author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Louis San MARTIN, Appellee.
    No. 81-2055.
    District Court of Appeal of Florida, Second District.
    June 4, 1982.
    Jim Smith, Atty. Gen., Tallahassee, William E. Taylor and Charles Corees, Jr., Asst. Attys. Gen., Tampa, for appellant.
    Roger V. Rigau of Rigau & Rigau, P.A., Tampa, for appellee.
   RYDER, Judge.

The state appeals dismissal of its information against Louis San Martin. We reverse.

The state charged appellee with robbery, alleging that he took money from the person or custody of Patricia Switzer and Mary Ellen Allen. Appellee filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The motion alleged that the state’s prime witness was John M. Colbert, retail manager of Cook’s Department Store, where the robbery took place. Appellee and Colbert planned the alleged robbery, and appellee hid in the store after closing. Appellee then emerged at the office, confronted Colbert and the two cashiers named in the information, tied up the cashiers in another room, and took the money from the safe. The motion alleged that the cashiers had no custody or control over the money in the safe which belonged to Cook’s. The motion concluded that while appellee may have conspired in the commission of grand theft, he did not commit robbery or use any force to take money from the possession of the cashiers.

The state traversed, admitting that the alleged robbery was planned with Colbert, but denied that the cashiers did not have custody or control over the money. The state alleged that appellee took the money from the custody of the cashiers by threats or force. The traverse responded individually to each paragraph in the motion, either admitting or denying the facts contained therein. When the traverse did deny a fact, an explanatory sentence was added. After hearing on the motion, including the testimony of the two cashiers, the lower court granted the motion to dismiss.

We hold that when the state filed a traverse specifically denying material facts alleged in the motion, the court had no alternative but to deny the motion without the taking of testimony. Fla.R.Crim.P. 3.190(d). See State v. Alvarez, 403 So.2d 1143 (Fla.2d DCA 1981); State v. J.T.S., 373 So.2d 418 (Fla.2d DCA 1979); State v. Huggins, 368 So.2d 119 (Fla.1st DCA 1979). The central element of appellee’s motion below was that the cashiers did not have a sufficient possessory interest in the money to be robbed of it. The state’s traverse denied that the cashiers lacked custody or control over the money. A material fact was thus denied, and the motion must be denied.

We note in passing that the motion to dismiss was not sworn to by appellee, who, later, did swear to an affidavit stating that the facts in the motion were accurate to the best of his knowledge. We do not reach the issue of adequacy of the motion, since the issue may not have been preserved for appeal, but note that such a motion to dismiss must be sworn to by one having direct knowledge of the facts asserted. The motion below does not appear to meet this basic requirement. See State v. Bethea, 409 So.2d 1139 (Fla.2d DCA 1982).

The order granting dismissal below is REVERSED, and the case REMANDED for further proceedings.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alan Dean LOMNECK, Appellant, v. Albert G. TOBIN, Oreste Falcione, Ronald D. Falcione, Santo A. Carnabuci, Anthony Zaccaro, and Natale Cosenza, as Co-trustees; Albert G. Tobin, Oreste Falcione, Annie E. Falcione, Ronald D. Falcione, Dorothy Falcione, Santo A. Carnabuci, Josephine Carnabuci, Anthony Zuccaro, Natale Cosenza, and Peter Cosenza, individually; Pauline N. Smith, Bernard A. Smith, and Norma B. Smith, individually; and Florida Farm Bureau Insurance Company, a Florida corporation, Appellees.
    No. 81-1972.
    District Court of Appeal of Florida, Second District.
    June 4, 1982.
    Mark P. Lang of Dempsey & Slaughter, P.A., Orlando, for appellant.
    N. Staten Bitting, Jr., of Parker, Parker & Bitting, St. Petersburg, for appellees To-bin, 0. Falcione, R. Falcione, Carnabuci, Zaccaro, and Cosenza, as Co-trustees and individually.
    Chris ,W. Altenbemd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellees Pauline N. Smith, Bernard A. Smith, Norma B. Smith, and Florida Farm Bureau Casualty Ins. Co.
   PER CURIAM.

Affirmed. See Libby v. West Coast Rock Co., 308 So.2d 602 (Fla. 2d DCA 1975).

SCHEB, C.J., and GRIMES and DAN-AHY, JJ., concur.


text:
    Kenneth GROMKIWICZ, Appellant, v. STATE of Florida, Appellee.
    No. 81-2545.
    District Court of Appeal of Florida, Second District.
    June 16, 1982.
    Robert E. Jagger, Public Defender, Clear-water, and Floyd E. Ferguson, Asst. Public Defender, New Port Richey, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Samuel Robert Mandelbaum, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed on authority of Borges v. State, 415 So.2d 1265 (Fla. 1982), which, in effect, overrules our decision rendered in Humphreys v. State, 388 So.2d 607 (Fla. 2d DCA 1980).

GRIMES, A.C.J., and RYDER and CAMPBELL, JJ., concur.


text:
    Willie J. BURNETTE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1995.
    District Court of Appeal of Florida, Second District.
    June 30, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See, Preston v. State, 411 So.2d 297 (Fla. 3d DCA 1982).

GRIMES, A.C.J., and RYDER and DAN-AHY, JJ., concur.


author:
PER CURIAM. PER CURIAM.
      ANSTEAD, Judge,

text:
    Vincent Charles DI SANGRO, Appellant/Cross-appellee, v. STATE of Florida, Appellee/Cross-appellant.
    No. 81-1037.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.
    Rehearing Denied Dec. 8,1982 and Rehearing Denied Jan. 19,1983.

      Philip G. Butler, Jr., West Palm Beach, for appellant/cross-appellee.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee/cross-appellant.
   PER CURIAM.

We have considered appellant’s three points on appeal and find merit in only one.

Among other things, appellant was convicted of attempted possession of valium, a lesser included offense of the charge of possession of valium with intent to sell.

The evidence shows that the valium was located in two suitcases in Room 285 of the Ramada Inn, a room rented to appellant’s brother, Paul DiSangro; that appellant was present on a boat during the sale of a quantity of valium and he participated in counting the money for the sale; he was also present with others at a restaurant during further planning for additional sales to the same undercover agents. While a cohort was present in an undercover agent’s room, the cohort received a phone call from appellant. Also, appellant was arrested with his brother in the lobby of the Ramada Inn. Finally, one of appellant’s cohorts told the agents that he, appellant, and appellant’s brother had a motel room. This evidence demonstrates appellant’s heavy involvement in the entire criminal episode and raises a serious suspicion that appellant was in possession of the contraband; however we doubt it can be said to prove possession beyond a reasonable doubt. It simply does not demonstrate dominion and control, one of the three criteria to prove constructive possession. Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981).

Accordingly, we reverse the judgment and sentence for attempted possession of valium with intent to sell and affirm the judgment and sentence in all other respects.

REVERSED IN PART; AFFIRMED IN PART.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Appellant was convicted on four counts: Count I, violation of the Florida RICO (Racketeer Influenced and Corrupt Organization) Act, Sections 943.46-943.465, Florida Statutes (1979); Count II, sale of valium; Count III, sale of valium; and Count VII, attempted possession of valium. The predicate acts constituting the racketeering violation were Counts II, III, and VII. In an opinion filed July 7, 1982, we reversed the conviction on Count VII, but affirmed the judgment in all other respects. Since a conviction on one of the predicate crimes was reversed, appellant contends on petition for rehearing, relying upon United States v. Brown, 583 F.2d 659 (3rd Cir. 1978), that we should reverse the conviction for racketeering for a new trial.

Chapter 943, Florida Statutes (1979), defines the crime of racketeering activity and provides that, in order to convict one of such crime, there must be a pattern of criminal activity, which means engaging in at least two incidents of racketeering conduct. Appellant was charged with three such predicate acts, two of which were sufficient to be considered by the jury. The fact that the jury considered three such acts and a conviction on one of those was reversed because of insufficient evidence does not take away from the fact that the Florida statutory requirements were met. Brown does stand for the proposition, in such circumstances, that a new trial should be awarded on the racketeering count. We, however, disagree with the Brown holding and choose to follow the contrary holding of United States v. Peacock, 654 F.2d 339 (5th Cir.1981). See, too, United States v. Harness, 503 F.2d 430 (2d Cir.1974).

Accordingly, the petition for rehearing is denied.

DOWNEY and HERSEY, JJ., concur.

ANSTEAD, J., dissents in part and concurs in part with opinion.

ANSTEAD, Judge,

dissenting in part and concurring in part:

I would grant the petition for rehearing to the extent of directing that appellant be granted a new trial on his conviction for racketeering, since we have reversed appellant’s conviction for one of the predicate crimes that the jury may have relied on in convicting the appellant of racketeering. U.S. v. Brown, 583 F.2d 659 (3d Cir.1978).


author: PER CURIAM. CAMPBELL, Judge,

text:
    Chester HIGGINS, Petitioner, v. Dr. Wesley JOHNSON, Respondent.
    No. 82-1514.
    District Court of Appeal of Florida, Second District.
    July 12, 1982.
    Adrienne S. Weitzner, Sarasota, for petitioner.
    William E. Partridge of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for respondent.
   PER CURIAM.

This is a petition for certiorari to review an order granting a continuance of the trial.

Petitioner Chester Higgins filed suit on June 3,1980, against respondent Dr. Wesley Johnson, a chiropractor, for failure to diagnose his. cancerous condition. Dr. Johnson filed his answer on June 24, 1980. Subsequently, Higgins joined Dr. Johnson’s malpractice insurance carrier as an additional defendant. The insurance carrier obtained a summary judgment on grounds of lack of coverage which Higgins unsuccessfully appealed to this court.

Thereafter, on February 12, 1982, Higgins filed a motion for trial by jury. On May 17,1982, the court set the case for trial during the week of July 19, 1982, with a pretrial conference scheduled for July 1, 1982. Early in June, Dr. Johnson arranged for the retention of new counsel, and, on June 14, 1982, his new counsel filed an appearanee pursuant to stipulation with his former counsel. On the same date, Dr. Johnson filed a motion for continuance of the trial so that his new counsel could adequately prepare a defense. Dr. Johnson’s new counsel, after failing to obtain agreement with Higgins’s counsel for a continuance, hand delivered a notice calling up for hearing the motion for continuance on the following day.

At the hearing held on June 25, 1982, Higgins’s counsel opposed the continuance on the premise that Higgins was terminally ill from cancer. She supported her position with an affidavit from a doctor specializing in radiation therapy who had treated Higgins. The doctor stated that a continuance would be detrimental to Higgins’s health and that because of the progressive nature of his illness he might die before the new trial date. Higgins had been suffering from metastatic prostate cancer for more than three years, and his attorney proffered that he could obtain medical affidavits that the average survival rate for persons with cancer of this type was from two to three years. Nevertheless, the court granted the motion for continuance and reset the trial for October of 1982.

Absent an abuse of discretion, an order of the trial court on an application for continuance should not be disturbed. Fain v. Cartwright, 132 Fla. 855, 182 So. 302 (1938); Biederman v. Cheatham, 161 So.2d 538 (Fla. 2d DCA 1964). Nevertheless, we believe that this is one of those rare cases in which we must intervene in order to do justice.

One can assume that Higgins’s inability to personally testify at the trial would weaken his case. More significant, however, is the fact that should Higgins die before the trial, the character of his malpractice action would be completely changed. As long as he is alive, he has a personal injury action which entitles him to claim damages in his own right. See § 768.48, Fla.Stat. (1981). However, if he dies, Higgins’s cause’ of action abates. § 768.20, Fla.Stat. (1981). The personal representative would then have to institute a new suit on behalf of Higgins’s survivors and his estate. § 768.20, Fla.Stat. (1981). The elements of damage would be entirely different because they would depend upon the relationship of Higgins and his survivors. § 768.21, Fla.Stat. (1981). Thus, it is evident that Higgins’s death prior to trial could materially prejudice his legal position.

Balanced against these compelling factors is the fact that apparently Dr. Johnson’s prior counsel had not pursued discovery or obtained expert medical testimony to testify in his defense. Yet, the lack of diligence of one’s own attorney should not serve to penalize the opposing party. See 11 Fla.Jur.2d, Continuance § 10 (1979). Moreover, Dr. Johnson’s new counsel had more than a month prior to the trial date within which to conduct discovery. We are confident that under the circumstances the court’s previous admonition to complete discovery before the pretrial conference could have been accommodated.

As reluctant as we are to interfere with trial schedules, we feel compelled to quash the order of continuance. Of course, we recognize that by virtue of the time necessary to prosecute this petition for certiorari it may not now be feasible, as a practical matter, for the court and the parties to commence the trial during the week of July 19, 1982, as originally scheduled. Therefore, we request the court to reset the trial at the earliest reasonable date consistent with the spirit of this opinion and to allow Dr. Johnson liberal rights of discovery in the interim.

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

CAMPBELL, J., dissents with opinion.

CAMPBELL, Judge,

dissenting.

I must respectfully dissent.

While I concur with my colleagues’ request for the trial court to set the trial of this cause at the earliest reasonable date and to allow Dr. Johnson liberal rights of discovery, I must presume that the trial judge has done this for there is nothing in the record to indicate otherwise. We all recognize the general principle that the granting or denying of a motion for continuance is left to the sound discretion of the trial judge, and a district court of appeal should not simply substitute its opinion for that of the trial court. In Re Gregory, 313 So.2d 735 (Fla.1975). As was expressed in Buckley Towers Condominium, Inc. v. Buchwald, 340 So.2d 1206, 1208 (Fla. 3d DCA 1977): “It is black letter law that a motion for continuance is grounded in the sound judicial discretion of the trial court and the ruling of the court will not be disturbed unless an abuse of discretion is clearly shown.” Not only must there be an abuse of discretion, it must be a gross or flagrant abuse and adequately demonstrated by the record before the reviewing court. Padgett v. First Federal Savings & Loan Ass’n, 378 So.2d 58 (Fla. 1st DCA 1979); Edwards v. Pratt, 335 So.2d 597 (Fla. 3d DCA 1976); Williams v. Gunn, 279 So.2d 69 (Fla. 1st DCA 1973). While the record reveals that Mr. Higgins is terminally ill and it is possible that he might expire before the new trial date, the record also reveals that the trial judge had the benefit of that information and yet saw fit, in light of it, to grant the motion for continuance. We do not have a transcript of the hearing on the motion for continuance and there is nothing in the record other than Mr. Higgins’ medical prognosis upon which to base a finding of a gross or flagrant abuse of discretion. It is certainly not demonstrated that the trial judge abused her discretion by granting a ninety-day continuance rather than some shorter period as my colleagues urge.


author: GRIMES, Acting Chief Judge.

text:
    CITY OF ST. PETERSBURG, Florida, a municipal corporation, Petitioner, v. The CIRCUIT COURT OF the SIXTH JUDICIAL CIRCUIT and the Honorable David Seth Walker, as Circuit Judge thereof, Respondents.
    No. 82-1372.
    District Court of Appeal of Florida, Second District.
    July 14, 1982.

      Michael S. Davis, City Atty., and William N. Drake, Jr., Asst. City Atty., St. Peters-burg, for petitioner.
    Gerald R. Colen of Devito & Colen, St. Petersburg, for Lillie M. Johnson.
   GRIMES, Acting Chief Judge.

The City of St. Petersburg seeks to prohibit the trial court from further entertaining jurisdiction on Lillie M. Johnson’s negligence claim against the city.

The several parties in the litigation have filed numerous pleadings, but for the purpose of resolving this petition it is sufficient to note the following. Mrs. Johnson sued Ms. Williams and the city as well as other defendants in negligence for causing the death of her husband, and Ms. Williams filed a cross-claim against the city. The court dismissed Mrs. Johnson’s first amended complaint against the city with prejudice. Mrs. Johnson did not appeal this order. Eleven months later and while the suit was still pending against the other defendants, Mrs. Johnson filed a motion to amend her first amended complaint so as to once again sue the city in negligence, albeit upon more comprehensive allegations. The court granted the motion to amend, thereby reinstating Mrs. Johnson’s claim against the city.

The city contends that once Mrs. Johnson’s first amended complaint against it was dismissed with prejudice and no appeal was taken, the court lost jurisdiction to further entertain Mrs. Johnson’s claim against it. Mrs. Johnson argues that because Ms. Williams’ cross-claim against the city remains pending on the same issue, the court has jurisdiction to reinstate the similar claim against the city now asserted by Mrs. Johnson.

When a court’s jurisdiction over the subject matter is terminated, prohibition is the proper remedy to prevent further action from being taken. State ex rel Huntley Bros., Inc. v. Gooding, 149 So.2d 55 (Fla. 1st DCA 1963); State ex rel. Seaboard Air Line R. Co. v. Kehoe, 133 So.2d 459 (Fla. 3d DCA 1961). Therefore, this case turns on whether the court lost jurisdiction to further entertain the claim of Mrs. Johnson against the city when the time for obtaining a rehearing or taking an appeal from the order dismissing that claim with prejudice expired.

An order dismissing a plaintiff’s claim against one defendant with prejudice is a final appealable order even though the plaintiff’s claim against another defendant remains pending. Donin v. Goss, 69 So.2d 316 (Fla.1954); Let’s Help Florida v. DHS Films, 392 So.2d 915 (Fla. 3d DCA 1980); Logan v. Flood, 346 So.2d 1243 (Fla. 1st DCA 1977). We cannot see how the fact that Ms. Williams’ cross-claim in negligence against the city remains pending could make the order dismissing Mrs. Johnson’s claim any less appealable.

Accordingly, prohibition is hereby granted. The trial court is directed to quash the purported order permitting the filing of the amendment to the first amended complaint against the city. We assume it will not be necessary to issue the writ.

CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Marion V. EVERETT, Appellant, v. Harold Francis EVERETT, Appellee.
    No. 82-75.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1982.
    Alan J. Rubinstein of Goldberg, Rubinstein & Buckley, P.A., Fort Myers, for appellant.
    George R. McLain of Harnden, McLain, Spivey & Dart, Sarasota, for appellee.
   PER CURIAM.

The wife makes a wide-ranging argument that she was financially shortchanged in the dissolution judgment. From our review of the record, we cannot say that the court abused its discretion. In order to obviate the possibility of a later dispute, we hereby construe the provision which gives the wife sole possession of the marital home for a year but requires her to be solely responsible for the mortgage and insurance to mean that she will be entitled to credit for one half of these payments upon the sale of the home now owned as tenants in common by reason of the dissolution. Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DGA 1979). As construed, the judgment is affirmed.

OTT, C.J., and GRIMES and SCHOON-OVER, JJ., concur.


author: BOARDMAN, Judge.

text:
    George B. SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 81-1757.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1982.
    Terence S. Moore, Tampa, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

George B. Shaw appeals convictions and sentences for aggravated assault and burglary of a dwelling. The only point raised which has merit is appellant’s contention that the trial court erred in impaneling the jury in appellant’s absence over defense objection, but that error compels us to reverse.

Appellant’s trial was set for June 24, 1981, and appellant was duly so notified. However, on June 23, 1981, the trial judge informally notified counsel for both sides that he wished to impanel the jury that afternoon. Defense counsel appeared, but informed the judge that appellant was not then present or available. The trial judge announced that he would waive appellant’s presence. Although defense counsel stated he could not waive appellant’s presence, the judge confirmed his ruling. However, the judge said that the following day before swearing the jury he would entertain any specific objections to any juror that appellant might have. Jury selection then proceeded.

The next morning, the following occurred:

THE COURT: .... And at this particular point in time I would like to ask Mr. Moore to introduce his client to the jury or the prospective jury, and see if any of you all might know or recognize him.
MR. MOORE: Ladies and gentlemen, this is George B. Shaw. Is there any of you who recognize him? If so, please speak up at this time.
(The jurors shake heads negatively.)
THE COURT: Thank you. Okay. Now, you all know that you all are just tentative prospective jurors at this time. I would like for Mr. Moore to have an opportunity to review the questionnaires that you all filled out earlier when you all were selected to come down here, with his client for a moment and see if he would like to retain you all on the jury.
MR. MOORE: If Your Honor please, we have already had an opportunity to go through these questionnaries. Mr. Shaw has found nothing in here that he can articulate that any of these should be struck. I would like to state for the record I do not waive my previous objections to the Court selecting the jury in his absence.
THE COURT: Okay. Is the jury satisfactory to you, Mr. Moore and Mr. Shaw?
MR. MOORE: Yes, Your Honor.
THE COURT: Mr. Huerta, is the State satisfied with the jury?
MR. HUERTA: Yes, Your Honor.
THE DEFENDANT: Yes.

For the purpose of an accused’s constitutional right to be present at all stages of a trial, the trial runs from the commencement of the selection of the jury through rendition of the verdict and discharge of the jury. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915).

The selection of the jury is a critical stage of the trial, and the defendant has a right to be present in a felony case. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884).

The prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors. The necessities of the defense may not be met by the presence of his counsel only.

110 U.S. at 578, 4 S.Ct. at 204, 28 L.Ed. at 262.

The state insists that appellant ratified the proceedings which occurred in his absence. We disagree. Appellant cannot be said to have ratified the trial judge’s unorthodox procedure on this record. Counsel renewed his objection, and his and appellant’s subsequent acceptance of the jury was clearly based on the judge’s prior ruling as to the limited circumstances under which appellant might challenge a juror, a ruling the defense clearly submitted to rather than one they agreed to.

Moreover, the trial judge’s willingness to allow appellant to make a specific objection to any juror does not cure the error or render it harmless. As stated by Blackstone and quoted with approval in Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892):

“In criminal cases, ... there is . .. allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all; which, is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous. This is grounded on two reasons: 1. As every one must be sensible, what sudden impressions and unaccountable prejudice we are apt to conceive upon the bare looks and gestures of another; and how necessary it is that a prisoner ... should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice even without being able to assign a reason for such his dislike....” 4 Bl.Com. 353;

146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011, 1014.

Accordingly, appellant’s convictions and sentences are REVERSED and the cause REMANDED for new trial.

OTT, C.J., and HOBSON, J., concur.


author: GRIMES, Judge.

text:
    Gregory MARGARITES, Appellant, v. Helen MARGARITES, Appellee.
    No. 81-2372.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1982.

      Elihu H. Berman of Krug, Berman & Silverman, Clearwater, for appellant.
    Joseph M. Ciarciaglino, Jr. of Osborne & Ciarciaglino, St. Petersburg, for appellee.
   GRIMES, Judge.

The husband challenges that portion of the judgment of dissolution which denied his claim for a special equity in property purchased during the marriage and which awarded the wife alimony of $250 per month and one half of her attorney’s fees.

The husband is sixty-two years old, and the wife is fifty-seven years old. They were married for eight years. At the time of the marriage, they each owned assets which they used to purchase two pieces of property. The wife provided most of the down payment for the marital home, while the husband made the down payment on an apartment house. They took title to both pieces of property as tenants by the entire-ties. The parties have no assets of substantial value other than these two properties.

The husband conducted a succession of unsuccessful businesses during the marriage. Most of the couple’s expenses were paid from the wife’s earnings as a clerk. For the past several years, the husband has devoted his time to renovating the apartment building. After the parties separated, ill health forced the wife to terminate her employment. However, she qualified for a $267 per month pension and expected to start receiving it soon. The husband’s income came from the operation of the apartment building. The net profit from the apartment in 1980 totaled about $2,000.

The husband bases his claim for a special equity in the apartment house on the funds unconnected with the marriage which he used for a down payment and on his efforts to renovate it. Ball v. Ball, 335 So.2d 5 (Fla.1976). Notwithstanding, the evidence supports the court’s finding “that both parties, although their financial resources may have differed, contributed all into a common effort to establish a life together forever and intended all contributions to be gifts to one another, and equally shared.” Likewise, we see no error in ordering the husband to pay one half of the wife’s attorney’s fees.

In determining whether to grant permanent periodic alimony, the court must consider the needs of the spouse who seeks the award and the financial resources of the spouse who will be required to pay. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Here, since the husband will lose half of the revenue from the apartment by virtue of the division of its ownership, he will apparently have less income than the wife. Therefore, he should not be required to pay alimony at this time.

The case is hereby reversed with directions to vacate the alimony award but to retain jurisdiction of the subject so as to be in a position to later make an award should the circumstances dictate. See Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976). Otherwise, the judgment is affirmed.

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

      . We have based this opinion on the expectation that the wife’s anticipated pension has materialized. Should she fail to receive her pension, this would be a pertinent factor for consideration on a motion to modify.


author: OTT, Chief Judge.

text:
    Wallace J. EDWARDS, a/k/a Ronny Jeter, Appellant, v. STATE of Florida, Appellee. Michael FERGUSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-709, 81-931.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1982.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Wallace J. Edwards and Michael Ferguson appeal convictions and sentences for grand theft. We affirm in part and reverse in part.

The only issue raised on appeal which has merit is appellant Ferguson’s contention that the trial court erred in setting the amount of restitution Ferguson would be required to pay as a condition of probation without holding a hearing. Fresneda v. State, 347 So.2d 1021 (Fla. 1977), held that a hearing must be held with prior notice to the defendant to determine the amount of restitution to be imposed and that this amount may not exceed the amount of damage the defendant’s criminal conduct caused the victim.

In addition, while this was not raised by either party, the record before us does not reflect that either appellant Edwards’ judgment and sentence or Ferguson’s probation order, which includes an adjudication of guilt, contains the respective appellant’s fingerprints as required by section 921.-241(1), Florida Statutes (1979). Ramos v. State, No. 80-2354 (Fla. 2d DCA, Aug. 5, 1981).

Accordingly, appellants’ convictions are AFFIRMED, but Edwards’ judgment and sentence and the order placing Ferguson on probation are VACATED and the cause REMANDED for entry of proper judgments with appellants’ fingerprints affixed thereto and for a hearing on the amount of restitution to be required of Ferguson as a condition of probation. Edwards’ sentence and Ferguson’s probation order are otherwise AFFIRMED.

HOBSON and BOARDMAN, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Austin Lee ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1448.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 1982.
    Rehearing Denied Nov. 16, 1982.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Austin Lee Alexander appeals a resen-tence order, severer than the original sentence order, which he contends deprives him of liberty without due process of law because the judge failed to adhere to a strict resentencing requirement established by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We affirm because 1) Pearce is inapplicable; and 2) the reasons enunciated by the judge for the harsher sentence indicate that the order does not violate appellant’s right to due process.

In 1980, a trial judge sentenced appellant on an aggravated battery conviction to a “true” split sentence of five years imprisonment to be followed by five years probation. In 1981, appellant, relying on the retroactive effect of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981), filed a Rule 3.850 motion to vacate or correct the illegal sentence. A different trial judge, however, summarily denied the motion. Undaunted, appellant filed another Rule 3.850 motion and appealed to this court from the denial of the original motion. In Alexander v. State, 402 So.2d 485 (Fla. 2d DCA 1981), we remanded to the trial court for a correction of the sentence with instructions that it could resentence him to a prison term not to exceed the original, combined ten-year term of incarceration and probation, with credit for time served. See Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981).

Before we had rendered the above decision on appellant’s first appeal, the judge who had originally sentenced appellant conducted a hearing on the second Rule 3.850 motion. At the hearing he indicated to him that he agreed that the motion should be granted but advised him that if he granted it he intended to resentence him to seven and one-half years imprisonment. He explained to him that a prison term shorter than seven and one-half years would be “too lenient” since the victim of the battery had been badly cut and the elimination of the probation portion of the original sentence would nullify a probation condition that he pay the victim’s medical bills, which exceeded five thousand dollars. Nevertheless, appellant stated that he wished to proceed with the motion. The judge thereupon granted the motion and vacated the illegal sentence. However, before he could pronounce a new sentence, appellant’s attorney reminded him of Pearce.

In Pearce, the respondent had been tried, convicted and sentenced to a term in prison. After the reversal of his conviction several years later, he was retried, reconvicted and resentenced to a prison term which, when added to the time he had already spent in prison, exceeded the term of the original sentence. The sentencing judge justified this harsher sentence solely on the ground that it was within the state’s power. The United States Supreme Court ruled that a judge who imposes a harsher sentence after a defendant has been retried and reconvict-ed must affirmatively state his reasons for doing so. Those reasons, it emphasized, must be based upon objective facts concerning identifiable conduct on the defendant’s part which occurred after the original sentencing proceeding. It added that imposing a severer sentence merely because it is within the state’s power will not suffice. Since the sentencing judge had refused to specify to the federal district court his reasons for imposing the severer sentence, the Court reversed the respondent’s sentence.

Appellant and the judge then engaged in the following conversation at the hearing:

THE COURT: Mr. Alexander, I’ve considered North Carolina v. Pearce; it’s an opinion of the United States Supreme Court. It seems to say that a judge may not give a higher sentence after a defendant has won a reversal; in short, that a judge may not punish the man for standing up for his rights.
MR. ALEXANDER: (Nods head affirmatively.)
THE COURT: And I agree with that opinion from the United States Supreme Court. It is not my intention here to punish you for standing up for your rights, and I am not imposing sentence here for any activity which might have occurred after I imposed your sentence.
I think you know, and everybody in this room knows, that I’m a county judge, elected as such. I sit as circuit judge only on appointment from my chief judge, and I sit as circuit judge rather seldom. And it is even more seldom that it becomes my duty to impose sentence in a criminal case. Therefore, when I do impose a sentence in a criminal case, I give it a lot of thought.
And in your case, I gave it a lot of thought. The sentence that I imposed I thought was fair. I thought it was fair to you, I thought it was fair to society, and I thought it was at least close to being fair to the man that you stabbed.
MR. ALEXANDER. Yes, sir.
THE COURT: You could have received fifteen years in the state prison. Your record would have justified fifteen years in the state prison, but I didn’t give you that. I gave you five years in the state prison. I followed that up with a period of probation because I wanted to give you the opportunity to prove to society that you were not the sort of person that could — that needed to be in prison.
MR. ALEXANDER. Yes, sir.
THE COURT: That you were a good member of society or could become one. I also put that probationary period on the sentence so that you would at least pay the hospital bills of the man that you stabbed, and the hospital bills were substantial.
MR. ALEXANDER: (Nods head affirmatively.)
THE COURT: I thought that was fair to him. I’m not criticizing you for filing this Motion to Vacate the Sentence, nor am I criticizing the Florida Supreme Court for the Villery decision. If I thought at that time that I could not impose probation and I could not give you the chance to prove that you were a good member of society, if I thought that I could not require you to pay that man for the medical bills caused by your stabbing him, then I would have given you seven- and-a-half years state prison. (Emphasis added) (R 68-70)

Though without jurisdiction because of the pending appeal, the judge then rendered what he believed to be a valid order, sentencing appellant with credit to seven and one-half years incarceration. Following his appeal from this invalid order, we temporarily relinquished jurisdiction and the judge entered a valid nunc pro tunc order sentencing him with credit to seven and one-half years imprisonment.

Appellant concedes on amended appeal that the severer sentence complies with a resentencing option provided for in Villery, 396 So.2d at 1112. See also Lewis, 402 So.2d at 485. However, he argues that the implementation of this resentencing option violated his right to due process because the judge failed to point to objective facts concerning identifiable conduct on his part which occurred subsequent to the original sentencing proceeding. Interestingly, he does not contend that the severer sentence resulted from a retaliatory motivation on the judge’s part. Stated appellant’s counsel in the brief:

Appellant’s sentence violates Pearce because he is unarguably “worse off” than before . . . This is not to say that Judge Maloney’s sentence was motivated by vindictiveness or ill will against Appellant, but it is nonetheless an illegal sentence. (Emphasis added) Appellant’s Brief at 8-9.

We are troubled that appellant exalts form (the requirement that the judge state reasons for a severer sentence) over substance (a vindictive motivation on the judge’s part). The Court in Pearce never held that a harsher sentence constitutes a per se violation of due process. It stressed that two purposes underlie the strict resentencing requirement: first, to ensure the absence of a retaliatory motivation on the judge’s part after the defendant has successfully challenged a conviction; and, second, to free a defendant from the apprehension that a sentencing judge may impose a harsher sentence if he exercises the right to appeal or collaterally attack a conviction. Pearce, 395 U.S. at 727, 89 S.Ct. at 2089. See Michigan v. Payne, 412 U.S. 47, 51-52, 93 S.Ct. 1966, 1968-69, 36 L.Ed.2d 736 (1973). Explained the Court in Chaffin v. Stynchcombe, 412 U.S. 17, 25, 29, 93 S.Ct. 1977, 1982, 1984, 36 L.Ed.2d 714 (1973);

[Pearce] ... was premised on the apparent need to guard against vindictiveness in the resentencing process. Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process.
jf: jfc "k ^ * *
Subsequent cases have dispelled any doubt that Pearce was premised on the hazard of vindictiveness ... Moon v. Maryland, 398 U.S. 319 [90 S.Ct. 1730, 26 L.Ed.2d 262] ... (1970) ... Colten v. Kentucky, 407 U.S. 104 [92 S.Ct. 1953, 32 L.Ed.2d 584] . .. (1972).
[T]he Court [in Pearce] intimated no doubt about the constitutional validity of higher sentences in the absence of vindictiveness despite whatever deterrent effect they might have on the right to appeal.

Although appellant values form over substance, we do not hold Pearce inapplicable for this reason. Instead, we hold Pearce inapplicable because the Court intended that the stringent prophylactic requirement should apply only when a judge pronounces a severer sentence after a new trial, not when a jüdge imposes a severer sentence after a vacation of an illegal sentence or illegal probationary order. See Nelson v. Lefkowitz, 428 F.Supp. 660 (S.D.N.Y.1977). Indeed, the Court in Pearce opened its opinion by framing the legal question presented as follows:

When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial? (Emphasis added)

395 U.S. at 713, 89 S.Ct. at 2074. The Court was chiefly concerned with ensuring every defendant' an unfettered right to a fair trial. Here, we presume appellant’s first trial was fair. On his initial appeal he was exclusively concerned with the illegality of the original sentence order. On this appeal he is exclusively concerned with the legality of the resentence order.

Despite the inapplicability of Pearce, we recognize that it is patently unconstitutional for an agent of the state to penalize a person for relying on his legal rights. See Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). Thus, we hold that due process prohibits a judge from imposing a harsher sentence after a defendant has successfully overturned a sentence if a retaliatory motivation plays any part in his decision. To deter vindictiveness, a judge who imposes a severer sentence after a successful attack on a sentence must affirmatively state objective reasons for the harsher sentence. In contrast to Pearce, those reasons need not be based solely upon facts concerning identifiable conduct of the defendant which occurred subsequent to the original sentencing proceeding. However, a judge should not impose a severer sentence solely on the ground that it is equal to or within the statutory maximum and complies with the common law. An outline in the record of the judge’s reasons for imposing a severer sentence will aid us, where necessary, in determining whether a vindictive motivation infected the judge’s discretion at the resentencing proceeding.

In the case at bar, we are convinced that a vindictive motivation played absolutely no part in the resentence order. A review of the judge’s rationale for imposing the severer sentence so indicates. The judge pointed out that appellant had severely cut the victim. Also, he noted that with the abolition of the probation portion of the original sentence appellant would no longer be required to pay the victim’s extensive medical expenses. Further, he indicated that appellant had a poor criminal history. However, the dispositive element is the statement in appellant’s brief, supra, which conveys the impression that he does not believe that vindictiveness influenced the resentencing judge’s decision. See Moon v. Maryland, 398 U.S. 319, 320-21, 90 S.Ct. 1730, 1730-31, 26 L.Ed.2d 262 (1970).

Accordingly, the order resentencing appellant to seven and one-half years imprisonment for aggravated battery is affirmed.

AFFIRMED.

SCHEB and CAMPBELL, JJ., concur.

      . The maximum sentence for the offense of aggravated battery is 15 years. See § 775.082, Fla.Stat. (1977).

      . In Olcott v. State, 378 So.2d 303 (Fla. 2d DCA 1979), we reversed an order which placed appellant on probation for 15 years on condition that he serve 6 years in prison. We remanded with directions that the trial court could impose any punishment which it could have originally imposed, subject to the restrictions of Pearce. Today we necessarily recede from the proviso in Olcott that resentencing is subject to the strict resentencing standard enunciated in Pearce.

      . In Adams v. State, 414 So.2d 1079 (Fla. 1st DCA 1982) (two-one decision) (question certified), the court faced the same argument we deal with today. See also Lowery v. State, 418 So.2d 1123 (Fla. 5th DCA, 1982); Williams v. State, 417 So.2d 780 (Fla. 3d DCA, 1982); Willis v. State, 413 So.2d 1290 (Fla. 3d DCA 1982); Beech v. State, 411 So.2d 1384 (Fla. 1st DCA 1982) (question certified). In Adams, appellant had been sentenced to 15 years probation on condition that he serve the first two years in prison. Subsequent to Vil-lery, he was resentenced to 10 years in prison. The sentencing judge did not state any objective reasons for the new sentence. The majority ruled that the resentence did not violate Villery and held Pearce inapplicable because the resentence of 10 years did not exceed the original sentence of 15 years. The third Adams judge, though concurring that the resentence did not violate Villery, perceived it as severer than the first. Concluding that Pearce was therefore applicable, he suggested that the sentence be reversed and the cause remanded so that the judge could state his reasons for imposing the harsher sentence.
      We believe that in the instant case the resen-tence, though in compliance with Villery and within the statutory maximum, is severer than the original in that appellant must now serve a longer term of imprisonment. Thus, we do not endorse the Adams majority’s rationale for holding Pearce inapplicable and require that the judge not justify a severer sentence on the sole ground that it complies with statutory and common law.


author: DOWNEY, Judge.

text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Michael SAVIGLIANO, a minor, By and Through his parents and next friends, Roy SAVIGLIANO, Sr., and Carol Savigliano, and Roy Savigliano, Sr., and Carol Savigliano, individually, Appellees.
    No. 81-594.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    As Amended on Denial of Rehearing Dec. 15, 1982.

      Richard A. Barnett, Hollywood, for appellant.
    J. Patrick Floyd, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

This is a timely appeal by appellant Lum-bermens Mutual Casualty Co. [Lumber-mens] from a final judgment affirming a demand for arbitration by appellee Roy Sa-vigliano [Savigliano] under an uninsured motorist policy.

Late in 1978, Savigliano met with Wayne Schimpf, a licensed insurance agent, to obtain some business insurance at the former’s place of business, a now-defunct teenage discotheque. Schimpf operated Way-Ger Insurance Company in Margate from his home. He gave Savigliano quotes from different companies that he represented, but they were too high. Instead, Savigliano decided to buy personal automobile insurance.

On January 13, 1979, Savigliano completed an application form provided by Lumber-mens under Florida Joint Underwriters Association regulations for a basic 10/20 policy. He also signed Lumbermens’ form LM-OS-10, rejecting uninsured motorist coverage. The application has Lumbermens Mutual Casualty Company across the top; the latter form contains, in the upper right corner, the logo of Lumbermens’ parent company, Kemper Insurance Company. Lumbermens subsequently delivered a policy to Schimpf who countersigned it as “licensed resident agent” and delivered it to Savigliano. The effective date of coverage on the policy was January 13, 1979. Savig-liano was billed directly by Lumbermens and paid the premium directly to them.

Some months later Savigliano contacted Schimpf about increasing the coverage under the Lumbermens policy to 100/300 but the premium was too high. As an alternative Schimpf recommended that he add uninsured motorist coverage to the original policy. Savigliano agreed and gave Schimpf the cash premium and Schimpf gave him a copy of a form entitled “Policy Change Endorsement.” The form carried the Kemper logo and was preprinted with the information relevant to the original policy; it was signed by Schimpf as “licensed resident agent” and stated that the endorsement was effective at six o’clock that day, November 15,1979. When he failed to receive the endorsement, Savigliano contacted Kemper and was told to go through his agent. He called Schimpf who advised him that Kemper is slow, but assured him that he was covered. Again he called Kem-per and was told not to worry, that they were behind in their mail. He called Schimpf again, Schimpf offered to send a second request but insisted that he was covered.

Savigliano received a renewal policy, effective January 13, 1980, but he never received either an endorsement or a rejection from Lumbermens. On December 23, 1979, Savigliano’s son Michael was injured in an automobile accident in which the adverse party had inadequate coverage. On February 25, 1980, Savigliano, on behalf of his son, requested arbitration as provided by the terms of the Lumbermens policy. Lum-bermens denied the request. On May 18, 1980, Savigliano, on behalf of his son, filed suit to compel Lumbermens to arbitrate. The trial court’s order directing Lumber-mens to arbitrate is the subject of this appeal.

The issue presented is whether or not Schimpf had apparent authority to bind Lumbermens. There was no agency contract between appellant and Schimpf. The latter was an assigned agent under the rules of Florida Joint Underwriters Association. So we must determine from the factual situation presented whether the agent was acting within the scope of his apparent authority and the insured was not aware of any limitation thereon. Russell v. Eckert, 195 So.2d 617 (Fla. 2d DCA 1967). The evidence in this case reflects that Schimpf furnished Savigliano with an application blank containing Lumbermens’ name thereon. He signed a rejection form for uninsured motorist coverage containing the name of Kemper Insurance Company (Lum-bermens’ parent company). The premium deposit was paid to Lumbermens and eventually the policy was delivered by Schimpf to Savigliano. When the policy was changed to include uninsured motorist coverage Savigliano was again furnished a Kemper Insurance Company application with all the policy information printed thereon and signed by Schimpf as licensed resident agent. The deposit premium was paid at that time by Savigliano to Schimpf. When Savigliano did not receive the new endorsement he eventually called Kemper and was advised to go through his agent.

Linda Manning, the underwriting services manager for Lumbermens, testified that Schimpf had the authority to accept applications and premium deposits and forward them to the carrier and thereby bind the carrier to the coverage.

It appears to us that the foregoing circumstances would lead the average insurance consumer to believe the agent has the authority to bind the carrier to the coverage. This was a question of fact for the trial judge, Nationwide Mutual Insurance Company v. Mason, 218 So.2d 185 (Fla. 4th DCA 1969), and we believe the record supports his conclusion. The judgment appealed from is therefore affirmed.

AFFIRMED.

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


text:
    Amalia MUSICO, Appellant/Cross-Appellee, v. Francis G. MUSICO, Jr., individually and as Personal Representative of the Estate of Francis G. Musico, deceased, Appellee/Cross-Appellant.
    No. 81-1410.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Rehearing Denied Dec. 10, 1982.

      John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauder-dale, for appellant/cross-appellee.
    James 0. Murphy, Jr., and Douglas K. Silvis of English, McCaughan & O’Bryan, Fort Lauderdale, for appellee/cross-appel-lant.
   PER CURIAM.

This appeal emanates from a probate proceeding in which appellant/surviving spouse contested the validity of an antenupital agreement executed in New York. The trial court upheld the agreement, finding that appellant had entered into the agreement knowingly, aware of its meaning and significance, and without duress. Although the testimony on this issue was in conflict, the trial court’s findings are supported by substantial competent evidence. Moreover, we conclude that appellant’s allegations of procedural irregularities in the execution of the agreement are without merit. See Weintraub v. Weintraub, 417 So.2d 629 (1982); Flagship National Bank of Miami v. King, 418 So.2d 275 (Fla. 3d DCA, 1982); Estate of Garcia v. Garcia, 399 So.2d 486 (Fla. 3d DCA), petition for review denied, 407 So.2d 1103 (Fla.1981); In re Stegman’s Estate, 42 Misc.2d 273, 247 N.Y.S.2d 727 (Surr.Ct.1964); In re Maul’s Will, 176 Misc. 170, 26 N.Y.S.2d 847 (Surr. Ct.), aff’d with opinion, 262 A.D. 941, 29 N.Y.S.2d 429 (App.Div.1941), aff’d without opinion, 287 N.Y. 694, 39 N.E.2d 301 (1942).

Accordingly, the judgment is affirmed.

BERANEK, HURLEY and WALDEN, JJ., concur.


text:
    LIFE INVESTORS INSURANCE COMPANY OF AMERICA, Appellant, v. Eartha L. JOHNSON, Appellee.
    No. 81-1126.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.

      Leesfield & Blackburn, Miami, and Patrice A. Talisman of Daniels & Hicks, Miami, for appellant.
    Ralph L. Flowers, Fort Pierce, for appel-lee.
   DOWNEY, Judge.

Appellee Eartha L. Johnson purchased an automobile from Fred Coyne Chevrolet Company, Inc. In conjunction with the car sale, Johnson also purchased a credit disability insurance policy issued by appellant, Life Investors Insurance Company of America. The policy provided that if the insured were totally disabled and under the care of a doctor for more than 14 days the company would pay the insured creditor a daily benefit for the period of disability and medical treatment. Written notice of the claim was required to be given the company at its home office “or to any authorized agent” within 30 days of the occurrence or as “soon thereafter as ... reasonably possible” and proof of loss within 90 days thereafter. Claims were to be paid monthly subject to written proof of loss.

Johnson received a disabling injury at work. The company was eventually notified but, Johnson claims, did not pay according to its contract and as a result her car was repossessed. Johnson sued appellant for damages for breach of the contract. The trial judge directed a verdict on liability at the close of the defendant’s case. The jury returned a verdict in the amount of $3,500.

The two points presented on appeal involve the direction of the verdict for Johnson and the inclusion of various improper elements of damage in the award.

Without detailing all of the evidence regarding notice to the company, suffice to say that reasonable men could differ on whether Johnson complied with the notice requirements of the policy. She was injured on March 7 but the company did not receive the notice at its home office until June 22. The reason for the delay was that Johnson obtained a claim form from Fred Coyne Chevrolet and mailed it to an address in West Palm Beach, Florida, furnished to her by Coyne Chevrolet. When payment was not forthcoming Johnson called the West Palm Beach office and was advised that the form should have been mailed to the company’s home office. Apparently, the West Palm Beach office had sent the form on to appellant. Thereafter, correspondence between Johnson and appellant became confused because Johnson had an automobile accident in July and the proof of loss form sent to the company began to show conflicting' disability periods. Johnson finally stopped sending proofs of loss, appellant stopped paying anything and Johnson’s car was repossessed. It appears to us that there were issues for the jury relative to compliance with the notice requirements of the policy and, if notice was late, whether the company was prejudiced by the late notice. Also, a fact issue exists regarding the agency of Fred Coyne Chevrolet in furnishing claim forms for purposes of binding appellant. Therefore, it was reversible error to direct a verdict for Johnson on the question of liability.

The trial court instructed the jury to consider as damages the loss of value and use of the automobile, transportation expenses incidental to the loss of use of her car and long distance telephone calls. The trial court did not instruct the jury to consider the amount due on the policy as appellant contends.

The basic rule governing the recovery of damages for breach of contract is set forth in the oft cited English case of Hadley v. Baxendale, 9 Exeh. 341, 156 Eng.Rep. 145 (1854) which holds that the appropriate damages are those that arise naturally from the breach, or those that were in the contemplation of the parties at the time the contract was made. Application of that rule to commercial contracts, such as disability insurance policies, generally results in a limitation of damages to the pecuniary loss resulting from the breach. MacDonald v. Penn Mutual Life Insurance Company, 276 So.2d 232 (Fla.2d DCA 1973). However, Kewin v. Massachusetts Mutual Life Insurance Company, 409 Mich. 401, 295 N.W.2d 50 (1980) noted an exception to this rule in the case of commercial contracts concerned not simply with trade and commerce, but with life and death and matters of mental concern and solicitude. The Michigan court found, as have others, that the nature and object of the agreement may justify the allowance of other types of damages such as mental pain and anguish. 5 Corbin, Contracts § 1076 and 1 Restatement of Contracts § 341 also recognize this exception. Thus, we conclude there is no hard and fast rule regarding the measure of damages for breach of contract. Adverting to the Hadley v. Baxendale rule that a breach of contract may give rise to damages which were in contemplation of the parties at the inception of the contract, it appears to us that if the jury finds that appellee breached the contract, Johnson is entitled to recover more than the pecuniary loss involved in the balance of the payments due under the policy. That conclusion follows the fact that Johnson purchased the car and the disability insurance policy at the car dealership. The purpose of acquiring the policy was to assure satisfaction of her car payments in the event of her disability. Thus, it follows that any damages accruing to Johnson as a result of repossession of her car for nonpayment of the monthly payments due to her disability were contemplated by the parties. Those damages would be the value of the automobile or the balance of payments due under the policy, whichever is greater, together with the loss of use of the car from the date of the repossession until the jury verdict is rendered, and interest thereon. Of course, Johnson would not be entitled to both the value of the car and the balance of the payments due on the policy as that would result in a double recovery. If interest is to be awarded, the plaintiff should plead it and the jury should assess it. Finally, there is no entitlement to damages for “long distance telephone calls.”

Having resolved the question of damages raised by appellant’s second point, we reverse the judgment appealed from and remand the cause for a new trial.

HERSEY, J., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


text:
    Curtis SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 82-561.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1982.

      Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Curtis Smith challenges the length of his commitment to a community control program. We reverse that portion of his sentence.

Appellant was charged with escape, pled nolo contendere, and was sentenced under the Florida Youthful Offender Act, Chapter 958, Florida Statutes (1981), to one year in prison followed by four years in a community control program.

The maximum term in a community control program which can be imposed is two years. §§ 958.05 and 958.10.

Accordingly, appellant’s conviction and prison sentence are affirmed, but the ease is remanded for reduction of appellant’s term in a community control program to two years. Appellant need not be present at resentencing.

HOBSON, Acting C.J., and BOARDMAN and DANAHY, JJ., concur.


text:
    STATE of Florida, Petitioner, v. John K. FERRIS, Respondent.
    No. 82-1927.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1982.
    E.J. Salcines, State Atty., and Claire Cours Jackson, Asst. State Atty., Tampa, for petitioner.
    Richard A. Lazzara, Tampa, for respondent.
   PER CURIAM.

Certiorari granted on the authority of State v. Smelt, 417 So.2d 1154 (Fla. 2d DCA 1982).

HOBSON, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


author: BARKDULL, Judge. SCHWARTZ, Judge

text:
    CONTINENTAL VIDEO CORPORATION, a Florida corporation, Appellant, v. HONEYWELL, INC., a foreign corporation, d/b/a Honeywell Protection Services, Appellee.
    No. 81-1978.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Rehearing Denied Dec. 8, 1982.

      Floyd, Pearson, Stewart, Richman, Greer & Weil and Bruce A. Christensen and Charles E. Buker, III and Larry S. Stewart, Miami, for appellant.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   BARKDULL, Judge.

Continental Video Corp. entered into a contract with Honeywell, Inc., for installation of a Central Station Burglar Alarm for a total cost of $815. The contract contained the following exculpatory clause,

“It is understood and agreed by the parties hereto that Contractor is not an insurer and that insurance, if any, covering personal injury and property loss or damage on Subscriber’s premises shall be obtained by the Subscriber; that the Contractor is being paid for the installation and maintenance of a system designed to reduce certain risks of loss and that the amounts being charged by the Contractor are not sufficient to guarantee that no loss will occur; that the Contractor is not assuming responsibility for any losses which may occur even if due to Contractor’s negligent performance or failure to perform any obligation under this Agreement. THE CONTRACTOR DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, THAT THE SYSTEM OR SERVICE SUPPLIED MAY NOT BE COMPROMISED, OR THAT THE SYSTEM OR SERVICES WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INTENDED. Since it is impractical and extremely difficult to fix actual damages which may arise due to the faulty operation of the system or failure of services provided, if, notwithstanding the above provisions, there should arise any liability on the part of the Contractor, such liability shall be limited to an amount equal to one-half the annual service charge provided herein or $250. whichever is greater. This sum shall be complete and exclusive and shall be paid and received as liquidated damages and not as a penalty. In the event that the Subscriber wishes to increase the maximum amount of such liquidated damages, Subscriber may, as a matter of right, obtain from Contractor higher limits of liquidated damages. Subscriber agrees to and shall indemnify and save harmless the Contractor, its employees and agents, for and against all third party claims, lawsuits, and losses alleged to be caused by the improper operation of the system, whether due to defects in the system or acts or omissions of the Contractor in receiving and responding to alarm signals.” (Emphasis added).

A monitoring service was available for a modest charge, plus a telephone charge, billed directly to the customer. Continental elected to have this service from Honeywell. Upon activation of the alarm a signal was to be sent to one of Honeywell’s central monitoring stations and that upon receipt of the alarm Honeywell was to transmit the alarm to the police and notify Continental Video’s representative by phone. Burglars broke into Continental’s store and tripped the alarm. Honeywell allegedly did not notify the police or Continental’s agent upon receipt of the alarm. As a result of the loss incurred Continental filed the instant complaint alleging breach of contract; negligence; and gross negligence on the part of Honeywell. The complaint also attacked the exculpatory clause of the contract as being invalid, void and unenforceable because it was a contract of adhesion due to the inequality of bargaining powers of the parties and that the contract is against public policy. Honeywell moved to dismiss the complaint on the grounds that: (1) it fails to state a cause of action; (2) the exculpatory clause in the contract relieves Honeywell of any and all liability; and (3) any liability incurred by Honeywell is limited by the liquidation of damages clause.

The trial court entered an order dismissing the cause with prejudice finding that both the exculpatory and liquidated damage clauses were valid and enforceable.

We find no merit in the argument of the inequity of bargaining. First Financial Insurance Co. v. Purolator Security, Inc., 69 Ill.App.3d 413, 26 Ill.Dec. 393, 388 N.E.2d 17 (1979); Lazy Bug Shops, Inc., v. American District Telegraph Co., 374 So.2d 183 (La.Ct.App.1979); Abel Holding Co., Inc. v. American District Telegraph Company, 138 N.J.Super. 137, 350 A.2d 292 (1975). We do not find that the contract was against public policy. Central Alarm of Tucson v. Ganem, 116 Ariz. 74, 567 P.2d 1203 (1977); First Financial Insurance Co., v. Purolator Security, Inc., supra; Pick Fisheries, Inc. v. Burns Electronic Security Services, Inc., 35 Ill.App.3d 467, 342 N.E.2d 105 (1976); Abel Holding Co., Inc., v. American District Telegraph Company, supra.

We affirm based upon the reasoning found in Ace Formal Wear, Inc. v. Baker, 416 So.2d 8 (Fla. 3d DCA 1982); citing with approval L. Luria & Sons, Inc. v. Alarm Tec International Corporation, 384 So.2d 947 (Fla. 4th DCA 1980) relied on by the trial court in its order of dismissal.

Affirmed.

SCHWARTZ, Judge

(specially concurring).

In setting forth my separate views concerning this case, I think it important to supplement the majority’s discussion of the operative facts. In addition to receiving the initial charge for installing the burglar alarm system, Honeywell specifically and unconditionally agreed — in return for a monthly fee paid by Continental Video—

.. . [to] make every reasonable effort to transmit the alarm promptly to the headquarters of the police; and [Honeywell] shall make a reasonable effort to notify [Continental Video] or his designated representative by telephone....

The plaintiff doubtlessly alleged a direct violation of this undertaking. The amended complaint states that although, upon entering the premises, the burglars tripped the alarm, it continued to ring in Honeywell’s monitoring room and was blithely ignored by its employees for the several hours required to complete the crime; in fact, the alarm was still sounding unheeded when the police discovered the break-in the next morning and informed both Continental and Honeywell themselves.

Were the issue an open one in this court, I would not hold, as I take it the court does, that the exculpatory clause bars the action as a matter of law. I believe, in accordance with the directly conflicting holdings in Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So.2d 731 (Fla.1974) and Sniffen v. Century National Bank of Broward, 375 So.2d 892 (Fla. 4th DCA 1979) that such a clause is unenforceable when, as here, the breach of a specific contractual obligation is involved; to hold otherwise is to render the agreement itself nugatory and meaningless. Only because, however, this court has very recently held to the complete opposite in the indistinguishable case of Ace Formal Wear, Inc. v. Baker, 416 So.2d 8 (Fla. 3d DCA 1982), I concur without enthusiasm in the decision to affirm.

      . Continental was free to have the alarm monitored by anyone it selected by the payment of the telephone charge.

      . There is no question that the validity of the limitation of damages provision could not properly have been resolved on a motion to dismiss the complaint. Nicholas v. Miami Burglar Alarm Co., 266 So.2d 64 (Fla. 3d DCA 1972); see, Nicholas v. Miami Burglar Alarm Co., 339 So.2d 175 (Fla.1976).

      . I have taken similar positions in specially concurring opinions in Diners Club, Inc. v. Brachvogel, 370 So.2d 443 (Fla. 3d DCA 1979), cert. discharged, 395 So.2d 1156 (Fla.1980); Valenstein v. Doctors Hospital, 372 So.2d 1169 (Fla. 3d DCA 1979); Norton v. South Miami Hospital Foundation, Inc., 375 So.2d 42 (Fla. 3d DCA 1979); and Schoenbrod v. O’Neill, 375 So.2d 42 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1201 (Fla.1980).


text:
    The HERTZ CORPORATION, Appellant, v. Frank A. STUART, M.D., individually, Frank A. Stuart, M.D., P.A., Underwriters at Lloyds, Ruth Johnson McCutcheon and Louis N. McCutcheon, her husband, Appellees.
    No. 81-1317.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.
    Rehearing Denied Dec. 8, 1982.
    George B. Pomeroy of Pomeroy, Betts & Pomeroy, and Nancy Little Hoffmann, Fort Lauderdale, for appellant.
    James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellees, Stuart and Underwriters at Lloyds.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg and George P. Telepas, Miami, for appellees, McCutcheon.
   PER CURIAM.

This case and its progeny have a long and arduous history in the appellate courts of Florida. See: Stuart v. Hertz, 302 So.2d 187 (Fla. 4th DCA 1974); Stuart v. Hertz, 351 So.2d 703 (Fla.1977); City of Lauderdale Lakes v. Underwriter at Lloyds, 373 So.2d 944 (Fla. 4th DCA 1979); Stuart v. Hertz, 381 So.2d 1161 (Fla. 4th DCA 1980); and Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980).

In 1971, Mrs. McCutcheon was injured in an automobile accident with a Hertz owned car driven by a Hertz lessee. As a result of the auto accident, Mrs. McCutcheon was treated by Dr. Frank Stuart, who, it is alleged, was negligent in his medical treatment and greatly aggravated her initial injuries. McCutcheon initially sued Hertz and its driver in a personal injury suit. Hertz asserted a third party claim for indemnity against Stuart based on his aggravation of plaintiff’s injuries. This litigation produced the three above cited Stuart v. Hertz opinions. Eventually, the McCut-cheon v. Hertz personal injury action was disposed of when Hertz made a $1.1 million offer of judgment on the morning of trial. McCutcheon accepted the offer of judgment pursuant to Florida Rule of Civil Procedure 1.442. Judgment was entered against Hertz which was satisfied in full. Meanwhile, McCutcheon had filed a separate suit against Stuart seeking recovery for Stuart’s alleged medical malpractice. This action, yet untried, remains pending in the Circuit Court.

After paying McCutcheon $1.1 million, Hertz sued Stuart in a separate action on the theory of subrogation. Hertz alleged that all or part of the McCutcheon damages were caused or aggravated by Stuart’s medical malpractice, that Hertz was nevertheless liable under the law for all of McCutcheon’s damages (including those caused by Stuart), and that Stuart was liable in subrogation to Hertz by reason of its $1.1 million satisfaction to McCutcheon. Hertz alleged that its payment to McCut-cheon extinguished that party’s claim against Stuart and that McCutcheon had already received full payment for all damages due from Hertz or Stuart. Hertz also joined McCutcheon and Stuart in a prayer for declaratory relief on the issues of satisfaction, subrogation, and contribution. On motions of both defendants, Stuart and McCutcheon, the trial court dismissed the complaint with prejudice for failure to state a cause of action. Hertz appeals; we find error and reverse.

In Stuart v. Hertz, 381 So.2d 1161 (Fla. 4th DCA 1980), at 1164, we stated:

The decision reached in this case in no way prevents or discourages the respondents from instituting a separate lawsuit against the petitioners for contribution or subrogation. We have already expressed our support for such separate actions in City of Lauderdale Lakes v. Underwriters, 373 So.2d 944 (Fla. 4th DCA 1979). However, in view of the Supreme Court’s acceptance of jurisdiction we make no definitive statement as to the validity of such actions.

In Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980), the Supreme Court considered the following certified question from this Court:

DOES THE DECISION IN STUART V. HERTZ [the prior Supreme Court opinion] BAR A SEPARATE LAWSUIT BY THE INITIAL TORTFEASOR AGAINST A SUCCESSOR TORT-FEASOR WHO AGGRAVATES THE ORIGINAL INJURIES?

The Supreme Court answered this question in the negative holding that Hertz could state a cause of action in subrogation as a remedy affording an initial tortfeasor equitable apportionment of liability when a victim’s injuries have been negligently aggravated by an attending doctor.

The allegations of the Hertz complaint herein are within the stated requirements of the relevant cases and, if those allegations are true, form a basis for relief. The trial court thus erred in concluding a cause of action had not been stated in subrogation. Further, under the special facts of this very complex litigation, we conclude that the declaratory decree aspect of the complaint was also proper and should be reinstated.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

ANSTEAD, BERANEK and GLICK-STEIN, JJ., concur.

      . The McCutcheon v. Stuart medical malpractice action is not before us on this appeal.


author: DANAHY, Judge.

text:
    Michael Anthony DEL DUCA, Appellant, v. STATE of Florida, Appellee.
    No. 80-253.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1982.
    Rehearing Denied Nov. 19, 1982.
    Raymond E. LaPorte, Tampa, and John P. Cardillo of Monaco, Cardillo & Keith, Naples, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Since the defendant’s trial and conviction on charges of vehicular homicide, the Supreme Court issued its opinion in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). That decision requires us to reverse.

At the scene of the accident giving rise to the charges against the defendant, the defendant was placed under arrest and fully advised of his Miranda rights. He was taken to a hospital for treatment of injuries and then transported the same evening to jail. At the jail, approximately five hours after the accident, Officer Price visited the defendant, reminded him of his Miranda rights, and questioned him regarding the accident. The defendant made inculpatory statements. His motion to suppress those statements as evidence against him was denied on the ground that he waived his Miranda rights by his willingness to talk to Officer Price.

The state concedes that prior to the questioning of the defendant by Officer Price at the jail, the defendant was visited by his attorney. The attorney informed the booking officer at the jail that he represented the defendant and did not want him questioned without the attorney’s presence. The defendant thus clearly invoked his right to have counsel present during custodial interrogation. In Edwards, the Supreme Court held that once an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that the accused responded to police initiated interrogation after being again advised of his Miranda rights. The Court said that once an accused has expressed his desire to deal with the police only through counsel, he is not to be subjected to further interrogation until counsel has been made available to him unless the accused himself initiates further communications with the police.

The state failed to establish a valid waiver by the defendant of his right to have counsel present during interrogation, under the standard set forth in Edwards. Accordingly, we reverse and remand for a new trial. Silling v. State, 414 So.2d 1182 (Fla. 1st DCA 1982).

REVERSED AND REMANDED.

OTT, C.J., and BOARDMAN, J., concur.


author: SCHEB, Judge.

text:
    Joanne REINHART, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY and State of Florida Department of Transportation, Appellees.
    No. 81-2105.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1982.
    Rehearings Denied Nov. 15, 1982.

      Elihu H. Berman of Krug, Berman & Silverman, Clearwater, for appellant.
    Stephen C. Chumbris of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Pe-tersburg, for appellee Seaboard Coast Line Railroad Co.
    James B. Thompson and Clark Robbins of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellee Dept, of Transp.
   SCHEB, Judge.

The issue in this appeal is whether the trial court erred in directing a verdict in favor of appellees at the close of appellant’s evidence. We hold that it did and reverse.

Appellant, Joanne Reinhart, was injured on July 5, 1979, while riding her bicycle southbound on South Fort Harrison Avenue in Clearwater, over a railroad crossing owned by appellee Seaboard Coast Line Railroad and maintained by appellee Department of Transportation (DOT). The design of the crossing, which intersected the roadway at a 20° angle, was approved by appellee DOT. While attempting to traverse the crossing the front wheel of appellant’s bike allegedly caught in the flange-way between the track and the pavement, thus causing the bike to come to a sudden stop, and resulting in her being seriously injured when thrown from her bike.

Appellant sued the Railroad and DOT. She alleged that the Railroad was negligent in maintaining a track which crossed the road at an acute angle with flangeways running parallel to each rail of the track thereby creating a hazardous condition for bicycle riders. She further alleged that both the Railroad and DOT had actual notice of the defect because of numerous accidents at the crossing involving two-wheeled vehicles, but did nothing either to remedy the situation or to warn the public by posting appropriate warning signs. DOT admitted that it was responsible for maintenance and safety of the highway. The Railroad admitted that it had contractually agreed with DOT to maintain the crossing in a condition safe for the general public. Appellees denied that any defect existed and alleged that appellant was negligent.

At trial appellant described her accident to the jury. Then James Douglas, an eyewitness to the accident, explained how the front wheel of appellant’s bicycle became “trapped in the groove of the track.” There was further testimony concerning the accident by Barbara Thermos who had seen appellant fall but could not attribute the accident to the flangeway. Photos of the crossing showing the track and flangeways were also submitted in evidence. Appellant further proffered an expert witness; however, the court ruled he was not qualified to testify on the issue of the alleged defective crossing.

Numerous witnesses were proffered by appellant to testify concerning a history of accidents at the crossing to prove appellees had notice of the dangerous crossing. Several were excluded because of the remoteness of events. However, Patricia Ellis, who owned a business across the street from where the accident occurred, was permitted to testify that over the past five years she had personally observed twenty accidents of a similar nature. She called the police about the problem and on at least one occasion reported a similar accident to the DOT, but never notified the Railroad.' Jean Brady, who lived across the street from the crossing, testified that she had witnessed fifteen similar accidents in the last five years. She reported at least one of these accidents to the City of Clearwater, but not to DOT or the Railroad. She tended to blame these prior accidents on a worn portion of the road rather than on the flangeway. All of the prior accidents occurred at the same point where the track crossed the road at a 20° angle.

The claims agent for the Railroad testified that he received phone calls from two individuals reporting that they had fallen at the crossing while on two-wheeled vehicles. He went to the crossing but said he observed no defects. In response to certain requests for admissions, the Railroad admitted that one of the individuals was injured when the front wheel of his bike was caught in the flangeway, but the Railroad attributed this to the individual’s negligence.

Also introduced into evidence was an interdepartmental memorandum from DOT recognizing the existence of a hazardous condition at the crossing for some years prior to the accident in the instant case. The memo noted that seventeen accidents involving two-wheeled vehicles had occurred at the crossing in a three-year period, and warned that “[t]his office deems the current situation as hazardous .... ”

At the conclusion of appellant’s evidence, the court directed a verdict for both appel-lees, observing there was “no proof that the acute angle or anything else specifically caused this accident. So you’re relying on prior similar accidents is all.” This appeal ensued with appellant arguing there was sufficient evidence before the trial court to withstand entry of a directed verdict.

Actionable negligence depends upon the existence of a duty of care by the defendant, failure to perform that duty, and an injury to the plaintiff proximately caused by such failure. Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976). Here lay witnesses testified as to the condition of the crossing, and the photos of the accident scene were admitted into evidence. Appellees argue that some expert testimony was necessary to prove the existence of a hazardous condition at the crossing. However, Florida courts have held that the question of whether expert testimony is essential in proving a particular issue is determined by the issue involved. Alton Box Board Co. v. Pantya, 236 So.2d 452 (Fla. 1st DCA 1970). While desirable, expert testimony was not essential here. The facts testified to were not of such a nature as to require any special knowledge or experience in order for the jury to form its conclusions. Rather, the disputed issue of whether the crossing was defective and, if so, whether such defect caused appellant’s injury, was within the ordinary understanding of a jury. See Johnson v. State, 393 So.2d 1069 (Fla.1980). We must reject appellant’s contention that the court erred in not allowing the witness she proffered as an expert to testify. Suffice it to say that there is considerable discretion vested in the trial court in determining the qualification of an expert and absent an abuse of that discretion an appellate court will not interfere. Johnson v. State. We find no such abuse here.

Appellant also introduced evidence of prior accidents occurring under substantially similar conditions. This was admissible to show that a hazardous condition existed and that the Railroad and DOT had notice of this condition. Chambers v. Loftin, 67 So.2d 220 (Fla.1953); Friddle v. Seaboard Coast Line Railroad, 306 So.2d 97 (Fla.1974); Perret v. Seaboard Coast Line Railroad, 299 So.2d 590 (Fla.1974).

In a motion for a directed verdict the evidence must be evaluated in the light most favorable to the plaintiff, and any reasonable doubt must be resolved in the plaintiff’s favor. Professional Computer Management, Inc. v. Tampa Wholesale Liquor Co., 374 So.2d 626 (Fla. 2d DCA 1979). If any reasonable interpretation of the evidence supports the plaintiff’s claim, the court must deny the defendant’s motion. Charlotte Asphalt, Inc. v. Cape Cave Corp., 406 So.2d 1234 (Fla. 2d DCA 1981). We think this is particularly important in Florida where the doctrine of comparative negligence applies. Contrary to the trial court’s conclusion that appellant was relying only on prior accidents, there was additional sufficient evidence from which a jury could determine that the crossing was hazardous and that appellees were negligent. Thus, we hold the court erred in directing a verdict for the appellees.

DOT admits that it is responsible for maintenance and safety of the highway and has performed active maintenance operations, yet it urges that under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979) and Payne v. Palm Beach County, 395 So.2d 1267 (Fla. 4th DCA 1981), it is immune from liability for failure to warn of the dangerous condition of the crossing. It argues here, as it unsuccessfully did before the trial court on its motion for summary judgment, that its decision not to place extra warning signs at the crossing or to remedy the hazardous situation was “planning” and not “operational” decision making. We disagree with DOT’s position.

Decisions to build a road or a crossing with a particular alignment, as well as the failure to upgrade an existing road or intersection, are generally considered judgmental, planning-level functions, and absolute immunity attaches. However, once DOT became aware of the dangerous condition of the crossing, a duty at the operational level arose to warn the public of, or protect the public from, the known danger. Appellant’s complaint alleged a known dangerous condition for which there was no proper warning, and there was evidence from which a jury could have concluded that DOT was negligent in failing to erect warning signs. Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982); City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982). See also Department of Transportation v. Webb, 409 So.3d 1061 (Fla. 1st DCA 1981). Therefore, we reject DOT’s argument that it is immune from liability.

Finally, appellant contends the trial court erred in excluding evidence of remedial measures taken by appellees after the accident whereby a rubber filling was placed in the flangeway. We find no error in this ruling because in Florida repairs after an injury are not admissible in evidence. § 90.407, Fla.Stat. (1981); Department of Transportation v. Webb. Otherwise, in instances such as this, the parties charged with negligence would be deterred from correcting any defective conditions.

Accordingly, we reverse and remand for a new trial.

OTT, C.J., and SCHOONOVER, J., concur.


text:
    L & S FOOD SERVICES, INC., a Florida corporation, Peter W. Schoen and Ruth L. Dady, Appellants, v. ROBERTS CAFETERIA, INC., William Roberts and Virginia Roberts, Appellees.
    No. 82-206.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1982.
    Rehearing Denied Nov. 17, 1982.
    Walt Logan, P.A., St. Petersburg, for appellants.
    Gary R. Preston of Richards, Nodine, Gil-key, Fite, Meyer & Thompson, P.A., Clear-water, for appellees.
   RYDER, Judge.

We reverse the final order in favor of appellee Roberts Cafeteria, Inc. on its claim for default of a promissory note, noting that the trial judge weighed the evidence in granting summary judgment. We hold that there did exist issues of material fact for consideration by the factfinder, and thus summary judgment was improper. Davis v. Hathaway, 408 So.2d 688 (Fla. 2d DCA 1982). We note also that the issue of fraud, raised by appellants as a defense and counterclaim, is usually considered a jury question and is not ordinarily appropriate for summary judgment proceedings. Levey v. Getelman, 408 So.2d 663 (Fla. 3d DCA 1981).

REVERSED and REMANDED for further proceedings.

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


author: GLICKSTEIN, Judge.

text:
    STATE of Florida, Petitioner, v. Gere J. THENNES, Respondent.
    No. 81-2126.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 1982.
    Rehearing Denied Dec. 8, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for petitioner.
    William M. Winkel of Winkel, Sims, Ken-ney & Crosswell, Palm Beach, for respondent.
   GLICKSTEIN, Judge.

This is a petition for review by certiorari of an order compelling the State to disclose the identity of a confidential informant. We grant the writ and quash the order.

An agent of the Organized Crime Bureau within the Palm Beach County Sheriff’s Department received a telephone tip from a confidential informant that respondent and Brian Marrón owned marijuana cached in a motor home parked near Marron’s residence. The agent located Marron’s address and, in the early afternoon of June 29,1981, drove with another agent to the two or three-acre parcel of rural property.

The agent who received the informer’s tip testified in his deposition that he and the other agent searched the residence after Mrs. Marrón had consented and informed them that respondent was'staying in one of the rooms. Afterwards the agents proceeded to the motor home, which was parked on the premises. Therefrom emanated the odor of marijuana and, through a window screen, the deponent agent touched what felt “like a bale of marijuana.” They could not search the motor home at the time, however, because Mrs. Marrón told them respondent, not she, owned the vehicle; as the deponent agent surmised, she lacked authority to consent to its search.

By this time, the agents had become aware of a utility trailer adjacent to the motor home that exuded a strong odor of marijuana. Thus, it also was included in the warrant issued that afternoon, which resulted in the search of both vehicles. As anticipated, they yielded marijuana, prompting the agents’ decision to remove the vehicles from the premises. While the agents were attempting to do this, respondent arrived at the scene in a car. The deponent agent arrested and searched respondent and found the keys to the motor home in his possession.

Respondent was charged with trafficking in marijuana in excess of 2,000 pounds but less than 10,000 pounds. Simultaneously he filed (1) a notice of alibi, contending he had been in the Netherlands Antilles for a month and did not return to this country until June 25, 1981, four days before the search, and (2) a motion for disclosure of the confidential informant on the ground that the tipster had information tending to prove respondent’s innocence, i.e., that the marijuana was placed in the motor home while respondent was out of the country and that the informant “might know” who placed the marijuana inside the vehicle.

Subsequent to filing these motions, the deposition of the agent to defense counsel disclosed whatever information was made known to him by the confidential informant:

Q. What did he tell you when he talked to you?
A. He told me that he knew a motor home was parked in front of or on the property of Bryan [sic] Marron’s residence that was loaded with marijuana.
Q. Was this on the phone?
A. Yes, sir.
Q. Go ahead.
A. He also told me it was owned by Marrón and Thennes, the marijuana that is. He gave me an area for the house, but not a specific address.
Q. How many conversations did you have with him?
A. Probably it was two or three.
Q. Did he tell you when the marijuana was put there?
A. He told me it had been there for about a month and that Marrón and Then-nes were unable to move it, that the market was down, some reason — they couldn’t move it for some reason and they were just holding on to it.
Q. Okay. Did he say how long that he had known it had been there?
A. No. The only thing he told me was that he knew — as far as he knew it had been there at least a month.
Q. It could have been there longer?
A. Yes, sir.
Q. He didn’t relate to you?
A. No. He didn’t know for a fact how long it had been there.
Q. Did he say how he knew — did he say whether or not he knew the individuals that were at that address?
A. I think. Well, I don’t recall whether he said that or not. It’s my impression that he did know them. As I say, that is only an impression.

Nothing in the deposition indicates the confidential informant knew who put the marijuana in the motor home or if such a person was someone other than respondent. Nevertheless, the trial court expressed that if the confidential informant knew of such a person, respondent was entitled to establish that fact by calling the tipster as a witness. But, for the trial court to have ordered the State to disclose the identity of such an effective tipster so that respondent could investigate what he “might know,” we believe was unsupported.

Generally, the rule regarding confidential informants precludes disclosure of their identities:

The State is privileged to withhold, notwithstanding its relevance, the identity of persons who furnish information or otherwise aid officers in matters relating to violations of law, and such privilege is founded upon public policy and in furtherance of the public interest. State v. Hardy, Fla.App.1959, 114 So.2d 344; Garcia v. State, Fla.App.1959, 110 So.2d 709; Harrington v. State, Fla.App.1959, 110 So.2d 495; Ferrara v. State, Fla.1958, 101 So.2d 797.

Pearson v. State, 221 So.2d 760, 762 (Fla. 2d DCA 1969). We believe public policy and public interest, the justifications for this rule, should not be overlooked.

In South Florida a deadly game is being played: its aim is profit; its instruments are illegal drugs; and its players are bandits whose corpses fill canals, residences and automobile trunks. The public’s uniformed and non-uniformed officers are paid to try to stop this mayhem. Its other soldiers are tipsters like the confidential informant with a proven record who gave the agent in this case such an effective lead. The public— the raison d’etre for the rule — in this case is being asked to trade the identity of that soldier for allegedly assuring respondent due process. When applicable, this is a fair trade, a well-recognized exception to the rule.

In Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 627-628, 1 L.Ed.2d 639 (1957), the Supreme Court expounded upon the exception:

A further limitation on the applicability of the [Government’s] privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

(Footnotes omitted.) The burden of establishing ■ this exception, however, falls squarely on the respondent:

A motion for disclosure of the identity of a confidential informant, for the purpose of finding what he knows or what he can testify regarding the transaction, cannot prevail against the well founded policy for nondisclosure. If the defendant has, or proposes to present a defense for the establishment of which it can be shown or reasonably concluded that the informant’s testimony will be of essential relevancy and materiality, so as to justify or require disclosure in face of the policy against it, the burden is on the defendant to make that appear, by his motion for disclosure or otherwise in the evidence.

Doe v. State, 262 So.2d 11, 13 (Fla. 3d DCA 1972); State v. Matney, 236 So.2d 166 (Fla. 1st DCA 1970).

Placing the foregoing in perspective, the State had a right to object to the order of irrevocable disclosure for the sole purpose of determining whether the tipster could shed light on who placed the marijuana in the motor home. The public should not be required to disclose the identity of a needed, effective soldier when he may not have the desired information.

Nevertheless, it is just as much in the interest of the State as of respondent to know if the person who placed the marijuana in the motor home was someone other than respondent and not charged. If so, another bandit will have been ferreted out and the public will have benefitted. While neither this court nor the trial court can tell the State what it must investigate, it does seem logical and fair that if circumstances warrant, a trial court properly could impose conditions upon non-disclosure of an informant’s identity. Accordingly, while we grant the writ and vacate the order, we suggest the trial court explore on motion other alternatives. These may involve compelling the State to seek to make inquiry of the informant as to his knowledge of the specific question raised by respondent and to disclose to him the results thereof, bearing in mind the necessity for appropriate additional orders disclosure of the results or other considerations may require. We emphasize that if due process can be afforded respondent simultaneously with non-disclosure of an informant’s identity, reconciliation of both goals should be sought. Due process cannot be discarded, but neither should the identity of the public’s soldiers not in uniform. It should be borne in mind that justice can evolve only if fashioned with creativity and imagination for the common good.

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