text:
    Jack M. JONES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-68.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    Richard L. Jorandby, Public Defender, and Joseph R. Atterbury, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

Section 39.04(2)(e)4, Florida Statutes (1979), is constitutional. State v. Cain, 381 So.2d 1361 (Fla.1980).

ORFINGER, COBB and COWART, JJ., concur.


source: Caselaw Access Project

author: COWART, Judge.

license: Public Domain

text:
    Jeffrey N. KINARD, Appellant, v. STATE of Florida, Appellee.
    No. 79-155.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    Richard L. Jorandby, Public Defender, and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

Appellant, charged with carrying a concealed firearm, entered a plea of nolo contendere to the lesser included offense of carrying a concealed weapon reserving the right to appeal the trial court’s denial of a motion to suppress. The record satisfies us that appellant impliedly consented to the search and seizure of his shotgun from the floor of his vehicle when he made a spontaneous statement about the weapon and its location while being arrested for driving under the influence of alcohol. Appellant complains that, apparently through clerical error, the order withholding adjudication of guilt and placing appellant on probation erroneously recites that appellant entered a plea to the original charge of carrying a concealed firearm, section 790.01(2), Florida Statutes (1979). Such errors should be first brought to the attention of the trial court for correction rather than being first presented as a point on appeal. However, in this instance, we hereby correct that order to recite that the plea was to the offense of carrying a concealed weapon, section 790.01(1), Florida Statutes (1979), and, as corrected, that order, and the order denying appellant’s motion to suppress, are

AFFIRMED.

DAUKSCH, C. J., and ORFINGER, J., concur.


author: ORFINGER, Judge.

text:
    Curtis Lee McRAE, Appellant, v. STATE of Florida, Appellee.
    No. 79-297.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.

      James W. Sibrey, Asst. Public Defender, Palatka, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

The judgment of conviction for robbery with a firearm is affirmed. That portion of the sentence which imposed the mandatory minimum three year sentence pursuant to section 775.087(2), Florida Statutes (1979), is stricken because it is clear from the evidence that defendant had only vicarious, not actual possession of the firearm. Earnest v. State, 351 So.2d 957 (Fla.1977); Zarro v. State, 390 So.2d 811 (Fla. 5th DCA 1980), [1980 FLW 2268].

AFFIRMED as modified.

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


text:
    STATE of Florida, Appellant, v. Michael Wayne BROWN, Appellee.
    No. 80-305.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellant.
    Leon B. Cheek, III, Altamonte Springs, for appellee.
   ORFINGER, Judge.

The State appeals an order granting a motion to discharge appellee under the speedy trial rule, Florida Rules of Criminal Procedure, 3.191. We reverse.

A detailed review of the proceedings will serve no useful purpose. It is sufficient to show that trial was scheduled on the charge against appellee well within the 180-day time limit. Shortly before the scheduled trial date, appellee’s counsel filed a motion to “reschedule” the trial because of counsel’s planned absence from the country during the trial date. Acting on this motion, the trial court entered an “Order Granting Continuance” and re-set the trial for a later date. The order recited the request for continuance by the defense and then granted the continuance. A subsequent motion by the defense for a continuance was also granted.

The trial court later granted defendant’s motion to dismiss under Rule 3.190(c)(4) and the State appealed. During the pendency of the appeal, the State filed a new information based on the same charge, and then voluntarily dismissed the pending appeal on the “C-4” motion. After various appearances on the second information, the motion for discharge appealed from here was filed and granted on the ground that the 180-day time limit had expired without defendant having been brought to trial.

When a defendant requests and is granted a continuance, the matter is taken out of the operation of the speedy trial rule, except within the limited circumstances set forth in Rule 3.191(dX3). The latter rule provides that a defendant must be tried within 90 days from the denial of his motion for discharge, when an earlier motion for continuance is attributable to the accused.

Appellee contends, however, that the first motion was only a motion to “reschedule”, not a request for continuance. We fail to understand the distinction. Florida Rules of Criminal Procedure, Rule 3.190(g), defines a continuance as “the postponement of a cause for any period of time.” Appellee’s motion to reschedule was therefore a motion for continuance for purposes of the speedy trial rule, was treated by the trial court as such and had the effect as such. Just as the 180 day period continues to run notwithstanding the filing of a new information based on the same charges, so does the effect of a defense continuance carry over under the same circumstances.

After defendant filed his motion for discharge here, the State was required to bring him to trial within 90 days, and this time had not expired when the order granting discharge was entered.

The order discharging appellee is quashed, and this cause is remanded to the trial court for further proceedings consistent herewith.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., and COBB, JJ., concur.

      . Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); State v. Register, 380 So.2d 543 (Fla. 5th DCA 1980).

      . State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980).

      . Rule 3.191(h)(2), Fla.R.Cr.P.; Wright v. State, 387 So.2d 1060 (Fla. 5th DCA 1980).


author: COBB, Judge.

text:
    Alan T. BARBER and Ruth R. Barber, as Trustees of the Barber Industries, Inc., Profit Sharing Plan and Trust, formerly Barber Block Plant, Inc., Profit Sharing Retirement Trust, Appellants, v. Brice W. EHRICH, Appellee.
    No. 80-464.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    Terry D. McKnight, Zephyrhills, for appellants.
    John Franklin Johnson, Jr., Bushnell, and Richard McGee, Brooksville, for appellee.
   COBB, Judge.

This case involves a question of whether the trial court erred in granting a new trial.

The appellants (the Barbers) instituted a mortgage foreclosure action against the ap-pellee (Ehrich). In their complaint, the Barbers alleged that Ehrich had executed a first note to the trust on November 4,1974, and that he had subsequently executed a second note, along with a mortgage that was recorded, on January 6, 1975. A copy of the November 4, 1974, note and the alleged January 6, 1975, mortgage were attached to the complaint, but no copy of the alleged January 6,1975, note was attached. Ehrich raised the affirmative defense of minority.

A non-jury trial was held and the trial court entered judgment for the Barbers and ordered the sale of the mortgaged realty if the judgment was not paid. Ehrich moved for a rehearing and the trial court granted a new trial on the grounds that: (1) the note dated November 4,1974, was executed when Ehrich was a minor and the Barbers had failed to re-establish the allegedly lost note dated January 6, 1975; and (2) the Barbers had failed to submit evidence that Ehrich knew or had been advised when the alleged new note and mortgage were executed on January 6,1975, after reaching his majority, that he was not legally liable for the first note. The Barbers have appealed that order granting a new trial.

In accordance with Florida Rule of Appellate Procedure 9.200(b)(3), both parties filed statements of evidence in lieu of a transcript and had the trial court resolve any conflicts. The statements, as approved by the court, show that three witnesses testified at the trial.

Alan Barber testified that in October or November of 1974, he was approached by Louis Ehrich, father of the appellee, who asked Barber for a loan of $15,000 and told Barber that he could secure the loan with a mortgage on real property that he had given to his son. Barber agreed to make the loan using the real property as collateral. The loan was closed on November 4, 1974. At that time, $15,000 was delivered to Louis Ehrich, and the appellee executed a promissory note for $15,000 and a mortgage on the real property. Prior to the consummation of this transaction, Louis Ehrich advised Barber that the appellee had not reached the age of majority and thus neither the note nor the mortgage were recorded. On January 6,1975, the appellee, who had then reached the age of 18, returned to Barber’s offices and executed a new note and mortgage containing the same terms as the note and mortgage that had been executed on November 4, 1974. This second note and mortgage were executed in the presence of two witnesses and a notary public, and the mortgage was recorded. The second note was subsequently lost. No payments were made on the note and mortgage, and it was declared to be in default.

Barbara Howard, notary public, testified that the second note and mortgage had been executed in her presence on January 6, 1975.

The appellee testified that he had acquired the real property involved in this case as a gift from his father in January of 1973. He attained the age of 18 on December 31, 1974. In October of 1974, he was approached by his father, who explained to him that he needed money and wanted to use the real property as collateral for a loan. The appellee consented and on November 4, 1974, he accompanied his father to the Barbers’ offices, where he signed the note and mortgage dated November 4,1974. He personally did not receive any consideration for the note and mortgage. In about a week or ten days after the original execution of the note and mortgage, he returned to the Barbers’ offices and initialled the note and mortgage. He did not sign any note or mortgage after reaching the age of 18. He had not made any payments on the note and mortgage, or in any way ratified or acknowledged the obligation to be his. With respect to the note dated November 4, 1974, the appellee maintained that the note was invalid and unenforceable on his defense of minority. With regard to the certified copy or the mortgage dated January 6, 1975, the appellee objected to it as being unauthentic and altered.

With regard to the first reason for the trial court’s granting of a new trial, the Barbers contend that they had re-established the note dated January 6, 1975, since they had introduced the mortgage dated January 6, 1975, which set forth the terms of the note. They rely upon Lenfesty v. Coe, 34 Fla. 363, 16 So. 278 (1894); and Tanner v. Batson, 123 Fla. 240, 166 So. 545 (1936).

Pursuant to section 673.3-804, Florida Statutes, the owner of an instrument which is lost may maintain an action and recover upon the instrument upon proof of his ownership, proof of the facts which prevent his production of the instrument, and proof of the terms of the instrument. The question of sufficiency of proof of loss of the note sued upon rests largely within the discretion of the trial court. Brunswick Corp. v. Briscoe, 523 S.W.2d 115, 17 U.C.C.Rptr. 818 (Mo.App.1975). The cases relied upon by the Barbers would support a finding by the trial court that the note existed based upon an undisputed mortgage containing the terms of the note. However, in the instant case, the mortgage that was used to establish the terms of the allegedly lost note is controverted and challenged as to authenticity and alteration of its original terms. Indeed, it is clear from an inspection of the mortgage introduced at trial that it has been altered by whiting out ■ the word “November” and substituting the word “January,” and also changing the year “1974” to “1975” in three different places. The inference is available that only one note and one mortgage document ever existed (the note dated November 4,1974, and the mortgage dated November 6,1974), the mortgage document was later altered to show the date of January 6, 1975, and the mortgage document was initialled “B.W.E." at sometime subsequent to the original execution. Under these circumstances, we do not believe that the trial court abused its broad discretion in granting a new trial on the first basis recited in the order appealed. See Cloud v. Fallis, 110 So.2d 669 (Fla.1959).

For the reasons set forth above, we need not decide, and do not consider at this time, the correctness of the trial court’s second stated basis for granting a new trial. Therefore, on the basis of the first ground recited in the trial court’s order granting a new trial, we affirm and remand for further proceedings consistent with this opinion.

AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . Although the reference is to a certified copy of the mortgage, the document in evidence appears to be the original.


author: SHARP, Judge.

text:
    f COMPANY, Appellant, v. Paul VILLEGAS,
    No. 80-475.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    H. Joseph McGuire of Parker, Johnson, Owen & McGuire, Orlando, for appellant.
    No appearance for appellee.
   SHARP, Judge.

American States Insurance Company appeals from the trial court’s determination that its policy provided coverage for the incident involved in this case, and the final judgment of damages imposed as a result of that determination. We reverse.

The appellant issued to Singleton, a general contractor, a “Manufacturers’ and Contractors’ Liability Insurance Coverage” policy. The policy contained Exclusions (a) and (o):

This Insurance does not apply:
(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but with respect to bodily injury or property damage occurring while work performed by the named insured is in progress, this exclusion does not apply to a warranty that such work will be done in a workmanlike manner;
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith; ....

The appellee, Villegas, argued that this policy should cover the damages he suffered when an addition to his home, which was improperly constructed by Singleton, had to be torn down and replaced.

The trial judge found coverage for all of appellee’s damages under this policy, relying upon Fontainebleau Hotel Corp. v. United Filigree Corp., 298 So.2d 455 (Fla. 3d DCA 1974). Since the trial, our Supreme Court disapproved Fontainebleau in La-Marche v. Shelby Insurance Company, 390 So.2d 325 (Fla.1980). It held that a general contractor’s comprehensive liability policy, such as the one involved in this case, does not cover the cost of replacing or repairing defective materials and workmanship:

... the purpose of this comprehensive liability insurance coverage is to provide protection for personal injury or for property damage caused by the completed product, but not for the replacement and repair of that product.

Id. at 326.

However, pursuant to LaMarehe, property damage to appellee’s original structure caused by Singleton’s addition may be covered under the comprehensive policy. This item of damage was not separately determined at the trial because the LaMarehe case had not then been published. We reverse the judgment and remand this case to the trial court for the purposes of making that determination and entering a judgment for appellee, if appropriate. Shelby Mutual Insurance Company v. LaMarche, 371 So.2d 198 (Fla. 2d DCA 1979), aff’d., 390 So.2d 325 (Fla.1980).

REVERSED and REMANDED.

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


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

text:
    James T. PITTMAN and Deborah J. Pittman, his wife, Appellants, v. PROVIDENCE WASHINGTON INSURANCE CO., a Foreign Corporation and Chicago Insurance Co., a Foreign Corporation, Appellees.
    No. 80-516.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.

      Richard W. Bates and Stephen M. Stone, Orlando, for appellants.
    John M. Bussey, III, of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P. A., Orlando, for appellee Providence Washington Ins. Co.
    J. David McFadden, Daytona Beach, for appellee Chicago Ins. Co.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants appeal a judgment after a jury trial holding that insurance coverage does not exist. We affirm.

Pittman was injured when the motorcycle he was riding was struck by an Orange County sheriff’s car responding to an emergency call. Appellants contend the policies in question issued to Orange County and the county commissioners also covered the sheriff. Both parties agree that when purchased, it was the intention of the county commission not to cover the sheriff’s department and the department was specifically exempted from coverage by the language of the purchase proposal submitted by the county commissioners. The language of the policies, as delivered, did not specifically exempt the sheriff’s department.

Appellants contend that the language of the insurance policies is clear and unambiguous and parol evidence cannot be introduced to vary the plain meaning of them. Appellants point out that the Providence policy is to cover:

(b) Any elected or appointed official or employee of the named insured with respect to a non-owned automobile of the named insured ...;

and that under the Chicago policy: “any officer ... of the named insured, while acting in his capacity as such....” is covered. Appellants reason that the sheriff, being a county officer, article VIII, § 1(d), Florida Constitution, and an elected official, is, therefore, clearly within the coverage.

Normally a contract will be construed according to its clear and unambiguous terms. Cueto v. John Allmand Boats, Inc., 334 So.2d 30 (Fla. 3d DCA), cert. denied, 341 So.2d 290 (1976). The language used in a contract is the best evidence of the intent of the parties. Home Developers Company of St. Petersburg v. Bursani, 178 So.2d 113 (Fla.1965).

However, if we should accept appellants’ argument, we would in effect be holding that a person, claiming to be a third-party beneficiary but never intended as such by the parties, could obtain benefits which the parties never intended to sell or purchase and which were not paid for. The parties to the insurance agreement all acknowledge that the county did not intend to buy and the companies did not intend to sell coverage on the sheriff’s vehicles. A third-party beneficiary is a stranger to the contract. DiCamillo v. Westinghouse Electric Corporation, 122 So.2d 499 (Fla. 2d DCA 1960). The parol evidence rule may be invoked by any party to such contract or their privies, but cannot be invoked by a stranger to such contract. Palmer v. R. S. Evans Jacksonville, Inc., 81 So.2d 635 (Fla.1955). See J. N. Roof v. Chattanooga Wood Split Pulley Co., 36 Fla. 284, 18 So. 597 (1895); 3 Corbin on Contracts, 572-78 (1960).

Upon introduction of parol evidence of the intent of the parties, it became apparent that appellants were not even third-party beneficiaries. The trial judge correctly permitted the introduction of parol evidence.

AFFIRMED.

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


text:
    Elaine Althea WYNN, Appellant, v. STATE of Florida, Appellee.
    No. 80-538.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    James B. Gibson, Public Defender, and Burke D. Chester, Sp. Asst., Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

The judgment of conviction is affirmed. Both parties to this appeal agree, however, that the judgment contains a scrivener’s error; i. e., it recites that appellant entered a plea of guilty to the charge for which she was convicted when, in fact, she pled not guilty and was found guilty by a jury. The judgment is therefore modified to reflect that appellant was tried and found guilty by a jury of the offense of burglary of a dwelling. As so modified, the judgment and sentence are

AFFIRMED.

COBB and COWART, JJ., concur.


text:
    Robert Stephen WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 80-632.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

Appellant was charged with burglary of a structure in violation of section 810.02, Florida Statutes (1979). He pled guilty pursuant to the terms of a plea bargain. His plea was accepted and he was sentenced to four years imprisonment.

Appellant has appealed the judgment and his sentence. Prior to the appeal, he did not file any post-conviction motions. We dismiss the appeal of the judgment pursuant to Robinson v. State, 373 So.2d 898 (Fla.1979), and Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979). We affirm the sentence.

DISMISSED in part; AFFIRMED in part.

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


author: COBB, Judge. DAUKSCH, Chief Judge,

text:
    Richard A. HOLT, Appellant, v. Sandra R. BOOZEL, Appellee.
    No. 80-644.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    T. G. LaGrone, Orlando, for appellant.
    Peter N. Smith, Orlando, for appellee.
   COBB, Judge.

The appellant, Richard Holt, appeals from an adverse summary judgment quieting title to a parcel of realty situate in Windermere, Florida, in the appellee, Sandra Boozel. Holt, the holder of a judgment against Boozel’s former husband, claims that his judgment lien attached to the realty at the time of the Boozel dissolution proceeding. Her contention is that the lien never attached to the land in question because title thereto passed instantaneously from a tenancy by the entirety to an unencumbered fee in her by reason of the dissolution judgment, which declared a special equity in her favor.

The background events leading up to this conflict are:

In 1971, James and Sandra Boozel, husband and wife, acquired the realty herein concerned and held it as a tenancy by the entirety. On September 21, 1974, Sandra and James Boozel signed a $12,000.00 promissory note from the Bank of West Orange to Shiny Wheels, Inc. She did not sign a renewal note dated September 22, 1974, which was signed by her husband. The appellant, Richard Holt, was an accommodation endorser on the renewal note. There was a default in payment, and the bank obtained a judgment against James Boozel and Richard Holt; this judgment, upon payment by Holt, was assigned by the bank to him on April 5, 1977.

On February 2,1978, a final judgment of dissolution in respect to the marriage of James and Sandra Boozel was entered by the Circuit Court of Orange County. She was awarded a special equity in the real property herein concerned, and it was declared to be her sole and exclusive property. The dissolution judgment was then amended to include a provision requiring James Boozel to execute a quit-claim deed conveying his record one-half interest in the property to her, which he did on June 5, 1978. During June, 1978, Holt attempted to levy on the interest of James Boozel in the realty, claiming that the lien of his in personam judgment against James Boozel attached to the realty at the time the judgment of dissolution was entered, and preceding the execution of the quit-claim deed, during which time, Holt contends, James Boozel was a tenant in common in respect to the legal title to the property.

The appellant relies primarily on Hillman v. McCutchen, 166 So.2d 611 (Fla.3d DCA 1964). In that case, one William McCutchen executed a note and mortgage on real property held as an estate by the entirety with his wife, Mary Louise McCutchen, who had no knowledge of the note and mortgage. Subsequently, the McCutchens were divorced and the judgment awarded the real property to Mary Louise McCutchen as lump-sum alimony. The mortgagee, one Ann Hillman, argued that her mortgage became a lien on the husband’s interest in the realty coincident with the severance of the marriage relationship and the consequent conversion of the estate by the entirety into an estate in common. The Third District Court of Appeal agreed, holding that there was a time period created by the judgment of dissolution during which a tenancy in common vested in the husband, and that the mortgage lien attached “in the twinkling of a legal eye” against that interest — which, paradoxically, was divested by the same instrument (the judgment) which created it. The appellate court reasoned that it is only property of the husband, such as a tenancy in common in realty, which can be the subject matter of an award of lump-sum alimony to the wife. Therefore, the award of the property as lump-sum alimony was only a judicial short-circuit of the process of a court-ordered sale of the property and an award of the money received to the wife — in which case the plaintiff’s lien clearly would have attached to the husband’s interest in the intervening period between the judgment and the sale.

Hillman can be distinguished from the instant case wherein the court found a special equity in the property to be in the wife, Sandra Boozel. See Canakaris v. Canakaris, 382 So.2d 1197, at 1200 (Fla.1980). The husband, James Boozel, did not acquire a vested tenancy in common by reason of the judgment, not even by implication nor for the “twinkling of an eye.” The trial court in the instant case did not determine that the husband’s tenancy in common should go to the wife as lump-sum alimony resulting from the dissolution, but rather that the special equity interest of the wife in the property had been acquired during the marriage and prior to the dissolution.

Two cases more recent than Hillman support the arguments of the appellee: State Dept. of Commerce, Div. of Employment Security v. Lowery, 333 So.2d 495 (Fla.1st DCA 1976), cert. denied, 344 So.2d 327 (Fla.1977), and Liberman v. Kelso, 354 So.2d 137 (Fla.2d DCA 1978).

In Lowery it was held that the conveyance by the husband of his interest in an estate by the entirety to his wife pursuant to a property settlement stipulation incorporated in a later divorce judgment allowed the wife to take the entire estate free of any claims of the husband’s creditors.

In Liberman, the facts were similar: A judgment was obtained against the husband during the marriage; there was a property settlement agreement incorporated in the dissolution judgment requiring that the jointly-owned realty be deeded to the wife; and the wife was not aware of the unsatisfied judgment at the time of the dissolution. The Second District Court of Appeal, following the Lowery rationale, held that the conveyance of the husband’s interest to the wife prior to the judgment of dissolution was free of the lien of the husband’s judgment creditor pursuant to section 689.-11, Florida Statutes. The Second District Court of Appeal found Hillman and Lowery to be irreconcilable, and favored the rationale of the latter case. Liberman relied upon Quick v. Leatherman, 96 So.2d 136 (Fla.1957), as authority for the proposition that section 689.15, Florida Statutes (1975), had never been construed to prohibit a court in a dissolution proceeding from awarding full title in property held as a tenancy by the entirety to one of the spouses. The fact that the deed in compliance with the judgment was executed subsequently was deemed irrelevant in Liberman because the judgment was controlling.

We concur with the reasoning of the First and Second District Courts of Appeal in Lowery and Liberman. This view, as observed by Judge Grimes in his majority opinion in the latter case, does not preclude an attack on a transfer as a fraud of creditors. See Trueman Fertilizer Co. v. Stephan, 111 Fla. 207, 149 So. 349 (1933). In the instant case, however, there is no evidence to support a theory of fraud. The appellant’s arguments in regard to a claim based upon the theory of equitable lien are without merit. For one thing, the issue was not properly raised before the trial court. See Goldberg v. Banner Supply Co., 230 So.2d 714 (Fla.3d DCA 1970); Unkefer v. Merritt, 207 So.2d 726 (Fla.4th DCA 1968).

Accordingly, the judgment of the trial court is

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

DAUKSCH, C. J., concurs specially with opinion.

DAUKSCH, Chief Judge,

concurring specially:

I concur in the well-reasoned majority opinion and merely add my emphasis that my decision rests upon the very firm legal foundation that the property rights of Mrs. Boozel were hers before the dissolution judgment and that judgment legally affirmed those equitable rights and did not actually establish them. Thus Mr. Boozel never had an equitable interest in the property which could be taken by Mr. Holt. I should also add that the courts, again as said by the majority opinion, will not permit a device to defraud creditors either in a property settlement agreement or an outright intramarital conveyance. In this case there was sufficient evidence to support the determination by the trial judge that the wife really (equitably) owned the property that was legally titled in both names. It is the equitable ownership which is of real value, not the legal title.

      . See § 689.15, Fla.Stat. (1977).


text:
    ERIE INSURANCE COMPANY and Margaret Borman, Appellants, v. Brenda Ragland BUSHY, Appellee.
    No. 80-718.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.

      Alfred A. Green, Jr., Daytona Beach, for appellants.
    Janet L. Brown, of Haas, Boehm, Brown & Rigdon, Daytona Beach, for appellee.
   SHARP, Judge.

Erie Insurance Company appeals from a final judgment after a jury verdict awarding Bushy damages of $45,000.00. Erie claims some remarks of trial counsel for Bushy were so inflammatory and prejudicial, it should be granted a new trial. Under the circumstances in this case, we agree.

Erie had admitted liability, and the lawsuit concerned the amount of damages only. Counsel for Erie and its insured, Margaret Borman, appeared at trial. Counsel for Bushy criticized Erie for not having an insurance executive at the defendants’ table in lieu of Borman. He said he had never seen such “subtle, hidden deception of any defendant.” Although not objected to by the defendant, and not preserved as reversible error on appeal, this improper remark heightened the effect of subsequent remarks implying the insurance company was acting in bad faith in this litigation, without any basis or grounds for such a view point.

During his closing argument counsel for Bushy said, “I want you to send a message to Erie, Pennsylvania, that you can’t defend a case by coming down here and just subtly hinting that we don’t owe it and it must have been something else. Send a message to those people and let them know that they are going to have to pay a penalty.”

Counsel for Erie moved for a mistrial. The trial judge denied the motion after the jury retired, and he made no clarifying admonition or warning that punitive damages were not appropriate in this case. We distinguish this case from Murray-Ohio Manufacturing Company v. Patterson, 385 So.2d 1035 (Fla. 5th DCA 1980), because in Murray no contemporaneous motion or objection was made to the remarks, and therefore the question of their prejudicial and inflammatory nature was not preserved for appeal.

We are reluctant to reverse any case because of improper jury arguments. Pitts v. State, 307 So.2d 473 (Fla. 1st DCA 1975). However, whether made by defense or plaintiff’s counsel, if they are highly improper and patently prejudicial, we have no alternative. Martin v. State Farm Mutual Automobile Insurance Company, 392 So.2d 11 (Fla. 5th DCA 1980); Eastern S. S. Lines, Inc. v. Martial, 380 So.2d 1070 (Fla. 3d DCA 1980). We cannot tell in this case whether part of the damages award was “punitive,” and the product of counsel’s wrongful request for punitive damages in a case where there was no basis for them. See Pierce v. Smith, 301 So.2d 805 (Fla. 2d DCA 1974), cert. denied, 315 So.2d 193 (1975). Further, counsel for Bushy has offered us no basis or explanation for his remarks, and we conclude he agrees they were unjustifiable.

We reject appellant’s second point on appeal that it is entitled to a “set-off” of $5,000.00 because the appellee failed to carry no fault insurance, and therefore was a self-insurer under Florida Statutes, section 627.733(1). Holding an owner of an uninsured motor vehicle liable as a self-insurer for damages suffered from an insured driver would avoid the express insuring contract provisions in Erie’s liability policy. It should make no difference to Erie under its liability policy whether the injured person has or does not have insurance. Ward v. Nationwide Mutual Fire Insurance Company, 364 So.2d 73 (Fla. 2d DCA 1978).

REVERSED and REMANDED FOR NEW TRIAL.

ORFINGER and COWART, JJ., concur.

      . Page v. Cory Corporation, 347 So.2d 817 (Fla. 3d DCA 1977); Sears, Roebuck & Company v. McAfoos, 303 So.2d 336 (Fla. 3d DCA 1974).


text:
    William Henry CLEVELAND, Appellant, v. STATE of Florida, Appellee.
    No. 80-910.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    William Henry Cleveland, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

The appellant, as the defendant below, negotiated a plea and sentence before the trial court in return for the dismissal by the state of other counts against him. He then challenged the sentence as illegal pursuant to Florida Rule of Criminal Procedure 3.850. He was sentenced to ten years imprisonment for attempted armed burglary, a third-degree felony with a maximum term of five years. State v. Sudol, 357 So.2d 761 (Fla. 4th DCA 1978). Therefore, the negotiated sentence is illegal.

In accordance with our opinion in Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981), we vacate the plea, the judgment and sentence, and reinstate the dismissed counts; provided, however, if the state should exercise its option to accept the plea with the sentence reduced to a legal term, then the other counts shall again be dismissed and the plea and the judgment shall stand as the predicate for a new sentence consistent with Florida law. See §§ 777.04(4)(c) and 775.-082(3)(d), Fla.Stat. The affirmative exercise of the option to accept the plea accompanied by a legal sentence shall be exercised by the state before the trial court within thirty (30) days of the issuance of the mandate herein; otherwise, the case returns to its status before the original plea bargain.

REVERSED and REMANDED for further proceedings consistent with this opinion.

DAUKSCH, C. J., and ORFINGER, J., concur.


author: LARRY G. SMITH, Judge.

text:
    Ernest Eugene GIBBS, Appellant, v. STATE of Florida, Appellee.
    No. 00-211.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.
    Michael J. Minerva, Public Defender, and Harold W. Long, Jr., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Doris Jenkins, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

Upon review of appellant Gibbs’ conviction of lewd, lascivious or indecent assault or act upon or in the presence of a child, we reject appellant’s contention that the trial court reversibly erred in allowing testimony from the victim that appellant had committed similar sex acts upon her in the past. However, we find the trial court erred in refusing to instruct the jury on the penalties for the crimes of which he was subject to conviction.

The prosecuting attorney asked the victim, appellant’s stepdaughter, whether appellant had on prior occasions required her to perform the same oral-genital sex act as the one on July 28, 1978, for which appellant was being tried. Appellant’s objection and motion for mistrial, which followed the stepdaughter’s affirmative answer, was denied. She further testified that the same acts had been committed on about fifteen prior occasions, dating back to 1976, and that when she had reported this to her mother, her mother got mad. The State also presented the testimony of a family social worker, who stated that the stepdaughter told her that appellant had sexually molested her.

This court’s recent decision in Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), certiorari denied 392 So.2d 1373 (Fla.1981), is dispositive of the first issue. The Cotita case held that evidence of prior, similar sex acts both with the minor victim, as well as with other neighborhood children, was admissible evidence, and not in violation of the rule of Williams v. State, 110 So.2d 654 (Fla.1959) and its progeny. No useful purpose would be served here by repetition of the arguments for and against admissibility, or discussion of the numerous cases and authorities bearing on the subject. All this has been admirably accomplished in the majority, as well as the dissenting opinion in Cotita. We observe, however, that the evidence in the case at bar, since it deals only with similar sex acts against the victim in the case being tried, is far less subject to objection than evidence of similar acts against other victims. See particularly, references to Professor Julius Stone’s comments regarding this distinction (Cotita, dissenting opinion), in which Stone pointed out that prior sex acts against the same victim show 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.” Stone found a “world of difference” between that evidence and evidence that defendant raped other girls at other times.

“Relevancy indicates relationship between facts. The existence of fact A is relevant as tending in reason to prove the existence of fact B, if the existence of B is more likely or probable when A exists than it would be if A did not exist; and evidence tending in reason to prove the existence of A is relevant evidence of the existence of B.” Morgan, Basic Problems of Evidence, Vol. One (June, 1961), Chapter Six, Relevancy, p. 183. The existence of a lustful attitude toward his stepdaughter, proven by prior sexual assaults, makes it more likely or probable that the appellant possessed a similar state of mind toward his stepdaughter on the date of the alleged offense. This is relevancy beyond mere propensity. Compare Florida Evidence Code, § 90.404(2) Florida Statutes (1979), “Other Crimes, Wrongs, or Acts.”

Without further belaboring the point, we think there is ample precedent for admissibility, in this case, of evidence of the prior sex acts committed by appellant against his stepdaughter, and that our holding in this case does not conflict with Knox v. State, 361 So.2d 799 (Fla. 1st DCA 1978), which we consider to be distinguishable, as did the majority in Cotita, supra.

The second point on appeal, the contention that the court erred in refusing jury instructions on the penalties for the crimes he could have been found guilty of, has been decided by the Florida Supreme Court in Tascano v. State, 393 So.2d 540, 1980 FLW 283, Opinion filed June 5, 1980. The court held that Rule 3.390, Florida Rules of Criminal Procedure is mandatory; and that the trial court’s failure to instruct on penalties is grounds for reversal.

In view of the lack of finality of Tascano v. State, we certify the question to the Supreme Court of Florida as one of great public importance under Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure.

REVERSED and REMANDED for new trial.

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

      . The Supreme Court’s decision in Tascano v. State quashed the decision of the First District Court of Appeal reported at 363 So.2d 405 (Fla. 1st DCA 1980). However, at this writing, Tas-cano remains pending in the Supreme Court of Florida on motion for rehearing.


author: PER CURIAM.

text:
    Samuel PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. TT-99.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.
    Michael J. Minerva, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Phillips appeals a judgment and sentence dated November 28, 1979, imposing 30 months imprisonment for violation of the terms of his probation. Because the sentence which originally placed Phillips on probation was void, the court had no authority to revoke his probation. We therefore reverse the sentence now on appeal and remand with directions.

Phillips initially was given a one-year sentence on February 26, 1976. One week later, the trial court modified the sentence by placing the appellant on probation for three years. There is no evidence in the record that the appellant requested this modification.

The trial court’s modification of the original sentence was invalid. The modification was not permitted by Florida Rule Criminal Procedure 3.800(a) since the original sentence was legally imposed, nor was it authorized by Rule 3.800(b) because the granting of probation does not constitute a reduction of a sentence, Cuneo v. State, 335 So.2d 278 (Fla.1976), and finally, it was not a suspended sentence pursuant to Section 948.01, Florida Statutes (1975), since it was not “done at the time of the original sentencing.” Solomon v. State, 341 So.2d 537, 538 (Fla. 2d DCA 1977). Consequently, the change in the sentence placing the appellant on probation being void, the probation revocation and its corresponding sentence of 30 months’ imprisonment was also void. Solomon v. State, supra.

The state’s reliance on Smith v. Brown, 185 So. 732 (Fla.1938) and State v. Jones, 327 So.2d 18 (Fla.1976), as authority to affirm the appealed order is misplaced. Smith provides that if a sentence of imprisonment is set aside at the request of a convicted defendant or at his insistence, the court may impose a new sentence upon the original adjudication of guilt. Here the record does not in any way indicate that Phillips requested or insisted on a modification of his original sentence.

State v. Jones, supra, is also distinguishable. The Jones court held at p. 25 that a trial court has jurisdiction to “revoke, reverse, or modify for cause” a probation order “at any time” the order is in effect and “impose any sentence which may have been originally imposed” pursuant to Sections 948.03 and 948.06(2), Florida Statutes. The Jones opinion did not involve the issue before us concerning the time frame in which a trial court can exercise its original jurisdiction to place a defendant on probation pursuant to Section 948.01, Florida Statutes.

Accordingly, the judgment and sentence are reversed, and the case remanded with directions to reinstate the original sentence and to allow appellant credit for all time served on that sentence.

ERVIN, SHAW and WENTWORTH, JJ., concur.


author: BOOTH, Judge.

text:
    ST. REGIS PAPER COMPANY, Appellant, v. Ralph PELLIZZERI, Appellee.
    No. UU-11.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.
    James M. Wilson of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    James F. McKenzie of Myrick & McKenzie, Pensacola, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the award of interest on attorney’s fees following the successful prosecution of a workmen’s compensation claim.

On September 5, 1978, the Deputy Commissioner awarded Pellizzeri compensation benefits and reserved jurisdiction to assess an appropriate attorney’s fee. St. Regis appealed, and the order was affirmed by the Industrial Relations Commission on May 15, 1979. On November 13, 1979, the Deputy awarded $17,220.00 in attorney’s fees. St. Regis paid this amount on December 13, 1979. Subsequently, the Deputy ordered St. Regis to pay $1,169.58 in interest on the attorney’s fees for the time beginning 21 days after the order reserving jurisdiction to award fees. St. Regis appealed, asserting that interest was due only for the time period beginning 21 days after the November 13, 1979 order setting the fees until the time of payment. We agree.

In Stone v. Jeffres, 208 So.2d 827 (Fla.1968), the Supreme Court addressed the issue of when interest begins to run on an award of attorney’s fees in compensation cases and held (208 So.2d at 830):

[I]t would seem that interest should run on attorneys’ fees from the time they are awarded by the deputies. We see little logic for making an exception and establishing a different rule as to allowance of interest on attorneys’ fees awarded in compensation cases from the rule which authorizes interest on disability awards.
Finding no justification for an exception, we hold interest on an attorney fee runs from the time of the entry of the Deputy’s award.

Although the Deputy reserved jurisdiction to award an appropriate fee in the original order, no award was made until November 13, 1979, and interest did not begin until after that date. Interest on an award of attorney’s fees cannot begin to run until the amount of the fee is determined by the Deputy. Were it otherwise, a reservation of jurisdiction to assess the attorney’s fees followed by a 21-day period before specifying the amount due would automatically impose an interest penalty.

The order below is reversed in part and the cause remanded for further proceedings consistent herewith.

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


text:
    William C. WARE, Appellant, v. Virginia L. WARE, Appellee.
    No. VV-6.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.
    Gillis E. Powell, Jr., and Stanley Bruce Powell, of Powell, Powell & Powell, Crest-view, for appellant.
    J. LaDon Dewrell, Fort Walton Beach, for appellee.
   PER CURIAM.

The husband appeals a final judgment granting dissolution of marriage, contending that the trial judge’s denial of his motion for a continuance of the final hearing constituted a gross abuse of discretion, and that the trial judge also abused his discretion in awarding excessive alimony to the wife. We affirm.

The record discloses that the case was set for final hearing before the trial judge by appellee’s attorney on August 15, 1979. The final hearing was cancelled by appellant’s attorney, and rescheduled by him for October 22,1979. This hearing was also cancelled by appellant’s attorney, and another was scheduled for December 11, 1979, by appellee’s attorney. Appellant’s attorney on November 20, 1979, moved for a continuance. The hearing on this motion was not actually heard until December 7, 1979. In the motion it was asserted that appellant, sometime in late 1979, had been assigned to a job in Sicily, Italy, and his attorney had been unable to contact him. There is some contention that when appellant left the country he thought that matter surrounding the dissolution had been settled. We find no basis for such assumption, and note particularly that appellant’s attorney rescheduled the final hearing in this case on two occasions. It is apparent that appellant exhibited little regard for his responsibility in connection with this litigation by leaving the country without making arrangements with his attorney as to where he could be contacted, and for purposes of obtaining his participation in the litigation by means of his deposition, if necessary. We find no abuse of discretion in the trial judge’s denial of the continuance under these circumstances.

As to the second point, the claim of excessiveness in the award of alimony, we observe first that the evidence fully supports appellee’s need for permanent alimony in the amount awarded. As to appellant’s ability to pay, we affirm the award, but in so doing we assume that the trial judge, upon the basis of all the evidence presented, concluded that appellant’s 1978 earnings of over $20,000.00 per year continued up until the entry of the final judgment of dissolution on December 11, 1979. The parties are in disagreement concerning the effect of the evidence as it bears upon appellant’s 1979 income. However, the lack of specificity on this point is due primarily to appellant’s failure to provide the necessary input on this issue for consideration of the trial judge. In view of the presumption of correctness which attends the decision made by the trial judge, we are compelled to hold that appellant has failed to demonstrate reversible error on this issue. However, in affirming we do so without prejudice to appellant’s right to immediately seek a modification of the alimony award, and we further direct that under the circumstances presented here, in the discretion of the trial judge, appellant may be permitted to demonstrate his actual 1979 earnings, as well as his current earnings, for the consideration of the trial judge.

The judgment is AFFIRMED, with directions with respect to further proceedings herein.

McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE A., Associate Judge (Ret.), concur.


text:
    ORLANDO HYATT HOUSE and Scott Wetzel Services, Appellants, v. Donald R. NEAL, Appellee.
    No. WW-163.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.
    Robert J. Felice, Robert C. Barrett, and Bernard J. Zimmerman of Akerman, Sen-terfitt & Edison, Orlando, for appellants.

      Ronald J. Langa of Maher, Overchuck & Langa, Orlando, for appellee.
   PER CURIAM.

The compensation order dated June 25, 1980, is modified to provide that payment of temporary total disability shall continue only as long as claimant remains temporarily totally disabled, and as modified is

AFFIRMED.

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


text:
    Lionel Don COX, Appellant, v. STATE of Florida, Appellee.
    No. WW-430.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.
    Michael J. Minerva, Public Defender, and Thomas Presnell, Jr., Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Appellant was convicted as a principal in the first degree to an armed robbery committed by his brother, James Earl Cox. We find that the evidence was legally insufficient to sustain the conviction and, therefore, vacate the sentence and reverse the judgment.

Shortly after midnight, a white male later identified as appellant’s brother, James Earl Cox, robbed the clerk of a convenience store. Immediately thereafter, a passing motorist, George Mullins, saw two white males running from the vicinity of the store. Mullins stopped and went into the store. When the police arrived a few moments later, he was able to give the police a description of the clothing worn by one of the men fleeing the scene but not the other. This description matched the clerk’s description of the robber.

Thirty minutes later appellant and his brother were arrested in their car in front of a club two miles from the scene of the crime. The clothing worn by appellant’s brother matched the description given the police by both Mullins and the clerk. Both appellant and his brother were taken into custody and the clerk immediately identified James as the robber.

At trial, Mullins testified that he could not describe the other man fleeing the scene and that he did not give any description of such person to the police. However, over appellant’s objection, the investigating officer testified that he had taken notes indicating that Mullins described the second man as a white male wearing a red shirt and blue jeans. When arrested, appellant was wearing blue jeans and a white shirt with a red logo. Appellant testified he and his brother had been together most of the evening, but denied they had been together for approximately thirty minutes prior to the arrest. Appellant gave a logical explanation for his whereabouts during that period of separation.

The investigating officer’s testimony concerning Mullins’ description of the second person was clearly hearsay, and the objection should have been sustained. Since the officer’s notes were not admitted into evidence, we need not and do not determine whether such notes would have qualified as a hearsay exception under Section 90.803(6), Florida Statutes (1979).

Therefore, the evidence against appellant consists only of proof that his brother and another white male were seen running from the convenience store after the robbery and that thirty minutes later appellant was found seated in a car with his brother two miles from the scene of the crime. This circumstantial evidence, while consistent with guilt, is not wholly inconsistent with any reasonable hypothesis of innocence and, therefore, cannot sustain a conviction. Tillman v. State, 353 So.2d 948 (Fla. 1st DCA 1978); Ferguson v. State, 321 So.2d 139 (Fla. 4th DCA 1975).

This cause must be reversed for an additional reason. Appellant was charged and convicted as a principal in the first degree for aiding and abetting under Section 777.011, Florida Statutes (1979). Before an accused may be convicted as an aider and abettor, his intent to participate in the crime must be proven. Fisher v. State, 365 So.2d 1055 (Fla. 4th DCA 1978); Shockley v. State, 338 So.2d 33 (Fla. 3rd DCA 1976). The record does not contain any evidence of the appellant’s intent to participate in the crime.

The judgment is reversed.

MILLS, C. J., and ROBERT P. SMITH, J., concur.

      . See also, State v. Inman, 347 So.2d 791 (Fla. 3rd DCA 1977) predating the effective date of the evidence code.


text:
    LAWYERS PROFESSIONAL LIABILITY INSURANCE COMPANY and Lawyers Professional Liability Insurance Agency, Inc., Petitioners, v. SHAND, MORAHAN & COMPANY, INC., and Northbrook Excess and Surplus Insurance Company, Respondents.
    No. WW-479.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.

      J.D. Boone Kuersteiner, Tallahassee, B. K.Roberts and Ronald C. LaFace of Roberts, Miller, Baggett, LaFace, Richard & Wiser, P. A., Tallahassee, for petitioner/Lawyers Professional Liability Insurance Company.
    Kenneth F. Hoffman of Oertel & Lara-more, Tallahassee, for petitioner/Lawyers Professional Liability Insurance Agency, Inc.
    Gary P. Sams of Hopping, Boyd, Green & Sams, Tallahassee, for respondent/Shand, Morahan & Company, Inc.
    A. Russell Bobo of McFarlain, Bobo, Sternstein, Wiley & Cassedy, P. A., Tallahassee, for respondent/Northbrook Excess and Surplus Insurance Company.
    Patrick F. Maroney, Asst. Gen. Counsel, Tallahassee, for State of Florida, Department of Insurance.
   PER CURIAM.

By Petition for Review of Non-Final Administrative Action, Lawyers Professional Liability Insurance Company (LPLIC) and Lawyers Professional Liability Agency (LPLA) seek review of an order of the Department of Insurance denying their motion to abate or dismiss a Petition for Declaratory Statement brought by Shand, Morahan & Company, Inc. and Northbrook Excess and Surplus Insurance Company. One of the grounds for the Motion to Abate or Dismiss was that there was then pending before the federal District Court, a law suit between the parties which raised the same issues as those presented in Shand and Northbrook’s Petition for Declaratory Statement.

The parties have not cited, nor has our research uncovered, a case involving a situation such as exists here, where a state administrative proceeding is instituted which raises the same issues as are pending in a previously filed federal court action. However, this court has previously applied certain well established judicial principles to administrative proceedings. Couch v. State, 377 So.2d 32 (Fla. 1st DCA 1979). In Couch, decisions under the declaratory judgments statute were utilized in determining the availability and scope of the remedies in declaratory statement proceedings under the Administrative Procedures Act, § 120.565, F. S., which is also involved here. Id. at 33. Case law dealing with concurrent jurisdiction between state and federal courts should accordingly be instructive in this case.

At the outset, we note that abatement is not the proper remedy in this case. Pendency of a prior suit in federal court does not warrant abatement of a like suit in state court. State ex rel Dos Amigos, Inc. v. Lehman, 100 Fla. 1313, 131 So. 533 (1930). A state court may, however, stay or suspend a proceeding until determination of the pending federal action. State ex rel Sherrill v. Milam, 116 Fla. 492, 156 So. 497 (1934); Jorge v. Antonio Co., 151 So.2d 467 (Fla.2d DCA 1963).

In the interests of state and federal comity, where there is concurrent jurisdiction, the general rule is that the court whose jurisdiction first attaches may determine the controversy, and proceedings in the last action filed should be stayed or suspended until the first action is tried and determined. Wade v. Clower, 114 So. 548 (Fla.1927). However, the existence of certain circumstances, such as congestion of the federal court docket, may provide adequate grounds for a trial court, in its discretion, to deny a stay in a state court proceeding filed after a federal court action involving similar issues. ITT Community Development Corporation v. Halifax Paving, Inc., 350 So.2d 116 (Fla. 1st DCA 1977).

There has been no showing in the present case that circumstances existed which would warrant a departure from the rule that an action for declaratory relief, initiated when a suit is already pending which involves the same issues and which would afford full, adequate and complete relief, will not be permitted to proceed. Couch, supra; Taylor v. Cooper, 60 So.2d 534 (Fla.1952). Therefore, we find that the Department of Insurance abused its discretion in refusing to suspend its own proceedings pending the outcome of the federal court action and reverse the order denying Appellants’ Motion to Abate or Dismiss. Having so concluded, we need not reach the other issues presented by Appellants.

Accordingly, the order appealed is REVERSED, and this cause is REMANDED to the Department of Insurance with directions to enter an order, consistent with this opinion.

SHIVERS, WENTWORTH and LILES, JJ., concur.


author: SHIVERS, Judge.

text:
    GEM CABINET COMPANY and American Mutual Insurance Companies, Appellants, v. Dieudonne FREZIN and the Division of Workers' Compensation of the Department of Labor and Employment Security, Appellees.
    No. XX-21.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.

      Donald F. Harrington, Miami, for appellants.
    Richard A. Sadow, of Sadow & Lynne, North Miami, for appellees.
   SHIVERS, Judge.

Employer/carrier appeal a workers’ compensation order awarding the claimant 20% permanent partial disability benefits but reserving jurisdiction to determine whether the claimant’s loss of wage-earning capacity exceeds his 20% permanent physical impairment of the body as a whole. We reverse.

The deputy commissioner had no authority to reserve jurisdiction to determine whether claimant’s loss of wage-earning capacity exceeded his 20% permanent physical impairment. Coe v. Kentucky Fried Chicken, 393 So.2d 1156 (Fla. 1st DCA 1981).

Therefore, the appealed order is reversed, but only to the extent that jurisdiction was retained to determine the issue of loss of wage-earning capacity. The deputy commissioner is instructed to determine, on the existing record, whether the claimant’s loss of wage-earning capacity exceeds his 20% permanent physical impairment. All other portions of the order are affirmed.

Affirmed in part and reversed in part.

SHAW and THOMPSON, JJ., concur.


text:
    Donald S. FREEDMAN, M. D., Petitioner, v. ALEXANDER P. ROSIN, M. D., P. A., a corporation, and Southern Baptist Hospital of Florida, Inc., d/b/a Baptist Medical Center, a Florida Corporation Not for Profit, Respondents.
    No. YY-252.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.
    Dana G. Bradford, II, and Michael G. Tanner of Mahoney, Hadlow & Adams, Jacksonville, for petitioner.
    Herman S. Paul of Lewis, Paul, Isaac & Castillo, P. A., Jacksonville, for respondents.
   PER CURIAM.

Freedman, by way of petition for writ of certiorari, seeks review of an order setting this action for a non-jury trial. We agree that the trial court departed from the essential requirements of law in refusing to set this cause for trial by jury on all issues. See Olin’s, Inc. v. Avis Rental Car System of Florida, 131 So.2d 20 (Fla. 3rd DCA 1961); Pan American Bancshares v. Trask, 278 So.2d 313 (Fla. 3rd DCA 1973); Padgett v. First Federal Savings and Loan Association of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979); Industries, Investments, and Agencies, Ltd. v. Panelfab International Corporation, 529 F.2d 1203 (5th Cir. 1976).

Accordingly, petition for writ of certiora-ri is GRANTED, the order setting action for trial without jury is quashed, and this cause is remanded to the trial court for jury trial.

SHIVERS, SHAW and THOMPSON, JJ., concur.


author: HOBSON, Judge. SCHEB, C. J.,

text:
    Harold NEUBERT and Mary Neubert, Appellants, v. Fred E. HARTER and Letha Virginia Harter, Appellees.
    No. 80-1094.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 1981.
    Robert J. Norton, of Norton & Marryott, Punta Gorda, for appellants.
    Melissa Jones, of Wotitzky, Wotitzky, Mandell, Batsel & Wilkins, Punta Gorda, for appellee Letha Virginia Harter.
   HOBSON, Judge.

Appellants Harold and Mary Neubert appeal the trial court’s order which changed custody of three minor children from appellants, the paternal grandparents, to appel-lee, the natural mother. We affirm.

In July, 1976, the natural parents were granted a divorce and the court awarded custody of the children, then aged 5, 4 and 3, to appellants. The children remained in their grandparents’ custody for approximately 4 years until appellees’ motion for change of custody was granted in June, 1980.

Appellants argue, inter alia, that the trial judge committed reversible error in examining two witnesses, the children’s schoolteachers, in his chambers in the absence of the parties or their counsel. Although we agree that the interviews were improper, we find the error harmless for three reasons:

1) Neither party objected when the trial judge stated that he would talk to the witnesses in his chambers with only a court reporter present.

2) The witnesses had previously testified in open court to their knowledge of the children’s behavior and progress in school. Appellants’ counsel had cross-examined both teachers extensively at that time. The record reveals that the remarks made by both witnesses in the judge’s chambers were essentially identical to their statements in open court.

3) Most importantly, the teachers’ statements in chambers were quite favorable to appellants. If anything, the interviews were detrimental to appellees’ case. Both teachers commented on the grandparents’ interest and concern for the children’s welfare and the numerous school conferences which the grandmother attended. Obviously, the trial judge was unpersuaded by this information in making his decision.

Under the circumstances of this cause, and in view of the competent, substantial evidence on which the trial judge based his decision, we hold that the error was not prejudicial to appellants and the final judgment must be affirmed.

CAMPBELL, J., concurs.

SCHEB, C. J., concurs specially.

SCHEB, C. J.,

concurring specially.

Judge Hobson has critically analyzed appellants’ only meritorious point on appeal and, for the reasons he recites, I concur. The trial judge strived diligently to make a just decision, and there is substantial competent evidence to support his judgment changing custody of the minor children.

I wish to comment, however, on the trial judge’s questioning of two witnesses in his chambers outside the presence of the parties or their counsel. I think it is contrary to fundamental principles of due process of law for a court to take any testimony in private, even though recorded. The error here was exacerbated because the court did not even allow counsel to inspect a transcript of that testimony until it had entered its final judgment. Further, while I understand the motive of the trial judge in attempting to remove any inhibition the witnesses might have felt, I also appreciate the role of counsel as officers of the court in insuring that all aspects of a witness’ testimony are aired by examination of the witness and rebuttal. In my opinion conduct of any part of judicial proceedings in private threatens the pursuit of justice under our adversary system.

In this case, however, the error was harmless for the reasons set out in the majority opinion. My reading of the testimony persuades me that it would be of no benefit to order a new trial; to the contrary, a new trial would be an unnecessary and expensive prolongation of proceedings which would likely end in the same result.


text:
    Leila STRAHL, Appellant, v. Martin STRAHL, Appellee.
    No. 80-1570.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Hall & Hauser and Gail V. Ferrington, Miami, for appellant.
    Eleanor Levingston Schockett, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. No petition for rehearing will be entertained and the mandate will issue forthwith.


text:
    Leila STRAHL, Appellant, v. Martin STRAHL, Appellee.
    No. 81-275.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Hall & Hauser and Gail V. Ferrington, Miami, for appellant.

      Eleanor Levingston Schockett, Miami for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. No petition for rehearing will be entertained and the mandate will issue forthwith.


author: BLANCHE, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Charles BRETZ.
    No. 66935.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Richard J. Petre, Jr., John H. Craft, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Julian R. Murray, Jr., Murray, Murray, Ellis, Braden & Landry, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Charles Bretz, was charged by a grand jury indictment with attempted first degree murder. Following a trial, the twelve member jury returned a verdict of guilty of attempted manslaughter. Defendant’s motion for a new trial was denied, and he was sentenced to three years at hard labor. On appeal, the defendant argues ten assignments of error.

On April 30, 1979 at approximately 9:45 p. m., the defendant, a 22 year old off-duty New Orleans Police officer, was driving his girlfriend home. What transpired that night is difficult to discern as two completely different stories were presented to the jury.

According to the defendant, he believed he was being followed by another vehicle, the driver of which was to become the ultimate victim. Since the defendant had been involved in a prior off-duty arrest, he felt some concern that a participant in this incident might be following him. To check this theory, the defendant drove an erratic pattern instead of taking his girlfriend directly home, and concluded that he was being followed. Defendant then drove to a Tastee Donut Shop in the hope of finding some other police officers there taking a break, or to use the telephone to call for help.

The vehicle following him pulled alongside the defendant’s car in the parking lot. Defendant observed the driver of that car and made a mental note of the car’s license plate number. When the driver got out of his car, the defendant started to back out. Seeing this, the other driver hurriedly got into his car and backed out also. To avoid an automobile chase, the defendant put his car back in its original parking space, whereupon the other driver positioned his car so the defendant was blocked in.

The defendant looked over his shoulder at the driver and saw a single-barrelled shotgun being pointed at him. His girlfriend likewise said she saw the shotgun and immediately ducked down on the car seat. The defendant identified the victim as the driver of the car who was pointing a shotgun at him. He estimated the driver pointed the shotgun at him for approximately 8% seconds, and then drove off at a high rate of speed.

Defendant and his girlfriend then went into the Tastee Donut Shop where he wrote down the car’s license plate number on a napkin and called his platoon commander, Lieutenant Alberts, and told him what was happening. At that time, Lieutenant Al-berts told the defendant to stay in the donut shop until he arrived on the scene.

Soon thereafter, defendant saw the car’s driver walking toward the donut shop and for the safety of the patrons, decided to confront him outside. He showed the driver his police identification and arrested him for aggravated assault with a shotgun. When the driver began walking away, the defendant tried to restrain him by tugging on his shirt. Having no success, the smaller defendant delivered two karate-like kicks to the driver’s back. Still being unable to stop him, the defendant struck the driver on the side of his head with his service revolver.

The driver took off running toward the Dixie Liquor Store with the defendant in-pursuit. The driver got there first and ran behind the bar. Upon entering the lounge, the defendant yelled to the bartender, asking him if the driver worked there or belonged behind the bar, to which he received a negative answer. The defendant ran down to the end of the bar where he saw the driver rummaging behind the bar. Both the defendant and the driver testified they did not know a gun was behind the bar, though a handgun was found under some paper bags beneath the cash register, which was located in the center of the bar.

When the driver turned toward him, the defendant, believing he had a weapon, shot him three times. The defendant then put his foot on the driver’s back, ordered the lounge doors locked, and stated other police officers were on their way.

Defendant’s platoon commander and the investigating officers arrived shortly thereafter. They kept the defendant and his girlfriend apart and took their statements. They found the driver’s car, which fit the description the defendant had given them, and which had the license number the defendant had written down. Also, some keys found lying beside the wounded driver fit this car. As a result of this evidence, the driver was arrested for aggravated assault with a shotgun. This charge was subsequently dropped as no shotgun was found, and the only item faintly resembling one was a bayonet found under the car seat.

The victim, who was the alleged car driver who followed the defendant, had a completely different story of what happened leading up to his being shot by the defendant. Earlier that evening he had been at a friend’s house working on her car. She testified he left her at 9:33 p. m., remembering the time from the car radio having stated it. He then drove to the Dixie Liquor Store where a friend bought him a beer. This was confirmed by three witnesses at the lounge. Deciding that he had inappropriately parked his car, he went outside to move it. After doing so, he was walking across the parking lot that is bordered by the Tastee Donut Shop, a Time Saver store, and the Dixie Liquor Store. It was there that he was confronted by the defendant. There is conflicting testimony as to whether the defendant identified himself as a police officer, with some of the state’s witnesses saying he did, others saying he did not, and the victim saying he did not.

After having been confronted by the defendant and after having heard a racial slur from the defendant, the victim began walking back to the lounge. He was in agreement that the defendant’s actions to restrain him were unsuccessful and that he finally ran back to the lounge once he had been struck by the defendant’s service revolver. Once there, he sought to get behind the bar so that he could put the bartender between himself and the defendant. He denied rummaging for a gun behind the bar and stated he was shot three times by the defendant in the side and back, though he did not threaten the defendant in any manner.

The jury heard these two versions of what transpired. Besides the defendant, the defense called the girlfriend, the two investigating officers, and the defendant’s New Orleans Police Department partner. The state primarily based its case upon the victim, two parking lot spectators and three persons in the lounge. After five total hours of deliberation, the jury returned a guilty verdict of attempted manslaughter.

Assignments of Error Numbers 6-10

Defendant contends the trial court erred in allowing the state to argue from facts outside the evidence and in failing to grant a new trial based upon improper prosecuto-rial arguments.

The scope of closing argument is limited to the evidence admitted, the lack of evidence, conclusions of fact drawn therefrom, and the law applicable to the case. C.Cr.P. art. 774.

Particularly unwanted are comments by the prosecutor referring to matters allegedly within his personal knowledge, but not in evidence. State v. Kaufman, 304 So.2d 300 (La.1974). The reason for this prohibition is that such remarks attempt to add to or subtract from the actual evidence in the record through the influence of the prosecutor’s official position. The jury may give greater weight to these observations than to the actual evidence and may, consequently, determine guilt or innocence on the basis of the prosecutor’s opinion.

However, not every remark of this type will warrant reversal. C.Cr.P. art. 921. Before a verdict will be overturned on the basis of improper argument, this Court must be thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Carthan, 377 So.2d 308 (La.1979); State v. Heads, 370 So.2d 564 (La.1979).

If the prosecutor’s argument is expressly or impliedly based upon the evidence, then no error is committed, and statements in closing arguments do not go outside of the evidence if the inference drawn from the evidence is not implausible. State v. Lockett, 332 So.2d 443 (La.1976).

Generally, we find the prosecutor’s statements in closing argument and in rebuttal closing argument are impliedly based upon the evidence and, even if they appear improper, we do not believe they clearly influenced the jury to the defendant’s prejudice.

Specifically, we will address each complained of statement and briefly explain why we do not see it as improper or influential.

(1) During the state’s closing argument:

“You have police investigating a police shooting. This defendant works with them when they arrive on the scene there. Some other agency should be investigating the shooting. You can’t really blame the police. They are going after _ The first thing they are going to look for is to justify his actions.”

The defense objected, and the judge overruled the objection. The state was arguing from the evidence, for the victim had been arrested and charged for aggravated assault with a shotgun when the investigating officers knew no shotgun was found. This does make the investigation look suspect and the state’s comment about this was proper.

(2) During the state’s closing argument: “As I’ve said, this has been a very informed trial. You have had more facts in front of you than almost any jury I have ever seen.”

The defense objected, and the state withdrew the statement. The defense did not request an admonition. This comment could be implied from the fact that the jury had heard a three-day trial with a myriad of facts. Although the prosecutor’s observation concerning his sightseeing experiences was improper, it was also innocuous and we fail to see how this comment could have influenced the jury to the defendant’s prejudice.

(3) During the state’s rebuttal closing argument:

“What you have heard today is what every defense attorney does when he does not have a case and they can’t justify what their client has done.”

The defense objected, and the judge overruled the objection. This is another way of arguing that the defendant will resort to some smoke screen tactic to divert the jury’s attention when he does not have a case. The prosecutor is permitted to argue the failure of the defense counsel to justify the defendant’s actions. To the extent that the prosecutor’s knowledge concerning what every defense counsel does was without foundation and outside the record, the same was irrelevant and harmless argument. We find the argument did not prejudice the defendant.

(4) During the state’s rebuttal closing argument:

“They are following him. Officer Bretz, why would they be following you. The defense says, I don’t know. We can’t give you a reason. He is a little paranoid. Someone is following him, but he doesn’t know why. You sure as heck should know why somebody would be following you.”

There was no defense objection made at the time this statement was made. Earlier, the defense had opened the door by referring to the prior incident in which the defendant was involved while questioning Lieutenant Alberts, and eliciting the same testimony from the defendant. The trial judge later ruled neither side was to pursue this avenue, and the state had complied with this order by not cross-examining anyone as to the prior incident. This comment may simply be regarded as a permissible inference from the lack of evidence upholding the defendant’s position.

(5) During the state’s rebuttal closing argument:

“There may be a reason why the lieutenant didn’t want that particular man to go out and confront somebody. Maybe the lieutenant knew him.”

The defense objected, and the judge sustained the objection. The defense did not request an admonition. This comment was made to refocus the jury’s attention on the characteristics of the defendant as a person with a quick temper and foul demeanor as exhibited on cross-examination. This was not mere speculation, for the trial judge referred to the defendant’s attitude while on the witness stand in his sentencing reasons. Therefore, the state’s reference to the lieutenant’s knowledge of the defendant’s personality was a proper reference from the evidence, as the state was merely alluding to a fact which the jury could draw from their own observations.

(6) During the state’s rebuttal closing argument:

“This is just natural. We told you some of our witnesses would be inconsistent, because we were honest with you. We put on every bit of evidence that we had, not hiding anything.”

The defense objected, and the judge overruled the objection.

(7) The state then continued:

“There is no attempt to fool anybody here. There is not (sic) attempt to pull the wool over your eyes.”

There was no defense objection made, as such would have been redundant. Both of these comments were provoked by the defense’s closing argument where he speculated as to the state’s presentation of its case. We regard the remarks of the prosecutor concerning the quality of his own case as proper rebuttal.

At the new trial hearing, the defense asserted that the state had another witness under subpoena whom it chose not to call; therefore, the above comments were misleading. The defense doesn’t suggest this witness would have been favorable to his case, nor that the state failed to comply with his discovery motion. The state is not required to put on every subpoenaed witness, and the comments regarding its presentation of the case were proper.

(8) During the state’s rebuttal closing argument:

“... there is a tendency by the police to help other policemen who are in trouble.”

The defense objected, and the objection was sustained.

(9) The state continued:
“Well, there is always an excuse when a policeman uses excessive force. They always come up with something.”

The defense did not object to this comment. These two statements were clearly implied from the evidence as the two investigating officers’ actions at the crime scene made the state’s comments justifiable. The officers questioned the seriously wounded victim without reading him his rights and while the paramedics were working on his wounds. Then, they arrested him and charged him with aggravated assault with a shotgun when no shotgun was found. The state’s comments are a direct inference of this evidence brought out at the trial, and were proper.

We have briefly analyzed each complained of comment made by the state and find no reversible error, whether viewing the comments singularly or as a whole. We find the state’s comments were impliedly based upon the evidence and did not clearly influence the jury to the prejudice of the defendant.

For the above reasons, these assignments of error are without merit.

Assignments of Error Numbers 2 and 4

Defendant contends the trial court erred in allowing the prosecutor to cross-examine the defendant and the defense witness, Patricia Balderas, regarding their personal relationship vis-a-vis the defendant’s marital status.

During cross-examination, the defendant was questioned about his romantic interest in the defense witness and, although reluctant to do so, he finally admitted a romantic relationship with the witness. After obtaining this admission, the prosecutor then obtained the further admission that the defendant was a married man, though not married to the witness. The defense objected, and the judge sustained the objection.

It was proper to show the defendant’s relationship with the witness to reveal any possible bias. R.S. 15:492. However, it was not relevant to show that the admitted relationship existed at a time when the defendant was married to another, and the judge properly sustained this objection because of its lack of relevance.

Later, while the witness was testifying on cross-examination, the prosecutor elicited from her the fact of her romantic relationship with the defendant. Continuing the examination, and notwithstanding the fact that the judge had ruled inadmissible the fact of the defendant’s marriage, the prosecutor proceeded to ask the witness if she knew the defendant was married.

Again, the defense objected and complained to the judge that the court had previously ruled the question inadmissible and, despite the ruling, the prosecutor had asked the same question again. The court maintained that it had not ruled that the question was improper, though the record clearly shows that he had. This time the court permitted the question on the ground that the evidence was already in the record, which was correct.

Nevertheless, the record clearly shows both witnesses had answered the questions regarding their relationship and the defendant’s marital status before the defense objected. A contemporaneous objection is necessary to preserve the issue for appellate review. C.Cr.P. art. 841. An objection made after the evidence is before the jury comes too late. State v. Foote, 379 So.2d 1058 (La.1980).

Even had the questions concerning defendant’s marital status been properly objected to, this would still not have constituted reversible error as there has been no clear showing by the defendant that the jury was prejudiced by the questions.

These assignments of error are without merit.

Assignment of Error Number 5

Defendant contends the trial court erred in refusing to allow the defense the opportunity to introduce evidence of prior consistent statements made by the defendant and Patricia Balderas.

As stated in the factual resume herein-above, the jury was faced with two very different stories as to what happened on the night of the shooting. To substantiate his allegation that the victim followed the defendant, the defendant sought to show that the defendant and Patricia Balderas made the identical statement about what happened before they were allowed to get together and collaborate on their stories. The defendant sought to accomplish this through the questioning of Sgt. McKenzie, the officer who investigated the shooting and who had taken the defendant’s statement shortly after the shooting.

Sergeant McKenzie did testify as to his role in the investigation and the statement he took from the defendant. Defense counsel then questioned him regarding the statement made by Patricia Balderas at the same time. The prosecutor objected to this testimony as hearsay. The defense attorney countered that the truth of the statement was not at issue but, rather, whether the defendant’s statement and Patricia Balderas’ statement were consistent.

The objection was argued out of the presence of the jury. The defense counsel stated that he planned to have the witness compare the two statements, as he had prepared the defendant’s and read Patricia Balderas’ earlier, and to say that they were consistent. The state objected to the witness being asked to draw such a conclusion, as he was not an expert. The trial court properly ruled that to ask Sgt. McKenzie whether the statements were substantially the same would be asking for a conclusion and would be improper.

A witness may not testify to any impression or opinion that he may have. R.S. 15:463. A qualified expert may give opinion testimony, R.S. 15:464. A witness may testify as to natural inferences from something he has observed. State v. Taylor, 347 So.2d 172 (La.1977).

Sergeant McKenzie, who was not qualified as an expert, testified that he only took the defendant’s statement and was merely present when Patricia Balderas’ statement was taken. Moreover, he admitted he had not read the statements recently. Thus, even using the natural inference exception of Taylor, this witness was not in a position to state a conclusion regarding the similarity of these statements.

The point of the defendant’s argument was to let the jury know that the defendant and Patricia Balderas had made identical statements on the night of the incident. Sgt. McKenzie did testify that the defendant and Patricia Balderas did not talk to each other prior to giving their statements. This was drawn to the jury’s attention during closing argument by the defense counsel.

It appears that the defendant’s purpose was to place the contents of the statement before the jury; thus, the statement was properly excluded as hearsay. R.S. 15:434. There was no need for Sgt. McKenzie’s conclusions as to the defendant’s and Patricia Balderas’ statements.

This assignment of error is without merit.

Assignment of Error Number 1

Defendant contends the trial court erred in refusing to allow cross-examination of the victim on the issue of whether he had prior confrontations with police officers.

When the victim first took the stand on direct examination, the state’s attorney asked him if he had any prior convictions. The victim responded that he had been convicted of simple battery five years earlier, but he had no other convictions before or after that.

During cross-examination of the victim, the defense counsel asked him if he had ever had a previous confrontation with a police officer. The state promptly objected to the question before it was answered, and the objection was sustained. The defense counsel then argued that he was attempting to show possible bias, but the court still sustained the objection.

The defendant’s attempt to elicit this information from the victim was made to show the victim’s bias toward the police. R.S. 15:492 does allow for impeaching the credibility of a witness by showing he is biased. However, the bias permitted to be exposed must be personal against the defendant, rather than general in nature. State v. Robinson, 337 So.2d 1168 (La.1976); State v. Darby, 310 So.2d 547 (La.1975).

In this case, the defendant’s question could only show a general bias against the police, not one against this particular defendant. Both the defendant’s and the victim’s testimony reveals they did not know each other prior to the incident. Thus, it would be impossible to show the victim’s personal bias against this unknown defendant.

Furthermore, the jury was made aware from the start of the victim’s prior conviction for simple battery, so they knew he had had prior experience with the police. This was amplified by the defendant in closing argument, which the jury obviously considered.

This assignment of error is without merit.

Assignment of Error Number 4

Defendant contends the trial court erred in giving him an excessive sentence.

The trial court sentenced the defendant to three years at hard labor, when he had a potential maximum sentence of IOV2 years. The defendant alleges three years is too long, as he was a “model citizen” with no previous record and as an ex-policeman, his life will be in jeopardy in Angola.

In pronouncing sentence, the trial judge stated that he took into consideration the severity of the victim’s injuries, the defendant’s attitude on the stand, and the fact that the defendant was a first-time offender. Thus, the trial judge properly used and stated the guidelines of C.Cr.P. art. 894.1 in determining the defendant’s sentence.

In closing argument the defense counsel strongly argued that the defendant should not be held criminally liable for his acts; rather, if defendant is to be found at fault, it is that he was civilly liable, and since the victim has a pending $7 million lawsuit against the defendant, that is satisfactory punishment. We disagree for, though using C.Cr.P. art. 894.1, the trial judge may consider restitution to the victim, we do not regard a pending civil lawsuit as restitution.

The trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of his discretion. State v. Sepulvado, 367 So.2d 762 (La.1979). We find no abuse in the trial. judge's sentence to this defendant.

This assignment of error is without merit.

For the above reasons, the ten assignments of error made by the defendant are without merit, and the defendant's conviction and sentence are affirmed.

AFFIRMED.

DIXON, C. J., concurs.

DENNIS, J., dissents with reasons.

LEMMON, J., dissents.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The prosecuting attorneys, during their closing arguments, referred to evidence outside the record several times. To challenge the credibility of the police officers who testified for the defendant, an assistant district attorney argued:

“You have police investigating a police shooting. This defendant works with them when they arrive on the scene there. Some other agency should be investigating the shooting. You can’t really blame the police. They are going after .... The first thing they are going to look for is to justify his actions.”

To discredit the arguments of defense counsel a prosecuting attorney accused him of doing “what every defense lawyer does when he does not have a case and they can’t justify what their clients have done.... ” To magnify the weight of the prosecution’s case an assistant district attorney told the jury that “you have had more facts in front of you than almost any jury I have ever seen.” Defense counsel made timely objections to each of these statements. The trial court overruled his objections as to two of these objections and withheld ruling on the last statement after the prosecuting attorney said he would withdraw it.

A counsel’s argument is in its purpose a connected presentation of the conclusions of fact supposed to have been proved by the evidence tending in favor of his client. He restates the evidence, and he reasons from the evidence. He is not a witness. Any presentation of fact, therefore, which is made by him in argument, must not be an assertion made upon his own credit; it must be based solely upon those matters of fact of which evidence has already been introduced or of which no evidence need ever be introduced because of the notoriety as judicially noticed facts. To bring forward in argument an assertion of fact not of these two sorts is to become a witness; and to be a witness without being subjected to cross-examination is to violate the fundamental principle of the hearsay rule. 6 Wigmore, Evidence § 1804 (Chadbourn rev. 1976).

This fundamental principle has been incorporated in our statutory law by La.C. O.P. art. 774, which provides that the argument of both prosecution and defense “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. * * * »

When the argument of a district attorney goes beyond its proper scope, the defendant is entitled to have the trial judge admonish the jury to disregard the argument, if it might create prejudice against the defendant, or to have a mistrial ordered if an admonition is not sufficient to assure the defendant a fair trial. La.C.Cr.P. art. 771; art. 774 comment (c). If a defendant’s timely and properly grounded objection to an improper argument is overruled, he may raise the ruling on appeal, even though he failed to request an admonition or a mistrial. State v. Hamilton, 356 So.2d 1360 (La.1978).

Nevertheless, a trial court’s failure to sustain a defendant’s objection to a prosecutor’s argument not based on the evidence or matters which may be judicially noticed is not reversible error if it is apparent to the jury that it is expressly or impliedly only based on the evidence presented to the jury. rather than on personal knowledge of facts outside the record, State v. Hamilton, supra; State v. Kaufman, 304 So.2d 300 (La.1974), or if the improper argument did not create prejudice against the defendant or deprive him of a fair trial. La.C.Cr.P. art. 771.

Applying these precepts to the present case, I would conclude that the prosecuting attorneys’ arguments were both prejudicial and obviously based on their knowledge of facts outside the record. The representation of facts made by them regarding typical police practices, customary tactics of desperate defense counsel, and the weight of the state’s case, were assertions made on their own credit; they were not based on matters of fact of which evidence had been introduced or which may be judicially noticed. The assertion that policemen in general color their investigations and testimony to favor fellow officers suspected of crimes, in particular, presented a clear and substantial risk of creating prejudice against the defense and depriving the defendant of a fair trial. Such expressions by a prosecutor are a form of unsworn, unchecked testimony adding to the probative force of the trial testimony the weight of the prosecutor’s personal knowledge of police behavior. Cf. State v. Kaufman, supra. To a somewhat lesser extent, the same may be said of the prosecuting attorney’s assertions as to the weight of the state’s case in comparison with other cases within his experience and the typical desperation tactics of defense counsel. It is not necessary to consider whether either of these latter standing alone might create reversible prejudice against the defendant in the minds of the jury. It is evident that through all of the improper prosecution arguments discussed, and one other to which an objection was sustained, that the prosecution succeeded in creating in the minds of the jury the impression that policemen are generally unreliable witnesses in prosecutions against fellow officers. These representations of fact, for which there was no evidence introduced, were extremely prejudicial since the testimony of Bretz’s fellow officers corroborated his version of the altercation in several important respects. Therefore, the failure of the trial court to sustain the defendant’s objections constituted reversible error.

       “[T]here is a tendency by the police to help other policemen who are in trouble.”