other evidence so complex and confusing that the jury could not comprehend and separate the issues to be determined only by the jury and thus the court concluded that it did not need the advisory opinion of the jury on any issue and without objection, withdrew the entire case from the jury’s determination.

We are fortunate that this Court’s decision in Padgett v. First Federal Savings & Loan Association, 378 So.2d 58 (Fla. 1st DCA 1979), has recently summarized the law of Florida relative to the question now before us. The applicable rule as set forth by the Court is:

... It is, however, clear that the mixture of the two kinds of claims in the same case, regardless of the parties by whom or the sequence in which they are raised by their respective pleadings, can not deprive either of the parties of a right to a jury trial of issues traditionally triable by jury as a matter of right, [cases cited omitted here] [emphasis supplied]

It remains only for us to decide if the instant cause included issues traditionally triable by jury as a matter of right. The cause of action as filed was a suit on a promissory note and therefore was an action at law in which the defendant had a right upon proper demand to a jury trial. It was held in Poneleit v. Reksmad, Inc., 346 So.2d 615 (Fla. 2nd DCA 1977), that as between the original parties to a negotiable instrument, fraud may be set up as a defense against liability on the instrument. Failure of consideration is a long recognized defense to a promissory note. See Towles v. Azar, 112 Fla. 405, 150 So. 734 (1933).

Mistake is a recognized basis for equitable relief. See 9 Fla.Jur.2d, Cancellation, § 29 (1979). This is especially true where the maker seeks not only cancellation and rescission but recovery of amounts paid in the excess of the obligation. Ritchey v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 361 So.2d 438 (Fla. 2nd DCA 1978). But the existence of these equitable issues does not obviate the right to jury trial upon the legal issues presented. Hightower v. Bigoney, supra. Padgett v. First Federal Savings & Loan Association, supra. It is equally clear that the complicated nature of a suit so that it calls for an accounting is not a basis for removing it from the consideration of a jury. Rizzo v. Euclid Urbana Company, 118 So.2d 553 (Fla. 2nd DCA 1960). Where the issues made by an equitable counterclaim are so related to the issues triable by a jury as a matter of constitutional right of trial, that they are intertwined, a trial by jury should be afforded on all the issues. Napolitano v. Robertson and Associates, Inc., 311 So.2d 757 (Fla. 3rd DCA 1975); Adams v. Citizens Bank of Brevard, 248 So.2d 682 (Fla. 4th DCA 1971).

There remains the question of whether the defendant waived his right to a jury trial by his failure to record an objection when the trial court announced his decision to take the case from the jury. Certainly the trial court was well aware that the defendant wanted a jury trial. He had regularly demanded a jury trial. He noticed the case for jury trial. At pretrial, he opposed plaintiff’s suggestion that the court try the mistaken payment defense. The Supreme Court of Florida has addressed this issue in Barth v. Florida State Constructor Service, 327 So.2d 13 (Fla.1976), where the Court held:

.. . [0]nce a demand for jury trial has been timely made, it takes affirmative action on the part of the defendant to waive the constitutional right. ...

Because no such affirmative action appears in this record, we must hold that there was no waiver.

The final judgment entered by the court without a jury is reversed and this cause is remanded with directions to proceed with a jury trial on all the issues.

REVERSED AND REMANDED.

McCORD and BOOTH, JJ., concur.

      . In addition to the failure of consideration affirmative defense, noted above, the defendant entered the defense that the account contained finance charges which were usurious under Florida law. We do not consider the usury defense because the parties stipulated for the trial of that defense by the court without a jury.

      . The question of the lack of a formal objection is noted for later discussion.

      . It may well be argued that the rule is not the most efficient one, but we are, we think, compelled to follow it because we are dealing with the constitutionally granted right of trial by jury as enunciated by the Supreme Court of Florida in Hightower v. Bigoney, 156 So.2d 501 (Fla.1963).


text:
    FLORIDA FARM BUREAU CASUALTY COMPANY, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Hilliard Brothers of Florida, Inc., and Marlin W. Hilliard, Appellees. FLORIDA FARM BUREAU CASUALTY COMPANY, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Hilliard Brothers of Florida, Inc., Claudia Cypress John and Eldean Billie, Appellees.
    Nos. XX-184, YY-7.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.
    James H. Smith of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, for appellant.
    John J. O’Riorden and Douglas P. Lawless of Dickinson, O’Riorden, Gibbons, Qua-le, Shields & Carlton, Sarasota, for appellee United States Fidelity & Guaranty Company.
    Marvin E. Barkin of Trenam, Simmons, Kemker, Schard, Barkin, Frye & O’Neill, Tampa, for appellee Marlin Hilliard.
    Michael L. Kobiolka, Plantation, for ap-pellee Claudia Cypress John.
   PER CURIAM.

This is an appeal from an order of the deputy commissioner determining that Florida Farm Bureau was the insurance carrier covering the employer, Hilliard Brothers of Florida, Inc., (“Hilliard Bros.”) on the date of the accident. We reverse.

The sequence of events in this case is somewhat complex. United States Fidelity & Guaranty Company (“USF&G”) was the insurance carrier for Hilliard Bros., providing workers’ compensation and other types of insurance, during 1977 and early 1978. Because the worker’s compensation insurance was due to expire in February 1978, but the other lines of insurance would not expire until May 9, 1978, USF&G agreed to extend the workers’ compensation insurance to May 9, 1978, so that all coverages would end at the same time. Subsequently, USF&G’s agent orally agreed to bind insurance coverage from May 9, 1978, until June 9, 1978, and again until July 9, 1978.

Meanwhile, Hilliard Bros., through an insurance consultant, Mr. Bell, accepted bids for all lines of insurance coverage from USF&G, Florida Farm Bureau, and another insurance company. On July 6, 1978, Mr. Bell advised Hilliard Bros, that his analysis showed that Florida Farm Bureau had submitted the lowest bid. Mr. Joe Marlin Hilli-ard contacted Mr. Gillingham, the agent for USF&G, cancelled the oral binder with that company, and secured an oral binder with Florida Farm Bureau through its agent. Subsequently, Florida Farm Bureau issued a letter of assumption, dated July 20, 1978. This letter was sent to USF&G and to the Department of Commerce and stated that Florida Farm Bureau was willing to assume all obligations and liabilities for Hilliard Bros., “covered by our policy number WC 614377 effective July 1, 1978 .. . This is a ‘letter of intent’ to only provide you notice of our effective date and to effect coverage upon termination of your policy. Duplicate coverage is not intended.”

Subsequently, a possible error was discovered regarding the bids. On about July 21 it was determined that USF&G rather than Florida Farm Bureau had actually been the lowest bidder. Sometime between July 21 and July 23, Mr. Hilliard and Mr. Bell called Gillingham, the agent for USF&G, and requested another oral binder. At that time, Gillingham refused to go back on binder unless he was assured of the Hilliard account. The record reflects that a few days later, but before the day of the accident, Gillingham spoke with Bell and Mr. Hilliard and was informed that USF&G had been awarded the account and Gillingham agreed to bind the coverage. Gillingham testified that he called the USF&G office in Tampa and advised that the coverage had been bound. On July 24 Mr. Hilliard called the agent for Florida Farm Bureau and instructed him to cancel that company’s binder.

On July 25, 1978, an accident occurred in which one Hilliard Bros, employee was killed and another was disabled. There is no dispute as to the compensability of this accident. Initially, USF&G investigated the accident, but on July 31, 1978, through an underwriter, Mr. Uniacke, USF&G filed a notice of termination effective July 1, 1978, with the Department of Commerce. On August 1, 1978, Florida Farm Bureau filed a notice of termination with the Department.

On October 2, 1978, a bill for the premium for coverages from May 9, 1978 to May 9, 1979, was sent from USF&G to Hilliard Bros. This included a premium of $6066.00 for workers’ compensation coverage. The next day a cancellation/return premium memo representing $4668.00 of the workers’ compensation premium was sent to Hilliard Bros. Hilliard Bros, paid the full premium and Mr. Hilliard stated he refused to accept USF&G’s credit memo. Florida Farm Bureau did not bill Hilliard Bros.

The Deputy Commissioner determined that Florida Farm Bureau was on the risk on the date of the accident for the following reasons: (1) although Hilliard Bros, requested a binder from USF&G after discovering the bidding error, the coverages were never awarded because a condition precedent, that coverage for all lines of insurance be awarded USF&G, was not fulfilled and no notice of assumption was published; (2) because of Florida Farm Bureau’s letter of assumption, which purported to be effective July 1, 1978, pursuant to Section 440.42(2), USF&G’s notice of termination was effective as of July 1, 1978, to cancel the policy which had expired in February 1978, and all subsequent binders; (3) because of the letter of assumption and USF&G’s effective termination by letter of July 31, 1978, dual coverage was eliminated and Florida Farm Bureau could not effectively terminate coverage in less than thirty days, under Section 440.42(2). The deputy stated that, although ordinarily there might have been a failure of a condition precedent as to Florida Farm Bureau, justifying that company’s rescission from the agreement, “in light of the letter of assumption the statutory provisions take precedence and the thirty days is required for the termination of coverage.” For several reasons, we think the deputy erred.

First of all, the deputy’s finding that a condition precedent to the July 24 oral binder with USF&G was not satisfied is not supported by competent substantial evidence in the record. Gillingham testified that both Mr. Bell, the insurance consultant, and Mr. Hilliard, an officer of Hilliard Bros., called back following his initial refusal to bind and informed him that USF&G had the account, to which Gillingham replied that he would bind the coverage. A conflict existed as to whether Gillingham communicated the news to the Tampa office of USF&G. Gillingham testified he called Mr. Uniacke, an underwriter for USF&G, and informed him of the binder. Mr. Uniacke, on the other hand, said he did not speak with Gillingham between June 1978 and his receipt of Florida Farm’s letter of assumption and he filed the termination notice after receiving that letter. The deputy may have resolved this particular credibility issue in favor of Uniacke. However, Mr. Gillingham was an agent of USF&G with authority to bind coverage, according to his own and Mr. Uniacke’s testimony. When he orally bound the coverage, in late July, Gillingham was aware of the confusion regarding the bids, and he had been told that USF&G had the account. In short, the record reflects that any condition precedent to the effectiveness of the binder was fulfilled.

The deputy attributed a great deal of significance to the letter of assumption issued by Florida Farm Bureau. This is understandable, especially since the letter was filed with the Department of Commerce and constituted the latest written evidence that a policy had been issued. Under the circumstances, however, there is no reason to attribute greater significance to the letter of assumption than to the subsequent binder given by the agent of USF&G. While we are aware of one Florida case in which it was stated that a binder is not a policy of insurance, Frank v. Traveler’s Indemnity, 310 So.2d 418 (Fla.3d DCA 1975), that case is distinguishable from the instant case. In our opinion, the statutory presumption of Section 440.42(2) could be applied to the competing binders in this case, with the result that the last binder, given by USF&G, having in a sense the later effective date, would be presumed in force. This was the status of the carriers on the date of the accident.

REVERSED.

McCORD and SHIVERS, JJ., and ERNEST E. MASON (Circuit Judge, Retired), Associate Judge, concur.

      . Cf. Fidelity & Casualty Company v. Britt, 393 So.2d 41 (FIa.3d DCA 1981).

      . In Traveler’s, the agent had binding authority, but no authority to issue a complete policy, and the accident occurred after the 60-day period of the binder had elapsed.

      . Section 440.42(2) provides, in pertinent part: However, when duplicate or dual coverage exists by reason of two different carriers having issued policies of insurance to the same employer securing the same liability, it shall be presumed that only that policy with the later effective date shall be in force and that the earlier policy terminated upon the effective date of the latter.

        Kincade v. Harmel Constructors, Inc., 3 FCR 298 (1958), cited by appellees, was decided under a version of § 440.42 which did not contain this presumption regarding dual coverage.


text:
    Elizabeth B. BISH, Appellant, v. Thomas A. BISH, Appellee.
    No. ZZ-94.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.
    Eric C. Eggen, Pensacola, for appellant.
    No Appearance for appellee.
   PER CURIAM.

The wife appeals a final order on petition for modification finding a substantial change in the husband’s financial condition since the parties’ divorce in 1979 and ordering the elimination of the requirement that the child support provision be adjusted twice yearly based on changes in the National Consumer Price Index. We reverse.

The parties agreed upon the cost of living adjustments in a separation agreement which was ratified and incorporated in the final judgment of dissolution. Therefore a heavier burden rested upon the husband in this modification proceeding than would otherwise be required. Burdack v. Burdack, 371 So.2d 528 (Fla. 2nd DCA 1979). We agree with appellant’s contention that the husband did not meet this burden. The evidence simply shows that subsequent to the divorce, the husband left his employment with Westinghouse where he received cost of living salary increases and began employment with Florida Power and Light in Dade County making a higher salary but not the cost of living increases. The husband testified that his overall financial condition worsened while in South Florida because of the high cost of living there and because he was unable to make money on his expense account with Florida Power and Light as he had been able to do with Westinghouse. At the time of the final hearing, the husband had made arrangements to return to work with Westinghouse in the Jacksonville area. A fundamental prerequisite to modification based upon change of circumstances is a showing that the change is sufficient, material, involuntary and permanent in nature. In re Marriage of Johnson, 352 So.2d 140 (Fla. 1st DCA 1977). Such a showing as not made in this case. Accordingly, the order of the trial court is REVERSED.

IT IS SO ORDERED.

BOOTH, LARRY G. SMITH, and SHIVERS, JJ., concur.


author: ORFINGER, Judge.

text:
    SAMPLEY ENTERPRISES, INC., Appellant/Cross Appellee, v. Everett LAURILLA, a/k/a Everett W. Laurilla, and his wife, Margaret W. Laurilla, Appellees/Cross Appellants.
    No. 80-181.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 1981.
    Roger A. Kelly of Fishback, Davis, Dominick & Bennett, Orlando, for appellant/cross appellee.
    Jack A. Nants, Orlando, for ap-pellees/cross appellants.
   ORFINGER, Judge.

Appellant, as plaintiff, filed suit against appellee for breach of a construction contract. Appellant, as general contractor, and the appellees, as owners, entered into a written agreement whereby appellant agreed to build a bowling center for the appellees at a total contract price of $292,-815. The trial court, after a non-jury trial, found that appellees had breached the contract, and awarded damages to appellant for an amount equal to its “out-of-pocket” expenses. Appellant’s motion for rehearing, alleging that it was entitled to lost profits, not only its out-of-pocket expenses, was denied and this appeal followed. Ap-pellees’ cross appeal the determination they, rather than appellants, breached the contract.

Who breached the contract here is a factual determination. On disputed facts, the trial court found that it was appellees who had breached the contract, not the appellant, and we will not disturb that finding on appeal where there is competent substantial evidence to support the trial court’s conclusion. Raulerson v. Metzger, 375 So.2d 576 (Fla. 5th DCA 1979). The finding that ap-pellees breached the contract is affirmed.

The rule of law regarding damages to be awarded for anticipatory breach of contract was stated long ago in Sullivan v. McMillan, 26 Fla. 543, 8 So. 450 (1890), viz:

Where the time for the performance of an executory contract has arrived, or where the contract is being performed, and one of the parties notifies the other unequivocally that he will not perform or further perform his part, or will not accept performance by the other, the latter may treat the contract as put to an end or entirely broken by the former, and, if ready and willing to perform his part, sue him at once for an entire breach of contract, and can recover as damages the same profits that he would have earned had he entirely performed the contract.

See also Mori v. Matsushita Electric Corporation, 380 So.2d 461 (Fla. 3d DCA 1980).

Thus, the measure of damages is the amount which the innocent party would have received if the contract had been performed, less any deductions for expenses not yet incurred. Put another way, the non-breaching party is entitled to recover the contract price less the cost to such party of performing the contract. Loss of profits is a proper measure for damages resulting from anticipatory breach of a contract. Mori. Prospective profits must be proven with reasonable certainty. Adams v. Dreyfus Interstate Development Corp., 352 So.2d 76 (Fla. 4th DCA 1977).

While an award of lost profits must be supported by evidence and cannot be based on mere speculation or conjecture, American Motorcycle Institute v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980), it is equally well established that damages must be capable of ascertainment with only a reasonable degree of certainty. Mori. This test is satisfied if there is a reasonable basis in the evidence for computation of damages, although the result may be only approximate. Reitano v. Peninsular Building Supply Co., 262 So.2d 710 (Fla. 2d DCA 1972); 17 Fla.Jur.2d, Damages, § 18 (1980).

Profit may be established by subtracting from the contract price the total cost and expenses of labor, services and materials necessary for the non-breaching party to complete the contract. The result is the profit. Innkeepers International, Inc. v. McCoy Motels, Ltd., 324 So.2d 676 (Fla. 4th DCA 1976). The out-of pocket expenses of the non-breaching party would not represent profit, but would, at best, represent part of the cost of performance. Thus it was error for the trial court to award appellant its out-of-pocket expenses when appellant was entitled to a recovery of lost profits.

There was ample testimony submitted to the trial court upon which a determination of lost profits could have been made. Appellant presented evidence of the cost of its labor, services and materials and items of overhead necessary to complete the contract and the profit resulting therefrom. However, the computation of the damages is peculiarly within the province of the trier of the facts and we should not make the initial determination of that amount.

Having applied an incorrect principle of law, the appellant’s motion for rehearing on the amount of damages awarded should have been granted. Accordingly, we reverse that part of the final judgment awarding damages to appellant, with directions that the trial court determine the damages to appellant in a manner consistent with this opinion. Except as to such award of damages, the final judgment is affirmed.

AFFIRMED in part; REVERSED in part and REMANDED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.


text:
    Veronica SANTINI, Appellant, v. STATE of Florida, Appellee.
    No. 80-1380.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 1981.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

The evidence is sufficient to sustain appellant’s conviction on three counts of second degree grand theft on the theory that she participated in planing the thefts and on the later possession of the stolen property. There is adequate proof of specific criminal intent and knowledge of the stolen character of the goods. See State v. Allen, 362 So.2d 10 (Fla. 1978); State v. Houck, 374 So.2d 86 (Fla. 4th DCA 1979).

As to Counts II and III, appellant contends that the State failed to prove that the stolen merchandise was valued at more than $100, but this contention is raised for the first time on appeal, and was not raised in the trial court. Having failed to raise this issue in the trial court in either the motion for judgment of acquittal or in the motion for new trial, appellant has not preserved this issue for appellate review. Castor v. State, 365 So.2d 701 (Fla. 1978); Sanderson v. State, 390 So.2d 744 (Fla. 5th DCA 1980).

The judgments of conviction are affirmed.

AFFIRMED.

DAUKSCH, C. J., and COWART, J., concur.

      . § 812.014 Fla.Stat. (1979).


text:
    Ronald H. SANDS, Appellant, v. STATE of Florida, Appellee.
    No. 81-289.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 1981.
    J. Peyton Lea, III, of Graham, Phillips & Lea, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

DISMISSED. See Skinner v. State, 399 so.2d 1064 (Fla. 5th DCA 1981).

COBB, SHARP and COWART, JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    STATE of Florida, Appellant, v. Billy CARROLL, Appellee.
    No. 81-427.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order dismissing a charge of dealing in stolen property.

After being charged with the crime the appellee filed a motion under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, alleging the essential facts of the case are undisputed and those facts do not establish a prima facie case of guilt against him. He said

a) the Defendant, Billy Carroll, was in possession of a record player identified by the owner and valued at $10.00, on or about June 25, 1980.
b) the Defendant, Billy Carroll, sold the record player to a pawn shop and received $5.00 for this to the best of his memory.
c) the Defendant, Billy Carroll, received this record player from an individual named “Johnny” the day before he sold it.
d) the Defendant, Billy Carroll, never had any idea this record player was stolen.

The state in its traverse set out certain “disputed” facts which are irrelevant and inadmissible at trial in this case and which do not effectively traverse the appellee’s motion. However, the traverse does correctly point out that the question as to whether the appellant knew the record player was stolen is a jury question once the state proves the appellant was in possession of the recently stolen property. The law has provided a presumption of fact. Possession of recently stolen property gives rise to the presumption the possessor knew or should have known the goods are stolen. Sec. 812.022, Fla.Stat. (1979). Edwards v. State, 381 So.2d 696 (Fla. 1980). Thus in order to establish the criminal liability of the appellee it is necessary for the state only to prove the item was stolen and the accused was dealing in it. Once that is established then it is up to the accused to give a reasonable explanation for his having possessed and sold it, if he is to escape conviction. It is up to the trier of the facts, not the judge on summary judgment, to determine the truth of his story. If that were not so then all an accused person would have to do would be to deny knowledge or intent and the state would be out of court without a trial to determine the matter. “C-4” motions, like civil summary judgment motions, should be granted rarely because most cases involve disputed facts and trials are for the resolution of disputed facts. Jones v. State, 392 So.2d 18 (Fla. 1st DCA 1980); State v. West, 262 So.2d 457 (Fla. 4th DCA 1972).

REVERSED AND REMANDED.

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


text:
    In the Interest of J.E., a Juvenile, and J.E., a Juvenile, Appellants, v. STATE of Florida, Appellee.
    Nos. 81-160, 81-161.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 1981.

      James B. Gibson, Public Defender, and Lyle R. Hitchens, Asst. Public Defender, Daytona Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ON MOTION FOR REMAND FOR NEW EVIDENTIARY HEARING

ORFINGER, Judge.

Appellants request that we set aside the adjudication of delinquency and remand this cause for a new evidentiary hearing because some of the tapes of the electronically reported adjudicatory hearing held January 28, 1981, have been mislaid or erased, and neither the parties nor the trial court can reconstruct the record of proceedings under Florida Rule of Appellate Procedure 9.200(b)(3).

Section 39.14, Florida Statutes (1979), gives appellants a statutory right of appeal. Florida Rule of Judicial Administration 2.070 requires that all criminal and juvenile proceedings be recorded at public expense, and that rule also permits electronic recording of the proceedings. It is contemplated that the entire record of the proceedings will be available for transcription to an appellant who desires to appeal a conviction or an adjudication of delinquency. The absence of the tapes from which a complete record of proceedings can be made is not the fault of appellants here. Their right of appeal should not be frustrated because of some fault in the electronic reporting system provided by the court. The portion of the transcript which is available does not, in itself, support the adjudication of delinquency, so a new hearing is warranted.

The adjudication of delinquency is set aside and the cause is remanded for a new adjudicatory hearing.

Adjudication SET ASIDE, cause REMANDED.

DAUKSCH, C. J., and COWART, J., concur.


text:
    Larry L. ATKINS, Appellant, v. ROYAL CROWN BOTTLING COMPANY OF WEST PALM BEACH, INC., Deatrick Leasing Corporation and James Pinke, Appellees.
    No. 80-2060.
    District Court of Appeal of Florida, Fourth District.
    Oct. 14, 1981.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellant.
    Harry D. Robinson, P. A., and Edna L. Caruso, West Palm Beach, for appellee-Em-ployers Surplus.
    Melanie Jacobson, Asst. County Atty., West Palm Beach, for appellee-Palm Beach County Bd. of County Commissioners.
   PER CURIAM.

Reversed on authority of Alfar Creamery Co. v. Williams, 366 So.2d 458 (Fla. 4th DCA 1978) and Cotton Belt Insurance Company, Inc. v. Travelers Insurance Company, 402 So.2d 69 (Fla. 4th DCA 1981), and remanded with directions to enter an order denying equitable distribution to Palm Beach County and Employers-Surplus Lines Insurance Company.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Arthur YOUNG, Appellant, v. STATE of Florida, Appellees.
    No. 80-2104.
    District Court of Appeal of Florida, Fourth District.
    Oct. 14, 1981.
    J. Jerry Zeltzer and Louis R. Beller, Miami Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant raises several points on appeal, only one of which has merit. Appellant’s sentence for criminal conspiracy, providing for three years of incarceration to be followed by two years of probation, violates the requirements announced in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) because the period of incarceration exceeds one year. Consequently, we reverse and remand for imposition of a sentence consistent with those requirements. Otherwise, the judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

DOWNEY and GLICKSTEIN, JJ., and DANIEL S. PEARSON, Associate Judge, concur.


author: BERANEK, Judge.

text:
    Patty Jo HAMER, as Personal Representative of the Estate of Leslie David Hamer, deceased, Appellant, v. Harold KAHN, et al., Appellees.
    No. 79-100.
    District Court of Appeal of Florida, Fourth District.
    Oct. 14, 1981.

      Wilton L. Strickland and Carey M. Fischer of Ferrero, Middlebrooks & Strickland, Fort Lauderdale, for appellant.
    Larry Klein, West Palm Beach, and Robert D. Moses of Pomeroy, Betts, Pomeroy & Moses, Fort Lauderdale, for appellees, W. Meade Collinsworth and Collinsworth, Niel-son & Associates, Inc.
   BERANEK, Judge.

Plaintiff appeals from the final dismissal with prejudice of a single count against one of several defendants. We reverse finding that leave to amend should have been granted. In a multi-count complaint, plaintiff sued numerous defendants for the death of her husband. The facts alleged are that plaintiff’s husband was killed in an accident on a site where a building was being constructed for Broward Community College. Present on the site were two general contractors, various subcontractors, and a safety engineering firm. Plaintiff sued all of these entities, along with various insurance entities. The decedent was employed by a sub-contractor, Lar-Mar Construction Company. He was killed when an employee of another sub-contractor, Sullivan Construction Company, negligently operated a crane while both men were on the job. The theories of liability against each of the defendants were as follows: (1) Mr. Kahn — the Sullivan Construction Company employee who negligently operated the crane causing the death of Mr. Hamer; (2) Sullivan Construction Company — the employer of Kahn who was sued on a negligence theory; (3) Vander Linde Construction Company and Lonnie Jackson Construction Company — sued as joint venture general contractors for negligent maintenance of the job site, negligent inspection and care of equipment, and on the further theory that they failed to require the Sullivan Construction Company to procure adequate insurance coverage as required by the initial construction contract between the owner and the general contractors; (4) Bro-ward Community College — the owner who contracted with the general contractors and who was sued for negligent failure to inspect and oversee the job site and the equipment used thereon; (5) Gulfstream-Broward Construction Company — the site inspector and safety engineer who was sued for negligent inspection and failure to oversee general job safety; (6) Insurance Company of North America — the bonding company for the general contractors who was sued on the theory of negligent failure to provide the required amount of insurance on the job; and (7) Mr. W. Meade Collins-worth and Collinsworth, Nielson and Associates, Inc. — an insurance agent and agency — sued on the theory that they breached a contract to procure insurance for the general contractors. Plaintiff alleged she was a third party beneficiary of three different contracts between the various defendants. These three contracts were: (1) the construction contract between the owner and the general contractors; (2) the contract between the general contractors and the subcontractor Sullivan Construction Company; and (3) a contract between the general contractors and their insurance agents to procure insurance. The main construction contract required the general contractors to procure insurance coverage of one million dollars. Plaintiff asserted that the required one million dollars in coverage was not available by virtue of the agent’s failure to place the coverage in accordance with the agreement between the agent and the general contractors.

The latter claim against the Collins-worth Insurance Agency was asserted in Count VI of plaintiff’s third amended complaint which contained a total of nine counts against eleven different defendants. The trial court entered a final order dismissing the count against the insurance agent and agency with prejudice. It is only this count which we are concerned with on appeal. All of the other counts remain pending. Although there is a great deal of interrelationship between the various counts, the order in question is appealable because it constitutes a final order as to a single defendant in a multi-count, multi-de-fendant action. See Shute v. Keystone State Bank, 159 So.2d 106 (Fla.1st DC A 1963), and Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

As stated above, plaintiff argues she is a third party beneficiary of the contract between the owner and the general contractors and that this construction contract required one million dollars in coverage which would have been available as coverage for her claims arising due to the death of her husband. She further alleges that she is a third party beneficiary of a contract to procure insurance between the general contractors and their personal insurance agent. She alleges that the insurance agent breached his contract and that the one million dollars in coverage required under the construction contract is thus not available to her. She thus asserts, in a direct action, her claim as a third party beneficiary of the contract to procure insurance against the agent. The appellee insurance agent and agency urge that no cause of action can be stated basically for two reasons. They maintain plaintiff is not a third party beneficiary of the contract between the general contractors and the owner and that this construction contract did not contemplate making insurance coverage available for claims arising from injuries to employees of sub-contractors on the job. They also contend that even if plaintiff is a third party beneficiary of both the contract requiring a million dollars in coverage and the contract to procure the million dollars in coverage, there can be no direct action against an agent for his failure to procure a policy. We disagree as to the second reason and find it inappropriate to answer the questions raised by the initial argument.

In this appeal, we cannot decide the question of whether plaintiff is a third party beneficiary of the insurance provisions in the construction contract between the general contractors and the owner. Similarly, we cannot decide whether this construction contract contemplated insurance coverage which would inure to the benefit of plaintiff. In one count, plaintiff sued the general contractors and the owner contending she is a third party beneficiary of the contract between these two parties. This separate count directed at the general contractors and owner based on the construction contract remains undecided and pending before the trial court. In a separate count plaintiff sued the insurance agent claiming to be a third party beneficiary of the contract between the agent and the general contractors. The only issue in this appeal is the count against the insurance agent. Under these circumstances, we are forced to deal with the count against the insurance agent by assuming plaintiff will prevail on her allegations in the other counts against the other defendants. In short we must assume the truth of plaintiff’s allegations in the entire complaint and can only rule on the legality of the count which was dismissed.

As to whether a direct action will lie against an insurance agent on the third party beneficiary theory, we rely upon Gothberg v. Nemerovski, 58 Ill.App.2d 372, 208 N.E.2d 12 (1965). This case involved a suit against an insurance broker who agreed to procure insurance for an applicant but failed to do so. The plaintiff obtained a judgment against the uninsured applicant and sued the broker directly as a judgment creditor of the applicant. The Illinois court found plaintiff to be a third party beneficiary of the contract to procure insurance. The Florida courts have not specifically addressed this question, but in the landmark decision of Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), on the subject of third party beneficiary direct actions against insurance companies, the Florida Supreme Court quoted and heavily relied upon the Illinois Appellate Court decision in Gothberg v. Nemerovski, supra. Based upon the reasoning of the Illinois case as relied upon by the Florida Supreme Court in the Shingleton case, we conclude a direct action against an insurance agent may be brought under the circumstances of this case. We reach this conclusion with numerous reservations. Initially, we note that the trial court was correct in dismissing the count in question as presently drawn. The allegations are vague as to the terms of the contract to procure insurance and there are no direct allegations in the complaint as to plaintiff’s third party beneficiary status. These arguments are made by plaintiff on appeal in support of her contention that she should have been allowed to amend the complaint. If plaintiff can allege facts sufficient to bring her within the third party beneficiary doctrine as announced in Shingleton v. Bussey, supra, then she should be given the opportunity to do so.

We also have reservations about the numerous obstacles which plaintiff must overcome before any court will ever be presented with the question of whether she can recover against the insurance agent herein. Obviously, before the plaintiff will ever need to recover against the insurance agent, she must be successful in her action against the sub-contractor’s employee and successful in her action against that sub-contractor. Further, she must prevail in her suit against the general contractor whereby she seeks to establish herself as a third party beneficiary under the construction contract between the owner and the general contractors. Further, she must secure a judgment in excess of whatever insurance coverage is in existence and then be unable to collect the balance of this judgment against the defendants. Only after all of these obstacles have been overcome, will plaintiff need to pursue her action against the insurance agent. It may be that plaintiff will never get to the point of pursuing the action against the insurance agent and it would certainly seem advisable that these issues be severed for trial.

In short, we assume without deciding the. truth and legal validity of all of the alleged facts and legal theories against all of the other various defendants in the pending counts. Assuming plaintiff will be successful in all of these respects, we conclude she may be able to state a cause of action against an insurance agent who, according to the allegations, failed to perform his binding agreement with the general contractors to procure the million dollar insurance policy which would have inured to the benefit of the plaintiff herein. There are many undecided issues in this case. One issue which has not been addressed by any party is the question of whether the insurance policy contemplated herein partakes of sufficient public policy considerations to require the application of the third party beneficiary doctrine as was held in Shingleton v. Bussey, supra. As indicated, this issue has not been addressed by any party, and we leave this to the initial ruling of the trial court upon remand.

The cause is remanded with directions to allow plaintiff leave to amend the complaint against the insurance agent and agency.

HERSEY, J., concurs.

ANSTEAD, J., concurs in conclusion only.


text:
    James Allen JOYCE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1564.
    District Court of Appeal of Florida, Fourth District.
    Oct. 14, 1981.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

ON REHEARING

We withdraw our opinion issued on August 5, 1981 in this cause. The Public Defender’s motion to withdraw is granted and appellant’s conviction is affirmed. Although appellant’s sentence is in violation of Villery v. Florida Parole & Probate Commission, 396 So.2d 1107 (Fla. 1981), since appellant did not make application to have it corrected, we will not remand for resen-tencing. As so aptly pointed out by the Public Defender, under Villery, appellant may, on resentencing, be subject to a longer term of imprisonment than he is presently serving. Accordingly, appellant should be afforded the option of declining correction of his sentence.

Nothing in this opinion prevents appellant from filing a motion to correct an illegal sentence pursuant to Rule 3.800, Florida Rules of Criminal Procedure.

AFFIRMED.

DOWNEY, MOORE and HERSEY, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    William WHYHOPEN and Victoria Whyhopen, Appellants, v. Arthur B. VIA, Hazel H. Via, and Warren G. Harding, as Trustee, Appellees.
    No. 81-367.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1981.

      John M. Dart of Harnden, McLain, Spi-vey & Dart, P. A., Sarasota, for appellants.
    Thomas R. Tjaden of Morgan & Tjaden, Sarasota, for appellees.
   HOBSON, Acting Chief Judge.

This appeal deals with a lease provision giving tenants the right of first refusal to purchase the leased premises. Appellants/tenants leased certain property from appellee/landlord. Under the terms of the lease, tenants were entitled to a right of first refusal in the event landlord decided to sell the premises. Landlord entered into a contract for sale of the leased premises and other parcels of contiguous property with a third party. Pursuant to the lease agreement, landlord delivered the contract to tenants. Within the prescribed time limit, tenants delivered to landlord’s agent a notice of exercise of option to purchase the leased premises upon the same terms and conditions as those contained in the contract for sale.

Landlord notified tenants that their right of first refusal would not be honored because tenants had not agreed to purchase the entire parcel described in the contract for sale. Landlord then proceeded to convey the entire parcel to the third party.

Tenants filed an amended complaint against landlord and third-party grantee seeking cancellation of the deed, specific performance of the lease agreement and damages from the grantee for tortious interference with contractual rights. Landlord and third-party grantee moved to dismiss the amended complaint, and the trial court granted the motion, apparently based on the fact that tenants did not exercise the option to purchase the entire parcel.

We rely on the case of Denco, Inc. v. Belk, 97 So.2d 261 (Fla.1957). In that case the landlord conveyed the leased premises and other lands to Denco corporation without giving the tenant, Belk, the opportunity to exercise his right of first refusal. Belk filed a complaint alleging that the sale violated his rights under the lease and prayed that the conveyance be declared null and void as to the lands embraced within the lease. Belk also prayed that the court determine the value of the property covered by the lease, inasmuch as it had been included with other lands without a specific price being fixed on it.

After addressing issues not concerning us in the instant case, the supreme court stated:

The real and basic issue in this case, however, is simply whether the purchaser of this land, not only charged with knowledge of the rights of the lessee as a matter of law but placed on direct notice by the very provisions of the deed he accepted, may defeat the substantial rights of the lessee under the terms of this lease.... Denco, Inc. comes within the rule that persons dealing with an owner of land for purposes of sale or purchase who have knowledge of possession by a lessee, are placed on inquiry as to the full terms and conditions of the lease, including a provision granting a right of first refusal of purchase to the lessee if the lessor decides to sell the property during the term of the lease, [citations omitted] We think the law and every concept of equity and good conscience requires Denco, Inc. to recognize the rights of the lessee under all of the provisions of the lease under which he holds possession of the property, not the least of these being the option above alluded to.

Thus, appellees’ argument that tenants were required to exercise their option as to all the land listed on the contract for sale is incorrect. The Denco case clearly holds to the contrary.

Once the landlord evidenced an intention to sell the property, tenants’ right of first refusal was converted into an irrevocable option to purchase. Vorpe v. Key Island, Inc., 374 So.2d 1035 (Fla.2d DCA 1979). The third-party purchaser is subject to this right.

Therefore, we reverse the trial court’s dismissal of the tenants’ complaint and remand this cause for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

BOARDMAN and DANAHY, JJ., concur.


author: RYDER, Judge.

text:
    Charles DUNLAP, Appellant, v. STATE of Florida, Appellee.
    No. 81-514.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1981.
    Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Mark Horn, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

This is an appeal from the trial court’s order adjudicating Dunlap guilty of robbery with a firearm and sentencing him to prison for life. Dunlap argues that the trial court should have granted a defense motion for mistrial when the assistant state attorney improperly attempted to impeach appellant by asking him if he previously had been convicted of robbery, and that the trial court further erred in not granting a defense motion to suppress his confession.

Although we see no merit to the argument that the motion to suppress should have been granted, we are concerned with the prosecutor’s improper attempt to impeach Dunlap. The relevant portion of the transcript reads as follows:

Q. [STATE ATTORNEY/MR. MOORE]: Have you ever been convicted of a crime before this, Mr. Dunlap?
A. [THE DEFENDANT]: Yes, I have.
Q. How many times?
A. Three.
Q. Have you ever been convicted of robbery before?
MR. McMILLAN [DEFENSE COUNSEL]: Judge, I’m going to object to that. That is totally improper.
THE COURT: Objection will be granted.
MR. MOORE: No further questions.
THE COURT: Redirect?
MR. McMILLAN: Approach the bench, your Honor?
THE COURT: Sure, with the court reporter.
(The following discussion in lowered voices at the bench):
MR. EVERHART [CO-COUNSEL FOR THE DEFENSE]: Judge, we move for a mistrial. That’s a totally improper question.
MR. McMILLAN: Additionally, your Honor, the defendant has, in fact, not been convicted of robbery previously, and the State is aware of that fact.
MR. EVERHART: We ask for a mistrial.
MR. McMILLAN: It was improper in light of the fact that he was not been convicted of a robbery, and it was solely for the purpose of prejudicing the minds of the jury.
THE COURT: Why was the—
MR. MOORE: He was convicted of a robbery before.
THE COURT: What was the basis of the question? You know you can’t ask specific crimes. Why was the question asked?
MR. MOORE: I meant to phrase it in a different way. It. kind of came out differently than I planned on asking it, in essence.
THE COURT: In light — I will deny the motion for mistrial. The Court finds it was an erroneous question, but I think in light of the prompt objection made, in light of the instructions given by the Court to the jury to disregard any question for which there is no answer given, I do not think it is sufficiently prejudicial to justify mistrial. I do think it was an improper question, however, but the motion for mistrial is denied.

After this interchange, the court denied defense counsel’s request for a curative instruction stating that such an instruction would place too much weight upon the question.

The question in this case which named a specific crime was highly improper under the circumstances. Even if appellant had lied about his prior convictions, the types of crimes of which he had been convicted would have been properly identified only incidentally when the record of his convictions was introduced into evidence. Fulton v. State, 335 So.2d 280 (Fla.1976). It further appears that Dunlap was never convicted of robbery as an adult. Although appellate counsel for Dunlap indicates that he had a juvenile adjudication of robbery, such would not be admissible at trial under section 90.610(l)(b), Florida Statutes (1979). Finally, it is noted that the prosecutor’s question obviously implied that Dunlap previously had been convicted of the same crime for which he was then on trial and that, in and of itself, was prejudicial.

Nevertheless, we deal here only with an unanswered question as opposed to an affirmative answer from the defendant or a statement by the prosecutor that the defendant had been, in fact, convicted of robbery before. Two Florida decisions discuss this same situation; that is, an improper but an unanswered question asked of a defendant by a prosecutor on cross-examination. Although the cases deal with the same subject, they reach different results.

In Jones v. State, 305 So.2d 827 (Fla. 4th DCA 1975), the defendant was on trial for robbery. On cross-examination, the state attorney elicited testimony that the defendant had been convicted of the crime of escape three or four times. Thereafter, the state attorney asked the defendant whether he had been convicted of armed robbery. The defendant did not answer the question because defense counsel objected and moved for a mistrial. The judge denied the motion, but admonished the jury at the conclusion of all testimony to disregard the prosecutor’s questions to the defendant regarding specific prior convictions.

In reversing, the fourth district found that the cross-examination by the state attorney eliciting from the defendant testimony as to specific crimes and asking the defendant whether he had been convicted of robbery before was improper.

In Straight v. State, 397 So.2d 903 (Fla.1981), the defendant was on trial for murder. On cross-examination, the state attorney asked the defendant whether he knew where one of his acquaintances had acquired her drugs. When the defendant denied knowing that she obtained the drugs from a Dr. Day and denied ever hearing that name mentioned, the state attorney asked, “Isn’t it true that it was Dr. Day that you were going to use the pistol on...?” Id. at 998.

Defense counsel objected to the question and moved for mistrial. The defendant never answered the question. The court denied the motion for a mistrial and instructed the jury to disregard the question.

In affirming the defendant’s conviction, the Florida Supreme Court held that in light of the overwhelming evidence against the defendant, it was inconceivable that the prosecutor’s improper question might have affected the verdict.

As in Straight, the evidence in the instant case was strong against the defendant. Here, the state’s evidence included a confession to the crime by the defendant, the police found his fingerprints at the scene and two eyewitnesses positively identified the defendant as the robber. Unlike Jones, the prosecutor in this case did not discuss any other specific crimes. Thus, even though we express concern over the prosecutor’s improper question to the defendant, we adopt the sound reasoning expressed in Straight and affirm the conviction here because of the overwhelming evidence of guilt against the defendant.

Accordingly, we affirm the trial court’s order denying a mistrial, its order adjudicating the defendant guilty of robbery with a firearm and the sentence of Dunlap to life imprisonment.

AFFIRMED.

HOBSON, A. C. J. and GRIMES, J., concur.

      . Appellate counsel for the defendant indicates that the defendant had a juvenile adjudication of robbery. Even if this were true, it would not be admissible at trial under section 90.-610(l)(b), Florida Statutes (1979).
      The state attorney told the judge at the sentencing hearing that the defendant had been convicted of two drug offenses, an attempted aggravated battery and breaking and entering — but no robberies. It is noted that all four of these prior convictions are felonies although when the defendant was asked how many times he had been previously convicted of a crime, his answer was, “Three.”

      . See Walker v. State, 403 So.2d 1109, (Fla. 2d DCA 1981); Hall v. State, 400 So.2d 102 (Fla. 1st DCA 1981).

      . Jones was receded from insofar as it indicates that specific crimes may not be named when a defendant denies any past convictions. Irvin v. State, 324 So.2d 684 (Fla. 4th DCA 1976).

      .Note should be made of the fact that the quoted portion of the transcript surrounding counsel’s request for mistrial reflects also that the trial judge had already instructed the jury to disregard any question which went unanswered, an innovative and, as it happened, a sagacious prophylactic instruction.


author: LARRY G. SMITH, Judge.

text:
    Shirley SASSER and Doyle D. Sasser, Appellants, v. HUMANA OF FLORIDA, INC., a corporation, d/b/a General Hospital of Fort Walton Beach, Florida, Appellee.
    No. XX-338.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1981.
    Guyte McCord, III, of Spector, Tunnicliff & McCord, and Ben H. Ervin, Tallahassee, and John W. Merting, of Liberis & Merting, Pensacola, for appellants.
    Frank C. Bozeman and Edward P. Nic-kinson, III, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for ap-pellee.
   LARRY G. SMITH, Judge.

The jury returned a verdict finding no negligence on the part of the appellee hospital or its nurse-employee which was the cause of injury to appellant, Mrs. Sasser. The trial judge denied appellants’ motion for new trial, and we are asked to review and to reverse that ruling. Appellate counsel have forthrightly limited this appeal, so far as their negligence claims are concerned, to the question of whether the trial court’s failure to set aside the jury’s verdict was an abuse of discretion. Based upon our examination of the briefs, argument of counsel, and the record in this cause, we are of the opinion that the issues presented relate simply to the weight, credibility, and the persuasive effect of the evidence. Accordingly, we conclude that the trial judge did not abuse his discretion in denying the motion for new trial. We affirm.

The appellant, Mrs. Sasser, who was admitted to the hospital for treatment of an angina condition, was pursuant to physician’s orders administered a variety of medications, including injections of the drug Vistaril, for angina pain. Several of these injections were administered, without incident. However, after midnight on November 8, 1976, when she received an injection of the drug she experienced, according to her testimony, an immediate sensation of burning pain which continued for some time. Nurse’s notes kept by the nurse who performed the injection indicated “patient complains of pain,” but the nurse explained that these notations referred to “generalized pain” only. A few hours after the injection, however, she was examined by a head nurse, who looked at her thigh and noted “right thigh dark area with blisters.” No pain or discomfort was experienced from the earlier injections of Vistaril, nor those administered after the one painful incident. Several days following the injection Dr. Arrowsmith, a dermatologist, was called in to treat a lesion which had developed on Mrs. Sasser’s right thigh. He was unable to arrive at a diagnosis of the cause of the lesion because, in his words, “in the evolution of any skin lesion changes occur that destroy any anatomical pathology that may be there to help guide you as to a reasonable diagnosis.” In addition, Dr. Ar-rowsmith indicated that he had considered the possibility that the lesion was self-induced, because of its unusual nature. He stated further that the appearance of the lesion indicated it was caused by something being applied to the surface of the skin, rather than a chemical which was injected beneath the skin. It was established that the area of bad tissue produced by the lesion did not extend into the muscle, but was confined entirely to the subcutaneous area. It is appellants’ contention that the lesion was caused by the improper injection of Vistaril into Mrs. Sasser’s thigh. Other evidence supporting both appellants’ and appellee’s positions appear in the voluminous record which we could not summarize without unduly lengthening this opinion.

The evidence presented by appellants, to which we make only brief reference, would be ample to support a conclusion that the lesion suffered by Mrs. Sasser resulted from an improper injection of the drug Vistaril into the subcutaneous (between skin and muscle) area of her thigh, rather than deep within a muscle, as required by instructions given by the manufacturer of the drug. The evidence, including that produced by appellee, is also susceptible to a finding that an improper injection would be one, but not the only, possible cause of the lesion suffered by Mrs. Sasser. Appellee urges that the presence of Vistaril in the subcutaneous tissue was not established by any direct or objective evidence, and the circumstances relied upon by appellants to establish the presence of Vistaril as the cause of the lesion were not such as to exclude all other reasonable inferences as to causation. See Voelker v. Combined Ins. Co. of America, 73 So.2d 403 (Fla. 1954); Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960). As the reviewing court, in determining whether the evidence is such that reasonable persons could have reached the same verdict as the jury, we are required to examine the evidence in the light most favorable to the appellee. Atlas Properties v. Didich, 213 So.2d 278 (Fla. 3rd DCA 1978), cert. discharged 226 So.2d 684 (Fla. 1969).

The facts upon which appellants base their claim of negligence are not self-proving, as in a “sponge-in-the-abdomen” case. See Atkins v. Humes, 110 So.2d 663 (Fla. 1959); Reynolds v. Burt, 359 So.2d 50 (Fla. 1st DCA 1978). Appellants were required to produce expert testimony in order to establish negligence. Compare Furnari v. Lurie, 242 So.2d 742 (Fla. 4th DCA 1971); Sims v. Helms, 345 So.2d 721 (Fla. 1977); Thomas v. Berrios, 348 So.2d 905 (Fla. 2nd DCA 1977); South Miami Hospital v. Sanchez, 386 So.2d 39 (Fla. 3rd DCA 1980). Although there was general agreement among the experts concerning the proper method of injecting Vistaril and the dangers of improperly injecting the drug, the evidence does not rule out the possibility of the same injurious consequences being produced by the application of a foreign substance to the skin, by self-inducement such as by scratching or manipulation of the injection site, or by “retrograde leakage” (leaking of the drug into the tract made by the hypodermic needle). With the exception of Dr. Walmsley (a pathologist employed by the manufacturer of Vistaril) none of the expert medical witnesses who testified could say with certainty what caused the lesion. Dr. Walmsley, in response to a hypothetical question, stated her opinion that within a reasonable degree of medical certainty the lesion “resulted from a subcutaneous injection of Vistaril.” Dr. Walmsley, however, had never examined Mrs. Sasser, nor had she seen the tissue slides produced by the pathologist, and her opinion as to causation was qualified by the assumption that there was “no other extraneous condition” to be taken into account in determining causation. The pathologist who examined the tissue slides could not state that Vistaril caused the lesion and accompanying tissue death, nor that the lesion was necessarily caused by an injection of any kind. Another expert, nurse Cobb, testified that such lesions as suffered by Mrs.'Sasser could be caused by scratching the skin. Her testimony was uncontra-dicted on this point. It is true, as appellants urge, that there was no “objective evidence”- of a scratching of the skin. Neither was there “objective evidence” of the presence of Vistaril in the area of damaged tissue.

Where the evidence is in conflict, and the verdict is not against the manifest weight of the evidence, the jury’s verdict should not be set aside. Nunberg v. Brod-sky, 224 So.2d 727 (Fla. 3rd DCA 1969); Cloud v. Fallís, 110 So.2d 669 (Fla. 1959). Although appellants present persuasive arguments that the preponderance of the evidence in the case favors recovery for the plaintiff, we are bound by the rule which holds that this presents a jury issue, and does not justify a holding that the trial judge abused his discretion in denying the motion for new trial. See Willard v. Bowen, 294 So.2d 696, 697 (Fla. 1st DCA 1974).

If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Overton, J. concurring in Castlewood International Corporation v. LaFleur, 322 So.2d 520 (Fla. 1975); see also Baptist Memorial Hospital Inc. v. Bell, 384 So.2d 145 (Fla.1980).

In their second point, appellants contend that the trial court should have instructed the jury that the hospital’s failure to furnish a more detailed statement of its bill for services rendered, under Section 395.20, Florida Statutes (1977), constituted a defense to the hospital’s counterclaim for payment of its bill. We find no basis in the record of this case for the jury instruction requested by appellants. The statute itself contains no language indicating that failure to furnish the statement would bar an action for recovery of the hospital’s charges. Furthermore, it appears from the unrefuted testimony of the hospital’s witness that a more detailed itemized breakdown of the charges would have been provided if appellants had requested it. We hold that the trial court correctly refused to allow the jury to consider noncompliance with the statute. Even if the bill rendered in fact did not comply, an issue we find it unnecessary to consider, where no complaint and no request for further itemization was made by the patient prior to trial, and no prejudice has been otherwise shown, the statute does not bar recovery of a judgment by the hospital.

The judgment appealed from is AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J., concur.