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

text:
    Phillip Martin COTITA, Appellant, v. STATE of Florida, Appellee.
    No. II-224.
    District Court of Appeal of Florida, First District.
    Feb. 22, 1980.
    Rehearing Denied April 16, 1980.
    John Peter Kirtz, Jr., and Owen E. Adams, Sr., Pensacola, for appellant.
    Jim Smith, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the final judgment of the Circuit Court, Escambia County, entered on a jury verdict finding defendant guilty of committing a lewd or lascivious act in violation of Florida Statute § 800.04 and sentencing him to fifteen years imprisonment. The victim of the offense was defendant’s daughter, age five. The sole issue presented is whether the trial court erred in admitting evidence of defendant’s commission of similar offenses. The test of admissibility of such evidence is the rule of Williams v. State, [The Williams Case] that evidence is admissible “If found to be relevant for any purpose save that of showing bad character or propensity” of the accused and, evidence is relevant “if it bears a certain relation to the crime charged to the extent that it is relevant to a fact in issue . . . ” Defendant contends that the evidence here was only relevant to show his bad character or propensity and should not have been admitted.

The testimony showed that defendant, his wife, a son age ten and a daughter age five, resided in a mobile home in a trailer park owned and managed by defendant’s mother and father. Also residing in the trailer park in a nearby mobile home was the Bolton family who had two daughters, ages nine and eleven. The Bolton girls visited in defendant’s trailer and watched television with the defendant, the victim and her brother.

At trial, the victim and her brother, who was present at the time of the commission of the offense charged, testified that appellant committed the offense on the day in question. Appellant’s wife testified and, though not a witness to the commission of the offense, corroborated her children’s testimony as to the events occurring prior to and immediately thereafter. In the course of their testimony, the victim’s mother, referring to the illicit sex act committed on the daughter, used the word “again” and the victim’s brother testified that he had seen it “before.” On appeal, defendant contends there was error in admitting the testimony which referred, however briefly, to prior similar conduct of the accused with the victim.

Over defendant’s objection, the State presented the testimony of Lisa Diane Bolton, a nine-year-old child, and her mother, Carolyn Bolton. The neighborhood child testified that defendant had committed the same type of sex act on her and her young sister in a shed in the trailer park and also in defendant’s trailer within the preceding year.

Mrs. Bolton, mother of the two girls, testified that she became aware of several incidents between defendant arid her children; that she reported the incidents to defendant’s wife and to his mother; that defendant’s mother first asked her to move out of the trailer park and then offered to give her free rent if she would agree not to press charges against defendant. Defendant’s mother denied negotiating with the neighbor to prevent charges being filed against her son but admitted that Mrs. Bolton told her “something . . . about Phillip’s bothering the children” and admitted a “gift” of one. month’s rent.

Defendant presented an alibi defense supported primarily by the testimony of his mother that defendant and his family had been in her home on the day and at the time of the commission of the offense charged. The testimony of defendant’s mother, the most lengthy of any witness, was that her son’s children were controlled by his wife and that she had overheard them being coached to testify against him. The testimony of defendant’s mother, and to so,me extent that of his father, was directly in conflict with the testimony of the defendant’s wife and children as to the alibi defense. The jury was required to resolve the conflict. Mrs. Bolton’s testimony mitigated against crediting the testimony of defendant’s mother both as to the alibi and as to the “coaching” charge. The Bolton incident indicated the lengths to which appellant’s mother would go to protect her son against charges similar to the one on trial.

The evidence here was relevant to the alibi defense and in addition to establish “a pattern of criminality,” a category of admissibility recognized by the Florida Supreme Court in The Williams Case and in Ashley v. State, 265 So.2d 685, 693 (Fla.1972). Evidence of prior illicit sex acts with the same children involved in the assault and rape prosecution was held properly admitted “to show a pattern of criminality” in Gossett v. State, 191 So.2d 281, 283 (Fla. 2nd DCA 1966), the court holding (191 So.2d at 283):

“We conclude that the trial judge had authority under Williams v. State, . and Talley v. State to permit the evidence of former acts of the two defendants in connection with the children involved in the instant case to show a pattern of criminality that makes the prior act relevant to the commission of the acts in question.”

Closely related is Cantrell v. State, 193 So.2d 444 (Fla. 2nd DCA 1966), a prosecution for lewd and lascivious assault on an eight-year-old girl. Therein, evidence was admitted that defendant had previously committed similar acts against two other little girls who, like the victim, had been guests at defendant’s backyard swimming pool. The court held the evidence admissible because it “established a course of conduct in the commission of the crime charged in the instant case.” (193 So.2d 445)

Florida courts have stated other bases of relevancy in similar cases. In Summit v. State, 285 So.2d 670 (Fla. 3rd DCA 1973), evidence of prior similar lewd and lascivious acts against the victim of the offense charged and against her sistér was. held properly admitted, the court holding (285 So.2d at 670):

“[W]e find the testimony of the victim and her sister regarding prior similar conduct on the part of the defendant with 'them to show the character of the deed as to motive and intent to be relevant and admissible.”

In Ross v. State, 112 So.2d 69 (Fla. 3rd DCA 1959), the court affirmed a conviction of lewd and lascivious assault against an eleven-year-old girl, and the admissibility of testimony that defendant had committed a similar offense against a similar victim, holding (112 So.2d at 70):

“We hold against the contentions of appellant regarding the testimony of the other girl who at the time or times in- ' volved was 10 or 11 years old. Testimony of the latter to the effect that appellant had fondled her in a lewd and lascivious manner was presented by the state to show the character of the deed as to motive, intent and absence of mistake, for which it was relevant and admissible

In Andrews v. State, 172 So.2d 505 (Fla. 1st DCA 1965), evidence that defendant had committed similar illicit sex acts against one other than the victim of the offense charged was held admissible, this court holding (172 So.2d at 507):

“The testimony concerning the subsequent offense is to the effect that it was committed against a person in an age group comparable to that of the victim named in the charge, at the same place, and under circumstances almost identical to those connected with the offense charged. The similar fact evidence in this cause was clearly relevant in its bearing on defendant’s identity, intent, plan and design, as well as to show lack of inadvertence; and it meets the test of admissibility.”

More recently, in Owens v. State, 361 So.2d 224 (Fla. 1st DCA 1978), this court affirmed a conviction under the same statute here involved for a lewd and lascivious assault by a father on his stepdaughter, a child under the age of fourteen years. In that case, the trial court admitted testimony of the stepdaughter and her mother as to a similar incident of fondling which had occurred six days before the offense charged. This court held (361 So.2d at 225):

“The testimony objected to tended to prove motive, ‘which inquires into the accused’s reason for acting as charged and suggests that because he had a specific reason to commit the offense he did so.’ . . . The trial judge acted within sound discretion in deciding that the legitimate purpose of the evidence outweighed its inherent prejudice . . . ” (citations omitted)

Here, we note a close similarity in victims, locale, sex act and a similar parental or custodial relationship between the accused and the victims. We find no merit in defendant’s contention that The Williams Rule precludes collateral crime or similar fact evidence except where the defendant’s identity is at issue. In The Williams Case itself, identity was not contested. There, the defendant took the stand, admitted sexual relations with the victim, but claimed consent and testified that the ice pick wound to the victim’s chest was accidental. Evidence that six months earlier the defendant had been apprehended in connection with an aborted assault on another similar victim was held properly admissible, inter alia, “to meet the anticipated defense of consent.”

The Williams Case holds that logic, common sense and “the infinite variety of human activities” precludes a listing of all categories of relevancy. The Supreme Court in Williams disapproves prior opinions which required relevant evidence be fitted into some previously recognized exception in order to be admissible, stating (110 So.2d at 659):

“The objectionable feature of this approach is that seemingly the fundamental principle of logical relevancy is abandoned. In its place is substituted a search for an exception under which the evidence becomes admissible but which will be discovered only if out of the infinite variety of human activities a case has arisen in which some court has held it so.”

The above quote states the rationale of Williams in rejecting what is termed by a leading and much cited authority, Julius Stone, as the “spurious rule”, to wit:

“A much broader spurious rule excluding all similar facts except those falling within a few closed categories settled by earlier decisions.”

The proper or “original rule,” as termed by Stone, is a narrower rule which excludes “only evidence that is relevant merely to propensity,” and is contrasted as follows:

“The original rule admits evidence relevant to any of the innumerable issues which can arise out of the infinitely variable circumstances of men’s behavior. The spurious rule only admits relevant evidence when it is within one of the list of exceptions to the general rule of exclusion. If not within those categories it is inadmissible however relevant it be, for it is caught by the residual rule excluding all evidence of other offenses. A court which is applying the spurious rule will exclude evidence clearly, even overwhelmingly, relevant to an issue other than propensity, because it finds difficulty in fitting the case into the rigid category.”

Stone further notes that in sex crime cases where identity is not at issue, the spurious rule “becomes little short of an absolute unqualified rule of exclusion,” a result avoided in spurious rule jurisdictions by recognition of a special exception for sex crimes.

Florida under the Williams Case follows the original and better reasoned rule, which makes no special exception for any type of crime. The familiar categories stated as the basis of admissibility of similar fact evidence “are given by way of example and not by way of limitation.” In sex crimes cases the courts of this State have allowed relevant similar fact evidence involving the same victim and involving a different victim. The evidence has been held admissible for a variety of reasons depending on the facts and issues involved, as in trial of other crimes.

Similar fact evidence has been properly disallowed where its probative value was slight or where its effect was unduly prejudicial. In Knox v. State, 361 So.2d 799 (Fla. 1st DCA 1978), this court correctly reversed a conviction under Florida Statute § 800.04. In that case the defendant was charged with a specific sex offense against his thirteen-year-old stepdaughter, stated to have occurred on May 21. The State’s evidence at trial was that the offense charged, as described by the prosecutor in his opening remarks, was committed the night of May 22, but another offense against the daughter had occurred on May 21, within the time specified by the statement of particulars. In reversing and remanding for a new trial this court held (361 So.2d at 800):

“Appellant claims first that it was a violation of the ‘ Williams Rule’ for the State to present evidence of the May 22 incident throughout his trial on the May 21 incident. We agree. It is obvious on this record that the State’s confusion about the date of the incident witnessed by the mother led to the admission of the evidence on the subsequent incident which was highly prejudicial to the appellant in defending against the charge on the May 21 [incident].”

The admission of evidence of other offenses against the same victim in Knox combined with the variance between the offense charged and the offense proved to nullify defendant’s alibi and to deprive him of a fair trial. Other language in the opinion, beyond the holding of the case, to the extent inconsistent herewith, is disapproved.

Great care has been exercised by the courts of this State following the mandates of The Williams Case to “cautiously scrutinize” such evidence, and of the subsequent Williams v. State case that the collateral offense not become a feature at the trial. The record here establishes that the trial court conscientiously followed both man-' dates.

Accordingly, the judgment below is AFFIRMED.

MELVIN, WOODROW M., Associate Judge, concurs; ROBERT P. SMITH, Jr., J., dissents with an opinion.

ROBERT P. SMITH, Jr., Judge,

dissenting:

Prosecuting Phillip Cotita for an oral-vaginal act committed upon his five-year-old daughter on May 1, 1977, the State presented direct testimony by the child and her ten-year-old brother, an eye witness, and corroborating testimony by their mother, Mrs. Cotita. Then through the Bolton witnesses the State was permitted to prove also, in its case in chief, that Cotita committed similar acts upon the two Bolton girls some ten months earlier.

In my opinion the Bolton other-crimes testimony was inadmissible under any rational evidentiary test yet articulated by a Florida court. The evidence was irrelevant to any real issue on trial concerning Cotita’s intent in acting as charged upon his daughter, or concerning his motive, identity, plan, or design in so acting — to mention those most common relevancies which Professor Stone denounced as “spurious”, not for any lack of conceptual integrity in themselves, but for their exclusive listing as “a few closed categories” of exceptions to a general exclusionary rule. Nor was this evidence admissible under Stone’s preferreij and “original” test, Is the evidence relevant except to show bad character and propensity?, which Williams v. State, 110 So.2d 654 (Fla.1959) wrote into Florida law. Evidence of Cotita’s prior sexual offenses upon other children tended to prove only his disposition or propensity to mistreat children sexually, which- — however logically relevant it may seem — is not legally relevant to whether he so mistreated his daughter on May 1, 1977. The evidence was not otherwise Williams -relevant.

I think the majority opinion, by its celebration of “pattern of criminality” evidence in sex offense prosecutions, indeed in prosecutions “for any type of crime”, radically transforms Stone’s scholarship and “The Williams Case” on which the opinion ostentatiously relies. The theme of the majority opinion, I submit, is that other-crimes evidence is now relevant for precisely those qualities, its showing of bad character and' criminal sexual propensities, which for 150 years have been the cause for restricting its use. This upending of sound policy is accomplished by exploiting congenital weaknesses in both the “spurious” and the “original” versions of the other-crimes evidence rule: the categorical blindness of the “spurious” rule to probative evidence which is not easily typeset as relevant to motive, or intent, or identity, and so on, and the susceptibility of those terms to manipulation; and the tendency of the “original” rule to become open-ended as the concept of relevancy is enlarged and that of propensity, its only counterweight, is shrunk, so eventually admitting evidence which is only remotely probative but is massively destructive of fair judgment.

Ever critical of the “spurious” exclusionary rule, Professor Stone showed how, its concentration on categories of relevant evidence (he could not have dreamed of a category labeled “pattern of criminality”!) led to “utter perversions” of the exclusionary rule, destroying even its beneficial aspects:

[BJecause attention is concentrated on interpreting the list of exceptions', not only is the requirement of relevance forgotten, but the very object of the original rule— to prevent proof of guilt by proof of propensity to commit — is quite forgotten, and eventually an exception is admitted to the broad rule which admits evidence precisely for the reason that the original rule excluded it. The broad rule, which seemed to give greater protection to the accused, has produced a rule depriving him of every shred of protection.

As regards his favored “original” standard of relevant-except-via-propensity?, Professor Stone, himself possessing a sturdy sense of true relevance, naively supposed that others would be similarly discriminating. He did not imagine, for example, that a court would think it probative, in a prosecution for a fondling offense committed on child A on May 1, 1977, that the defendant committed similar offenses on children B and C several months earlier. After all, Rex v. Cole, the briefly-reported English decision to which Stone traced the “original” rule, was a sex crime prosecution similar to this one, and the court held “an admission by the prisoner that he had committed such an offense at another time and with another person, and that he had a tendency to such practices, ought not to be admitted.” Stone agreed. In criticizing the 1890 Illinois decision in Parkinson v. People which excluded evidence that the defendant indecently assaulted, on another occasion, the same young girl whom the prosecution charged he raped, Stone argued that “it is surely undeniable that such other acts bear upon a most material issue, that of the defendant’s lust toward the girl with whose rape he is charged, only one step removed from the main issue, namely, whether he indulged that lust”; and Stone continued:

There is all the difference in the world between such evidence and evidence merely to propensity, for instance, showing that the defendant had been guilty of rapes of other girls at other times.

Stone footnoted the observation: “In appropriate circumstances even this latter evidence might be relevant other than through propensity, e. g., to show the physical fact of a state of lust at a given moment.”

The majority opinion also suggests that this other-crimes' evidence was “relevant” to issues raised by Cotita’s alibi, or probative on the matter of his mother’s credibility as a witness. I do not doubt that proof of Cotita’s propensity to commit sexual offenses on young girls was useful to the prosecution in destroying the effect of that defense testimony, as well as any other defensive matter including the presumption of innocence; but usefulness is not equivalent to relevance. Proving that Cotita committed sex offenses against the Bolton children some time ago did not tend to show he was-present at the crime scene on May 1, 1977. And the trial court, while admitting evidence of the sex offenses themselves, excluded the evidence that Cotita’s mother •negotiated with Mrs. Bolton to withhold charges against Cotita. This latter evidence, if not judged more inflammatory than probative, could be admissible to show the interest and credibility of the witness, Cotita’s mother; but the substantive evidence of Cotita’s alleged other crimes could not be relevant and admissible for that purpose.

Scarcely a year ago, this court decided Knox v. State, a sex crime prosecution remarkably like this one, and excluded evidence of another like sex offense against the same child victim. Because such evidence as that is generally regarded as more relevant, or more nearly relevant, than evidence of other like crimes against others, today’s decision conflicts with the square holding in Knox:

The evidence here of the subsequent incident was not relevant to prove appellant’s intent, motive, absence of mistake, modus operandi, or any other element of the crime charged. Its only relevance was to show appellant’s propensity to commit the crime, which is clearly improper. Banks v. State, 298 So.2d 543 (Fla. 1 DCA 1974); Harris v. State, 183 So.2d 291 (Fla. 2 DCA 1966); Hooper v. State, 115 So.2d 769 (Fla. 3 DCA 1959).

This statement is hardly “language . beyond the holding- of the case,” as suggested by the majority opinion. I think the members of that panel of this court knew what they intended to hold, and expressed themselves accordingly; it is not for another panel to redecide that case and choose another ground of decision, however much they may disagree with the decision denounced. If Knox is wrong it should be squarely overruled.

In my opinion Knox represents a disciplined application of Williams, and its holding — that the other-crimes-same-victim evidence was “not relevant to prove appellant’s intent, motive, absence of mistake, modus operandi, or any other element of the crime charged” — is far more sound than some contrary decisions which intone the same litany of possible relevancies in reaching a contrary result. I confess I am not at all suite that Williams’ unyielding bar of other-crimes evidence, proving propensity alone, should stand in prosecutions like this, not involving identity issues, for sex offenses against children. It may be that the nature of the offense and the usual difficulties of proving it can justify propensity evidence against the long-honored policy excluding it. Nevertheless, if the possible exception is immediately to be permitted to swallow the rule, and “pattern of criminality” or propensity evidence is to be welcomed in prosecutions for any sex offense, indeed “for any type of crime”, I stand foursquare with Knox in this and all such cases, and I therefore dissent.

      . Information dated May 23, 1977:
      . . did unlawfully and knowingly commit a lewd or lascivious act on Valerie Cotita, a child of the age of five years, by fondling and/or placing his mouth upon her vagina, but without the intent to commit Involuntary Sexual Battery, in violation of Florida Statute 800.04.”

      . 110 So.2d 654 (Fla.1959), cert. denied 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

      . Id. at 661, 662:
      “[T]he rule is consistently announced that whether the evidence tends to exculpate or convict, if it is relevant; that is, if it bears a certain relation to the crime charged to the t extent that it is relevant to a fact in issue, such evidence is admissible.
      * * # S(! * *
      “If found to be relevant for any purpose save - that of showing bad character or propensity, then it should be admitted.” (emphasis theirs)

      . Transcript of Record, pp. 67, 78.

      . Although there is no clear objection to this testimony on the record, defendant contends it was covered by a standing,' but unreported, objection made at the beginning of trial, which was referred to on page 115 of the transcript.

      . The State proffered a receipt of the transaction with defendant’s mother wherein Mrs. Bolton agreed she “will not in the future press any charges against Phillip Cotita.”
      In an abundance of caution, to prevent the Bolton incident from becoming a “feature” of the trial, the trial court disallowed this evidence.

        .Williams v. State, 110 So.2d 654, 662 (Fla.1959).

      . 160 Fla. 593, 36 So.2d 201 (1948).

      . 110 So.2d at 659.

      . Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988, 989 (1938).

      . Id. at 1004.

      . Id. at 1006.

      . Id. at 1012.

      . Id. at 1016.

      . Franklin v. State, 229 So.2d 892, 894 (Fla. 3d DCA 1969); McCormick, Evidence § 190 at 447 (1972 Ed.): “[T]he range of relevancy outside the ban is almost infinite.”

      .SAME VICTIM: Clark v. State, 266 So.2d 687 (Fla. 1st DCA 1972), cert. denied 270 So.2d 21 (Fla.1972), incest conviction affirmed and evidence of prior sexual relations between father and daughter properly allowed; Newsome v. State, 355 So.2d 483 (Fla. 2nd DCA 1978), evidence of prior rape of same victim properly admitted in trial for burglary and assault with intent to commit a felony, as relevant to show intent to commit sexual battery; Whiteman v. State, 343 So.2d 1340 (Fla. 2nd DCA 1977), cert. denied 353 So.2d 681 (Fla.1977), conviction of sexual battery by uncle/guardian against niece/ward, age 17, upheld where evidence showed sexual relations beginning when victim was age 9; Summit v. State, 285 So.2d 670 (Fla. 3d DCA 1973), prior lewd assaults against victim and her sister held properly admitted and conviction affirmed; Gossett v. State, 191 So.2d 281 (Fla. 2nd DCA 1966), convictions of assault and rape of children affirmed where evidence admitted of former sex acts on same victim showing pattern of criminality.

      .DIFFERENT VICTIM: Wilson v. State, 330 So.2d 457 (Fla.1976), conviction of rape affirmed where extensive testimony allowed of separate collateral crime showing pattern of similar conduct; Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976), affirming conviction of rape and murder and holding evidence of defendant’s attempted homosexual act shortly prior to commission of rape was properly admitted; Dean v. State, 277 So.2d 13 (Fla.1973), affirming rape conviction and upholding admission of testimony of four other rape victims showing system or general pattern of criminality; Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied 361 U.S. 847 (1959), rape conviction affirmed and evidence of prior aborted attempt on another similar victim properly allowed; Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948), rape conviction affirmed where five other women testified as to defendant’s approach which was similar to that of victim of the crime charged; Nathey v. State, 275 So.2d 589 (Fla. 1st DCA 1973), cert. denied 279 So.2d 881 (Fla.1973), conviction of rape of defendant’s 11-year-old daughter upheld despite admission of evidence of sex offenses by defendant against three other daughters; Pendleton v. State, 348 So.2d 1206 (Fla. 4th DCA 1977), conviction of sexual battery affirmed and testimony of two other women similarly attacked by defendant properly admitted to “corroborate” testimony of victim; Summit v. State, 285 So.2d 670 (Fla. 3d DCA 1973), prior lewd assaults against both the victim and her sister held properly admitted in trial under Florida Statute § 800.04; Cantrell v. State, 193 So.2d 444 (Fla. 2nd DCA 1966), prior lewd assaults against two similar victims properly admitted; Ross v. State, 112 So.2d 69 (Fla. 3d DCA 1959), conviction of lewd and lascivious assault against 11-year-old girl upheld and evidence of prior similar acts against another similar victim properly admitted.

      . In general, evidence of prior sex offenses against the same victim of the sex offense charged is permitted by “nearly all courts.”. Underhill, Criminal Evidence, § 212 at 647, and cases cited therein; 22A CJS, Criminal Law, § 691(29), (31) at 876, 879.

      . 117 So.2d 473 (Fla.1960).

      . Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv.L.Rev. 954, 984 (1933):
      “This wide divergence [in circumstances of each case] explains the failure of all attempts to create categories of admissibility. Mitigation of the evil must be sought in other directions .
      ******
      “[T]he trial judge should be recognized to have a discretion to decide whether the probative weight of the proffered evidence outweighs its mere prejudice . Appellate courts should hesitate to establish rules pertaining to discretion of the tribunal which really has the situation before it.”

      . See Knox v. State, fn. 9 infra; Dodson v. State, 334 So.2d 305 (Fla. 1st DCA-1976), cert. den. 341 So.2d 1081 (Fla.1976); Section 90.404(2)(a), Florida Statutes (1977); In Re: Florida Evidence Code, 372 So.2d 1369 (Fla.1979); Fed.R.Evid. 404(b); Uniform R.Evid. 55, 9A U.L.A. 629 (1965); McCormick on Evidence, Section 190 at 447 et seq. (2d ed.1972); 1 Jones on Evidence, Section 4:12 et seq. (1972); 1 Wharton’s Criminal Evidence, Section 241 et seq. (13th ed.1972); 2 Louisell and Mueller, Federal Evidence, Section 140 at 113 et seq. (1978); 1 Underhill Criminal Evidence, Section 205 et seq. (6th ed.1973); Slough, Other Vices, Other Crimes: Kansas Statutes Annotated Section 60-455 Revisited, 26 Kan.L.Rev. 161 (1978).

      . J. Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988, 989 (1938), (hereafter cited as Stone: America ). See also J. Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv.L. Rev. 954 (1933) (hereafter Stone: England).

      . 1 Wigmore, Evidence, Section 194 at 646 (3d ed.1940):
      It may almost be said that it is because of this indubitable Relevancy of such [character] evidence that it- is excluded. It is objectionable, not because it has no appreciably probative value,-but because it has too much.
      See also 1 Jones on Evidence, Section 4:18 at 418 (6th ed.1972); McCormick on Evidence, Section 190 at 447 (2d ed.1972); 1 Underhill, Criminal Evidence, Section 205 at 447 (5th ed. 1956); 2 Louisell and Mueller, Federal Evidence, Section 140 at 113 (1978).

      . Stone, America, 51 Harv.L.Rev. at 1032-33 (author’s emphasis).

      . Stone, England, 46 Harv.L.Rev. at 959, quoting Phillips, Law of Evidence (1st ed.) 69-70; Stone, America, 51 Harv.L.Rev. at 1031.

      . 135 Ill. 401, 25 N.E. 764 (1890).

      . Stone, America, 51 Harv.L.Rev. at 1012 (author’s emphasis).

      . Id. at n. 130. To the same effect, see Alford v. State, 307 So.2d 433 (Fla.1975), in which the Supreme Court approved similar-fact evidence, in a rape prosecution, of an unfulfilled homosexual act one hour earlier, as tending to show, among other things, the accused’s state of mind and motive for rape.

      . 361 So.2d 799 (Fla. 1st DCA 1978). The oth-. er crime evidenced in Knox was after, not before, the crime charged. That distinction is insignificant. E. g., Smith v. State 365 So.2d 704 (Fla.1978).

      . 1 Underhill’s Criminal Evidence, Section 212 at 647 (6th ed.):
      Some courts depart sharply from the general rule which bars the use of other offenses to prove the defendant’s propensity or disposition and permit the introduction in sex cases of evidence of other sex offenses in order to show the defendant’s propensity . . Other courts refuse evidence of other sex offenses which involve different victims or partners, but nearly all courts permit evidence of other sex offenses which involve the same person as the offense on trial, . the theory being that the evidence shows the defendant’s lustful attitude toward that person.

      . 361 So.2d at 800.

      . 2 Louisell and Mueller, Federal Evidence, Sec. 140 at 114:
      [N]othing is so common as to see recitations of whole catalogues of permissive uses for such evidence, with little analysis.

      . See Comment, Defining Standards for Determining the Admissibility of Evidence of Other Sex Offenses, 25 U.C.L.A. L.Rev. 261, 288-89 (1977):
      In such cases [where identity in its traditional sense is not in issue], the critical question for the jury is not whether the wrong person has been charged, but whether the prosecuting witness has fabricated the incident. If the evidence presented on this issue were limited to the victim’s testimony, as implicitly denied by the defendant’s plea of not guilty, then the jury would have little basis for assessing, credibility. This undesirable situation may be remedied where the accused has committed a similar offense, under similar circumstances, and in the same proximate time period of the offense charged. If the prosecution can show that defendant recently engaged in similar unlawful conduct, it is much less likely that the victim invented the incident. .
      On the other hand, where the prosecuting witness is not acquainted with the accused, the critical question for the jury is likely not to be whether the victim’s testimony is fabricated, but whether there has been a mistake in identification. If the requisite standard for admissibility were merely the presence of common characteristics . . . , there would be a great danger that the defendant had been arbitrarily singled out solely on the basis of his police file and the specific crime in question. Such evidence would have little probative value on the issue of identity because the similarities between defendant’s past conduct and the charged crime could easily be coincidental. Moreover, the inherent prejudicial nature would substantially increase the probability of a conviction. This risk of an erroneous conviction is minimized by requiring the existence of striking similarities between the charged offense and the proffered evidence (the higher standard), [emphasis by the author, footnotes omitted]
      The quoted comment ’discusses People v. Kazee, 47 Cal.App.3d 593, 121 Cal.Rptr. 221 (Ct.App.1975). See also People v. Covert, 249 Cal.App.2d 81, 57 Cal.Rptr. 220 (Ct.App.1967); People v. Rincon-Pineda, 14 Cal.3d 864, 123 Cal.Rptr. 119, 538 P.2d 247 (1975); People v. Thomas, 20 Cal.3d 457, 143 Cal.Rptr. 215, 573 P.2d 433 (1978); People v. Haslouer, 79 Cal. App.3d 818, 145 Cal.Rptr. 234 (Ct.App.1978). Cf. Coburn v. California State Personnel Bd., 83 Cal.App.3d 801, 148 Cal.Rptr. 134 (Ct.App.1978) (noncriminal case).


source: Caselaw Access Project

author: SHARP, Judge.

license: Public Domain

text:
    Michael P. McINTIRE, Appellant, v. STATE of Florida, Appellee.
    No. 78-101/T4-43.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.
    Rehearing Denied April 3, 1980.
    James M. Russ and I. Paul Mandelkern of Law Offices of James M. Russ, Orlando, for appellant. .

      Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   SHARP, Judge.

The Appellant was convicted in the trial court of the felony offense of delivery of cannabis in excess of five grams. Testimony at trial revealed that the weight of the cannabis, including stems but excluding stalks, was seven grams. Subsequent to Appellant’s conviction the Florida Supreme Court rendered it’s decision in Purifoy v. State, 359 So.2d 446 (Fla.1978). The Court held that because there is no difference between stems and stalks, the measuring of cannabis should exclude both stems and stalks. Disposition of a case on appeal should be made in accordance with the law in effect at the time of the appellate decision rather than the law in. effect at the time the judgment was rendered. Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla.1978). In applying Purifoy to the case at bar we find the evidence insufficient to prove delivery of cannabis in excess of five grams. The evidence, however, does support a conviction for the lesser included offense of delivery of not more than five grams of cannabis, a misdemeanor of the first degree. Sec. 893.13, Fla.Stat. (1977).

We REVERSE AND REMAND to the trial court with directions for entry of a judgment of conviction for the lesser included offense of delivery of not more than five grams of cannabis. Sec. 924.34, Fla. Stat. (1973).

DAUKSCH, C. J., and UPCHURCH, J., concur.


author: PER CURIAM.

text:
    Rolando Torres BLANCO and Miguel Angel Ramirez, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1652.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Rehearing Denied April 15, 1980.
    Bierman, Sonnett, Beiley & Shohat, Miami, and Benedict P. Kuehne, West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Albo v. State, 379 So.2d 648 (Fla.1980).


text:
    Margarita Raisa Rodriguez STAGLISH, Petitioner, v. Armando GUERRERO, Respondent.
    No. 79-2029.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Rehearing Denied April 15, 1980.

      Sugarman & Arnold and David C. Arnold, Coral Gables, for petitioner,
    Ezzo, Garel & Saylor and Arthur M. Gar-el, Miami, for respondent.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD R., (Ret.), Associate Judge.
   PER CURIAM.

Petitioner, the mother of a three year old son born out of wedlock, seeks a writ of certiorari to quash an order of the trial court denying her motion for summary judgment in an action by the putative father to have his paternity established and for visitation rights with the child under Chapter 742, Florida Statutes (1977).

In the alternative petitioner has applied for a writ of prohibition to prohibit further action by the putative father to have his paternity established and for visitation rights with the child.

We have considered the petition in the light of the record, briefs and argument of counsel and have concluded (1) that the petitioner has not shown her entitlement to a writ of prohibition, and (2) that in the exercise of our discretion we should decline to entertain jurisdiction of the petition for writ of certiorari. Wolf v. Industrial Supply Corp., 62 So.2d 30 (Fla.1952); Gollsneider v. Stein, 214 So.2d 628 (Fla.2d DCA 1968).-

Accordingly, the petition for prohibition and certiorari are denied.


text:
    Roy L. CLOUD, Appellant, v. Louise V. CLOUD, Appellee.
    No. 79-1105.
    District Court of Appeal of Florida, Second District.
    March 7, 1980.
    Rehearing Denied April 8, 1980.
    Wayne 0. Smith of Wallace and Smith, P. A., St. Petersburg, for appellant.
    George B. Mettler of Brown & Mettler, P. A., Tampa, for appellee.
   PER CURIAM.

Affirmed on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

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


text:
    LANCASTER YOUTH DEVELOPMENT CENTER and Kemper Insurance Company, Appellants, v. William L. WATERS, Appellee.
    No. QQ-383.
    District Court of Appeal of Florida, First District.
    March 7, 1980.
    Rehearing Denied April 16, 1980.

      Barry D. Graves, Gainesville, for appellants.
    J. Randall Hooper of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Hel-pling & Young, Gainesville, for appellee.
   PER CURIAM.

The appellants, Lancaster Youth Development Center and Kemper Insurance Company, appeal a final workers’ compensation order entered July 5, 1979, which awarded appellee, William L. Waters, permanent total disability benefits. Appellants raise the following points on appeal:

1. Whether the deputy commissioner erred in finding appellee was permanently and totally disabled as a result of his industrial accident, in that this finding is unsupported by the evidence, contrary to the law of the case, and contrary to the specific findings of the Industrial Relations Commission in a previous order entered for this case on February 21, 1979.
2. Whether the deputy erred in failing .to apportion appellee’s present disability betwéen his condition resulting from the compensable accident, and his subsequently occurring non-related heart disease, in that this failure to apportion is contrary to the law, to the law of the case, and to the specific findings of the Industrial Relations Commission’s order of February 21, 1979.

Due to the lengthy history of this cause, which has been the subject of three appeals, we wish to explicate our reasons for affirming the deputy’s order on both points.

Appellee, age 59, has a third grade education and job history in manual labor. On February 7, 1974, while working as a mechanic and boiler repairman for appellant employer, he slipped and fell into a hole, injuring his back. Surgical removal of a herniated disc subsequently was performed on March 31, 1975. The treating physician, Dr. Parr, opined appellee reached maximum medical improvement on August 6, 1975, with a permanent partial impairment of 36% of the body as a whole. Dr. Parr did not believe appellee could return to this former strenuous work, but the doctor felt appellee could perform light duty work as of that date. Appellee has not worked since his back surgery. Although appellee did apply to the employer regarding the possibility of further work a few weeks after reaching maximum medical improvement, he testified the personnel manager would not allow him to return to work.

Appellee testified his back condition worsened shortly after this interview. On February 12, 1976, a neurologist recommended further exploratory surgery regarding a nerve root deficiency. Appellee complained of chest pains during the same week. On February 17,1976, a physician on call for cardiology, Dr. Sholte, diagnosed heart disease with various complications. Appellee underwent coronary bypass surgery on February 20, 1976, and has since required further surgical procedures for his heart condition. Following the surgery, ap-pellee contacted both his former employer and the Florida State Employment Service regarding the possibility of employment. However, he did not follow up several prospects for placement, testifying his back and leg pain precluded him from applying for any job requiring physical labor.

Both Dr. Parr and Dr. Sholte testified appellee’s serious heart condition made further back surgery inadvisable. Dr. Parr opined appellee was totally disabled due to his radiating back pain and cardiac condition, while Dr. Parr testified the combination of back and heart problems had worsened because of the extended period of inactivity required by appellee’s heart condition. Dr. Parr also stated, “I think his back is such that it would totally disable him now, even if he did not have any heart problem. . .” Dr. Sholte testified that he was unqualified to say whether the back problem had been disabling, but that most of appellee’s limitation was due to cardiac disease at the time of the initial neart surgery. Dr. Sholte also testified that appellee has a 20-30% chance of surviving five years because of his coronary condition.

Following the first hearing on the claim for compensation, the deputy found the ap-pellee was permanently, totally disabled in an order entered February 9, 1978. The employer/carrier appealed this order, and the Industrial Relations Commission ordered a trial de novo because the record of the hearing was not transcribed. A second hearing was held July 14, 1978, and the deputy again found appellee was permanently, totally disabled in an order entered August 3, 1978. The employer/carrier appealed a second time. In an order entered February 21, 1979, the Industrial Relations Commission reversed the deputy’s second order, and remanded the cause to the deputy (then denominated the Judge of Industrial Claims). The Commission’s order provided:

The JIC’s finding that the claimant is permanently totally disabled from his back injury is erroneous because it ignores clear precedent requiring a sincere work search if a claimant is not patently, totally disabled, (e. s.)

Moreover, the Commission noted that the deputy had failed to rule on the expressly raised apportionment defense that part of appellee’s current disability was due to the unrelated heart condition. The Commission stated:

The Judge must “carve out” the unrelated anatomical impairment if he finds it is presently causing disability, (e. s.)

Without further hearing, the deputy entered a third order on July 5, 1979, from which the employer/carrier now appeals. The deputy found, first, that appellee was “patently permanently and totally disabled as a result of the industrial accident, irrespective of any additional disability created by his heart condition.” Secondly, the deputy found that the employer/carrier was not entitled to apportionment due to the heart condition because “claimant had already become permanently and totally disabled before his condition began to manifest itself in February, 1976.”

Because there is competent and substantial evidence in the record to support these findings, we affirm both points on appeal. Appellee’s testimony supports the deputy’s finding appellee was permanently and totally disabled from his back condition. He testified his back had deteriorated dramatically shortly after the maximum medical improvement date of August 6, 1975. This deterioration occurred long before the onset of appellee’s heart condition. Corroborating appellee’s testimony, the record reveals that his neurologist recommended further back surgery in February, 1976. Since the evidence was competent and substantial to show appellee was totally disabled due to his back condition, the deputy did not err in awarding permanent total disability benefits, despite appel-lee’s apparent failure to test his employability before the onset of his heart condition. Competent substantial evidence supports a. finding of permanent total disability, even where a claimant has not fulfilled the job search requirement, if a claimant is obviously unable to perform even light work without interruption. Chicken ’N Things v. Murray, IRC Order 2-2725 (February 6, 1975), cert. denied 329 So.2d 302 (Fla.1976); Ross v. Roy, 234 So.2d 99 (Fla.1970).

We note that the conditional language of the Industrial Relations Commission’s order did not preclude the deputy from finding appellee was permanently totally disabled if the deputy found that ap-pellee could not perform a job search as a result of permanent and total disability from his back condition. The Commission’s order reiterated that the work search requirement applied only “if the claimant is not patently, totally disabled.” (e. s.) Nowhere in the Commission’s order does the Commission specify that the deputy could not find the appellee was patently permanently and totally disabled; therefore, the Commission’s order was not res judicata on the issue, and he could properly conclude appellee’s permanently and totally disabling back condition rendered the job search requirement meaningless.

Regarding point two, the deputy also properly concluded apportionment was unnecessary, based on his finding the back condition by itself constituted a permanent total disability, regardless of the heart condition’s disabling effects. The doctors could not testify with any certainty as to what extent claimant’s disability was caused by his back condition and to what extent caused by his heart condition. (Dr. Parr did opine that claimant’s back condition could have resulted in total disability, even if no heart condition was present.)

We note that the Industrial Relations Commission’s order was not res judica-ta of the issue of apportionment. The Commission’s order merely reminded the deputy to carve out the unrelated anatomical impairment due to the heart condition “if he finds it is presently causing disability.” (e. s.)

Accordingly, we find no merit to appellants’ contentions that the appealed findings are unsupported by the evidence, contrary to the law and to the law of the case, and contrary to the specific instructions of the Industrial Relations Commission’s previous order, the deputy commissioner’s order is affirmed.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Richard B. CALVERT and Diann Calvert, his wife, Appellees.
    No. 79-1354.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Rehearing Denied April 22, 1980.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and A. Blackwell Stieglitz, Miami, for appellant.
    High, Stack, Lazenby, Bender, Palahach & Laeasa, Miami, for appellees.
    Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Sections 627.428 and 627.727, Fla.Stat. (1975); State Farm Mutual Automobile Ins. Co. v. Jenkins, 370 So.2d 1201 (Fla. 1st DCA 1979); State Farm Mutual Automobile Ins. Co. v. Anderson, 332 So.2d 623 (Fla. 4th DCA 1976); Moore v. Sky Realty Inc., 339 So.2d 299 (Fla. 3d DCA 1976); Commercial Union Ins. Co. v. Estate of Plute, 356 So.2d 54 (Fla. 4th DCA 1978); and All-Star Ins. Corp. v. Scandia, Inc., 353 So.2d 171 (Fla. 3d DCA 1977).


author: BERANEK, Judge.

text:
    Nigel WINFIELD, Appellant, v. SECOND NATIONAL BANK OF NORTH MIAMI, a National Banking Association, Appellee.
    No. 78-2131.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Rehearing Denied April 22, 1980.

      David S. Romanik and Gerald Mager, of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellant.
    Bruce E. Lazar, of Palmer & Lazar, P.A., Miami, for appellee.
   BERANEK, Judge.

This is an appeal by a defaulted defendant from a final judgment on a written loan guarantee. Although other defendants were present in the suit and actively defended, they have not appealed. The eventual final judgment granted no relief which was not specially prayed for in the complaint previously served upon appellant. The only issue on appeal goes to the procedures used in the judicial sale of certain personal property which was security for the loan. Appellant contends he was prejudiced only because he did not have a hearing on the question of whether the security was sold for market value. We note that appellant does not assert any irregularity regarding the sale and does not contend on appeal that the sale price was less than fair.

The appellant chose not to defend the action and apparently relied upon the strong defense asserted by the non-appealing defendant. Within six days after the sale of the security under court order, appellant filed a formal notice of appearance in the suit but chose not to seek relief from the trial court. Under the particular circumstances here presented, we conclude that appellant may not assert the error complained of on appeal. The inaction below constituted a waiver in several respects and the final judgment is therefore affirmed. Green v. Barhydt, 121 Fla. 265, 163 So. 587 (1935); Maryland National Insurance Co. v. State of Florida, 243 So.2d 183 (Fla.3d DCA 1971), and American Home Assurance Company v. Keller Industries, Inc., 347 So.2d 767 (Fla.3d DCA 1977).

AFFIRMED.

DOWNEY, C. J., and GLICKSTEIN, J., concur.


author: MOORE, Judge.

text:
    Frank A. STUART, M.D., Frank A. Stuart, M.D., P.A., and Underwriters at Lloyds, Petitioners, v. The HERTZ CORPORATION, George Holbrook, Individually and as father and next friend and guardian ad litem of Stafford Holbrook, a minor, Respondents.
    No. 79-978.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Rehearings Denied April 21, 1980.

      James E. Tribble and James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioners.
    Nancy Little Hoffman and Pomeroy, Betts, Pomeroy & Moses, Fort Lauderdale, for respondents.
   MOORE, Judge.

This is a petition for enforcement of a mandate issued by this Court, or in the alternative, a petition for writ of common law certiorari. ■ Before discussing the merits of this petition, a brief review of the facts of this case and a more lengthy review of the circuitous procedural route taken by this case are necessary.

An automobile owned by respondent, Hertz Corporation (Hertz), collided with an automobile operated by a Mrs. Johnson who suffered orthopedic injuries in the accident. Mrs. Johnson underwent surgery performed by petitioner, Dr. Stuart, for these injuries. During the course of the surgery, Mrs. Johnson’s carotid artery was allegedly severed, causing a neurological disability. Mrs. Johnson instituted suit against Hertz, who filed a third party complaint against petitioners seeking indemnity for any damages recovered as a result of the neurological injuries only. Petitioner’s motion to dismiss the third party complaint was denied by the trial court.

Upon affirming the trial court’s order denying the motion to dismiss the third party complaint, we stated:

[Tjhere is an equitable right to indemnity under certain factual considerations and particularly under the facts present in the case sub judice; a tortfeasor initially causing an injury has the right to seek indemnification against the physician for aggravating injury in the course of treatment. .

Stuart v. Hertz Corporation, 302 So.2d 187, 194 (Fla. 4th DCA 1974).

The Florida Supreme Court reversed our decision and held that such a third party action for indemnity could not be brought against the physician. Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977). The Court expressed several reasons for disallowing third party practice by an initial tortfeasor against a treating physician. First, the inclusion of the physician in the lawsuit would create a “hybrid doctrine of partial equitable indemnification which will most certainly lead to confusion and nonu-niformity of application by the lower courts.” 351 So.2d at 706. The Court believed that a third party suit for indemnity would in reality be more akin to contribution and implied that either of these theories of third party recovery are inappropriate to the situation involved in this case.

Secondly, the Court felt that such a third party suit would “confuse and obfuscate” the issue of the initial tortfeasor’s liability and force the plaintiff to “concurrently litigate a complex malpractice suit in order to proceed with a simple personal injury suit.” The Court stated that: “The complex issues of liability to be resolved in a medical malpractice action are foreign to the resolution of liability in the typical personal injury suit. 351 So.2d at 706. The issue of physician malpractice in aggravating injuries caused by the initial tortfeasor would be more expeditiously litigated in a separate lawsuit.

Thirdly, a third party lawsuit would eliminate the choice of the plaintiff-patient to determine the “time, forum and manner in which to press his claim” against his own physician. “The choice of when and whether to sue a treating physician is a personal one which rightfully belongs to the patient.” A “complete outsider” to the physician-patient relationship should not deter- ■ mine when or how (or if) a patient shall sue his physician.

For all of the above cited reasons the Supreme Court quashed the decision of this Court and remanded the cause to this Court for the purpose of a further remand to the trial court with instructions to grant the motion to dismiss the third party complaint.

This Court entered its order on the Supreme Court’s mandate, remanding the cause to the trial court, “with instructions to grant the motion to dismiss in accordance with the opinion of the Supreme Court.” The trial court entered its order of dismiss- . al, reciting

. [T]he motion of the third party defendants to dismiss the third party complaint be and the same is hereby granted, with prejudice, only as to gravamen of present complaint.

(The emphasis is supplied to reflect the trial judge’s handwritten amendment to the typewritten order prepared by counsel.)

However, the respondents’ motion to file another third party complaint, based upon a theory of contribution, against the petitioners, was granted. The petitioners moved to dismiss this complaint. While that motion was pending a consent judgment was entered between respondent, Hertz, and the initial plaintiffs. A satisfaction of the consent final judgment was then filed. There- - after, the respondents filed an amended third party complaint seeking contribution and subrogation. Because the trial court denied their motion to dismiss the amended third party complaint, the petitioners now seek enforcement of our earlier mandate, or in the alternative, our writ of certiorari to review the denial of the motion to dismiss. They contend the trial court erred in holding that our mandate did not encompass a third party suit based on contribution and subrogation. We agree and enforce our mandate.

Our jurisdiction to review this petition is largely dependent upon whether the trial court complied with the mandate of this Court in allowing the respondents to file an amended third party complaint prior to the consent judgment between the initial plaintiffs and the respondents. This Court may issue any writ necessary or proper to the complete exercise of its jurisdiction. State ex rel. Rimmeir v. Milledge, 104 So.2d 355 (Fla.1958); Wright v. Board of Public Instruction for County of Sumter, 100 So.2d 403 (Fla.1958); Fla.R.App.P. 9.030(b)(3); Article V, Section 4(b)(3), Florida Constitution. We have the inherent power to enforce our mandates and to give such judgment, sentence or decree as the court below should háve given. Posner v. Posner, 257 So.2d 530 (Fla.1972); Cone v. Cone, 68 So.2d 886 (Fla.1953); A. M. Klemm & Son v. City of Winter Haven, 141 Fla. 60, 192 So. 652 (1939).

When the mandate was received by the trial court, the court should have carried and placed into effect the order and judgment of this Court. Absent permission to do so, the trial court was without authority to alter or evade the mandate of this Court. It is obvious from a careful reading of Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977) and our subsequent holding in Ewell Engineering and Contracting Co. v. Cato, 361 So.2d 728 (Fla. 4th DCA 1978) that the mandate of this Court, derivative of the Supreme Court’s own mandate, barring third party practice, encompasses not only actions for indemnity, but actions based on other theories as well. The sound policy for eliminating third party suits for indemnity in cases such as the instant one is ■ equally well founded when applied to third party suits for subrogation or contribution.

The trial court was without authority, upon our mandate, to take any action other than dismissal of the third party complaint. It was therefore error to allow the filing of the amended third party complaint.

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

We thus reaffirm our mandate of December 28, 1977, and direct the trial court to dismiss the respondent’s amended third party complaint against the petitioner.

ANSTEAD and LETTS, JJ., concur.

      . In this case, the Court upheld the right of the initial tortfeasor to initiate a separate lawsuit for subrogation against the negligent physician. In so holding, this Court certified the following question to the Florida Supreme Court as a matter of great public interest: DOES THE DECISION IN STUART V. HERTZ BAR A SEPARATE LAWSUIT BY THE INITIAL TORT-FEASOR AGAINST A SUCCESSIVE TORT-FEASOR WHO AGGRAVATES THE ORIGINAL INJURIES?
      The Supreme Court of Florida has exercised its discretionary jurisdiction and granted a writ of certiorari to answer this question.


author: LETTS, GAVIN K., Associate Judge.

text:
    COFFMAN REALTY, INC., a Florida Corporation, E. F. Langer, Thomas A. Binford, Tom Rucker, Inc., a Florida Corporation, and Marvin M. Parke, d/b/a Marvin Parke Realty, Appellants, v. TOSOHATCHEE GAME PRESERVE, INC. et al., Appellees.
    No. 78-238/NT4-72.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Rehearing Denied April 25, 1980.

      Michael D. Jones, of Jones & Bishop, Al-tamonte Springs, for appellants.
    George A. Speer of Speer & Speer, Sanford, for appellees.
   LETTS, GAVIN K., Associate Judge.

Appellants assert the granting of a summary judgment was reversible error because of violations of the Rules of Civil Procedure and the existence of material issues of fact. We affirm.

At stake are real estate brokerage commissions on a 16 million dollar sale of the 28,000 acre Tosohatchee Game Preserve to the State of Florida. The Brokers claim that they were the procuring cause of the sale while the sellers of the Game Preserve successfully resisted that claim at the trial level ■ obtaining a summary judgment in their favor.

In the last few months our Supreme Court has repeated for the umpteenth time that thq decisions of trial courts are cloaked with a presumption of correctness, that the burden to demonstrate error is on the appellant and that “Without knowing the factual context ... an appellate court [cannot] reasonably conclude that the trial court so misconceived the law as to require reversal.” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

In the case at bar there can be no question but that the pleadings on file, together with the affidavits of the Game Preserve in support of the motion for summary judgment, clearly negate the ■ existence of any genuine issues as to any material facts. No counter-affidavits were filed by the brokers before the hearing on the motion and no transcript of that hearing has been provided to us. As a consequence, if the existence of any genuine issue of material fact was argued at that hearing we have no cited record of it. Moreover, even now on appeal, we are not cited to any part of the record for the existence of factual issues with the exception of an excerpt from the deposition of one state official. We have studied this particular excerpt and cannot conclude it raises genuine material factual issues.

Turning our attention to certain procedural defects which we agree exist on the record, we reject the Brokers’ argument that the hearing on the motion for summary judgment did not substantially comply with Rule 1.510 of the Florida Rule of Civil Procedure. The chronology of events in 1977 reveals the following:

1. October 26th: Brokers first amended complaint dismissed with leave to amend within 20 days.
2. November 8th: Game Preserve’s motion and supporting affidavits for summary judgment to be heard November 28th.
3. November 14th: Brokers second amended complaint filed.
4. November 23rd: Game Preserve’s motion to strike and dismiss second amended complaint filed, also to be heard November 28th.
5. November 28th: Brokers’ motion for continuance of Game Preserve’s motion to strike and dismiss. (No motion addressed to the upcoming summary judgment hearing was filed.)
6. November 28th: Hearing on motion for summary judgment.
7. December 1st: Summary Judgment entered.
8. December 7th: Petition for rehearing by Brokers.
9. December 9th: Counter affidavits for Brokers in opposition to summary judgment.

As to the above, the Brokers correctly point out that on the date the motion for summary judgment was filed, no complaint was of record, it having been dismissed, albeit with leave to amend. In this respect we have independently uncovered the case of Babb v. Lincoln Auto Finance Co., 133 So.2d 566 (Fla. 3d DCA 1961) which held that a summary judgment hearing could not be held until 20 days after the filing of the amended pleading whereas in the instant case only 14 days elapsed. However in Babb the amended pleading contemplated a whole new cause of action, new defendants, and “constituted an abandonment of the original cpmplaint.” By contrast we have studied the amendment filed in the instant case and find no substantive difference between the two. Further, far from adding new defendants the instant amendment drops several of them and abandons some of the counts. The bottom line is still the same for both complaints: Namely the Brokers want a commission upon the theory of breach of contract. Accordingly although the filing of the motion for summary judgment addressed to an already dismissed complaint was procedural error, resulting in only 14 days notice as to the second amendment, we find no prejudice to the Brokers who did have a full 20 days’ notice of the impending hearing and of the supporting affidavits.

We have also considered the Brokers’ argument that there were no pleadings pending on the date that the motion for summary judgment was filed and, therefore, the court could not consider the motion with reference to a later filed amendment regardless of whether 20 days had elapsed or not because, as the Brokers claim in their brief on appeal, they could not adequately prepare, being unable to ascertain which complaint would be argued at the hearing. This discrepancy might indeed constitute reversible error, but we have no record of it being raised at the trial level prior to the grant of the summary judgment. To the contrary, the only record action by the Brokers was a motion for a continuance addressed solely to the Game Preserve’s motion to strike and dismiss the second amended complaint. For all the record shows, up to the time of the summary judgment, the Brokers neither made, nor preserved, any objection to the summary judgment hearing per se. Moreover they concede in their briefs that it was the later second amended complaint that was argued at that hearing. Accordingly, we are of the opinion that the defect was waived or in any event has not been preserved for appeal. See Applegate v. Barnett Bank, supra.

Turning now to subsequent events, the Brokers filed a timely petition for rehearing six days after the entry of the summary judgment. They then filed a memorandum of law two days later on December 9th, and with it affidavits in opposition to the summary judgment already entered eight days before. Both parties on appeal refer only fleetingly to these late filed affidavits and this appeal is certainly not predicated on them. Nonetheless, we discuss these affidavits in the light of a previous decision out of the Fourth District.

We have not examined the affidavits to discover whether or not they create genuine issues as to material fact because we are of the opinion that they were filed too late. Florida Rule of Civil Procedure 1.510(c) requires all counter-affidavits to be served on the day prior to the hearing, yet the instant counter-affidavits were not filed until eleven days after the hearing. Were we to hold that affidavits could be filed late and that a trial judge never had discretion to refuse them, we would effectively destroy what little the Appellate Courts have left of the summary judgment procedure. In this regard we are directed to our own opinion in Hatmaker v. Advance Mortgage Corporation, 351 So.2d 728 (Fla. 4th DCA 1977), cert. den. 362 So.2d 1050 (Fla.1978), which might well be construed to require a trial judge to permit late filing. However, in Hatmaker the court noted that it was “debatable whether at the time the summary judgment was initially granted, the defendant . . . had met the burden of showing that there were no genuine issues of fact.” This being so, we agree with the Hatmaker result regardless of the late filed affidavits.

Nonetheless, insofar as Hatmaker holds it an abuse of discretion for a trial judge to refuse to admit affidavits filed with a motion to rehear the granting of a summary judgment, we now recede from that holding and align ourselves with the Second District’s opinion that it is not an abuse of discretion for a trial judge to hold that an affidavit filed with a petition for rehearing is too late. Gulewicz v. Cziesla, 366 So.2d 507 (Fla. 2d DCA 1979); Willis v. Foster Sportswear Co., 352 So.2d 922 (Fla. 2d DCA 1977).

It is not without difficulty that we reach the result in this case. To do so we have been required to edge our way through a minefield of procedural problems, at both the trial and appellate levels, attributable to all protagonists. In addition, our own infirmities are demonstrated by a partial retreat from one of our prior rulings. Nonetheless, we remain convinced that it is not a reviewing court’s function to somehow always provide relief from defects occasioned by opposing counsel unless the appellant both demonstrates, and properly preserves, prejudicial error.

We find the remaining point on appeal to be without merit.

AFFIRMED.

DOWNEY, JAMES C. and MOORE, JOHN H., II., Associate Judges, concur.

      . More on this later.

      . This 1961 case interpreted the 10 days notice required under the old rule rather than 20. However, the principle is the same.

      . Technically, this opinion is written for the newly created Fifth District but the panel is entirely composed of Judges from the Fourth District.

      . We are not unaware of Holl v. Talcott, 191 So.2d 40 (Fla.1966). However, we are in full agreement with the Second District’s explanation of it set forth on pages 923 and 924 of the opinion in Willis v. Foster, supra.


author: SHIVERS, Judge.

text:
    Karen Garelick BELL, as Personal Representative of the Estate of Ronald B. Garelick, Deceased, Appellant, v. Elaine E. HARRIS, as Personal Representative of the Estate of Forrest J. Harris, Jr., Deceased, Appellee.
    No. NN-376.
    District Court of Appeal of Florida, First District.
    March 14, 1980.
    Rehearing Denied April 16, 1980.

      C. Harris Dittmar and William R. Dorsey, Jr., of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for appellant.
    Walter L. Robison of Zisser, Robison & Spohrer and Jean C. Coker, Jacksonville, for appellee.
   SHIVERS, Judge.

Appellant seeks review of the Order upholding the sufficiency of a Statement of Claim filed by appellee against the Estate of Ronald B. Garelick, deceased. Appellant contends that this unliquidated claim must state the dollar amount claimed. We disagree and affirm.

This is the second time these parties have appeared before this Court on a matter involving this claim.

Appellee’s Statement of Claim, timely filed, is premised on the wrongful death of appellee’s decedent. The Statement of Claim (to which appellant timely objected) is as follows:

The undersigned hereby presents for filing against the above estate this Statement of Claim and alleges:
1. The basis of this claim is for the wrongful death of FORREST J. HARRIS, JR., deceased.
2. The claimant is ELAINE E. HARRIS, the personal representative of the Estate of Forrest J. Harris, Jr., deceased, and presents this claim pursuant to Section 768.16, Florida Statutes, on behalf of the Estate of Forrest J. Harris, Jr., and as personal representative of said estate, and on behalf of all survivors as defined in Section 768.18, Florida Statutes.
3. ' The amount of the claim is presently unliquidated but is in excess of $2,500.00 and is within the jurisdiction of the Circuit Court in and for Duval County, Florida.
4. The claim is contingent upon the determination by a Court of competent jurisdiction, to-wit: The Circuit Court in and for Duval County, Florida, pursuant to a Civil Action for money damages to be filed for the wrongful death of Forrest J. Harris, Jr., deceased, which said Civil Action shall be filed should this claim be denied.
5. The claim is not secured.
6. The names and addresses of the survivors of Forrest J. Harris, Jr., deceased, are as follows:
(a) Children: Forrest J. Harris, III; Scott Joseph Harris; and Andrew Todd Harris, 3705 Montclair Drive, Jacksonville, Florida.
(b) Widow: Elaine E. Harris, 7901 Baymeadows Circle East, Apartment # 495, Jacksonville, Florida 32216.
7. The names and addresses of the attorneys for survivors are:
(a) Children: Charles W. Arnold, Jr., Esq., 2508 Gulf Life Tower, Jacksonville, Florida 32207.
(b) Widow: Walter L. Robison, Esq., 303 Liberty Street, Jacksonville, Florida 32202.

Appellant contends that the Statement of Claim is insufficient on the ground it fails to adequately designate the amount claimed. Appellant cites § 733.703, F.S. (1977) and Fla.R.P. & G.P. 5.490 in support of her contention.

We hold that the Statement of Claim is sufficient. The nonclaim statute “. should be interpreted and applied so as to facilitate the settlement of estates in the interest of the public welfare, without unreasonably or unduly restricting the rights of creditors of such estates who in good faith and without laches endeavor to comply with the substantial and essential requirements of the statute . . . .” In Re Jeffries’ Estate, 136 Fla. 410, 181 So. 833, 837 (Fla.1938).

This Statement of Claim adequately puts appellant on notice as to the basis of the claim. Neither § 733.703, F.S. (1977) nor Fla.R.P. & G.P. 5.490 requires appellant to put a dollar figure in an unliquidated claim for wrongful death. Cf. § 768.042, F.S. (1977), which provides that in a wrongful death action the amount of general damages shall not be stated in the complaint.

AFFIRMED.

ERVIN and SHAW, JJ., concur.

      . 366 So.2d 765 (Fla. 1st DCA 1979).


text:
    KILLEARN PROPERTIES, INC., a Florida Corporation, Petitioner, v. HAMMONS ASPHALT PAVING, INC., a Florida Corporation, Respondent.
    No. PP-36.
    District Court of Appeal of Florida, First District.
    March 14, 1980.
    Rehearing Denied April 22, 1980.
    Edward S. Jaffry, of Horne, Rhodes, Jaf-fry, Horne & Carrouth, Tallahassee, for petitioner.
    Julius F. Parker, Jr., of Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for respondent.
   PER CURIAM.

This cause is before us on petition for writ of common law certiorari, response and reply thereto. Review is sought of an order denying a motion to dismiss for failure to prosecute. Review of these types of orders by appeal was previously allowed under former Rule 4.2, Florida Rules of Appellate Procedure, but was omitted from the present rule, Rule 9.130, Florida Rules of Appellate Procedure. In the absence of a showing of irreparable injury beyond the fact of having to go through trial, this court declines to exercise its jurisdiction to review by certiorari the nonfinal order denying motion to dismiss.

Accordingly, petition for writ of certiora-ri is DENIED without prejudice to petitioner’s right to raise this question on appeal from final judgment.

ROBERT P. SMITH, Jr., BOOTH and SHIVERS, JJ., concur.

      . United Life Insurance Company v. Jowers, 118 So.2d 85 (Fla. 1st DCA 1960).


text:
    Bernard LOGAN, Appellant/Cross-Appellee, v. POE'S HARDWARE & RENTALS and American Casualty Company, Appellees/Cross-Appellants.
    No. QQ-247.
    District Court of Appeal of Florida, First District.
    March 14, 1980.
    Rehearing Denied April 16, 1980.
    John G. Tomlinson, Jr., of .Williams & Tomlinson, Coral Gables, for appellant/cross-appellee.
    H. B. Yandle, of Law Offices of Joel R. Teague, Coral Gables, for appellees/cross-appellants.
   SHIVERS, Judge.

Appellant, Bernard Logan, brings this appeal from a final workmen’s compensation order entered February 15, 1979. In that order,- the judge of industrial claims found that appellant’s alleged accident of April 11, 1977, did not arise out of his employment. Accordingly, the judge of industrial claims denied appellant’s claim for benefits due to the alleged accident. Appellant brings the following point on appeal: Whether the judge of industrial claims erred in failing to find that appellant suffered a compensable injury by accident arising out of and in the course of his employment on April 11, 1977. Appellees bring the following point on cross-appeal: Whether the judge of industrial claims erred by rejecting the defense of misrepresentation of physical condition in obtaining employment, the defense of condition due to preexisting disease or anomaly, and the defense of injury due to idiopathic causes.

Appellant, aged 65, has the equivalent of a high school education and a job history in service station and mechanic work. Prior to the alleged date of accident, he suffered from various physical and psychiatric problems, including depression, hypertension, sweating and dizzy episodes, and back and leg problems. On April 11, 1977, he had worked a day and a half at employer’s hardware store, doing general delivery and clerk work. While pushing a dolly up a steep ramp to unload a group of chairs, he strained as hard as he could to prevent the chairs from falling. He testified he then felt chest pain and collapsed. He lost consciousness, fell and scraped himself on a wooden floor.

Appellant was taken by ambulance to a hospital, admitted to the intensive care unit, and told he had had a heart attack. However, later heart tests showed no abnormality and he was discharged about two weeks later. The treating doctor, Dr. De-Luca, diagnosed arthritis- and a small hernia. Appellant testified he has suffered from chest and leg pain, headaches, shortness of breath, depression and nervousness since the incident.

Much conflicting medical testimony was presented. Dr. DeLuca stated he never found an adequate explanation for appellant’s chest pain. However, he testified the physical stress of moving the chairs could have caused appellant to lose consciousness, and he had no better explanation for appellant’s loss of consciousness. A psychiatrist, Dr. Gilbert, based his testimony on his treatments of appellant since August, 1977, and opined appellant still needed continuing psychotherapy and had not reached maximum medical improvement yet. Dr. Gilbert testified appellant was predisposed to traumatic nervous neurosis, and had suffered a neurotic reaction to being told he had had a heart attack, and to being put in the intensive care unit. Psychologicálly, appellant’s chest pain had had the same impact as if he had had a heart attack. Dr. Gilbert did not use the term “cardiac neurosis” in his report, but testified appellant had a mixed type of neurosis involving cardiac complications, hysterical complications, pressure and tension.

Another psychiatrist diagnosed chronic depression, which could have been exacerbated by a low-back injury in 1975. An internal medicine specialist testified he had treated appellant for hypertension for several years prior to the accident, and that hypertension could have caused appellant to pass out. Appellant did not mention ever having any back injury in his employment application, which had a specific question regarding back injuries. In response to the other medical questions, appellant also did not mention his history of hypertension or psychiatric problems. According to the evidence presented at the hearing, appellant also may have given an incorrect age on the employment application, and falsified his prior employment history.

On the point on appeal, we agree with appellant that the judge of industrial claims erred in not finding appellant suffered a compensable injury by accident arising out of and in the course of his employment.

The well settled “logical- cause” doctrine works in favor of appellant. The appellant proved a serious injury and a logical cause for it. The employer/carrier did not meet their burden of overcoming the established proof by showing that an-' other cause of the injury is more logical and consonant with reason. “Even in doubtful cases the doubt should be resolved in favor of the claimant.” Sanford v. A. P. Clark Motors, Inc., 45 So.2d 185, 188 (Fla.1950). Appellant suffered an actual collapse on the job when he strained to push the chairs up the ramp. This unusual exertion negates a finding of an idiopathic causation. He is entitled to benefits during the period of his hospitalization following the collapse.

The point on cross-appeal also has merit. Given the wealth of evidence showing appellant may have deliberately falsified his employment application, the deputy erred in not considering the employer/carrier’s defense that they have been injured by the false representations made by appellant. Martin Company v. Carpenter, 132 So.2d 400 (Fla.1961). In the order, the deputy found:

While it is evident that the claimant did misrepresent his physical condition to the employer, I find the defense based on this is moot since there was no claim presented based on the pre-existing conditions of back injury and hypertension.

Since we have reversed the deputy’s finding that the accident did not arise out of employment, however, the defense of misrepresentation is no longer moot. Thus, on remand, the deputy must consider the employer/carrier’s defense based on Martin v. Carpenter, supra.

Accordingly, the order is reversed, and the cause remanded for further proceedings consistent with this opinion.

ERVIN and SHAW, JJ., concur.


text:
    D'AVILA, INC., and Chubb Group of Insurance Companies, Appellants, v. Ernestina MESA, Appellee.
    No. QQ-267.
    District Court of Appeal of Florida, First District.
    March 14, 1980.
    Rehearing Denied April 16, 1980.
    H. Jack Miller of Miller & Hodges, Miami, for appellants.
    David H. Levine of Ser, De Cardenas, ■ Levine, Busch & Allen, Miami, for appellee.
   SHIVERS, Judge.

This workmen’s compensation appeal is from an award of temporary total disability benefits. The judge of industrial claims found that appellee’s preexisting asthma condition was aggravated as a result of her employment. We reverse because there is no competent substantial evidence to support this finding.

Appellee, aged 64, had worked as a seamstress in appellant employer’s garment factory for approximately four years when she quit on July 3,1976. Appellee testified that her respiratory condition had deteriorated over the preceding two-year period and that she quit because of an onset of severe respiratory problems. Appellee suffered her first acute asthma attack since childhood two weeks after quitting her job. As a result of the asthma attack, she was hospitalized.

Dr. Garcia testified appellee gave him a history of working with silk and cotton. His theory was that appellee’s allergic reaction to these materials induced the attack. Appellee testified that when Dr. Garcia admitted her to the hospital, he told her that her condition was connected to dust from the materials at work. Dr. Garcia performed no specific tests to determine appel-lee’s allergic sensitivities and to confirm his diagnosis.

Appellee actually worked with polyester. An anesthesiologist who treated appellee, Dr. Franco, assumed her exposure to polyester particles in her work environment could have aggravated her chronic asthma condition. He also testified acute asthma attacks could be induced by many causes, such as tension or colds. Dr. Franco performed no tests to determine if polyester particles actually were present in her lungs. An otolaryngologist, Dr. King, did test ap-pellee for polyester allergies, but the results proved negative. He felt her bronchial problems had nothing to do with her employment, since her acute asthma attack occurred weeks after she quit, and since in his opinion handling polyester fabric would not induce such an attack. Finally, a public health official who performed tests for toxic materials in the factory testified the work environment was safe for the average worker. There was a high concentration of particles in the air at the factory. However, the particle concentration in the air fell below the “nuisance” standard.

The record does not support the finding that appellee’s exposure to particles at work accelerated or aggravated her

preexisting asthma condition. Dr. Garcia and Dr. Franco, who did not base their opinions on any test results, merely assumed that the concentration of particles at the factory was hazardous to appellee’s asthma condition. But no evidence showed the polyester or dust particles there did present such a hazard, either to the average worker or to appellee. To the contrary, the public health official concluded from his tests that the factory environment was safe. Also, Dr. King, who did test appel-lee’s sensitivity to polyester, found appellee was not abnormally sensitive. Since the expert opinions of Dr. Franco and Dr. Garcia are based on facts not in evidence, they thus do not constitute competent, substantial evidence justifying an award. An expert opinion based on facts not supported by the evidence cannot constitute proof of the existence of facts necessary to the support of an opinion. Arkin Construction Company v. Simpkins, 99 So.2d 557 (Fla. 1957).

We note that since this claim is predicated upon the alleged aggravation of appellee’s asthma disease, she had to fulfill a high burden of proof to show her alleged injury arose out of her employment. In cases involving an employee’s disease, as distinguished from an external accident sustained by the employee, the employee must prove a causal connection between injury and employment by clear evidence, not just by a preponderance of the evidence, or by speculation or conjecture. Harris v. Josephs of Greater Miami, 122 So.2d 561 (Fla.1960). Appellee has failed to meet this burden.

The remaining issues raised by the parties need not be decided. The order is reversed .and the cause remanded to the judge of industrial claims with directions to dismiss the claim.

ERVIN and SHAW, JJ., concur.