author: McDonald, justice.

text:
    STATE of Florida, Petitioner, v. Heyward THOMPSON, Respondent.
    No. 58324.
    Supreme Court of Florida.
    Nov. 20, 1980.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for petitioner.
    Gerald R. Hart, Jacksonville, for respondent.
   McDonald, justice.

The First District Court of Appeal has certified its decision in Thompson v. State, 378 So.2d 859 (Fla. 1st DCA 1979), as passing on a question of great public interest because that decision will affect a Florida standard jury instruction in criminal cases. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972), and reverse the district court’s decision.

A jury convicted Thompson of possession of a short-barreled shotgun in violation of section 790.221, Florida Statutes (1977). The district court reversed his conviction, holding that the state needed to prove, as an element of the crime, that Thompson’s shotgun was not an antique weapon. To support its holding, the court quoted the following general rule, as stated in Baeumel v. State:

if there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause, or subsequent statute, that is a matter of defense, and is to be shown by the other party.

378 So.2d at 860.

Immediately preceding the above-quoted rule, however, the Baeumel court set out the other part of that rule:

“In a statutory offense, it depends very much, though not exclusively, on the words of the statute, whether a particular matter is one of defense, or whether the negative of the matter enters into the definition of the crime . .. . ”

26 Fla. at 75, 7 So. at 372 (quoting Bishop on criminal law). After citing the complete rule, the court held that whether Baeumel was a druggist was a matter of defense, not an element which the state had to disprove, notwithstanding the relative locations of the definition and the exception in the statute.

Looking at the words of the instant statute, we find the antique weapon proviso to be an exception just as much as the exception in 790.221(3). We cannot determine the reason for placing that exception in the statute’s first subsection, but we also cannot divine any legislative intent that lack of an exemption is an element of the offense. See State v. Buchman, 361 So.2d 692 (Fla.1978). We hold, therefore, that whether a proscribed weapon is an antique is a matter of defense; the state is not required to prove the negative as an element of the offense.

The decision of the First District Court of Appeal is quashed and this case is remanded with directions to affirm the judgment of the trial court.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON and ENGLAND, JJ., concur.

BOYD and ALDERMAN, JJ., dissent.

      . § 790.221 provides:
      (1) It is unlawful for any person to own or to have in his care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms.
      (2) Any person convicted of violating this section is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state penitentiary not to exceed 5 years.
      (3) Firearms in violation hereof which are lawfully owned and possessed under provisions of federal law are excepted.

      . 26 Fla. 71, 7 So. 371 (1890).

      . Unlike the 1st DCA, therefore, we find the antique weapon proviso to be “an exception in a subsequent clause.” A “clause” is defined as “a word group formed by subject and predicate elements but constituting a member of a complex or compound sentence instead of ranking as a completed sentence.” Webster’s New International Dictionary 497 (2d ed. 1947). We find that the exception contained in subsection 790.221(1) meets this definition.

      .§ 790.001(1), Fla.Stat. (1977), defines “antique firearm” as:
      [A]ny firearm manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1898; and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Danny W. ARTHUR, Respondent.
    No. 56019.
    Supreme Court of Florida.
    Nov. 20, 1980.
    Jim Smith, Atty. Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Stuart A. Young, West Palm Beach', for respondent.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review the decision of the district court of appeal, supported by that court’s certification that its decision passed upon questions of great public interest. Arthur v. Harper, 371 So.2d 96 (Fla. 4th DCA 1978). The court certified the following questions:

1. Does a trial court have discretion to grant bail to a defendant who is charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident and the presumption great?
2. Does the accused or the state, in a capital case or a case involving life imprisonment where the accused is seeking to be admitted to bail, have the burden of proof on the issue of whether the proof of guilt is evident and the presumption great?

Id. at 100.

We answer the questions by holding, (1) that when a person accused of a capital offense or an offense punishable by life imprisonment seeks release on bail, it is within the discretion of the court to grant or deny bail when the proof of guilt is evident or the presumption great; and, (2) that before the court can deny bail the state must have carried the burden of establishing that the proof of guilt is evident or the presumption great.

The case was before the district court on petition for habeas corpus to review a pretrial order denying release on bail. The district court held that when a person accused of a capital offense or an offense punishable by life imprisonment seeks release on bail, and the proof of guilt is evident or the presumption great, the court still has the discretion to grant or deny bail. The court held further that the burden of showing that the proof of guilt is not evident,# along with other matters relevant to the court’s decision, rests on the accused.

Article I, section 14, of the Florida Constitution provides:

Until adjudged guilty, every person charged with a crime or violation of municipal or county ordinance shall be entitled to release on reasonable bail with sufficient surety unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.

Under this provision, if the proof is evident or the presumption great that a person accused of a capital offense or an offense punishable by life imprisonment is guilty of the offense charged, then the accused is not entitled to release on reasonable bail as a matter of right. All other classes of accused persons are entitled to release on reasonable bail until adjudged guilty. The constitutional provision does not require that bail release be denied to all persons charged with capital offenses or offenses punishable by life imprisonment where the proof of guilt is evident or the presumption great. The plain language of the constitution would seem to be a sufficient basis for answering the first question in the affirmative. This Court has never provided such a construction of the language, however, and the question is one of first impression here. The state argues that the constitutional guaranty should be interpreted to disallow release in the excepted situations.

A guaranteed right to release on bail with certain exceptions is typical of American state constitutions. A number of jurisdictions have construed their constitutional provisions on this matter to mandate the denial of bail in situations excepted from the guaranty.

A larger number of jurisdictions have interpreted their constitutions to allow courts the discretion to grant release on bail even to those accused of capital crimes or crimes punishable by life imprisonment where the proof of guilt is evident or the presumption great.

The district court held that the matter of bail in the situations excepted from the guaranteed right to reasonable bail is discretionary with the trial court. It supported this conclusion with an historical analysis of these guaranteed bail release provisions against the background of the common law. At common law the court had discretion to grant bail in all cases, but no accused person had a right to release on bail. In capital cases, “bail was usually denied, on the theory that a defendant faced with the death penalty would flee, no matter what promises or security were offered to secure his presence at trial.” Arthur v. Harper, 371 So.2d at 98. The court could grant bail in such cases, however, if satisfied by the defendant’s assurances. When the states began to put the right to release on bail in their constitutions, they typically included an exception for capital cases where the proof of guilt is evident or the presumption great. The district court concluded that since the constitutional provision was intended to grant additional personal rights not previously recognized, it should not be interpreted as limiting or taking away the capitally accused person’s opportunity to obtain release on reasonable bail.

We find this analysis of the intent of the adopters to be persuasive. The state, however, urges us to hold that the denial of bail is mandatory because of the high risk that one accused of an offense punishable by death or life imprisonment will flee the court’s jurisdiction. What the state presents us with are arguments on the wisdom of a construction which we find the plain language of section 14 simply will not support.

In any event, we do not find the state’s arguments very compelling. The state’s interest in securing the defendant’s presence at trial is extremely important. But it does not so outweigh the defendant’s interest in retaining his liberty as to justify denying completely the opportunity to convince the court that release on bail is appropriate. When the proof is evident or the presumption great that the accused committed a capital or life imprisonment offense, the accused may still come forward with a showing addressed to the court’s discretion to grant or deny bail. We answer the first question in the affirmative.

The second question is upon whom to place the burden of establishing, in a capital or life imprisonment case, the facts which take away the defendant’s entitlement to reasonable bail release, and give rise to the court’s discretionary authority to grant or deny bail. Since the exception in the constitutional provision requires both that the accused be charged with a crime punishable by death or life imprisonment and that the proof of guilt be evident or the presumption great, clearly the indictment or information cannot serve as proof or presumption of guilt. The indictment is not conclusive. There must be something more than simply the charging document. There is a question, however, as to whether the indictment or information should be deemed to raise a prima facie showing, shifting to the defendant the burden of proving that the proof of guilt is not evident and the presumption not great. The district court followed precedent and held that the indictment shifts the burden to the defendant.

There is a long line of cases which support the state’s argument that the accused has the burden of establishing that the proof is not evident and the presumption not great before being entitled to release on bail. This rule originated in Rigdon v. State, 41 Fla. 308, 26 So. 711 (1899), where this Court stated that “[a]t common law . . . after an indictment for a capital offense the accused was presumed guilty for all purposes, except that of a trial before a petit jury, and this presumption was so strong as to preclude the party from bail, unless in very exceptional cases.” Id. at 312, 26 So. at 712. Based on this reasoning the Court held that the indictment was a strong prima facie showing that the defendant was not entitled to release on bail. To overcome this showing it was the defendant’s burden to present the evidence on which the state intended to rely and rebut it.

We can no longer ascribe to this procedure. Section 14 of our Declaration of Rights embodies the principle that the presumption of innocence abides in the accused for all purposes while awaiting trial. It should be the state’s burden to prove facts which take away the entitlement to bail provided for by article 1, section 14.

Furthermore, as a matter of convenience, fairness, and practicality, it is preferable that the state have the burden of coming forward when the accused seeks release on bail. Presumably the state is in better position to present to the court the evidence upon which it intends to rely.

We hold, therefore, that before release on bail pending trial can ever be denied, the state must come forward with a showing that the proof of guilt is evident or the presumption is great.

Simply to present the indictment or information is not sufficient. The state’s burden, in order to foreclose bail as a matter of right, is to present some further evidence which, viewed in the light most favorable to the state, would be legally sufficient to sustain a jury verdict of guilty. This is the predominant view among jurisdictions with similar constitutional provisions. Fountaine v. Mullen, 117 R.I. 262, 366 A.2d 1138 (1976). The state can probably carry this burden by presenting the evidence relied upon by the grand jury or the state attorney in charging the crime. This evidence may be presented in the form of transcripts or affidavits. If, after considering the defendant’s responsive showing, the court finds that the proof is evident or the presumption great, the court then has the discretion to grant or deny bail. On this issue, the burden is on the accused to demonstrate that release on bail is appropriate. It is with regard to this question that consideration of the likelihood that the accused will flee, regardless of the sureties required, becomes appropriate.

The decision of the district court is approved in part and quashed in part. The case is remanded with directions to reverse the order denying bail and to remand for further proceedings consistent with this opinion.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND and ALDERMAN, JJ., concur.

      . This provision is derived from article I, section 9 of the Constitution of 1885, which provided: “All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great.” This provision guaranteed all accused persons not covered by the exception an entitlement to bail. E. g., State ex rel. Freeman v. Kelly, 86 So.2d 166 (Fla.1956); Ex parte Hatcher, 86 Fla. 330, 98 So. 72 (1923).

      . State v. Garrett, 16 Ariz.App. 427, 493 P.2d 1232 (1972); People v. District Court, 187 Colo. 164, 529 P.2d 1335 (1974).

      . State v. Hartzell, 13 N.D. 356, 100 N.W. 745 (1904); Ex parte Howell, 34 Okl.Cr.App. 126, 245 P. 66 (1926); Fountaine v. Mullen, 117 R.I. 262, 366 A.2d 1138 (1976); State v. Toomey, 126 Vt. 123, 223 A.2d 473 (1966).

      . See generally, Commonwealth v. Baker, 343 Mass. 162, 177 N.E.2d 783 (1961); State v. Konigsberg, 33 N.J. 367, 164 A.2d 740 (1960); Fountaine v. Mullen, 117 R.I. 262, 366 A.2d 1138 (1976).

      . E. g., Russell v. State, 71 Fla. 236, 71 So. 27 (1916); Rigdon v. State, 41 Fla. 308, 26 So. 711 (1899); Benjamin v. State, 25 Fla. 675, 6 So. 433 (1889).

      . See, State v. Konigsberg, 33 N.J. 367, 164 A.2d 740 (1960); Annot., 89 A.L.R.2d 355 (1963).

      . E. g., Allen v. State, 174 So.2d 538 (Fla. 1965), cert. denied, 384 U.S. 1014, 86 S.Ct. 1950, 16 L.Ed.2d 1036 (1966); Larkin v. State, 51 So.2d 185 (Fla. 1951); Russell v. State, 71 Fla. 236, 71 So. 27 (1916); Ex parte Nathan, 50 So. 38 (Fla.1908); State ex rel. Loper v. Stack, 291 So.2d 207 (Fla. 4th DCA), cert. denied, 303 So.2d 25 (Fla.1974); State ex rel. Ball v. Buchanan, 185 So.2d 510 (Fla. 3d DCA), cert. denied, 188 So.2d 823 (Fla.1966).

        .See Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951); Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978).

      . Accord, Orona v. District Court, 184 Colo. 55, 518 P.2d 839 (1974); State v. Menillo, 159 Conn. 264, 268 A.2d 667 (1970); In re Steigler, 250 A.2d 379 (Del.1969); Bates v. Hawkins, 52 Haw. 463, 478 P.2d 840 (1970); Young v. Russell, 332 S.W.2d 629 (Ky.1960); Application of Wheeler, 81 Nev. 495, 406 P.2d 713 (1965); State v. Konigsberg, 33 N.J. 367, 164 A.2d 740 (1960); State ex rel. Connall v. Roth, 258 Or. 428, 482 P.2d 740 (1971); Fountaine v. Mullen, 117 R.I. 262, 366 A.2d 1138 (1976).


author: DAUKSCH, JAMES C„ Jr., Associate Judge. MOORE, Judge,

text:
    Bonita KUHN, as natural guardian of Keith Anderson, Appellant, v. Grover E. HARLESS and Travelers Insurance Company, Appellee.
    No. 77-1995.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Joel Miller of Miller & Squire Chartered, Fort Lauderdale, for appellant.
    Joseph S. Kashi of Grimmett, Scherer & James, Fort Lauderdale, for appellee.
   DAUKSCH, JAMES C„ Jr., Associate Judge.

This is an appeal from a judgment in a negligence case and is a case of first impression in Florida. The trial court allowed a defaulted defendant to raise the issue of comparative negligence at trial in addition to defending against the amount and propriety of damages. We reverse.

The question on appeal is whether a defendant who has properly suffered a default is permitted to introduce evidence at trial in regard to the comparative negligence of the plaintiff and thereby reduce the damage recovery of the plaintiff. The appellee, defendant, argues comparative negligence issues should be treated just like damages questions thus allowing any defendant to present evidence even though he had a proper default entered against him. It has long been the law in Florida that even though a defendant suffered a default he can still contest the amount of damages. Russ v. Gilbert, 19 Fla. 54 (1882). The appellant, plaintiff, argues comparative negligence is an issue of liability for the alleged tort rather than an element of damages.

The procedural matters, while interesting in this case, do not determine the result of our decision but, as will be noted, may have affected the outcome as to appellee Travelers Insurance Company. The complaint was against Harless as tortfeasor and Travelers as his carrier. The answer of Harless denied liability and set out an affirmative defense of comparative negligence. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). The answer of Travelers denied coverage, denied Harless’ negligence and set out the comparative negligence affirmative defense.

Harless refused to submit to discovery and after failure or refusal to comply with the court order to submit to discovery a default was entered against him.

The plaintiff then filed a motion under Fla.R.Civ.P. 1.250(b) dropping Travelers as a party and the court ordered Travelers dismissed as a party defendant. Although the attorneys for Travelers earlier had withdrawn as attorneys for Harless because of a potential conflict of interests in the coverage question, on the day of trial they asked to be permitted to represent Harless at trial because they admitted coverage and therefore the conflict was resolved. The court allowed their appearance for Harless who was not present in person. The court said the trial was to be on damages only. The dropping of Travelers as a party left Travelers’ attorneys with no position in the case except their representation of Harless individually under the insurance policy. See Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978); Chrysler Corporation v. Hames, 345 So.2d 813 (Fla. 4th DCA 1977).

Before Hoffman v. Jones, supra, negligence lawsuits were governed by the law of contributory negligence where, if the defendant could show the plaintiff contributed to the cause of the accident, the plaintiff was barred from any recovery. Under the contributory negligence law a defaulted defendant was allowed to contest damages but was not permitted to contest liability. Russ v. Gilbert, supra. We have been unable to find a case which directly says the same rule applies under comparative negligence except Adkisson v. Huffman, 225 Tenn. 362, 469 S.W.2d 368 (1971).

Apparently Tennessee uses the term contributory negligence as we use comparative negligence in apportionment of liability. We agree with the reasoning and holding of that case.

Comparative negligence is a defense to an allegation of liability which, if established, would reduce the amount of recovery the plaintiff receives but would not reduce the amount of damages the plaintiff suffers. When a plaintiff is injured and he alone is at fault he can recover nothing but if another is at fault the plaintiff recovers according to the degree of fault of the defendant. Hoffman v. Jones, supra. When a defendant fails to contest an allegation of fault he admits total fault and recovery for the plaintiff matches his damages suffered. Here the defendant essentially failed to contest his alleged fault and must suffer the judgment.

The judgment which awards partial damages to the plaintiff is reversed and this cause is remanded for entry of a judgment for the plaintiff for the entire damages.

REVERSED and REMANDED.

MOORE, J., concurs specially with opinion.

ANSTEAD, J., concurs in conclusion only.

MOORE, Judge,

concurring specially.

I concur with Judge Dauksch. The issue in this case is whether a defendant, against whom a default has been entered, may nevertheless contest the percentage of his liability by proving the plaintiff guilty of comparative negligence. I do not feel that he can.

It is clear that the trial court intended to impose sanctions against Harless and, if we were to accept appellee’s contention, quite the reverse would result. In such event, Harless would be free to do exactly what he could have done had the sanctions not been imposed. He would be able to contest liability, the percentages thereof, and damages exactly as he could have done in the absence of any sanctions. Thus, he has suffered nothing and the plaintiff is placed in a position of going to trial on all of the original issues without having had the benefit of the discovery which is provided under our rules of procedure.

During the pretrial conference, the trial judge took the position that, because Travelers Insurance Company was a named defendant, and had not suffered a default against it, it could contest liability and damages, notwithstanding that its insured could not. He then suggested to the plaintiff that Travelers be dropped and the case would proceed against Harless on damages only.

THE COURT: The alternative, of course, is you could dismiss Travelers as a party defendant because there’s nothing that says you have to sue them and then just proceed against Harless.
We have a default and then (sic) would just proceed to present the issue of damages to the jury and, if Travelers is out, then there is nobody there but you and the jury and then, once you get your judgment, then proceed against Travelers.

At the commencement of trial on damages, with Travelers dismissed as a party although representing Harless, further discussion ensued with the court stating:

We are in a terrible situation here because it used to be that if you were defaulted, that was it, and you couldn’t assert affirmative defenses. You couldn’t assert any defenses. But I am absolutely positive that the Supreme Court of this State would hold that even though you are defaulted, you can still come in and argue comparative negligence, because it goes to the issue of minimizing, mitigating damages. So, that raises the problem that Mr. Miller now suggests. Liability is established. (emphasis added).

Thus, by imposing the sanction, it is readily apparent the trial court intended to establish liability. The error was holding that comparative negligence acts to mitigate or minimize damages as opposed to merely being an apportionment of liability. Although a trial court has broad discretion to determine the extent of sanctions to be imposed, I believe that the trial court in this case imposed the ultimate sanction of a default against the individual defendant and, with manifest clarity, intended that his default operate to settle the issue of liability. The defendant, appellee, should not have been allowed to contest the liability issue or the percentages of liability.

      . We are quick to commend counsel for the appellee who brought to our attention this case which is against his position.


author: MOORE, Judge.

text:
    Bonita KUHN, as natural guardian of Keith Anderson, Appellant, v. Grover E. HARLESS and Travelers Insurance Company, Appellees.
    No. 77-1995.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Joel Miller of Miller & Squire, Chartered, Fort Lauderdale, for appellant.
    Joseph S. Kashi of Crimmett, Conrad, Scherer & James, Fort Lauderdale, for ap-pellee.
   MOORE, Judge.

Upon consideration of the appellees’ petition for rehearing and appellant’s response, we find the question presented by this appeal one of great public importance. Accordingly, we adhere to our original opinion, 390 So.2d 721, and certify the following question to the Supreme Court as one of great public importance:

DOES THE ENTRY OF A DEFAULT AGAINST A DEFENDANT FOR VIOLATION OF DISCOVERY ORDERS IN A NEGLIGENCE ACTION PRECLUDE THAT DEFENDANT FROM REDUCING THE AMOUNT OF HIS LIABILITY BY PROOF OF THE PLAINTIFF’S COMPARATIVE NEGLIGENCE?

ANSTEAD, J., and JAMES C. DAUKSCH, Jr., Associate Judge, concur.


author: ORFINGER, Judge.

text:
    COTTON STATES MUTUAL INSURANCE COMPANY, Appellant, v. Jeanne H. TREVETHAN, Appellee.
    No. NN-364/T1-83.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.
    Rehearing Denied Aug. 28, 1980.
    Monroe E. McDonald of Sanders, McE-wan, Mims & McDonald, Orlando, for appellant.
    Anthony I. Provitola, DeLand, for appel-lee.
   ORFINGER, Judge.

We review an “excess judgment” entered against appellant following a jury trial.

Jeanne Trevethan was seriously injured when a motorcycle she was driving collided with an automobile driven by Diane Fowler and owned by her husband, Philip Fowler. She brought suit against the Fowlers and joined appellant as their insurer. A trial of that action resulted in a verdict for Tre-vethan for $525,000. Judgment was entered thereon against appellant for its policy limits of $100,000, and against the Fowl-ers for the remaining $425,000. That judgment was appealed and was affirmed, 358 So.2d 121 (Fla. 1st DCA), cert. den. 364 So.2d 883 (1978), prior to the creation of this court.

Appellee then commenced these proceedings against appellant insurer, contending that the insurer had acted in bad faith in refusing to settle the original claim for the policy limits despite appellee’s frequent offers to settle her claim for such limits. A jury trial resulted in a verdict against the insurer for $425,000, and the insurer appeals the judgment entered on such verdict. Ap-pellee cross appeals the refusal of the trial court to submit to the jury appellee’s claim for punitive damages.

Appellant first contends that there was no evidence of bad faith on its part to sustain the jury verdict and that it was entitled to a directed verdict. The evidence reveals that the collision occurred on a curve, and that Trevethan and Fowler each contended that the other was on the wrong side of the road. Investigation disclosed two eye witnesses who placed the collision on Trevethan’s side of the road. The insurance company soon became aware of the extensive and serious injury to the 21 year old claimant: the loss of her left leg above the knee, infection of the wound site by chronic osteomyelitis which might necessitate additional surgery, the need to fit a prosthetic device and the attendant rehabilitation that accompanies an artificial limb, the assertion by claimant that her marriage had terminated because her husband couldn’t cope with the loss of her leg, her need for psychiatric assistance to help her cope with the emotional trauma, and the attendant medical expenses.

The home office advised the branch claims office that “. . this looks like a bad one . . .” and wondered how they would get around the testimony of the two eye witnesses. At that time the memorandum also suggested that the reserve be raised to at least $25,000. After suit was filed, appellant’s branch claims manager wrote to the Fowlers acknowledging receipt of the suit papers and advised them that the company had retained attorneys to defend the action at the company’s expense (not the attorneys appearing in this case for appellant). He also advised them that because the damage request was drawn in such language as would make it possible for a verdict to be rendered in excess of their policy limits, they might wish to confer with their . . own personal attorney . . .’’at their own expense, to advise them in this matter. The letter concluded with this statement: “At the present time, we believe that the claim against you does' not exceed the limits of protection afforded by your policy.”

More than a year following the accident and after extensive discovery, claimant’s attorney wrote to the insurer’s trial counsel and outlined his evaluation of the case, taking the position that the Fowlers’ liability was clear and that the extensive injuries would produce a verdict for Trevethan in excess of $300,000. Nevertheless, because the policy limits had now been disclosed, he offered to settle the claim for the policy limits of $100,000. The reply was a sarcastic denunciation of the claim and of the claimant’s attorney, flatly rejecting any settlement, indicating that liability was clearly 100% on the claimant and refusing to even give the claim nuisance value consideration. Copies of both letters were transmitted to and received by the insurer. Although the settlement offer had a time limit, it was renewed again, and the day following the commencement of the trial in the personal injury case the appellant’s trial counsel advised appellant of claimant’s continuing demand to settle for the policy limits.

Appellant’s branch claims manager testified that he never corresponded with the insureds about the settlement demand, that he did not know if anyone had ever advised the Fowlers of the claimant’s evaluation of the claim but that he did not, that he never authorized his trial counsel to attempt to negotiate a settlement of the claim nor did he attempt to negotiate such settlement, that the reserve of $25,000 was set on the consideration of the injuries, the damages and the liability. He stated that he never instructed his trial counsel to advise the insureds of the “. . . likelihood that an award could be made against them that was in an amount greater than $100,000,” nor did he instruct anyone else to do so. The insurance policy introduced in evidence includes the provision that the company will defend a suit arising under the policy and may make such settlement of any claim or suit as it deems expedient.

This is a summary of the evidence at the close of plaintiff’s case, and it was sufficient to withstand the motion for directed verdict. Many cases discuss the liability of an insurer for a verdict in excess of policy limits, and a good summary of those cases is found in Boston Old Colony Insurance Company v. Gutierrez, 386 So.2d 783 (Fla. 1980), where the Supreme Court thus reviewed the existing case law:

. An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured. Liberty Mutual Ins. Co. v. Davis, 412 F.2d 475 (5th Cir. 1969). This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same. Ging v. American Liberty Ins. Co., 423 F.2d 115 (5th Cir. 1970). The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Government Employees Ins. Co. v. Grounds, 311 So.2d 164 (Fla. 1st DCA 1975), cert. discharged, 332 So.2d 13 (Fla.1976); Government Employees Ins. Co. v. Campbell, 288 So.2d 513 (Fla. 1st DCA 1973), quashed, 306 So.2d 525 (Fla.1974); Baxter v. Royal Indemnity Co., 285 So.2d 652 (Fla. 1st DCA 1973), cert. discharged, 317 So.2d 725 (Fla.1975). Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith. American Fidelity and Casualty Co. v. Greyhound Corp., 258 F.2d 709 (5th Cir. 1958); DeLaune v. Liberty Mutual Ins. Co., 314 So.2d 601 (Fla. 4th DCA 1975). The question of failure to act in good faith with due regard for the interests of the insured is for the jury. Campbell v. Government Employees Ins. Co., 306 So.2d 525 (Fla.1974).

Appellant produced evidence to show that its trial counsel repeatedly urged the appellant that there was no liability on the part of the insureds. This was asserted on the basis of testimony and statements of persons other than eye witnesses, including a reputable accident reconstruction expert retained by appellant’s trial counsel, and physical evidence at the scene. He strongly urged that the eye witnesses who favored claimant’s version of the accident were not credible. He asserted that the “sheer weight of the defense evidence will overwhelm any sympathy” for claimant and that the case had at most only nuisance value which he knew claimant’s attorney would not recognize. As a result, no settlement offer was ever made to the claimant, nor was there any attempt to negotiate her earlier demand.

The Fowlers both testified that they were made aware of the settlement demand of $100,000 before the original trial. Both thought Mrs. Fowler was not at fault. Mr. Fowler recalled no conversation about his wanting to either settle or try the case, but he did testify that with the knowledge he had, he felt that claimant should not get anything.

Trial counsel for the insurer in the original proceeding testified that he evaluated the claim at between $200,000 and $225,000 assuming the insured to be 100% at fault, but at no time did he ever advise the Fowl-ers of this evaluation because he thought it inconceivable that the jury would find Diane Fowler negligent to the degree that would consume all her insurance coverage. From this testimony, coupled with the original letter to Fowler advising that the claim would not exceed their policy limits, the jury could have concluded that when the Fowlers indicated a willingness to proceed to trial they had not been advised of the possibility of an excess verdict or the potential outcome of the litigation and that they had not been given complete, good faith information as to their own potential exposure. Traveler’s Indemnity Company v. Butchikas, 313 So.2d 101 (Fla. 1st DCA 1975), aff’d. 343 So.2d 816 (Fla.1976). The jury could conclude from this evidence that the insurance company which had complete control of negotiations and settlement, acted upon its own interests rather than the interests of its insured, particularly when their own attorney evaluated the potential value of the case at the amount which could expose the insureds to greater loss than the insurer, and that it did not act in good faith or deal fairly with its insureds when it refused to negotiate at all. Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938); Liberty Mutual Insurance Company v. Davis, 412 F.2d 475 (5th Cir. 1969). If the circumstances are such that a reasonably prudent insurer with the obligation to pay all the recoverable expenses would settle for an amount within the policy limits, then the insurer has the obligation to do so, Baxter v. Royal Indemnity Company, 285 So.2d 652 (Fla. 1st DCA 1973), cert. discharged, 317 So.2d 725 (Fla.1975). In determining what is good or bad faith in particular circumstances, the issue is ordinarily left to a jury to decide, Campbell v. Government Employees Ins. Co., 306 So.2d 525 (Fla.1974).

The facts in Boston Old Colony are materially different from the facts now before us. Unlike Boston Old Colony, where the insurer was ready to settle, expressed its willingness to settle and offered to settle for its policy limits prior to trial, the insurer here never offered to settle, refused to even talk or negotiate a settlement and never disclosed to its insureds their own potential exposure if the case went to trial. The insured here was not prosecuting a counterclaim and did not stand in the way of a settlement. From the totality of the evidence, the jury could have concluded that the insurer was acting upon what it considered to be its interest alone. The trial court did not err in denying appellant’s motion for directed verdict at the close of all of the evidence.

Appellant’s next point challenges the trial court’s refusal to instruct the jury that trial counsel retained by the insurer to defend it and the Fowlers were independent contractors and on the law pertaining to liability for acts of an independent contractor. The trial court did not err in refusing to give such instruction.

The claim here is based on the alleged bad faith of the insurer, in its refusal to settle or even negotiate a settlement prior to the first trial, when it had an opportunity to settle within the policy limits. There is no dispute that the insurer retained complete control of the defense of the action and of settlement negotiations, and if it relied on the advice of its attorneys to determine its ultimate exposure, this is but one of the factors for the jury to consider in determining the issue of bad faith. Appellant relies on the California case of Merritt v. Reserve Insurance Company, 34 Cal.App.3d 858, 110 Cal.Rptr. 511 (1973) as authority for the proposition that in defending the company and the insured the trial attorney acts as an independent contractor and the insurer is therefore not liable for negligent defense of the action. Whatever may be the merits of that position (a point we need not decide) suffice it to say that the case sub judice does not involve a claim of negligent defense, so the California case is completely distinguishable. It has been held that the failure to follow counsel’s advice is evidence of bad faith, Thompson v. Commercial Union Insurance Co. of New York, supra, and we now hold that reliance on the advice of counsel is similarly evidence to be considered on the issue of bad faith, and it does not insulate the insurer from a bad faith excess judgment. Cf. State Farm Fire and Casualty Company v. Maza, 328 So.2d 547 (Fla. 3d DCA 1976). See also, Anno: 63 A.L.R.3d 725.

The last point for consideration is appellee’s contention that the court should have submitted the issue of punitive damages to the jury. The evidence submitted was insufficient to support a punitive damage award, and the trial judge was correct in so ruling. Butchikas v. Travelers Indemnity Co., 343 So.2d 816 (Fla.1976).

Appellant’s other points have been considered and are without merit. Finding no error, the judgment below is

AFFIRMED.

FRANK D. UPCHURCH, and SHARP, JJ., concur.

      . The Florida Supreme Court has ruled that a judgment creditor may file a direct action against the tort-feasor’s liability insurer tb recover a judgment in excess of policy limits based upon alleged fraud or the bad faith of the insurer in the conduct or the handling of the suit. Thompson v. Commercial Union Insurance Co. of New York, 250 So.2d 259 (Fla.1971).


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

text:
    James Elbert FAISON, Appellant, v. STATE of Florida, Appellee.
    No.00-175/T1-108.
    District Court of Appeal of Florida, Fifth District.
    July 2, 1980.
    On Rehearing Nov. 19, 1980.

      Michael J. Minerva, Public Defender, and Harold W. Long, Jr., Asst. Public Defender, Tallahassee, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Judge.

Appellant, James Elbert Faison, was found guilty of two counts of grand theft under section 812.014, Florida Statutes (1977). We find no error as to Count I which charged the commission of criminal acts occurring on or about November 16, 1977 and affirm.

Count II provided:

SPECIFICATIONS OF CHARGE: In that, JAMES ELBERT FAISON, did, on or about the 19th day of August, 1977, at or near Ormond Beach within Volusia County, Florida, obtain or use or did endeavor to obtain or use the property of another, to-wit, U.S. Currency of the value of over One Hundred ($100.00) dollars or more, but less than $20,000.00, with the intent to deprive Susan Wendland, of her right to the property or benefit therefrom or with the intent to appropriate the property to his own use or to the use of a person not entitled thereto.

The record reflects that appellant had promised to purchase an automobile for a Susan Wendland, the daughter of a woman he had befriended. He had obtained $1,350.00 from her but had failed to deliver the car or return the money. Both the promise and other transactions occurred in August and September of 1977, but the theft statute (section 812.014) did not become effective until October 1, 1977. The record reflects that, as to Count II, the state failed to allege or prove any act constituting a theft after the effective date of the statute, October 1, 1977.

Unless the conviction can be sustained under section 812.021, Florida Statutes (1977), the larceny statute in effect prior to October 1, 1977, it must be reversed for insufficiency of the evidence. Pinder v. State, 53 So.2d 639 (Fla.1951).

An essential element of larceny under section 812.021 was the intent to permanently deprive the owner of his property. Wethington v. State, 159 Fla. 670, 32 So.2d 458 (1947); Kemp v. State, 146 Fla. 101, 200 So. 368 (1941); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). Appellant requested the court to instruct the jury that the requisite intent is the intent to permanently deprive the owner of his property. This request was refused and instead a jury instruction which tracked the language of the new theft statute was given. That instruction required only a finding by the jury of an “unlawful” intent.

In several instances, the recitation of an incorrect statute in the information has been viewed as a mere technical defect waived by a failure to timely object. See, e. g., Sinclair v. State, 46 So.2d 453 (Fla.1950); Smith v. State, 72 Fla. 449, 73 So. 354 (1916); King v. State, 336 So.2d 1200 (Fla. 2d DCA 1976), cert. dismissed, 434 U.S. 802, 98 S.Ct. 30,54 L.Ed.2d 60 (1977). However, in the case sub judice, the error was fundamental because the state failed to allege and prove a larceny under the former statute and the court failed to properly instruct on the essential elements of a larceny. Walsingham v. State, 250 So.2d 857 (Fla.1971); Koltay v. State, 360 So.2d 802 (Fla. 2d DCA 1978). Therefore we must reverse as to Count II.

AFFIRMED in part and REVERSED in part.

DAUKSCH, C. J., concurs.

CROSS, J., concurs only in conclusion.

ON REHEARING

FRANK UPCHURCH, Jr., Judge.

Appellant James Elbert Faison has persuasively urged that we reconsider our opinion in this cause rendered July 2, 1980. We therefore grant rehearing and reexamine our opinion. Count I charged appellant with grand theft committed on or about November 16, 1977. Count II charged grand theft occurring on or about August 19, 1977. The question raised by appellant was whether the trial court erred, over appellant’s objection, in omitting from instructions the element of intent to permanently deprive the owner of his property in grand theft.

The instruction which was given by the court was:

For the purposes of this case, the person is guilty of grand theft if he obtains or uses or endeavors to use the property of another with the intent: A, to unlawfully deprive the owner or person entitled to custody of their property of their right to the property or the benefit therefrom, or; B, to unlawfully appropriate the property to his own use or to the use of a person not entitled thereto. (Emphasis added.)

In our first opinion, appellant’s conviction on Count II was reversed because the statute under which he was charged did not become effective until October 1, 1977 and the evidence was not sufficient to convict appellant under the former statute. We did not address the reasoning for our affirmation of Count I. The change in the language of the October 1, 1977 statute led us to conclude that the intent required in the prior statute had been changed and that it was now sufficient to charge an “unlawful” intent. That conclusion was incorrect.

In State v. Allen, 362 So.2d 10, 11 (Fla.1978), the court stated:

We find no evidence to support the notion that the 1977 legislature intended by its omission of the word “unlawful” to eliminate specific criminal intent as an element of this offense. At best, the deletion of that term signifies a return to the state of the law existing before 1975, when the immediate predecessor to Section 812.014(1) took effect. For 24 years prior to that time, the jurisprudence of this state recognized the element of specific criminal intent as a necessary requisite to a larceny conviction, notwithstanding that the larceny statute during that period, as now, lacked an express directive that the intent be ‘unlawful.’

During that prior period, an essential element of larceny was the intent to permanently deprive the owner. American Fire & Cas. Co. v. Sunny South Aircraft Serv., 151 So.2d 276 (Fla. 1963); Wethington v. State, 159 Fla. 670, 32 So.2d 458 (Fla. 1947). Appellant contends that as the new theft statute incorporates conduct formerly known as larceny, the intent under the theft statute must be the same as was required for a larceny. We agree.

Bell v. State, No. 53,440 (Fla. March 6, 1980), involved a conviction for two counts of robbery. On appeal, the district court held there was no error in failing to instruct on specific intent as an element of the crime of robbery. The district court concluded that the legislature, by omitting the word “felonious” from the definition of robbery, had expanded the definition and had eliminated the requirement of specific intent. The question, “whether specific intent (i.e., the intent to permanently deprive the owner of property) is still a requisite element of the crime of robbery” was certified to the supreme court. The supreme court stated that it reached the same conclusion as it had in State v. Allen and held that specific intent is still a requisite element of the crime of robbery. The reasoning of that case is equally applicable to theft.

Therefore, the judgment of conviction as to Count I of the information is also reversed and remanded for new trial as to Count I.

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

      . A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent:
      (a) To deprive the other person of a right to the property or a benefit therefrom.
      (b) To appropriate the property to his own use or to the use of any person not entitled thereto.
      § 812.014, Fla.Stat. (1979).
      “Obtains or uses” means any manner of:
      (a) Taking or exercising control over property.
      (b) Making any unauthorized use, disposition, or transfer of property.
      (c) Obtaining property by fraud.
      (d) 1. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception; or
      2. Other conduct similar in nature.
      § 812.012, Fla.Stat. (1979).


author: McCORD, Judge. McCORD, Judge.

text:
    Vernie M. SMITH, Appellant, v. SCHOOL BOARD OF LEON COUNTY, Florida, Appellee.
    No. UU-369.
    District Court of Appeal of Florida, First District.
    July 15, 1980.
    Order On Motion For Clarification Oct. 10, 1980.

      Larry Levy of Dickinson, Levy & Taylor, Tallahassee, for appellant.
    Charles A. Johnson, Tallahassee, for ap-pellee.
   ON MOTION TO COMPEL

McCORD, Judge.

It appears that this appeal has reached a stalemate because of a controversy between appellant and appellee as to whether or not appellee is entitled to include in its charges for preparing the transcript of record the amount appellee paid the court reporter who reported the proceedings for the original and one copy of the transcript of the proceedings. In Mick v. Florida Board of Dentistry, 338 So.2d 1297 (Fla. 1 DCA 1977), this Court held that the charges of an administrative agency for preparing the record could not exceed the cost which a clerk of a circuit court may charge for preparation of a record on appeal in accordance with the Florida Appellate Rules. The charges allowed to circuit court clerks are set forth in § 28.24, Florida Statutes. Subsection (5) of that statute authorizes the clerk to charge $1 per page for making transcripts of record in appellate or other proceedings. Thus, if an agency, such as appellee here, employs and pays a court reporter to transcribe its proceedings, the agency is authorized to charge appellant the sum of $1 per page for the original transcript of the proceedings which is included in the record. The agency is not authorized to charge the appellant the amount it paid the court reporter, but if appellant wishes the agency to furnish it a copy of the original transcript, the agency is authorized to charge appellant an additional $1 per page for a copy thereof. It is, therefore

ORDERED that the Clerk of the School Board and the School Board of Leon County prepare the record on this appeal in accordance with Fla.R.App.P. 9.110 at a cost no greater than the cost required to be paid to the clerk of a circuit court for preparation of a record as set forth in § 28.24, Florida Statutes, as construed by this opinion.

BOOTH and SHAW, JJ., concur.

ORDER ON MOTION FOR CLARIFICATION

McCORD, Judge.

On July 15, 1980, we filed our opinion in this cause on appellant’s motion to compel. Thereafter, motion for clarification was filed by appellant to which appel-lee replied. It appears that clarification of our opinion is advisable. The statements therein as to the authorization of the agency to charge $1 per page relates only to the court-reporter-prepared transcript of the proceedings before the agency or the hearing officer for which the agency has paid or obligated itself to pay. We do not authorize a charge of $1 per page for preparing, numbering, and indexing an original record of appellate proceedings. Section 28.24(4), Florida Statutes, only authorizes $1 per instrument for such service. We do not consider that the transcript of a hearing which has been reported and transcribed by a court reporter at the agency’s expense is a single instrument for which a charge of only $1 can be made. If, however, the appealing litigant, rather than the agency, has paid for the original transcript which has been filed with the agency, it then becomes an instrument which the agency merely incorporates in the original record of the appellate proceedings.

In our determination of this matter, we have considered Florida Appellate Rule 9.200. That rule contemplates only a record which is prepared by a court reporter at the expense of the designating party. Rule 9.200(b) provides:

... Cost of transcription shall be borne initially by the designating party, subject to appropriate taxation of costs as prescribed by rule 9.400.

Such a transcription as has been prepared at the expense of the designating party is then incorporated into the record pursuant to Rule 9.200(d) which provides in part:

The clerk of the lower tribunal shall not be required to verify and shall not charge for the incorporation of the transcript of proceedings into the record.

This rule does not fit the situation where an agency employs a court reporter to report and transcribe the proceedings before it or a hearing officer and a party appeals the ruling of the agency. In such instance, the cost of the court reporter’s transcription has not been borne initially by the designating party but has been borne initially by the agency. In such circumstance, the agency should be allowed $1 per page for making (through its employment of the court reporter) the transcription of the proceedings pursuant to § 28.24(5), Florida Statutes.

BOOTH and SHAW, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida ex rel. Tyrone Lee EVANS, Appellants, v. William T. ROBERTS, Sheriff of Pinellas County, Florida, Appellee.
    No. 80-79.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.
    Rehearing Denied Dec. 3, 1980.
    Jack O. Johnson, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith,. Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Fauls v. Sheriff of Leon County, Florida, 384 So.2d 238 (Fla. 1st DCA 1980).

HOBSON, Acting C. J„ and GRIMES and OTT, JJ., concur.


author: DOWNEY, Judge. PER CURIAM.

text:
    BANKERS & SHIPPERS INSURANCE COMPANY OF NEW YORK, Appellant, v. AIA INSULATION INDUSTRIES, INC., Inland Construction Co. of Fla., Inc., Hamilton Electric, Inc., Family Finance Realty Corp., S. I. Goldman Mechanical Contractor, Inc., Grinnell Fire Protection Systems Co., Inc., Meekins-Bamman Prestress, Inc., Aristar Realty, Inc., etc., et al., Appellees. ARISTAR REALTY, INC., Appellant, v. AIA INSULATION INDUSTRIES, INC., Inland Construction Co. of Fla., Inc., Hamilton Electric, Inc., Family Finance Realty Corp., S. I. Goldman Mechanical Contractor, Inc., Grinnell Fire Protection Systems Co., Inc., and Meekins-Bamman Prestress, Inc., a Florida Corporation, Appellees. SAFECO INSURANCE COMPANY OF AMERICA, Appellant, v. AIA INSULATION INDUSTRIES, INC., Inland Construction Co. of Fla., Inc., Hamilton Electric, Inc., Family Finance Realty Corp., S. I. Goldman Mechanical Contractor, Inc., Grinnell Fire Protection Systems Co., Inc., Meekins-Bamman Prestress, Inc., and Aristar Realty, Inc., Appellees.
    Nos. 78-841, 78-1024 and 78-1025.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.
    Rehearing Denied; Opinion Modified and Clarified Dec. 17, 1980.

      Dan B. Guernsey of Welbaum, Zook, Jones & Williams, Miami, for appellant-Bankers & Shippers.
    Don R. Livingstone, South Miami, for appellants-Aristar Realty and Safeco Insurance Co.
    Jonathan D. Commander, Palm Beach, and Michael J. Fingar, North Miami Beach, for appellee-AIA Insulation Industries, Inc.
    James Nemec, West Palm Beach, for ap-pellee-Hamilton Electric.
    Ralph R. Quillian, Hollywood, for appel-lee-Meekins-Bamman Prestress, Inc.
   DOWNEY, Judge.

These consolidated cases involve plenary appeals from a final judgment dated March 15, 1978, determining the main issues between the parties and a supplemental final judgment dated May 8, 1978, determining ancillary issues involving interest, costs and attorneys’ fees.

For purposes of this opinion the pertinent facts are that Aristar Realty Inc. (hereafter referred to as Aristar), as owner, entered into a contract with Inland Construction Company of Florida, Inc. (hereafter referred to as Inland), as general contractor, for the construction of a warehouse in Riviera Beach, Florida, for $803,442.00. Inland entered into subcontracts with AIA Insulation Industries, Inc., (hereafter referred to as AIA), Hamilton Electric, Inc., (hereafter referred to as Hamilton), Meekins-Bamman Prestress, Inc., (hereafter referred to as Meekins), Grinnell Fire Protection Systems Company (hereafter referred to as Grin-nell), and S. I. Goldman Mechanical Contractor, Inc. (hereafter referred to as Goldman). Pursuant to the prime contract Inland furnished a Payment Bond provided for in Section 713.23, Florida Statutes (1971), with Bankers & Shippers’ Insurance Company of New York (hereafter referred to as Bankers) as surety. During the course of the construction problems developed concerning the roof. When the construction was ostensibly concluded Aristar refused to pay Inland the balance of $130,-776.20 due on the contract, contending that Inland had breached the prime contract in certain particulars, the principal one being the roof.

In due course appellees, AIA, Hamilton, Meekins, Goldman, and Grinnell filed suit to foreclose liens and/or for breach of contract. Aristar had the mechanics liens transferred to a Section 713.24 bond with Safeco Insurance Company of America (hereafter referred to as Safeco) as surety. Aristar also claimed substantial damages against Bankers' for Inland’s various breaches of the prime contract.

The five suits filed by the subcontractors were consolidated for trial and resulted in an extensive final judgment, dated March 15, 1978, wherein the court found in pertinent part:

1. That Aristar and Inland had entered into the prime contract; Inland had contracted with the five subcontractors; Inland had furnished a payment bond written by Bankers;
2. Grinnell had obtained a judgment against Inland which had previously been paid by Bankers;
3. AIA, Hamilton, Meekins and Goldman were each entitled to a judgment for specific amounts payable out of the $130,-776.20 retainage held by Aristar.
4. Aristar, to the extent possible, should also pay to AIA, Hamilton, Meekins and Goldman from the retainage all of their “allowed” interest, costs and attorneys’ fees.
5. In the event the fund held by Aristar was consumed prior to paying the aforesaid interest, costs and attorneys’ fees, any balance due should be paid by Bankers.
6. The balance of the sum of $130,776.20 held by Aristar after paying the aforesaid sums therefrom was to be retained by Aristar on account of the damages Aris-tar sustained as a result of Inland’s breaches of the contract.
7. Aristar was entitled to recover the sum of $96,534.90 against Inland and Bankers, together with interest, costs and attorneys’ fees, less any balance of the retainage held by Aristar.

Three separate appeals have been filed from the final judgments entered below and they have been consolidated in this court. The appellants in said cases are Bankers, Aristar and Safeco.

BANKERS’ APPEAL-Case No. 78-841

Bankers’ first point suggests that the trial court erred in granting Goldman a judgment against Bankers because 1) there was no evidence adduced at trial to prove Goldman’s claim and 2) Goldman’s suit against Bankers was untimely in view of the one year limitation contained in Section 713.23, Florida Statutes (1973).

Bankers contends that Goldman did not participate in the trial and thus its claim was not proven. Aristar attempts to rebut this contention by pointing to the record where Goldman sued Inland and Aristar and obtained summary final judgment against both these defendants for $2,270.60. In view of Goldman’s claim, Aristar filed a third party complaint against Bankers, alleging Bankers was liable on its bond to pay all subcontractors including Goldman. Bankers’ answer admitted the demands made against it for payment. Thus, it appears to us that Bankers was liable for the amount of the Goldman judgment which was contained in this record.

The other aspect of this point raised by Bankers is that Goldman’s first complaint against Bankers was filed in October 1977, although Goldman last furnished materials in August 1973. Section 713.23, Florida Statutes (1973), requires that suit on a payment bond be instituted or prosecuted within one year after the last delivery of materials. Bankers claims that, although Goldman sued Aristar and Inland in 1974, Goldman did not name Bankers as a party until 1977, long after the one year limitation period had expired. However, as Aristar correctly points out, the statutory language specifically provides that a suit must be instituted within one year “against the contractor or surety”. Goldman’s suit against Inland was commenced well within one year from the last delivery of materials and thus the action against Bankers was timely, within the meaning of Section 713.23, supra. Therefore, we find no merit in Bankers’ first point.

In the second point, Bankers contends the judgment in favor of Aristar and against Inland and Bankers for damages for “contractor’s overcharge on Sprinkler System” was erroneous. This phase of the problem arose out of a contract provision relating to sprinkler system installation. The contract provided a maximum allowance of $90,000 for the sprinkler system; however, if the system was installed for less, the owner was to be credited with the difference. The final judgment allows Aristar a credit of $12,890.60. This figure ostensibly represents the approximate difference between the contract allowance and the cost of installation. Grinnell furnished the sprinkler system and, when payment was not forthcoming, it filed a claim of lien for $77,209.80. It is suggested that the trial court arrived at the $12,890.60 by deducting the sum of $77,209.40, shown in Grinnell’s claim of lien, from the contract allowance of $90,000. Bankers contends that there is no competent evidence in the record to prove the amount of any credit due Aristar. The record is clear the claims of lien were admitted into evidence for the limited purpose of showing that the claim had been recorded, not to prove the truth of the matters contained therein. Aristar refers in its brief to various other exhibits which prove the item in question. After laboriously combing the twenty-four volume record we are unable to find adequate eviden-tiary support for the trial court’s award of this item of damages.

Bankers’ third point is that it was error to award Aristar a judgment against Inland and Bankers for the amount of $49,-500 as liquidated damages. The contract provided the contractor would pay $500 per day as liquidated damages for each day the work remained uncompleted after the stipulated time for completion. The proof showed the contract completion date was March 15, 1973, but the date of beneficial occupancy was September 4,1973. Bankers contends that Aristar waived that claim because throughout the negotiations and the litigation Aristar never asserted any claim for liquidated damages. In response, Aristar argues that it cannot be charged with waiver simply because it tried to get the matter amicably concluded. We agree. The contract clearly provided for liquidated damages and the evidence shows Aristar is entitled to damages therefor. Thus we find no error in the judgment allowing this item of damages.

The final point in Bankers’ appeal is that the amount of attorneys’ fees award to AIA, Hamilton and Meekins is erroneous because Section 627.756(2), Florida Statutes (1977), limits attorneys’ fees in a suit on a payment bond to a maximum of 12V2%. Said section provides:

(2) Section 627.428 (attorney fee) shall also apply as to suits brought by owners, subcontractors, laborers and material men against a surety insurer under payment or performance bonds written by the insurer under the Laws of Florida to indemnify such owners, subcontractors, laborers and material men against pecuniary loss by breach of a building or construction contract; except, that the amount to be so recovered for fees or compensation of such a plaintiff’s attorney shall not be more than 12.5 percent of the amount which the judgment or decree awards such plaintiff under the bond (exclusive of the costs of suit and attorney fees or compensation), nor shall it be less than $100 where the judgment or decree is for more than $500 nor less than $50 where the judgment or decree is $500 or less. Such owners, subcontractors, laborers and material men shall be deemed to be “insureds” or “beneficiaries” for the purposes of this section.

The appellees, on the other hand, contend the allowance of attorneys’ fees is controlled by Section 713.29, Florida Statutes (1977), which provides:

Attorney’s fees.-In any action brought to enforce a lien under part I of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as part of his costs.

It would seem that, if the awards to the subcontractors resulted from the perfection and enforcement of mechanics liens, Section 713.29 should apply gnd the award of attorneys’ fees was proper. On the other hand, if the awards to the subcontractors arise out of a claim against the payment bond, the attorneys’ fee would be controlled by Section 627.756(2), Florida Statutes (1977). As we will demonstrate later in this opinion, the subcontractors’ claims were properly against the bond rather than the foreclosure of liens against the owner and the property. Resnick Developers South, Inc. v. Clerici, Inc., 340 So.2d 1194 (Fla. 4th DCA 1976). Section 713.29 provides for a reasonable attorney’s fee “in any action brought to enforce a lien under Part I” of Chapter 713. Resnick, supra, held that the legal effect of furnishing a payment bond pursuant to 713.23 is to exempt the owner and the property from the provisions of Part I. The lien claimants cause of action is upon the bond rather than to enforce a lien under Part I. Thus, Section 627.756(2) should control the attorney’s fees. Therefore, we find it is error to award attorneys’ fees under Section 713.29, Florida Statutes (1977).

Several cases which have treated the dichotomy between Sections 713.29 and 627.-756(2) have held that in a case like the one at bar Section 713.29 applies and reasonable attorneys’ fees are allowable with no statutory maximum. Midway Shopping Mall, Inc. v. Corky Corp., 257 So.2d 905 (Fla. 3d DCA 1972) and Travelers Indemnity Com pany v. Howell & King Inc., 336 So.2d 1 (Fla. 4th DCA 1976), cert. denied 341 So.2d 1036 (Fla.1976). In Snead Construction Corp. v. Langerman, 369 So.2d 591 (Fla. 1st DCA 1978), the First District Court of Appeal held Section 627.756(2) applied to the recovery of attorney fees on a payment bond. On the record in this case it seems to us that Section 627.756(2) should control the allowance of attorneys’ fees because we have expressly held that the claims here are on the payment bond as opposed to a straight foreclosure of a mechanics lien. To the extent this holding conflicts with Howell & King Inc., supra, we recede from the decision which is contrary to our holding herein.

ARISTAR APPEAL-Case No. 78-1024

Aristar suggests that the final judgment is erroneous in two respects:

a) In impressing lien rights in favor of the subcontractors on the unpaid balance of the contract price (in Aristar’s hands) when there was in full force and effect a Section 713.23 payment bond, the subcontractors’ mechanics liens were unperfected and owners’ cost of completion exceeded the amount due on the contract.
b) In refusing to award Aristar the full amount of its damages against Bankers, the payment bond surety.

In order to determine whether there is any validity to Aristar’s first contention it is necessary to focus on the purpose and effect of a payment bond authorized by Section 713.23, Florida Statutes (1971). The statute authorizes an owner to require a contractor to furnish a payment bond conditioned that the contractor shall promptly pay all lienors under the contractor’s direct contract. The legal effect of this bond is to exempt the owner from Part I and Part II of Chapter 713 and Chapter 85 of the Florida Statutes. Upon the furnishing of a proper payment bond under the section in question no subcontractors, mechanics or materialmen (except the prime contractor) have any further claim against the owner or his property. As this court said in Resnick Developers South, Inc., supra :

The owner in this case required and obtained from its general contractor a proper payment bond as provided in § 713.23. The legal effect of this action was to exempt the owner from Part I and II of Chapter 713 and Chapter 85. The only exception to this exemption is the lien of the contractor who furnished the bond. Therefore appellant-owner was exempt from any direct liability to appel-lee-subcontractor. The claim of lien filed by appellee was improper because, in this case, there was no way that appel-lee could perfect a valid claim of lien under Chapter 85 or Part I or II of Chapter 713 against the owner’s property. The statute sets out the procedure that must be followed by the subcontractor in order to perfect its claim against the § 713.23 payment bond. The subcontractor did not have the option of filing a claim of lien against the owner’s property. 340 So.2d at 1196.

see also: Goldberger v. United Plumbing & Heating Inc., 358 So.2d 860 (Fla. 4th DCA 1978); Alpha Electric Supply, Inc. v. F. Feaster, Inc., 358 So.2d 892 (Fla. 2d DCA 1978).

Since the prime contractor, Inland, had furnished a proper payment and performance bond at the commencement of this job, subcontractors were not entitled to enforce mechanics liens against Aristar or the real property involved. If they were not paid by Inland, their remedy was a direct action against Bankers on ■ the payment bond. § 713.23, Fla.Stat. (1971). A suit by anyone (other than Inland as prime contractor) to foreclose a lien was subject to being defeated by an affirmative defense asserting the existence of a proper payment bond. Accordingly, the trial court should have made the awards to the subcontractors Hamilton, Meekins, and AIA a judgment against Bankers rather than against Aris-tar. This, of course, is not to say that the contract retainage of $130,776.20 held by Aristar becomes a windfall for Aristar. On the contrary, the entitlement to that fund is one of the issues which must be decided between Aristar and Bankers. If Aristar had no claim against Bankers for Inland’s alleged default under the prime contract, then the money would all be due to either Inland or Bankers. However, Aristar does have substantial claims against Bankers which will resolve the question of who gets credit for said fund. This brings us to Aristar’s second point.

The damages which Aristar alleges it suffered due to Inland’s breach of the prime contract are:

The cost to complete the contract per plans and specifications
Liquidated damages
Test lab reports
Punch list items
Roof
Architectural services
Furniture damage
Contractor’s overcharge on sprinkler system
Transfer bond premium
Loss of rent

■ The trial court allowed damages for all of those items except the transfer bond premium and the loss of rent. The amount allowed for the cost of completion of the roof was only $25,000, whereas Aristar claimed the reasonable cost of completion was $101,-031.

It appears to us that at the time the liens were transferred to bond Aristar had a right to make the transfer, Resnick, supra, and thus the bond premium was recoverable against Inland and Bankers. However, today if a Section 713.23 bond is in existence the transfer is made to the payment bond by simply recording a notice of bond as provided in Section 713.23(2), Florida Statutes (1979). It would be unnecessary to obtain a new bond provided for in Section 713.24.

It is argued that the loss of rent which Aristar claimed it sustained by virtue of the unsatisfactory roof is covered by the indemnification provision of the prime contract. We disagree and hold that the loss of use referred to in Section 4.181 of the prime contract does not include the item of damage claimed here. The contractual language providing for indemnification where a “loss of use” occurs (for purposes of this case) is restricted to those instances where the damage is attributable to loss of use of tangible property (other than the work itself) due to injury or destruction caused by the contractor, subcontractor or an employee of either of them.

Aristar’s cost of completion claim is more difficult. As owner, Aristar was obligated to pay the contract price to the prime contractor, Inland. The “contract price” is defined in Section 713.01(3), Florida Statutes (1971). Paraphrased, it is the amount agreed upon in the prime contract, plus or minus extras or change orders or defects in the workmanship or materials or any other breaches of the contract. In this case the plans and specifications called for a particular kind of roof. The roof as built did not conform to the plans and specifications, it had substantial defects. After a long period of negotiating the architect approved a replacement roof to conform to the plans and specifications and the roof was replaced. The reasonable cost of replacing the roof was $101,031. As we read the record, that is the proper allowance for bringing the roof into compliance with the plans and specifications rather than the $25,000 allowed by the trial court. Bryan v. Owsley Lumber Co., 201 So.2d 246 (Fla.1967).

SAFECO’S APPEAL-Case No. 78-1025

The final judgment makes no award against Safeco, but neither does it expressly exonerate Safeco. However, the law appears to be quite settled that the principal and surety on a Section 713.24 transfer bond are not liable thereon where there is a proper Section 713.23 payment bond in existence. Edward L. Nezelek, Inc. v. Concreform Co., 351 So.2d 1046 (Fla. 4th DCA 1977). Resnick Developers South, Inc., supra ; Alpha Electric Supply Inc., supra. Thus, it would appear appropriate upon remand to provide that the parties take nothing from Safeco as a result of the 713.24 transfer bond.

In view of the foregoing the judgments appealed from are reversed and the cause is remanded with directions to the trial court to:

a) Vacate the award in favor of Aristar for $12,890 representing the difference between Grinnell’s cost of installation and the contract allowance for the sprinkler system.
b) Vacate the award of attorneys’ fees to AIA, Hamilton, Meekins and Goldman and reconsider the allowance of attorneys’ fees to said subcontractors applying Section 627.756(2), Florida Statutes (1977).
c) Vacate the provisions of the two judgments appealed from wherein they provide for a lien on the $130,776.20 fund held by Aristar.
d) Enter judgment for AIA, Hamilton, Meekins and Goldman against Bankers for the principal sums found due in the judgment of March 15, 1978, together with attorneys’ fees, interest and costs.
e) Award Aristar damages against Bankers in the sum of $36,670.70, which represents the damages awarded Aris-tar in ¶ 11 of the judgment of March 15, 1978, plus the sum of $76,031.00 additional allowance for the roof, plus $7,771 for transfer bond premium, less $12,890 improperly allowed for the sprinkler system and less the sum of $130,776.20 contract retainage held by Aristar.
f) Enter judgment in favor of Safeco on its 713.24 bond.

REVERSED AND REMANDED with directions.

ANSTEAD and HERSEY, JJ., concur.

ON PETITION FOR REHEARING AND MOTION FOR CLARIFICATION

PER CURIAM.

Petitioner/appellant Bankers & Shippers Insurance Company of New York has filed a petition for rehearing, in which, among other things, it is alleged that the opinion of this court upholding judgment in favor of S. I. Goldman Mechanical Contractor Inc. is erroneous because we misinterpreted the statutory language relating to the statute of limitations contained in Section 713.23, Florida Statutes (1973).

Upon further consideration of Section 713.23, we concede the petitioner’s contention and hold that the institution of suit by Goldman against Inland and Aristar in 1974 was not a suit against the contractor or surety on the bond and thus did not toll the running of the one year statute of limitations. The section in question deals exclusively with payment bonds. Thus, it is implicit in the statute that a suit against the contractor or surety within the statutory one year period must be a suit on the payment bond. Our review of the record demonstrates that S. I. Goldman’s complaint, filed February 4, 1974, was in two counts, 1) to foreclose a mechanics lien and 2) for quantum meruit. The third party complaint, filed May 19,1975, against Bankers & Shippers (more than one year from the date Goldman last furnished labor and materials) for the first time made a claim on the payment bond. Thus, the claim was untimely under the statute of limitations contained in Section 713.23, Florida Statutes (1973). Bankers & Shippers’ answer to the amended Third Party Complaint raised the statute of limitations as an affirmative defense. Accordingly, we find merit in Bankers’ first point on appeal and modify our previous opinion by reversing that part of the final judgment awarding judgment to S. I. Goldman Contractor Inc. against Bankers.

In all other respects the Bankers & Shippers’ petition for rehearing is denied.

With regard to the motion for clarification,

(a) Aristar’s right to recover attorney’s fees and costs in the trial court was determined in the final judgment and not appealed. Thus, that part of the judgment became final and is not disturbed on this appeal.

(b) The net amount awarded to Aristar by our opinions in this case is the sum to be used by the trial court in fixing the amount of attorney’s fees due Aristar for the trial court proceedings.

(c) We previously awarded Aristar attorney’s fees for the appellate proceedings by order of September 24, 1980. The amount of those fees likewise should be determined based upon the net award to Aristar as found in our opinions in this case.

We adhere to our opinion of September 24, 1980, as so modified and clarified.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.

      . Section 713.23, Florida Statutes (1973), provides in pertinent part: “No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after one year from the performance of the labor or completion of delivery of the materials and supplies.”

      . The time frame involved in Resnick, supra, and this case predates the 1977 amendment to 713.23 allowing transfer of liens to a payment bond.


text:
    John Richard NEERING, Appellant, v. Leonard A. JOHNSON et al., Appellees.
    No. 78-2781.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Rehearing Denied Dec. 23, 1980.
    Paxton, Crow, Taplin & Bragg, and Edna L. Caruso, West Palm Beach, for appellant.
    Robert E. Gordon of Farish, Farish & Romani, West Palm Beach, for appellees.
   PER CURIAM.

This is an appeal from a final judgment entered against appellant in favor of appel-lee, Leonard A. Johnson, for $20,000 and in favor of appellee, Roberta Johnson, for $55,000. We reverse.

The present action arose out of an automobile accident on April 21, 1977 in which appellees’ vehicle was struck by appellant’s vehicle on Federal Highway in Boca Raton. Both appellees were injured in the accident. Prior to trial the parties entered into a written stipulation by which appellant admitted liability and the parties agreed that the sole issue for trial was the damages incurred by appellees.

At trial appellant called the investigating officer as a witness and inquired as to what physical evidence he had observed at the scene of the accident. On cross examination outside the presence of the jury appel-lees proffered the testimony of the officer that he spent 85 per cent of the time involved in his investigation with appellant, that he felt appellant was under the influence of alcohol, that he performed a roadside sobriety test on appellant, that appellant was unsteady on his feet, and that he arrested appellant. At the end of the proffer appellant’s counsel made the following objection:

Your Honor, I don’t think it’s relevant at all; it’s obviously calculated to prejudice the jury or whatever on an issue that is irrelevant. Certainly he can perhaps testify as to the amount of time he spent in investigating the accident, but he certainly can’t talk about Mr. Neering, according to what he said. It’s also privileged. He made his decision on what he said. I think we’ve admitted liability, there’s no claim for punitive damages here; Mr. Neering’s incarceration is irrelevant and immaterial to any issues in this lawsuit and any testimony on that point is irrelevant and immaterial and obviously prejudicial.

Appellees’ counsel and the trial court made these remarks:

MR. SLINKMAN: He opened the door, physical evidence, and what he did at the scene, and I want to show he spent more time with Mr. Neering than he did investigating around the Johnson’s car, and it goes to his ability just to recollect and observe.
THE COURT: I think he did open the door, I think we can put in every evidence — He can’t testify, though, as to what his opinion was as to his conclusion about Mr. Neering’s state, or the results of the test, but I think it’s certainly relevant. He can testify he didn’t see any evidence and so forth, and it’s certainly relevant he may have been pre-occupied with Mr. Neering and the reason he was. But, whether he arrested him or charged him with that, or reached an opinion that he was under the influence, that I don’t think is admissible.
MR. SLINKMAN: Judge, I think it goes to how he left the scene.
Q (BY MR. SLINKMAN) Did you leave the scene with Mr. Neering?
A No, sir, I did not.
Q You didn’t put the handcuffs on him and place him under arrest yourself?
A I placed the handcuffs on him and placed him under arrest, and another officer transported him.
MR. SLINKMAN: I think it’s relevant insofar as he had to put him in a vehicle.
THE COURT: I think he can do all that without saying that he arrested him. Whatever he could do, whatever he could say, something as he doesn’t that he arrested him or convey that impression.

After the jury returned, the following took place:

Q (BY MR. SLINKMAN) Officer Sims, would it be fair to say that the time spent by you at the scene, you were pre-occupied with Mr. Neering and his condition?
A Yes, sir.
Q And would it be fair to say that probably 85 percent of your time at the scene was spent, not hear [sic] the Johnson’s vehicle, but over near Mr. Neering?
A Yes, sir.
Q And would you tell the jury what took up your time with Mr. Neering?
A In interviewing Mr. Neering-
MR. BRAGG: Excuse me, I would object. It talks about conversations he had with Mr. Neering?
Q (BY MR. SLINKMAN) Don’t tell us what anybody said, but did you interview Mr. Neering?
MR. BRAGG: I object, Your Honor.
THE COURT: You can’t say what he said. I don’t know whether you were beginning to, I don’t know whether you really were, but you can’t.
THE WITNESS: Okay, yes, sir.
THE COURT: Just what you observed.
THE WITNESS: Okay. In conducting the interview, and also in conducting a roadside sobriety test.
Q (BY MR. SLINKMAN) All right, sir. And did you have to observe Mr. Neer-ing?
A Yes, sir.
Q Was it dark that night?
A Yes, sir.
Q Was it well lit there, or did you have to use your flashlight and look in his eyes and that kind of thing?
A I had to look in his eyes, sir.
MR. BRAGG: Excuse me, for the record I would object to this entire line of questioning as being immaterial and irrelevant.
THE COURT: Overruled.
Q (BY MR. SLINKMAN) And how long did it take you to administer the sobriety test to Mr. Neering?
A An approximately, between five and ten minutes.
Q And did you observe his ability to stand on his feet?
A Yes, sir.
Q And what was that?
A Unsteady.
MR. BRAGG: Same objection, and move to strike the answer as being irrelevant and immaterial.
THE COURT: I’ll sustain the objection.
MR. BRAGG: I’d like the jury instructed.
THE COURT: Please disregard the answer to the last question.
Q (BY MR. SLINKMAN) Did you have to call another police officer for assistance?
MR. BRAGG: Object, I think it-
MR. SLINKMAN: This goes to how he spent his time.
THE COURT: Let him finish his objection.
MR. BRAGG: It’s irrelevant and immaterial to any issues involved in this lawsuit, and it’s beyond the scope of direct examination and beyond the guidelines set by the court in the proffer.
THE COURT: Overruled.
THE WITNESS: No, sir, I did not. The cars had been dispatched with myself.
Q (BY MR. SLINKMAN) I see. And did you have to then conduct Mr. Neer-ing to another officer?
A Yes, sir.

Because the parties had stipulated that the sole issue to be tried was appellees’ damages, we fail to see how the giving of a sobriety test to appellant, or the officer’s having to look in appellant’s eyes was relevant. Further, although the trial court instructed the jury to disregard the answer that appellant was unsteady on his feet, it was improbable that the prejudicial impression resulting therefrom could have been eliminated.

In summary, the testimony as to appellant’s sobriety should not have been admitted and the high awards to appellees suggest that the jury may well have been influenced by the testimony as to appellant’s condition at the scene. Accordingly the cause is reversed and remanded for new trial.

REVERSED AND REMANDED.

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


author: SHARP, Judge.

text:
    Carl Karol SANDERSON, etc., Appellant, v. STATE of Florida, Appellee.
    No. 78-2216/T4-248.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.
    Rehearing Denied Dec. 4, 1980.

      Richard L. Jorandby, Public Defender, Jorge Labarga, Legal Intern, and Tatjana Ostapoff, Chief, Asst. Public Defender, Appellate Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Sanderson appeals from a judgment convicting him of kidnapping and three counts of sexual battery. He was sentenced to four concurrent life sentences. We affirm the convictions.

Sanderson was indicted for three counts of sexual battery committed upon [name deleted] a person (11) years or younger. Sanderson sought to prove insanity as a defense. He admitted taking the child to an orange grove, hitting him, and forcing him to undress, but claimed he could not recall anything thereafter. The child testified Sanderson forced him into his car, drove him to the orange grove, beat him up and repeatedly sexually assaulted him. The child testified that he was eleven years and eight months old at the time of the offense. At the close of the state’s case, the defense moved for a judgment of acquittal on the ground that the child’s age was not corroborated by any testimony other than his own. Defense counsel did not renew the motion at the close of all the evidence, or after the jury returned its guilty verdict.

The appellant argues that the conviction should be reversed because the victim’s age exceeded eleven years when the offense occurred, and he relies upon State v. Carroll, 378 So.2d 4 (Fla. 4th DCA 1979). Carroll is distinguishable because in this case the issue of sufficiency of the evidence was not preserved for appeal. The appellant’s motion for judgment of acquittal at the close of the state’s case did not specify the ground relied upon in this appeal, contrary to Florida Rules of Criminal Procedure 3.380(b), nor was it ever renewed. Carter v. State, 380 So.2d 541 (Fla. 5th DCA 1980); G. W. B. v. State, 340 So.2d 969 (Fla. 1st DCA 1977), cert. denied, 348 So.2d 948 (Fla.1977); Castor v. State, 365 So.2d 701 (Fla.1978); Magueira v. State, 352 So.2d 587 (Fla. 3d DCA 1977).

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., and JA-MIESON, FRANCES ANN, Associate Judge, concur.

      . Section 794.011(2), Florida Statutes (1977), provides that a person 18 years or older who commits a sexual battery upon a person 11 years of age or younger commits a capital felony.

      . Appellant could also have preserved his point for appeal by a motion for new trial, but failed to do so. Mancini v. State, 273 So.2d 371 (Fla.1973).


text:
    Beverly FEATHER, Appellant, v. In re ESTATE of Harry D. SANKO, Deceased, Appellee.
    No. 79-1597/T4-674.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.
    Rehearing Denied Dec. 4, 1980.
    Frank M. Townsend and Mary Smith Townsend, of Townsend & Townsend, Kis-simmee, for appellant.
    Devo A. Heller of Brinson, Smith & Heller, P. A., Kissimmee, for appellee.
   SHARP, Judge.

Beverly Feather appeals from a judgment of the probate court admitting Harry D. Sanko’s (her father’s) will to probate and barring her right to contest the validity of the will because she failed to file an “answer” within twenty days after receiving service of Mildred Thompson’s petition to probate the will pursuant to section 731.-301(l)(a), Florida Statutes (1977). Under the facts and circumstances of this case, the trial court erred in not requiring the petitioner or proponent of the will to give reasonable notice to Feather of the hearing which admitted the will to probate, and in not allowing Feather a reasonable extension of time in which to file her pleadings in opposition to the will.

Thompson is the named executrix in San-ko’s will, in which he disinherited his only child, Feather, and named as his sole beneficiaries Thompson and another woman to whom he was not related. Sanko had been ill with terminal cancer and heart disease. He executed the will in a hospital one day before he died.

Upon receiving a copy of Thompson’s petition to probate the will at her home in Pennsylvania, Feather consulted a local attorney, who contacted Florida counsel. Within the required 20 day period, on April 11, 1979, her attorney filed a pleading entitled “Notice of Appearance.” It stated:

Now comes the undersigned, Frank M. Townsend, as attorney for the daughter of the deceased; namely Beverly Hinkle-man Feather, who believes, she has an interest in the estate as the daughter of the deceased.
Frank M. Townsend as attorney for Beverly Hinkleman Feather, further requests an additional thirty days to file pleadings.

Townsend also telephoned Devo A. Heller, the attorney for Thompson, and told him about his representation of Feather, and his need for more time to file pleadings. Heller responded that he would not be able to represent Thompson in a will contest because he prepared the will, and would be a necessary witness.

Thereafter on April 24, 1979, Heller scheduled an ex parte hearing before the probate court, at which the court admitted the will to probate. No notice of the hearing was given to Feather or Townsend. Heller argues that the Notice of Appearance was insufficient to challenge the will, and that the trial court lacked power to grant Townsend’s motion for an extension of time. We disagree.

Section 731.301(l)(b), Florida Statutes (1977), provides:

If there is no answer served on the petitioner within 20 days from the service of the petition, the petition shall be considered ex parte. If an answer is served, a hearing shall be set and reasonable notice given.

Florida Rules of Probate and Guardianship Procedure 5.040(a)(1) and (2) requires an opponent of a will who has received a copy of the petition to file a “written defense” or “defenses” within the 20 day period.

The pleading filed by Feather in this case is more than a mere “notice of appearance.” It asserts that Feather claimed an interest in the estate. Since Feather was disinherited by the will sought to be probated, it is clear she opposed its admission to probate. Although Feather’s pleading might not have been sufficient to withstand a motion to strike, she should have been given a reasonable chance to amend or file further pleadings, rather than suffer what amounts to a default judgment against her claim. The thrust of the court should be to afford a fair hearing to all rather than insistance on strict compliance with technical rules.

Further, the pleading expressly requested additional time for Feather to file pleadings in opposition to the will. The twenty day period established by the statute and rule, is an extremely short period of time in which to require an out-of-state party to fully respond. It is certainly not analogous to a statute of limitations period of time or a period of “non-claim”, like sections 731.111, 733.709, or 733.710 Florida Statutes (1977). The trial court could have granted Feather’s motion for an extension of time to file pleadings, and should have done so under the circumstances.

In any event, the pleading was sufficient to require the proponent of the will to give Feather notice of the hearing to admit Sanko’s will to probate pursuant to rule 5.040(b)(3). Because no notice was given to Feather of the hearing to admit the will to probate, she is not bound by the judgment.

We reverse the judgment, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DAUKSCH, C. J., concurs.

COBB, J., dissents without opinion.

      . Fla.R.P. & G.P. 5.040(a).

      . We note that the notice in this case which Thompson served on Feather is technically defective because it fails to state, as required by Rule 5.040(a)(1), that failure to file and serve written defenses within the required 20 days “may result in a judgment or order being entered in due course.” We do not rest our decision on this technical defect alone however.

      . Technical forms of pleadings have been abolished in probate proceedings. “No defect of form impairs substantial rights . ...” Fla.R.P. & G.P. 5.020(a).

      . See Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974).

      . See In Re Estate of Ulm, 345 So.2d 1099 (Fla. 2d DCA 1977); Mader v. Estate of Rowe, 322 So.2d 45 (Fla. 1st DCA 1975).

      . F.R.P. & G.P. 5.040; § 731.301(l)(b), Fla.Stat. (1977).

      . The shortness of the time period is no doubt why rule 5.040 requires inclusion in the notice of the consequences of failure to timely file defenses thereto.

        . Stanley v. Bellis, 311 So.2d 393 (Fla. 4th DCA 1975); In Re Estate of Rutherford, 304 So.2d 517 (Fla. 4th DCA 1974); In Re Estate of Tomlinson, 186 So.2d 89 (Fla. 1st DCA 1966). See In Re Estate of Ulm, 345 So.2d 1099 (Fla. 2d DCA 1977). See also Fla.R.Civ.P. 1.090(b); McWhorter v. McWhorter, 122 So.2d 504 (Fla. 2d DCA 1960).

      . See Fla.R.Civ.P. 1.500(b).

      . F.R.P. & G.P. 5.040(a)(2); see also Kiaer v. Friendship, Inc., 376 So.2d 919 (Fla. 3d DCA 1979).