text:
    Henry FRAZIER, Appellant, v. The STATE of Florida, Appellee.
    No. 82-81.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

The defendant Henry Frazier appeals a final judgment of conviction and sentence for second degree grand theft and contends that the trial court committed reversible error in denying his motion for mistrial after the following transpired in the presence of the jury on cross examination of a state witness:

“[DEFENSE COUNSEL]: Did you ever ask Mr. Frazier if he took the carpeting?
[THE WITNESS]: No, we just polygraphed everyone. We decided, well, we would polygraph everyone and Henry flunked the polygraph.”

We agree that a mistrial should have been granted based on this testimony.

Plainly, the results of a polygraph examination are inadmissible in evidence in this state as being unreliable and highly prejudicial. Kaminski v. State, 63 So.2d 339 (Fla.1952); State v. Curtis, 281 So.2d 514 (Fla. 3d DCA 1973), cert. denied, 290 So.2d 493 (Fla.1974). To place before the jury, as here, that the defendant in a criminal case failed a polygraph examination taken in connection with the case constitutes, in our view, classic grounds for a mistrial because the prejudicial impact of this damning evidence could not be cured by a cautionary instruction. See e.g., Perry v. State, 146 Fla. 187, 200 So. 525, 527 (1941). Nor are we persuaded, as urged by the state, that defense counsel invited the inadmissible testimony herein. Counsel’s question in no way related to a polygraph examination or the results thereof; the witness’ answer was non-responsive and entirely volunteered.

We find no merit in the remaining contention raised by the defendant upon this appeal.

The judgment of conviction and sentence under review is reversed and the cause is remanded for a new trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Terry HILL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-198.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

Affirmed. State v. Brown, 395 So.2d 1202 (Fla. 3d DCA), pet. for rev. denied, 407 So.2d 1102 (Fla.1981); Stevens v. State, 354 So.2d 110 (Fla. 3d DCA 1978).


author: JORGENSON, Judge.

text:
    Sally G. ALPERT and Hyman Raskin, as Co-Personal Representatives of the Estate of Solomon Alpert, Deceased, Appellants, v. Harry ALPERT, Appellee.
    No. 82-817.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.

      Kline, Moore & Kline and Kevin F. Kline, Miami Beach, for appellants.
    Shellie Sachs, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   JORGENSON, Judge.

Solomon Alpert died testate and named in his will his wife, Sally, and his cousin Hyman Raskin as co-personal representatives. They were duly appointed to act in that capacity by the probate court. Harry Alpert filed a claim against the estate to recover a sum of money he alleged due and owing. Sally responded by filing an objection to the claim. Thereafter, settlement negotiations commenced.

During the negotiations, two joint stipulations for an extension of time to file an independent action were agreed to by counsel for the parties. Thereafter, Harry Alpert timely filed an independent civil action against the estate naming Sally Alpert in her representative capacity as defendant. Sally Alpert filed a motion to dismiss alleging as grounds that Harry Alpert had failed to join Hyman Raskin, the co-personal representative, and that the action was now time barred by virtue of Section 733.705(3), Florida Statutes (1979). The trial' court denied the motion and gave Harry Alpert leave to amend his pleadings to include Hyman Raskin as co-personal representative. It is that order which Sally Alpert and Hyman Raskin appeal. We affirm.

The thrust of appellants’ argument is that Hyman Raskin is for all intents and purposes a new party to the lawsuit. Appellants rely on Garrido v. Markus, Winter & Spitale Law Firm, 358 So.2d 577 (Fla. 3d DCA 1978), and Louis v. South Broward Hospital District, 353 So.2d 562 (Fla. 4th DCA 1977), to support this position. We agree with those cases; however, they have no application here, nor can we construe Section 733.705(3) as narrowly as appellants suggest.

In our view, Section 733.705(3) does not operate as a timebar where, as here, the co-personal representatives are represented by the same attorney and the independent action against the estate is timely filed. On these facts we believe Cabot v. Clearwater Construction Co., 89 So.2d 662 (Fla.1956), is controlling.

Accordingly, the order of the trial court is affirmed.

      . We deem it significant that the estate and the co-personal representatives are all represented by the same attorney.

      . We add yet another reason to the notion that one personal representative is enough. See Judge Nesbitt’s excellent article on this issue; Nesbitt, One Personal Representative Is Enough, 54 Fla.B.J. 140 (1980).


text:
    Philip L. RUPPENTHAL, d/b/a Mortgage Research, Appellant, v. Norman B. WOOD and Toby A. Arnheim, Appellees.
    No. 82-856.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.

      Spieler & Spieler and Gregg Spieler, Miami, for appellant.
    Taylor, Brion, Buker & Greene and James C. Pilkey, Miami, for appellees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Appellant, a mortgage broker, brought an action against appellees on a promissory note in the sum of $20,000 given to him by appellees in settlement of his claim for money alleged to be due to him for services rendered in obtaining certain loans for ap-pellees and Cayo Hueso, Ltd., a limited partnership in which appellees were partners.

Appellees denied the indebtedness on the grounds that there was no consideration for the note and the note was procured by appellant by fraud and duress. Cayo Hue-so, Ltd. also filed a counterclaim which was dismissed.

Upon non-jury trial, the trial judge entered a final order providing, in pertinent part, as follows:

“FINDINGS OF PACT

1. On November 9, 1978, Plaintiff entered into a contract with the Cayo Hueso Limited Partnership (CHL). CHL needed $2,000,000.00 to continue refurbishing the Casa Marina Hotel in Key West, Florida. Plaintiff agreed to act as a mortgage broker for CHL and CHL promised to pay Plaintiff a commission if he succeeded in obtaining a mortgage. The amount of the commission was to be 2% unless the commitment was obtained from the Equitable Life Insurance Company, Gal-breath Mortgage Company or Chemical Bank & Trust Company. CHL had already contacted these companies before contracting with the Plaintiff. Plaintiff was instructed to maintain contact with those lenders but in the event a commitment came from any of them Plaintiff’s commission was reduced to 1%.

2. The Defendant, Toby Arnheim, signed the contract in his capacity as general partner of CHL. The Defendant, Wood, signed only as a witness. Plaintiff received a $10,000.00 advance.

3. On February 27, 1979, Royal Trust Bank of Miami issued a commitment to loan funds to the project. This commitment was rejected by CHL because it did not conform to criteria set forth in the original contract.

4. On April 5,1979, the Equitable Life Assurance Society issued a commitment to CHL. CHL accepted this commitment.

5. On April 19, 1979, CHL paid Plaintiff the remaining $10,000.00 owed to him as part of his 1% commission on the Equitable commitment. Plaintiff also received a $20,000 note signed by Defendants, Wood and Arnheim, individually. This note, the subject matter of this lawsuit, was executed and delivered under duress.

6. There was one other contract between Plaintiff and CHL dealing with a separate project; the Villas of Key West. No commitment was ever received on the project and Plaintiff’s authority to act for CHL has been terminated.

7. There was no record showing of any service performed by Plaintiff for Mr. Wood or Mr. Arnheim individually.

8. At -the close of the evidence, the Court granted the Plaintiff’s Motion to Dismiss the Defendant’s and CHL’s Counterclaim; and also granted the Defendant, Wood’s, Motion to Dismiss the case against him.

CONCLUSIONS OF LAW

9. A contract is an agreement supported by sufficient consideration to do or refrain from doing some lawful thing.

10. Like all contracts, promissory notes must be supported by consideration.

11. Plaintiff has been fully paid on his original contract with CHL and was rightfully terminated on his second contract.

12. At no time did Plaintiff perform any services for Mr. Arnheim individually or any services for CHL beyond those contracted. As a result, Plaintiff’s note from Mr. Wood and Mr. Arnheim is wholly lacking in any legal consideration.

13. Since there can be no indebtedness without legal consideration the note is not enforceable.

It is therefore:

ORDERED AND ADJUDGED:

Plaintiff, PHILLIP L. RUPPENTHAL, take nothing and Defendants shall go hence without day, each party to bear their respective costs.

DONE AND ORDERED at Miami, Florida, this 30th day of March, 1982.”

It is a well established principle that every judgment, order or decree of a trial court brought up for review is clothed with a presumption of correctness and the burden is on appellant in all proceedings before the reviewing court to make error clearly appear. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

In the appeal sub judice, we have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore for the reasons stated the judgment appealed is affirmed.

Affirmed.


text:
    Leonardo LAVINA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-963.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.

      Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Scott Silver, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Appellant was charged in a four count information with aggravated battery (counts one and two), aggravated assault (count three), and unlawful possession of a firearm while engaged in the criminal offense of aggravated battery (count four). His non-jury trial resulted in acquittal on the two counts of aggravated battery. He was found guilty of aggravated assault (count three) and unlawful possession of a firearm while engaged in a criminal offense (count four). Appellant was classified as a youthful offender and sentenced to three years imprisonment on the aggravated assault charge; entry of sentence on the firearm possession charge was suspended.

Appellant urges reversal of his conviction on count four on the ground that the trial judge erred in adjudicating, him guilty of possession of a firearm during commission of a felony when he was acquitted- of the underlying felony of aggravated battery.

We find merit in appellant’s contention and reverse his conviction on count four, possession of a firearm during commission of a felony. Redondo v. State, 403 So.2d 954 (Fla.1981); Wooten v. State, 404 So.2d 1072 (Fla. 3d DCA 1981), pet. for rev. denied, 412 So.2d 471 (Fla.1982). However, since appellant was sentenced only on the aggravated assault charge, his three year sentence remains unaltered. Accordingly, we reverse and vacate the conviction for possession of a firearm in the commission of a felony. The judgment and sentence for aggravated assault are affirmed.

Affirmed in part, reversed in part.

      . As in the Wooten case, the present case is distinguishable from McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981), aff'd, 425 So.2d 1 (Fla.1983), where verdicts of not guilty of the underlying felony of aggravated assault and guilty of possession of a firearm during the commission of a felony were held not inconsistent because the latter conviction could have been based on an attempted aggravated assault since the jury was not charged on attempt as a lesser offense of the substantive charge. See Pitts v. State, 425 So.2d 542 (Fla.1983). Since we must assume that the able trial judge in appellant’s non-jury trial was aware of all applicable standard instructions, the two verdicts below are irreconcilable. See Wooten, supra, at note 3.


text:
    Maudistine LEWIS a/k/a Molley Leis a/k/a Maudstine Lewis a/k/a Barbara Gordon a/k/a Augustine Lewis a/k/a Maidistine Lewis, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1356.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Bennett H. Brummer, Public Defender and Joy Maxwell Carr, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Marti Rothen-berg, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Peek v. State, 395 So.2d 492 (Fla.1980); Loftin v. State, 273 So.2d 70 (Fla.1973); Estrada v. State, 400 So.2d 562 (Fla. 3d DCA 1981); Smith v. State, 376 So.2d 455 (Fla. 1st DCA 1979); Houston v. State, 360 So.2d 468 (Fla. 3d DCA 1978); Phillips v. State, 351 So.2d 738 (Fla. 3d DCA 1977); Magna v. State, 350 So.2d 1088 (Fla. 4th DCA 1977); Compare, State v. Green, 395 So.2d 532 (Fla.1981).


text:
    Ubaldo FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1748.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Lyons and Farrar and G. Bartram Bill-brough, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, and William Thomas, Asst. Attys. Gen., for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Wilson v. State, 324 So.2d 700 (Fla. 4th DCA 1976).


text:
    Donald George LANE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-4.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Donald George Lane, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed. Muhammad v. State, 426 So.2d 533 (Fla. Dec. 1982).


author: PER CURIAM. SHARP, Judge,

text:
    Edwin G. DAVIS, III, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 81-811.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 1983.

      Edwin G. Davis, III, pro se.
    James R. Parks and Norman A. Blessing of the Unemployment Appeals Com’n, Tallahassee, for appellee.
   PER CURIAM.

Appellant appeals from an order of the Unemployment Appeals Commission which denied him unemployment compensation benefits based on a finding that he had been discharged for misconduct. We affirm.

Section 443.101(l)(a), Florida Statutes (1981), provides that no unemployment benefits may be received if an employee is discharged for misconduct. “Misconduct” is defined in section 443.036(24), Florida Statutes (1981), as follows:

“Misconduct” includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

Various cases have noted that “mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion” do not constitute “misconduct” under the statute. Tucker v. Florida Department of Commerce, 366 So.2d 845, 847 (Fla. 1st DCA 1979); Fredericks v. Florida Department of Commerce, 323 So.2d 286, 288 (Fla. 2d DCA 1975); Spaulding v. Florida Industrial Commission, 154 So.2d 334, 337 (Fla. 3d DCA 1963).

In the instant case, the appeals referee concluded that two incidents justified a finding of misconduct. He found:

On February 12, 1981, the claimant walked off the job and deprived the employer of his services. The work that the claimant was asked to perform on the morning of February 17, 1981, was proscribed by the employer’s policy but was permitted in times of emergency or when the workload was heavy. The workload was heavy at the time the waitress asked the claimant to move the container of dirty dishes. The claimant’s walking off the job on February 12, 1981, combined with his failure to give reasonable assistance to one of the employer’s waitresses during a time when business was heavy establishes an intentional and substantial disregard of his duties and obligations to his employer.

Appellant, a restaurant dishwasher, walked off the job on February 12, 1981, because of a dispute which arose after he had requested to train as a cook. When appellant observed a less senior dishwasher training as a cook, appellant became upset and left his job because he thought the trainee was working without pay.

Appellant was allowed to return to work on February 15, 1981, but on February 17, 1981, while working the graveyard shift, he refused the request of a waitress to carry bus pans (containing dirty dishes) from the dining room area. The record reveals that while it was generally against company policy to use bus pans in the dining room, they were permitted when the workload was heavy. It is undisputed that the workload at the restaurant was heavy at the time in question. There was also evidence that appellant had helped with the bus pans on past occasions and that on the night in question, appellant’s employer was short of help due to an employee’s sickness.

We agree with the appeals referee and the Commission that appellant’s conduct established an intentional and substantial disregard of his employer’s interests and of his own duties, so as to amount to misconduct. Therefore, appellant was disqualified from receiving unemployment benefits.

AFFIRMED.

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

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I disagree that Davis’s two incidents of misbehavior reach the degree of willfulness or wantoness required by the Unemployment Compensation Statute’s definition of misconduct, for which compensation payments may be denied. The statute defines misconduct as:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

§§ 443.036(24)(a) & (b), Fla.Stat. (1981). (Emphasis supplied).

The first incident relied upon by the referee was that Davis walked off his job on February 12, 1981, because of a labor dispute or misunderstanding. But because Davis had been a hardworking, conscientious employee, he was allowed to return to work on February 15, 1981, after tempers cooled respectively. Using this incident, which was apparently forgiven and forgotten, to buttress the second strikes me as patently unfair.

The second incident, the real crux of the firing, arose when Davis refused the request of a waitress, who was not his supervisor, to carry bus pans from the dining room. The referee found that it was against company policy to use bus pans in the dining room. Furthermore, carrying them out was not part of Davis’s assigned tasks. The waitress admitted that although Davis had on previous occasions helped with the pans, he had also refused on other occasions to help with them. He had never been warned or disciplined for his refusal in the past.

Thus, I cannot agree there is any support in this record to find that Davis deliberately violated any rule or standard of behavior of his employer. In the first place, it is not clear that he breached any duty of his job as a dishwasher, nor any order of his supervisor. Secondly, there is no basis to conclude Davis’s actions were taken with the degree of culpability or evil design required in order to sustain a finding of “misconduct” under the statute. Erber v. Federal Express Corporation, 409 So.2d 522 (Fla. 5th DCA 1982); Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla. 3d DCA 1963).


author: COWART, Judge.

text:
    James Edward ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1331.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 1983.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

This case is similar to State v. Speights, 417 So.2d 1168 (Fla. 1st DCA 1982), except that the accused is charged only with attempted burglary. Otherwise, the information is the same as in Speights. The information charging the attempted burglary does allege that the accused attempted to enter or remain in a particular structure owned by another with the intent to commit an offense therein. The information does not further “descend to the particulars” and specify the particular offense that the accused allegedly intended to commit by the burglary when he allegedly attempted entry.

The information does allege that the structure was not open to the public and that the accused was not licensed or invited to enter or remain. The information also alleges that the (attempted) entry was gained stealthily and without the consent of the owner or occupant. This latter allegation was obviously suggested by section 810.07, Florida Statutes (1981). However, in burglary cases we have heretofore made it clear that we do not consider this statutory provision to be an alternative to necessary allegation of an element of the burglary; instead, it creates an evidentiary presumption relating to proof sufficient to establish a prima facie case of burglary. Van Teamer v. State, 417 So.2d 1129 (Fla. 5th DCA 1982); Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981). In Rozier, this court criticized the “general to particular” rule that the State is required to allege and prove the specific offense intended in a burglary case, but this court felt obligated to follow that rule. Nevertheless, in Rozier we declined to adopt the holding in State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980), that the allegations of “a stealthy, non-consensual entry” are an allegational alternative to the “general to particular” rule. Similarly, in Van Teamer we declined to follow the rule adopted in Krathy v. State, 406 So.2d 53 (Fla. 1st DCA 1981), and Waters v. State, 401 So.2d 1131 (Fla. 4th DCA 1981), that the State could not use the statutory “stealthy non-consensual entry” evidentiary presumption as proof of facts sufficient to raise the presumption and create a prima facie case of entering with intent to commit some offense unless such factual basis (i.e., the stealthy non-consensual entry) was alleged in the information.

The burglary statute (§ 810.02, Fla. Stat. (1981)) defines burglary as entering or remaining in a structure with the intent to commit any offense therein. This requires specific intent which the State must allege and prove. However, because the State rarely has direct proof as to the accused’s exact objectives, motives and intentions, the State’s proof is almost always circumstantial on this point. That circumstantial evidence is often sufficient to convince a jury beyond a reasonable doubt that the accused intended to commit some offense, but is not sufficient to convince them that he intended to commit a particular alleged offense, such as theft rather than rape, etc. Requiring the state to allege and prove the utmost details of the accused’s subjective mental intentions is entirely different and more difficult and less reasonable than requiring the State to prove particulars (Fla.R. Crim.P. 3.140(n)) as to time, place and as to facts subject to proof by physical or other objective evidence.

We, like the Speights court, also feel this problem is one of great public importance. This case has an additional factor. Ellis is only accused of an attempted burglary. Under section 777.04(1) and general law, an attempt requires but two elements, (1) the specific intent to commit the crime intended and (2) any overt act reasonably calculated to accomplish the commission of the offense intended, going beyond mere preparation but falling short of accomplishing the crime intended. Therefore, the offense of an attempted burglary requires a specific intent to commit the crime of burglary. The intended burglary itself requires a specific intent to commit some crime in the burgled structure.

The question here goes one step further. It is whether the state must allege and prove the specific crime an attempted burglar, at the time he did the overt act directed toward accomplishing the burglary, intended to commit as a part of the intended burglary. Therefore, we hereby'certify to the Florida supreme court the following questions of great public importance:

In a prosecution for attempted burglary (§§ 777.04(1) and 810.02, Fla.Stat. (1981)), is it necessary for the State to allege, not only the specific offense which the accused intended and attempted to commit, such as burglary, but also to further allege all of the elements of such intended offense, such as, in burglary, the intent to commit some crime in the structure? If so, must the State then again go further and allege and prove the specific offense which the accused intended to commit by the burglary which he intended and attempted to commit?

The trial court’s order denying the motion to dismiss the information is

AFFIRMED.

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


author: ORFINGER, Chief Judge.

text:
    Gary Lamar WINTERS, a/k/a Gary Collier Wallace, a/k/a Wallace G. Collier, Appellant, v. STATE of Florida, Appellee.
    No. 82-26.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 1983.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Chief Judge.

Appellant appeals a judgment of conviction for sexual battery while using a deadly weapon, following a jury trial. We affirm.

Appellant first contends that when he took the stand in his own defense, the prosecutor improperly asked questions which were comments on his earlier exercise of his right to remain silent. We have examined the entire context of the line of questions, see Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980), and cannot characterize them as comments on defendant’s right to remain silent.

We write, however, for the purpose of making it clear to the trial bar that there must be an objection to any such line of questioning if the issue is to be properly preserved for appeal, and the objection must specifically point the trial judge to the error complained of. It is not sufficient, as here, to merely object that the question “is not a proper question under the circumstances.” A question may be improper for a variety of reasons, and the trial judge should not be made to guess at the basis for counsel’s objection. It has been said many times, that:

To meet the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal. Castor v. State, 365 So.2d 701 (Fla.1973).

Hufham v. State, 400 So.2d 133, 136 (Fla. 5th DCA 1981).

Similarly, appellant cannot object now to remarks of the prosecutor in closing argument as inflammatory, because as to most of the remarks complained of there was no objection made at the trial. We do not find the comments to be so fundamentally inflammatory as to require a reversal.

Appellant contends that the trial court improperly excluded evidence of prior sexual activity of the prosecuting witness, where, as here, the defense to the charge is consent. The admissibility of evidence of prior sexual activity of the victim where consent is at issue is regulated by statute. Appellant proffered evidence of some specific consensual sexual activities between the victim and other persons, but this does not meet the test of the statute. The few isolated instances presented did not present a “pattern of conduct or behavior,” see Hodges v. State, 386 So.2d 888 (Fla. 1st DCA 1980), and the trial court properly excluded that evidence.

We have considered appellant’s remaining issues and found them without merit.

AFFIRMED.

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

      . § 794.022(2), Fla.Stat. (1981):
      Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in prosecutions under § 794.-011; however, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court outside the presence of the jury that such activity shows such a relation to the conduct involved in the case that it tends to establish a pattern of conduct or behavior on the part of the victim which is relevant to the issue of consent.


author: WEINBERG, RICHARD G„ Associate Judge.

text:
    Charlie J. CARTEE, Appellant, v. Jeanette CARSWELL, Appellee.
    No. 82-127.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 1983.

      Nancy Y. Selfridge of Brinson, Smith, Heller & Smith, P.A., Kissimmee, for appellant.
    Jim Smith, Atty. Gen., and Bruce Bark-ett, Asst. Atty. Gen., Tallahassee, for appel-lee.
   WEINBERG, RICHARD G„ Associate Judge.

Appellant, putative father of a child born November 21, 1967, was declared the natural father in a paternity proceeding initiated in 1981 by the natural mother (appellant’s ex-wife). On December 30,1981, the trial court entered its final judgment, confirming the paternity and ordering child support. Arguing res judicata, laches, and sufficiency of the evidence, appellant contends the trial court erred in declaring him to be the father of the child, it following that there can be no liability for child support. We affirm.

The mother and father were lawfully married February 14,1967, and subsequently divorced by the circuit court, Brevard County, Florida, on October 4,1967, prior to the birth of the child. The divorce complaint initially filed by tbe husband did not raise the issue of paternity of the child, simply alleging there had been no children born as issue of the marriage. However, the wife’s answer, while admitting no children had been born of the marriage, alleged appellant was the father of the unborn child she was carrying at the time. She additionally counterclaimed for divorce without addressing the paternity issue again. The divorce proceeded on the wife’s counterclaim without adjudication of paternity concerning the forthcoming birth of her child.

In order to apply the doctrine of res judicata, the following points must have been raised before the tribunal:

(a) Identity of the matter sued upon;
(b) Identity of the cause of action;
(c) Identity of the parties; and
(d) Identity of the quality or capacity of the person for or against whom any claim is made.

See, e.g., Donahue v. Davis, 68 So.2d 163 (Fla.1953); Husky Industries, Inc. v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982); Pumo v. Pumo, 405 So.2d 224 (Fla. 3d DCA 1981). Here, the divorce action in 1967 did not identify and litigate the key issue of alleged paternity. Therefore, the matter was not foreclosed by the divorce judgment. Appellant’s reliance on Johnson v. Johnson, 395 So.2d 640 (Fla. 2d DCA 1981), is misplaced. In Johnson, child paternity was resolved by the dissolution judgment and the father was precluded from relitigating the same issue at a later time.

In arguing the equitable defense of laches, rejected by the trial court, appellant failed to demonstrate those exceptional circumstances that would bar the child support claim arising out of paternity. Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979), succinctly addresses the question:

A number of cases recognize that claims for child support arrearages may be defeated by laches, but rarely have the courts found the exceptional circumstances necessary to justify the application of that doctrine. In all events the welfare of the child is paramount and in the absence of extraordinary facts or strongly compelling circumstances, the action or inaction of a parent will not give rise to a defense of laches barring enforcement of child support arrearage.

Id. at 801.

In the instant case the trial court correctly applied legal principles to protect the paramount interest of the child and no abuse of discretion was shown.

Appellant further failed to overcome the presumption of legitimacy by clear and convincing evidence. Appellant concedes the child was conceived during the legal marriage of the parties. He disputes only his fathership. This factual issue was resolved against appellant and such finding will not be disturbed, absent compelling evidence to the contrary. Blitch v. Blitch, 341 So.2d 251 (Fla. 1st DCA 1976). Therefore the final judgment determining paternity and awarding support is

AFFIRMED.

SHARP and COWART, JJ., concur.


author: WALDEN, Judge.

text:
    DONALD M. PATERSON, INC., Appellant, v. Alva T. BONDA and Marie C. Bonda, his wife, Appellees.
    No. 80-1797.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.

      William R.H. Broome, West Palm Beach, for appellant.
    Gerald S. Lesher of Baskin & Sears, Palm Beach, for appellees.
   WALDEN, Judge.

This appeal is brought by plaintiff/counter-defendant, Donald M. Paterson, Inc., (Paterson) from:

“1. Order denying plaintiff/counter-defendant’s motion for directed verdict on the „ slander of title claim and granting a new trial on that claim and on the claim for foreclosure of mechanic’s lien, but not granting a new trial on plaintiff’s contract and unjust enrichment claims;

2. Order denying plaintiff/counter-defendant’s motion for attorney’s fees;

3. Judgment for ALVA T. BONDA in the amount of $1,500.00 for attorney’s fees.”

Paterson, a contractor and designer, was employed by contract by Mr. and Mrs. Bon-da (appellees) to design and construct certain improvements in the Bonda’s condominium apartment. The work was partially completed when, based on disagreements, the Bondas discharged Paterson.

Paterson filed a mechanics lien against the Bondas. Suit followed.

Paterson sued the Bondas (three counts) for breach of contract, for unjust enrichment or quasi contract, and for lien foreclosure. Pre-trial summary judgment removed Alva Bonda as a defendant to the lien foreclosure claim because he was not an owner of record of the apartment. Subsequently, he, Alva Bonda, was awarded attorney’s fees for defending the lien foreclosure claim.

The Bondas counterclaimed for breach of contract damages. Mrs. Bonda, individually, counterclaimed for slander of title based on the act of Paterson in filing the lien.

The case proceeded to jury trial. At the conclusion of all the evidence the trial court denied Paterson’s motion for directed verdict aimed at Mrs. Bonda’s counterclaim for slander of title.

The jury verdict reflected:

A. An award of $6,726.71 in favor of Paterson’s mechanics lien claim against Mrs. Bonda.

B. A finding against Paterson’s claim for breach of contract and unjust enrichment-quasi contract claim against both Bondas.

C. A finding against the Bondas’ counterclaim against Paterson for breach of contract and claim for a false or fraudulent lien.

D. An award of $2000.00 in favor of Mrs. Bonda’s counterclaim for slander of title against Paterson.

Post trial the trial court found that the verdict was inconsistent by reason of the verdict in favor of lien foreclosure and in favor of the slander of title counterclaim. The trial court granted each side a new trial on these issues, i.e. Paterson’s claim for lien foreclosure and Mrs. Bonda’s counterclaim for slander of title. The court denied a new trial to Paterson on its claim for breach of contract and quasi contract.

Only Paterson appeals. And so here we are. We attack the problems piecemeal.

We hold that the trial court erred in denying Paterson’s motion for directed verdict on Mrs. Bonda’s counterclaim for slander of title.

The essential elements of a slander of title cause of action “are the uttering and publication of the slanderous words by the defendant, the falsity of the words, malice, and special damages.” (footnote omitted) 50 Am.Jur.2d Libel and Slander § 541 (1970); See also Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965). This court has recognized that a party’s attorney’s fees which are incurred as a portion of the expense of removing the cloud from title are recoverable as part of the party’s pecuniary loss. Maass v. Christensen, 414 So.2d 255 (Fla. 4th DCA 1982), citing with approval, Glusman v. Lieberman, 285 So.2d 29 (Fla. 4th DCA 1973). The Restatement (second) of Torts § 633(l)(b) (1977) sets forth this element of damages in the following manner:

§ 633 Pecuniary Loss
(1) The pecuniary loss for which a publisher of injurious falsehood is subject to liability is restricted to
(b) the expense of measures reasonably necessary to counteract the publication, including litigation to remove the doubt cast upon vendibility or value by disparagement.

While Mrs. Bonda offered to present evidence with respect to the attorney’s fees she had incurred in her slander of title action in a “supplemental proceeding,” she failed to produce evidence of these damages at trial. In this instance, Mrs. Bonda neither demonstrated her attorney’s fees as damages nor did she present evidence that she had sustained any damages. Therefore, Mrs. Bonda failed to establish a prima facie case of slander of title. Continental Development Corporation of Florida v. Duval Title and Abstract Company, 356 So.2d 925 (Fla. 2d DCA 1978).

The stated reason for trial court granting a new trial on Paterson’s lien foreclosure claim and Mrs. Bonda’s slander of title action was trhe already mentioned inconsistent verdicts. However, in light of our holding that Paterson’s motion for a directed verdict on Mrs. Bonda’s slander of title action should have been granted, we deem it to be unnecessary for Paterson to relitigate its foreclosure claim because the inconsistency relied upon will no longer exist. Further, there is no inconsistency, as Paterson contends, in the jury’s verdict with respect to the three counts of Paterson’s third amended complaint so as to entitle it to a new trial on its claims for breach of contract and quasi contract. In fact, Paterson acknowledges in its appellate brief that the count seeking contract damages and the count seeking damages for unjust enrichment were claims in the alternative, should its mechanics lien claim fail. Thus, the trial court did not abuse its discretion in denying Paterson a new trial on its contract and quasi contract claims. Hodge v. Jacksonville Terminal Company, 234 So.2d 645 (Fla.1970) cert. denied, 400 U.S. 904, 91 S.Ct. 142, 27 L.Ed.2d 141; Cloud v. Fallis, 110 So.2d 669 (Fla.1959).

We hold, with respect to Paterson’s second appellate point, that it was the prevailing party on its mechanic’s lien foreclosure against Mrs. Bonda and thereby is entitled to recover attorney’s fees under Section 713.29, Florida Statutes (1978).

Finally, as to Paterson’s third point, Paterson contests the award of $1,500.00 as attorney’s fees to Alva T. Bonda. We affirm the trial court’s award because Alva T. Bonda prevailed against Paterson in the lien foreclosure claim by virtue of the fact that he was granted a pre-trial summary judgment. Section 713.29, supra.

In summation, the trial court’s order denying Paterson’s motion for a directed verdict constituted error. Consequently, the award in favor of Maria Bonda on her slander of title action is reversed. The trial court’s orders granting the parties a new trial and denying Paterson’s motion for attorney’s fees are reversed. We affirm the trial court’s award of attorney’s fees to Alva T. Bonda. This case is remanded for further proceedings consistent herewith.

AFFIRMED in part, REVERSED in part, and remanded for entry of judgment consistent herewith.

DOWNEY and HERSEY, JJ., concur.

WALDEN, J., did not participate in oral argument but had an opportunity to review the presentation.


author: GEIGER, DWIGHT L., Associate Judge.

text:
    Milton GERARD, Appellant, v. PISCES SALES & MARKETING, INC., Appellee.
    No. 81-2310.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Bruce Zeidel of Cohen & Scherer, North Palm Beach, for appellant.
    Terrence F. Dytrych of Slawson & Bur-nam, North Palm Beach, for appellee.
   GEIGER, DWIGHT L., Associate Judge.

This case involves granting by the Circuit Court of Palm Beach County of appellee’s motion to dismiss appellant’s action for damages arising out of failure by appellee to make any payments on a promissory note given by it to appellant. The motion alleged that the court lacked both subject matter and personal jurisdiction of appellee. This court has jurisdiction under Fla.R. App.P. 9.130(a)(3)(C)(i).

Appellee’s motion to dismiss was accompanied by affidavit filed by the president of appellee stating that appellee is an Hawaiian Corporation doing business in Honolulu, Hawaii, and that the note was not executed in the State of Florida by either party and that the note does not indicate that payment is due in the State of Florida. Further that affidavit states that appellee has not ever, done business or owned real property in the State of Florida. Appellant filed a counter-affidavit which states that appellee failed to pay the note after demand while appellant was a resident of Florida. The note is silent as to where it was executed and where payment is to be made. Appellee’s address appears on the face of the note as Honolulu, Hawaii, and appellant’s address is stated on the face of the note as Atlanta, Georgia.

Section 48.193(l)(g), Florida Statutes, provides that a person subjects himself to jurisdiction of the courts of this state if he breaches a contract in this state by failure to perform any acts required by the contract to be performed in this state. Appellant contends that because of this language the trial court erred in dismissing his complaint for lack of jurisdiction. This argument fails because the contract sued on (promissory note) does not require appellee to perform any acts in the State of Florida. More importantly, the uncontroverted facts of this case do not meet the jurisdictional minimum contacts test of International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). International Shoe clearly indicates that the demands of due process, regarding a personal action against a foreign corporation, may be met only by such contacts of a defendant corporation with the forum state so as to make it reasonable to require the corporation to defend the suit in that state. Appellee, having not entered into the promissory note in the State of Florida, having not made any payments in the State of Florida, having not agreed to make any payments in the State of Florida, and further there being no indication that appellee had any reasonable expectation that it would be required by the note to have any dealings in the State of Florida, has never done business in the State of Florida so as to meet the jurisdictional minimum contacts which due process of law requires.

Based upon the above it is clear that the trial court lacked jurisdiction over the person of appellee and that the trial judge properly granted appellee’s motion to dismiss, and therefore the order of dismissal is AFFIRMED.

LETTS and HURLEY, JJ., concur.


text:
    Joseph John LANGELLA, Appellant, v. STATE of Florida, Appellee.
    No. 82-317.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Foster v. State, 369 So.2d 928 (Fla.1979).

ANSTEAD, DELL and WALDEN, JJ., concur.


author: ANSTEAD, Judge.

text:
    Babette Ruth BRINER, Appellant, v. Gene Larue BRINER, Appellee.
    No. 82-533.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Stephen M. Bell, Plantation, for appellant.
    Herbert H. Rollnick of Robert D. Hurth, P.A., Pompano Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from an order terminating an ex-wife’s exclusive possession of the marital home subsequent to her second marriage and divorce. We reverse.

The marriage of appellant Babette Ruth Briner and appellee Gene LaRue Briner was ended by final.judgment of dissolution rendered April 3, 1974. The wife received custody of their three minor children and the husband was required to pay child support, but no rehabilitative or permanent alimony. Paragraph three of the judgment made the following disposition of the parties’ jointly owned marital residence:

[Tjhat title to said home shall remain in both parties, however, the Petitioner-Wife is to have possession of the said real property until such time as the wife remarries, the youngest child reaches his or her majority, the wife ceases to live on the premises with the child or children, whichever occurs first, the wife is to make the mortgage payments on the marital residence, and in the event of the future sale of the said real property the Wife is to receive credit in addition to her equity therein on all payments on principal paid by her from date hereof.

The wife remarried on July 5, 1974, and gave birth to another child in January, 1975. She resided with her second husband for only six months and they were divorced in June of 1976, Throughout this time the wife remained in exclusive possession of the home.

On July 16, 1979, ex-husband Briner filed petitions for change of custody, partition, and compensation for the reasonable rental value of the property. The wife opposed the husband’s petitions, and filed her own counter-petition for modification, asserting that the husband had waived his right to oust her from possession and that she should continue to have possession as an incident of child support. Subsequently, the trial court accepted the recommendation of a general master that custody remain with the mother but that the wife’s possession of the former marital residence be terminated because of her remarriage and without regard to the circumstances occurring after the remarriage.

An award of exclusive possession of real property is usually made for some purpose of maintenance. Sistrunk v. Sistrunk, 235 So.2d 53, 55 (Fla. 4th DCA 1970). It may, for example, aid a spouse with personal problems, Lange v. Lange, 357 So.2d 1035 (Fla. 4th DCA 1978); benefit the minor children, McMaster v. McMaster, 379 So.2d 189, 190 (Fla. 4th DCA 1980), and Richardson v. Richardson, 315 So.2d 513, 514 (Fla. 4th DCA 1975); or serve some similar purpose. Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980). So long as exclusive possession rests with one spouse, the other is deprived of his beneficial enjoyment of the property or the right to seek partition thereof. For this reason an award of exclusive possession has been limited to unique circumstances, usually involving the custody of children, where a need exists to vest continuing possession of the property in one spouse for a limited period of time, such as the time when the children come of age. Labeling exclusive possession as a property right or as simply a form of child support or alimony is of little use beyond identifying the original rationale upon which the award was predicated: “The critical question is whether the award is equitable and just given the nature of the case.” Duncan, at 952.

The remarriage of a wife awarded exclusive possession has been deemed a sufficient change in circumstances to justify a modification of the provision for exclusive possession and to confer on the husband standing to maintain an action for partition. See Hazelwood v. Hazelwood, 345 So.2d 819 (Fla. 4th DCA 1977). The reason most frequently assigned for authorizing termination of possession upon remarriage is that a former spouse should not be obligated to provide shelter for the wife’s new spouse. Abella-Fernandez v. Abella, 393 So.2d 40, 41 (Fla. 3d DCA 1981); Lambert v. Lambert, 403 So.2d 484, 486 (Fla. 1st DCA 1981); and Caldwell v. Caldwell, 400 So.2d 1270, 1272 (Fla. 5th DCA 1981). However, even where partition of real property is available as a matter of right, such right may be waived or the claimant may be estopped from asserting the right. Condrey v. Condrey, 92 So.2d 423 (Fla.1957). In addition, as noted above, a provision for exclusive possession is subject to modification whenever there is a change of circumstances. Duncan, at 952; Lambert, at 487; also see Section 61.13, Florida Statutes, which provides that a court may modify child custody and support orders when the court finds it necessary because of a substantial change of circumstances of the parties.

In this case it is clear that the husband had the initial right to seek partition upon the wife’s remarriage. The original dissolution decree specifically contemplated that her possession would terminate upon remarriage. However, although the wife remarried in 1974, the husband did not seek partition until 1979. If the husband knew of his former wife’s remarriage but did nothing to oust her from possession, he may be es-topped to assert his claim in equity, which is the basis of all actions for partition. § 64.011, Fla.Stat. (1981). See Condrey v. Condrey, supra.

Furthermore, even if the wife’s right to exclusive use and possession would ordinarily have been subject to termination when she remarried, we believe she was still entitled to seek modification of the termination provision upon a sufficient showing of changed circumstances. § 61.13, Fla.Stat. (1981), Duncan, supra. Here the wife contends that it is in the best interests of the parties’ three children to continue to reside in the same home and that a modification to permit continuing possession as an incident of child support would be appropriate. She cites the short duration of her second marriage and appellee’s acquiescence in her continued possession thereafter. She also relies on the economy of the present arrangement. She suggests, for example, that it may be more economical to continue the present arrangement then to have the husband pay increased child support for new housing. On the other hand, the husband cites his lack of obligation to provide housing for a child not his own and for the wife’s second spouse. He also contends that he is now entitled to the beneficial enjoyment of his interest in the property since the final judgment specifically contemplated this eventuality.

We think the contentions of both parties have merit. However, in our view, these contentions are appropriate factors to be weighed by the trial court upon trial of the respective petitions for modification to determine whether possession should continue. In this way both parties will have an opportunity to present evidence to support' their positions. Such a procedure is compatible with the Supreme Court’s pronouncement in Duncan rejecting the adoption of inflexible rules for determining when an award of exclusive use of property may be appropriate.

Accordingly, for the reasons set out above, we conclude that the wife was entitled to a hearing on her claim that the husband had waived his entitlement to partition and on her petition for modification, which sought continuing exclusive possession of the marital home. The trial court’s orders are hereby reversed and this cause is remanded for further proceedings consistent herewith.

GLICKSTEIN and HURLEY, JJ., concur.

      . In Duncan the husband was awarded exclusive possession of a parcel of jointly owned property so that his elderly parents could continue to reside thereon.


text:
    Reinaldo HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-539.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Rehearing Denied Feb. 2, 1983.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., and James P. McLane, Certified Legal Intern, West Palm Beach, for appellee.
   PER CURIAM.

Defendant was convicted of burglary and sexual battery and sentenced to a term of 99 years with the trial court retaining jurisdiction for one-third of that sentence. Defendant appeals. We affirm.

The trial court failed to make the requisite statement of its findings of fact under Florida Statute 947.16(3)(a) (1981), but defendant did not object or preserve this error in the trial court. We affirm as to this point but without prejudice to defendant’s right to present same to the trial court via Florida Rule of Criminal Procedure 3.850, if he is so advised. Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981) and McFadden v. State, 423 So.2d 456 (Fla. 4th DCA 1982).

Defendant’s remaining points on appeal are either without merit or have not been preserved for appellate review.

Affirmed.

HERSEY and WALDEN, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge, concurring specially:

I concur in all respects with the majority opinion and write separately only as to one issue. The appellant was charged with and convicted of sexual battery and burglary with the intent to commit a sexual battery upon a named victim, and in the course of which he committed an assault upon the same female victim. The information did not list the elements of the assault charged and at trial the trial court did not instruct the jury on the technical elements of assault. However, it is clear from the record that at all times the court, the state and the defendant were acting under the assumption that the sexual battery charged as a separate offense and also referred to in the burglary charge was the “assault” referred to in the burglary charge. Of course, the jury was instructed on the elements of the sexual battery. Now, for the first time, the appellant is complaining on appeal about the trial court’s failure to instruct on the technical elements of assault. I believe any error in this regard has been waived. In Lindsey v. State, 416 So.2d 471 (Fla. 4th DCA 1982), this court held that the elements of an assault charged as an aggravating circumstance in a burglary should be set out in the charging document. However, we specifically held that the failure to do so was not fundamental error. In other words the omission must be attacked in the trial court. I think the same principle applies here where it is clear that there was abundant proof of the commission of an assault upon the victim as alleged and no fundamental rights of the appellant have been violated. To allow the appellant to receive a new trial on the basis of such technical deficiencies without raising the issue below would be to invite the kind of judicial “sandbagging” condemned by the Supreme Court in Clark v. State, 363 So.2d 331 (Fla.1978).


text:
    Scottie Dale FAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-554.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Fagan was found guilty of various criminal offenses, including possession of a firearm while engaged in a felony. Fagan was prevented from having the arresting officer testify as to an exculpatory statement made by Fagan at the time of his arrest. Fagan makes this a point of his appeal. We affirm. No abuse of discretion or error of law has been made to appear. The statement was clearly hearsay inasmuch as Fa-gan chose not to testify at his trial. Sections 90.801(l)(b), (c) and 90.801(2), Florida Statutes (1981). It did not fit into any of the three exceptions, namely, res gestae, statement against penal interest and admissions of a party opponent. The statement was made a substantial time following the commission of the offense without indicia of spontaneity or excitement. It was exculpatory and self-serving rather than contrary to Fagan’s interests. There was no corroboration or other basis for its truthfulness and reliability. Its admission would be contrary to the rules of evidence.

The parties agree and we agree that this case must be remanded to the trial court with instructions to either relinquish jurisdiction over the first third of Fagan’s sentence or to state with individual particularity the justification for retaining jurisdiction. Section 947.16(3)(a), Florida Statutes (1981); Oliver v. State, 414 So.2d 1087 (Fla. 2d DCA 1982).

Affirmed and remanded with instructions.

ANSTEAD, DELL and WALDEN, JJ., concur.


text:
    Marshall J. BRUMER, Appellant, v. Susan Ann VON STETINA, By and Through her parents, legal guardians and next friends, Mary VON STETINA and Leon Von Stetina, Appellee.
    No. 82-1046.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Richard G. Collins, Fort Lauderdale, for appellant.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, and Simons & Schlesinger, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from an order imposing attorneys’ fees as a sanction for failure to make proper discovery by a nonparty witness. The order below is supported by adequate evidence and appellant has failed to demonstrate an abuse of discretion. See Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971). There is no argument as to the amount of the fees taxed. The order is therefore affirmed.

AFFIRMED.

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


text:
    Calvin HARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 82-1278.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Richard L. Jorandby, Public Defender, and Margaret Good and Anthony Calvello, Asst. Public Defenders, and Albert Jackson, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Calvin Harrell (a sixteen year old) pled guilty to robbery, kidnapping and attempted murder. The trial court sentenced him to three concurrent thirty year terms of imprisonment with credit for time served and retained jurisdiction over one-third of the sentences.

He contends that when the trial court sentenced him as an adult it failed to comply with Section 39.111, Florida Statutes (1981). We agree and remand this cause for resentencing in accord with the provisions of Section 39.111(6)(d).

REMANDED FOR RESENTENCING.

ANSTEAD, DELL and WALDEN, JJ., concur.


text:
    Stanley BEASLEY, Appellant, v. STATE of Florida, Appellee.
    No. 82-1436.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appeal from the circuit court’s judgment and sentence on one count of possession of cocaine is dismissed. Section 924-06(3), Florida Statutes (1981); Florida Rule of Appellate Procedure 9.140(b); Robinson v. State, 373 So.2d 898 (Fla.1979); Cassiani v. State, 384 So.2d 47 (Fla. 1st DCA 1980) and Hall v. State, 397 So.2d 1041 (Fla. 5th DCA 1981).

The appeal from the circuit court’s order revoking probation is affirmed. State v. Profera, 239 So.2d 867 (Fla. 4th DCA 1967).

ANSTEAD, DELL and WALDEN, JJ., concur.


text:
    Sie JENKINS, Jr., Petitioner, v. Louie L. WAINWRIGHT, Secretary of the Florida Department of Corrections, Respondent.
    No. 82-2330.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Sie Jenkins, Jr., pro se.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Petitioner is granted the right to a belated appeal.

The motion for post-conviction relief was denied without an evidentiary hearing. This appeal therefore proceeds under Rule 9.140(g), Florida Rules of Appellate Procedure.

We have examined the motion, the order and a memorandum of law filed in the trial court and find that the motion is insufficient on its face and was therefore properly denied.

The order of the trial court is therefore affirmed.

AFFIRMED.

BERANEK, HERSEY and HURLEY, JJ., concur.


author: RYDER, Judge.

text:
    Madeline F. SCATIGNO, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 82-113.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1983.

      Joseph P. McNulty of McNulty, Moritz, Pecarek & Dickey, Chartered, Largo and Robert J. Carroll of Musearella, Perenich & Carroll, P.A., Clearwater, for appellant.
    H. Shelton Philips of Kaleel & Kaleel, P.A., St. Petersburg, for appellee. •
   RYDER, Judge.

Madeline P. Scatigno appeals from the final judgment adverse to her claim for uninsured motorist benefits.

Appellant sought a declaratory judgment that she had uninsured motorist coverage for an automobile accident equal to the liability limits of $50,000/$100,000 in her automobile insurance policy issued by appel-lee. Appellant alleged that appellee failed to inform her that she was entitled to such limits and that she did not knowingly waive higher limits.

At a jury trial held on the waiver issue, appellant testified that she did not recall the conversations at the State Farm office when she purchased insurance. Appellant signed the application, but did not recall reading it. The application signed by appellant contained three boxes in the lower left corner for options on uninsured motorist coverage: (1) same as bodily injury, (2) lower than bodily injury, and (3) higher than bodily injury. The first block had been checked and scratched out, and the second checked with the figure 10/20 written next to it.

Dorothy Round, an agency employee who took the application, also had no recollection of the conversation. She testified to her custom to explain each coverage starting at the top of the application. Round testified that because of the two check marks, she must have inadvertently put a cheek mark in the box indicating uninsured motorist limits to match bodily injury limits, and later corrected it when she realized that was not what appellant wanted.

Powers, the agent, testified that the original application was forwarded to the regional office of State Farm for processing. The regional office would send it back if there were any errors. In Powers’ experience, if there were scratched out blocks on the application, the regional office would not return the application or require that the changes be initialed.

Appellant proffered the testimony of T. Edd Webb, another State Farm agent. The proffer indicated that Webb would testify that in his experience, an application sent to the State Farm regional office with boxes checked and scratched through would be returned for a clear indication of what was going on. Webb would further have testified that an uninsured motorist application is not properly used to offer coverages. The court did not admit the testimony, noting that the statute prescribes no procedure for offering or rejecting coverage.

The jury returned an interrogatory verdict finding State Farm to have offered uninsured limits equal to the bodily injury limits and finding appellant to have knowingly rejected the higher limits. On appeal, appellant suggests that the evidence below was legally insufficient to show her informed rejection of higher limits and that the court erred in refusing to admit the testimony of Webb. We hold that there was competent substantial evidence to support the jury’s verdict. Appellee need not obtain a specific written waiver of coverage. Kimbrell v. Great American Insurance Co., 420 So.2d 1086 (Fla.1982).

However, we are unable to dispose of appellant’s second point on appeal regarding the proffered testimony of Webb. We agree with the lower court that Webb’s testimony regarding office practices in taking an application was not relevant to a waiver in the case below. But the ambiguous cheeks on the application relate to the ultimate question as an expression of appellant’s alleged waiver. Powers testified that it was normal for the regional office to accept applications with scratched out boxes without question. This supports the conclusion suggested by Round’s testimony that the change was made at appellant’s direction prior to submitting the application. But Webb would have conflicted with Powers’ testimony by stating the opposite — that the regional office would have returned the application had it been submitted in that form. The proffered testimony thus implied that the change to lower limits was made after the application was submitted and thus was not a knowing waiver by appellant of the higher uninsured motorist limits. Relevant testimony on such a fact in issue was admissible and might have changed the result provided by the jury. See § 90.402, Fla.Stat. (1981).

The final judgment below is REVERSED and the case REMANDED for a new trial.

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

      . We note, however, that the applicable statute has been amended to require a written waiver of coverage. See § 627.727(1), Fla.Stat. (Supp. 1982). This change is effective October 1, 1982, and therefore does not apply to the case sub judice. Ch. 82-243, §§ 544, 813, Laws of Fla.


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    Patrick Brian MULLIN, Appellant, v. STATE of Florida, Appellee.
    No. 82-146.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1983.
    Elliott C. Metcalfe, Jr., Public Defender and James E. Slater, Asst. Public Defender, Sarasota, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Patrick Brian Mullin appeals from his convictions for sexual battery and kidnapping, arguing the lower court erred in excluding certain testimony and in consolidating trials on the charges. We agree that consolidation of the charges on the morning of trial was error, and we reverse.

The state charged appellant by indictment with sexual battery as proscribed by section 794.011(2), Florida Statutes (1981), and by information with kidnapping as proscribed by section 787.01(l)(a)(2), Florida Statutes (1981). On the morning of trial, the court invited and granted the state’s oral motion for consolidation of the trials of the offenses charged under the separate indictment and information. Appellant objected to the consolidation without notice as prejudicial.

The testimony at trial indicated that appellant stopped the ten-year old victim in a wooded area and committed the acts charged. Police apprehended appellant in the area a short time later and the victim positively identified him at that time. When arrested, appellant appeared “high” and had two tubes of glue in his possession — one spent and the other unopened. Appellant contended he was unable to remember any events which transpired from noon of the day in question when he left work after being overcome by naptha fumes, until he awoke in jail the next day. After deliberation, the jury returned guilty verdicts on both crimes.

In response to the state’s motion in li-mine, the trial court ruled inadmissible the testimony of appellant’s expert medical witness regarding the effects of inhalation of volatile hydrocarbons upon human behavior. The court further refused to admit testimony by appellant regarding his prior abuse of volatile intoxicants and his prior behavior after sniffing glue.

We agree with appellant’s contention on appeal that consolidation of trials of the separately charged offenses, without notice on the morning of trial, was prejudicial and constituted reversible error. See Belote v. State, 344 So.2d 565 (Fla.1977); Kilgore v. State, 271 So.2d 148 (Fla. 2d DCA 1973). For the two crimes charged, the defenses might well have been different. The defense of voluntary intoxication by inhalation of volatile hydrocarbons, offered by appellant, would possibly negate the specific intent necessary for kidnapping but not the general intent necessary for sexual battery. Thus, appellant’s strategy of whether to testify concerning voluntary intoxication may well have been prejudiced by the untimely consolidation below.

Additionally, we note no support for the lower court’s exclusion of testimony regarding appellant’s condition. Appellant’s expert witness, a neurologist, was qualified to testify to the medical effects of sniffing glue and other hydrocarbons upon human behavior if he knew the effects. Appellant’s testimony of his prior abuse, if relevant to the above medical opinion, would also be admissible to establish a voluntary intoxication defense to the specific intent crime.

The convictions below are set aside and each case REMANDED for new trial.

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


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    Allen Lee GADOURY and Richard Donat Gadoury, Appellants, v. Louise CALDWELL, as Personal Representative of the Estate of Louis T. Constant, Deceased, Appellee.
    No. 82-757.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1983.

      Philip A. McLeod of Baynard, McLeod & Lang, P.A., St. Petersburg, for appellants.
    George M. Osborne of Osborne & Ciarcia-glino, St. Petersburg, for appellee.
   RYDER, Judge.

Appellants challenge the order of the trial court instructing appellee to distribute certain assets of the estate of Louis T. Constant.

The facts presented below are not complex or disputed. Louis T. Constant, the grandfather of appellants, Allen Lee Ga-doury and Richard Donat Gadoury, died in 1980 leaving a last will and testament. According to the petition for letters of administration, Louis T. Constant died in possession of a $10,000.00 certificate of deposit and a $10,000.00 money market savings certificate held at Flagship Bank and Florida Federal Savings, respectively. Appellants were among the various beneficiaries of said will. Appellee, Louise Caldwell, was named and appointed as the duly qualified and acting personal representative of the estate of Louis T. Constant.

Paragraph VI of the last will and testament provided:

I give, devise and bequeath my grandsons, ALLEN LEE GADOURY and RICHARD DONAT GADOURY, all those 'monies which I hold in my personal checkings and savings accounts and any stocks and bonds of which I may die possessed, to divide equally between them, share and share alike.

Appellee filed a petition for instructions to determine distribution of assets as appel-lee was:

[I]n doubt as to whether specific assets of the estate, to wit: one money market certificate in the amount of Ten Thousand Dollars ($10,000.00) and one certificate of deposit in the amount of Ten Thousand Dollars ($10,000.00), should be classified as personal checkings and savings accounts or as part of the residue of the estate for the purposes of distribution.

A hearing on the petition for instructions was held and in its order, the court stated that, “The said certificate of deposit and money market certificate do not constitute ‘personal checking or savings accounts,’ and shall pass as otherwise provided by said will. The personal representative is instructed to make distribution in conformance with this order.”

The sole question presented is whether a certificate of deposit and a money market savings certificate constitute what is commonly known as a personal savings account. We are of the opinion that they do.

Sitting as a court of law, we are unable and will not attempt to explain the diverse techniques employed by the banking and savings and loan community as they endeavor to obtain funds for deposit in their various institutions. Nevertheless, we cannot ignore the fact that presently the money merchant has transcended traditional savings systems and is now offering the public new alternatives for the deposit of one’s money into their institutions, to be paid at varying interest rates.

The banking and savings institutions, seemingly, are experiencing unique times. Competition for the public’s money has not been so intense in decades. They are willing (and often do when lawfully allowed) to offer the most lucrative and advantageous incentives as possible to secure those deposits.

Without hesitation, we believe that interest, payable in much greater percentages than that available to holders of a regular “passbook savings account,” is the single most compelling incentive used by these institutions to solicit deposits.

Two of the more commonly utilized vehicles by which banks and savings and loans encourage deposits, and conversely are able to pay a greater percentage of interest to the depositor, are certificates of deposit and money market certificates.

Initially, we define “savings” as preserving something from danger or loss. Webster’s New International Dictionary, at 22, 23 (2d Ed.1957). Adding the word “account” to “savings” creates, to a reasonable ordinary individual, a visualization of an account in a bank or savings and loan upon which a certain percentage of interest is paid and compounded. One type of “savings account” is, inarguably, a “passbook savings account.”

We are not of the opinion, however, that the only vehicle which may be utilized by a “... person, persons, partnership, association, fiduciary, corporation, political subdivision, public unit, or governmental unit ...” for “savings” is what is commonly referred to as a “passbook savings account.” §§ 665.0611, 665.104, Florida Statutes (1981).

It would be irrational to conclude that monies deposited in a bank or savings and loan, placed there for “saving” in an account, which for all practical purposes is merely a hybrid or type of “savings account,” is not a savings account because it is termed a “certificate of deposit” or “money market savings certificate.” To so hold would impede a rational progression of banking practice, causing undue confusion as to what these accounts actually are.

In addition, to hold that “personal savings accounts” may only include passbook savings accounts, would penalize those who wished to save their funds in any of the number of accounts which provide a greater interest payment than that of a regular passbook savings account.

The argument that because the typical “certificate” or “market” accounts require that the depositor pay a penalty for early withdrawal, and therefore precludes such an account from being a “savings account” is illogical. These accounts absolutely encourage the depositor to do what they were designed to do. Plainly and simply put, these accounts encourage “saving” money. A certificate of deposit or a money market savings certificate that encourages the saving of money is, in fact, a “personal savings account” as that term applies in the realm of banking. Furthermore, those monies are held by the institutions not merely as transient custodians of the funds, but for safe keeping, with a resultant creation of a debt- or/creditor relationship. Greater Miami Financial Corp. v. Dickinson, 214 So.2d 874 (Fla.1968). Therefore, although these accounts are not titled “passbook savings accounts,” they assume the same basic characteristics as a passbook savings account and should be recognized as a personal savings account.

The computer age has now enveloped us all. Modernization and renovation is apparent in every segment of our society, including the extremely complex world of banking and finance. Certificates of deposit and money market savings certificates must be recognized in the legal sphere as “personal savings accounts.” This court would be unable to rationally explain to Mr. Constant, if he were alive today, that just because he possessed a certificate of deposit and a money market savings certificate, that these accounts were not his personal savings accounts. We believe these two accounts to be personal savings accounts of Louis T. Constant, and as such, they should pass to appellants as provided for in the will.

Therefore, the judgment below is REVERSED and the cause REMANDED for proceedings consistent with this opinion.

GRIMES, A.C.J., and NELSON, WILLIAM J., Associate Judge, concur.


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    The MAYNARD CORPORATION, d/b/a Le Cafe Plaza and Aetna Casualty and Surety Company, Petitioners, v. Edith E. LITTLER and Mark Littler, her husband, Respondents.
    No. 82-913.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1983.

      Donald V. Bulleit of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., St. Petersburg, for petitioners.
    Linda Lowell of Rahdert, Packer & Lowell, St. Petersburg, for respondents.
   PER CURIAM.

Petitioners seek the issuance of a writ of common law certiorari to review an order compelling discovery.

We construe the order under review as determining that such documents are “. .. matters reasonably calculated to lead to admissible evidence... ”, Simmons v. Jorg, 375 So.2d 288, 289 (Fla. 2d DCA 1979); Fla.R.Civ.P. 1.280(b)(1), and thus, discoverable, subject to any exemptions such as work product and attorney-client privilege.

Although somewhat ambiguous, we interpret the order compelling production and discovery to compel petitioners to produce all requested documents and submit them to the trial court for purposes of an in-camera inspection. The intention of this inspection will be to determine the privileges, exemptions, or immunities, if any, pertaining to these documents as claimed by the petitioners.

As interpreted, certiorari is denied and petitioners shall submit the requested documents for inspection by the trial court. However, this order shall not serve to prejudice the rights of the parties to initiate review upon the determination, when made, by the trial court.

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