author: SHAW, Judge.

text:
    Robert E. DALE, et ux, Appellants, v. FORD MOTOR COMPANY, Appellee.
    No. VV-204.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.

      Brent M. Turbow and Arthur T. Boone, Jacksonville, for appellants.
    Rutledge R. Liles of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellee.
   SHAW, Judge.

This appeal arose out of a products liability action brought by Robert E. Dale and Mary Dale, his wife, against Lynch-Davidson Motors, Inc. and Ford Motor Company. We are asked to consider whether the trial judge committed reversible error in permitting into evidence the testimony of Dr. Donald Wall, refusing to allow the appellants to introduce into evidence Ford’s 1978 car shop manual and in awarding costs for copies of transcripts of depositions.

In the order setting the case for trial, the trial judge directed each attorney to serve upon opposing counsel, at least fifteen days prior to the trial, a list specifying the names and addresses of witnesses. Within the fifteen days prior to trial, the appellee verbally informed the appellants of its intention to use Dr. Donald Wall, an accident recon-structionist, and offered to produce him in Jacksonville for deposition. Appellants were thereafter served with a witness list which included the name of Donald Wall. Appellants filed a motion in limine to prohibit the appellee from offering testimony of any witnesses at trial and especially the testimony of Dr. Wall for the reason that the appellee’s witness list was not served upon the appellants at least fifteen days prior to the trial. When appellee failed to timely answer interrogatories, appellants filed a motion for sanctions and a second motion in limine alleging that the appellee had violated the scope of the court’s order granting appellants’ motion for production, inspection, examination, and testing. Both motions were denied, and Dr. Wall was allowed to testify at trial regarding tests conducted with parts from appellants’ automobile. Appellants urge that the court erred in denying said motions and in allowing Dr. Wall to testify over objection.

Counsel for both parties allége misconduct on the part of opposing counsel. While the trial may have proceeded under less than ideal conditions, the trial judge was blessed with firsthand knowledge of the situation and was in a position to determine whether the behavior of appellee’s counsel was so egregious as to deny the appellants a fair trial or to warrant sanctions. A trial court has wide discretion concerning the admissibility of evidence, and, in the absence of an abuse of discretion, a ruling regarding admissibility will not be disturbed. Jent v. State, 408 So.2d 1024 (Fla.1981). We are unable to say from our vantage point that the judge abused his discretion.

Appellants assert error in the denial of their motion to introduce Ford’s 1978 car shop manual into evidence at the close of appellee’s case. Appellants, in their brief, concede that “[t]he admission of the proffered evidence would have added nothing new to the case of the plaintiffs, as plaintiffs’ expert witness, Dr. Morrison, had previously testified with regard to the numerous possible causes [of steering malfunction] ..., and that duplication of the condition was impossible .... ” It appears therefore that the evidence sought to be introduced was cumulative, and the denial of the motion to introduce the shop manual into evidence as rebuttal evidence was not an abuse of discretion warranting reversal. See 32 Fla.Jur. Trial § 43 (1960).

International Patrol and Detective Agency, Inc. v. Aetna Casualty & Surety Co., et al., 396 So.2d 774 (Fla. 1st DCA 1981), is dispositive of the appellants’ contention that the judge erred in taxing cost of transcripts of depositions.

AFFIRMED.

JOANOS, J., and MASON, ERNEST E. (Retired) Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Raymond STINES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. ZZ-254.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We reverse Stines’ sentence of fifteen years for attempted sexual battery. Following unsuccessful treatment at North Florida Evaluation and Treatment Center in Gainesville in the mentally disordered sex offender program, Stines was returned to the court for 'sentencing.

At the sentencing hearing, Dr. Virzi, a court appointed psychiatrist, testified that Stines was incompetent to proceed and that he should be involuntarily committed for hospital treatment. Gene Tinsley, appellant’s primary treating therapist at the center, testified that appellant’s antisocial behavior at the treatment center made him inappropriate for treatment at the center. The trial court found appellant competent and sentenced him to fifteen years. The court apparently relied on medical reports filed two years earlier which found Stines competent at the time he was committed to the treatment center in Gainesville. Relying on the earlier medical reports was error in view of the uncontradicted expert medical evidence of incompetency presented by Dr. Virzi at the sentencing hearing. See Lane v. State, 388 So.2d 1022 (Fla.1980).

Accordingly, we reverse and remand with instructions that the trial court conduct a competency hearing pursuant to Florida Rule of Criminal Procedure 3.740 and proceed in accordance therewith.

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    ZURLA TRUCKING, INC., and Underwriters Adjusting Company, Appellant, v. Zachery D. WRIGHT and Leslie J. Schultzel, M.D., Appellee.
    No. AB-23.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.
    Albert M. Frierson of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    Richard I. Cervelli, Naples, for appellee.
   PER CURIAM.

We note a $12.50 error in the Deputy’s computations of Dr. Schutzel’s expert witness fee. We therefore amend the order to reflect an award of $262.50 for Dr. Sehult-zel’s fee and, as amended, affirm the order.

McCORD, ERVIN and SHAW, JJ., concur.


text:
    John C. ALBURY, Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellee.
    No. AB-231.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.

      John L. Myrick, Myrick & McKenzie, Pensacola, for appellant.
    G. Edison Holland, Jr., Beggs & Lane, Pensacola, for appellee.
   PER CURIAM.

Albury, a Florida resident, appeals a final summary judgment denying his request for an award of attorney’s fees incident to his action against appellee, Equitable Life Assurance Society. We affirm.

In Blue Cross of Florida, Inc. v. Turner, 363 So.2d 133 (Fla. 1st DCA 1978), this court specifically rejected an insured’s contention that delivery of a brochure or booklet constituted delivery of a policy in Florida so as to entitle him to attorney’s fees under Section 627.428(1). Further, it is evident under Section 627.402(2) that delivery of a certificate is also insufficient where a group policy is involved. See Aetna Life Insurance Co. v. Sievert, 361 So.2d 747 (Fla. 1st DCA 1978). We find no merit in appellant’s argument that delivery of the certificate and a policy booklet explaining the insurance coverage constituted delivery of a policy in Florida. Here, the master policy is indisputably in Missouri, and has never been delivered in Florida. Furthermore, contrary to appellant’s assertion, Equitable’s selling agent was aware that the booklet he delivered to appellant was only an explanation of the Missouri policy, not the policy itself. The trial court correctly determined that there was no genuine issue of material fact to be resolved, and that appel-lee was entitled to judgment as a matter of law.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WIGGINTON, JJ., concur.


author: McCORD, Judge.

text:
    Joseph CAMPBELL, Appellant, v. Marjorie CAMPBELL, Appellee.
    No. AE-367.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.

      Felix A. Johnston, Jr., of Woods, Johnston & Carlson, Tallahassee, for appellant.
    Elaine N. Duggar of Gardner, Shelfer, Mendelson, Duggar & Thompson, Tallahassee, for appellee.
   McCORD, Judge.

Appellant husband appeals the trial court’s order denying his petition to modify alimony. The marriage of the parties, entered into in 1948, was dissolved by final judgment dated January 5,1976. The final judgment approved and incorporated the terms of an agreement of the parties in which they agreed to a settlement and division of their mutual property. The agreement also contained a separate provision by which the husband agreed to pay the wife $250 alimony per month. The alimony agreement was based upon the husband continuing to receive a police disability pension, and it provided that in the event of a change in the disability pension, the parties would modify the amount of alimony. We affirm.

Prior to dissolution of the marriage, neither husband nor wife was employed. The husband was receiving a monthly police disability pension, and the parties had approximately $50,000 invested in the stock market. Pursuant to the agreement, the marital property was divided approximately equally, and the wife was awarded the above-mentioned alimony. After the divorce, the wife, having previously been a nurse, embarked on an additional training program and later secured employment whereby she was earning a net wage of $216 per week as a registered nurse at the time of the hearing. The husband’s pension has increased slightly, and he remains unemployed. As the basis for his petition to modify, the husband claims that the wife’s present earning capacity is a significant changed circumstance for reducing or terminating alimony.

The record in this case is unclear as to which party is more financially stable. Although there is some indication that wife’s monthly income, especially including the alimony payments, is now greater than the husband’s monthly income from his pension, there is evidence that the husband has some additional dividend income, and the evidence shows that a substantial portion of the husband’s income is nontaxable (social security and police disability pension) whereas the wife’s income is taxable. Also, evidence in the record supports a finding that the wife incurred certain debts due to her return to school to prepare herself for the work in which she is now engaged.

The wife’s uncontradieted testimony established that in drafting the alimony agreement, both parties contemplated (and it is obvious) that she must of necessity work to subsidize the alimony income to keep herself above the poverty level. In Johnson v. Johnson, 386 So.2d 14 (Fla. 5th DCA 1980), the court said:

The divorced wife of a long term marriage who is awarded permanent alimony should not be faced with the prospect of losing her right to alimony if she becomes better educated, or if she earns a modest income as in this case .... This premise is even stronger where the parties agreed to the permanent alimony award initially, and where both contemplated it would be necessary for the former wife to become gainfully employed after the divorce. (Emphasis supplied.)

Also compare Reese v. Reese, 330 So.2d 89 (Fla. 1st DCA 1976), where the court refused to find a substantial change in circumstances sufficient to modify an alimony agreement even though the wife’s financial condition had improved due to her earned income because that improvement was contemplated by the parties at the time the agreement was signed. The husband has not met the burden imposed upon one seeking to modify an alimony obligation based on a previous agreement between the parties.

The trial court in the final judgment relied to some extent on Mills v. Mills, 339 So.2d 681 (Fla. 1st DCA 1976). The ruling in Mills, however, is not applicable to the present case. In Mills, this Court refused to modify the alimony provision of an agreement in which the alimony provision was part and parcel of the entire property settlement, and the wife had surrendered valuable property rights in exchange for the receipt of periodic payments specified as alimony. In the instant case, although the alimony agreement and the property settlement were contained in the same stipulation, there is nothing to indicate that the wife surrendered any property rights in exchange for the alimony provision. Though we find Mills inapplicable, the evidence supports the ruling of the trial court.

AFFIRMED.

ERVIN and SHAW, JJ., concur.


author: FERGUSON, Judge.

text:
    Henry L. McHALE, Shirley Rhea McHale and Allstate Insurance Company, a foreign corporation, Appellants, v. FARM BUREAU MUTUAL INSURANCE COMPANY, a/s/o Keith C. Haugenbury, and Olga Vega Venegas, Appellees.
    No. 81-959.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Urich & Shenkman and Robert Urich, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael A. Mullen, Manuel A. Crespo, Miami, for appellees.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

The issue in this appeal is whether it is necessary to present evidence of market value of a damaged vehicle before the damage and after repair in order to prove a compensable claim based on cost of repair theory. We hold that it is not and affirm the trial court.

Appellant Shirley McHale was involved in an automobile accident on March 20, 1979 when she struck an automobile driven by Olga Venegas while attempting to pass. The Venegas vehicle came to a stop after rear-ending a camper trailer owned by Keith Haugenbury. By an amended complaint appellee Farm Bureau, as subrogated insurer of Haugenbury, brought suit against Venegas and McHale. Venegas filed a third-party complaint against McHa-le who counterclaimed against Venegas. A jury returned a verdict of $3,557.45 for Farm Bureau and $1,369.55 for Venegas, both against McHale. The appeal is taken from both awards.

At trial both Farm Bureau and Venegas elected to recover damages based on reasonable cost of repair. Appellants contend, relying on Alonso v. Fernandez, 379 So.2d 685 (Fla.3d DCA 1980), that they were entitled to a directed verdict with respect to each appellee because neither appellee presented evidence of market value of the damaged vehicle before and after repairs. The court in Alonso, supra, applied the principle of law from Traveler’s Indemnity Company v. Skyway Marine, Inc., 251 So.2d 327 (Fla.3d DCA 1971), which we think was incorrectly decided. Traveler’s Indemnity Co., supra, also held that where a plaintiff presented evidence as to value before the damage and the cost of repair but failed to present evidence of the value after repairs, he failed to establish a case for damages based on cost of repair. Traveler’s Indemnity Co., supra, cites as sole authority, Airtech Service, Inc. v. MacDonald Construction Company, 150 So.2d 465 (Fla.3d DCA 1963), which is not a “cost-of-repair” case, but a “total destruction” case. The court in Airtech Service, Inc., supra, set forth the rule of damages as stated in Restatement of Torts, § 928 (1939) and went on to hold that where the plaintiff had elected not to repair, he was entitled to be compensated for the difference between the value of the aircraft before it was damaged and the value after damage, plus any incidental expenses caused by loss of its use.

Neither Airtech Service, Inc., supra, nor the Restatement Torts requires that a plaintiff seeking recovery for cost of repairs also prove affirmatively that the repair has not enhanced the value of the chattel. The last sentence in subparagraph (a) of Restatement of Torts, § 928 (“with due allowance for any difference between the original value and the value after repair”) cited in both Airtech Service, Inc. and Traveler’s Indemnity Co. has been the obvious source of the confusion. Such a requirement appears for the first time in Traveler’s Indemnity Co., supra at page 328:

“. .. where the cost of repairs is used as an alternative method of establishing damages it is considered necessary also to submit both the value before the damage and of value thereof after repair, in order that due allowance may be made for ‘any difference between the original value and the value after repairs’.” (emphasis added).

The clause under consideration had never previously been interpreted in this district, nor in any other district that we are aware of, as placing the burden upon plaintiff to negate enhancement of value as a condition to any recovery.

Compensation for repairs is an alternative method of proving damages which purpose is to restore the defendant to same position he was in prior to the injury. The phrase “due allowance for. . . difference in value...” in application insures that the costs of repair will neither enhance nor diminish the value of the property. The proper interpretation of the Restatement of Torts Rule, quoted above, is that damages are not limited to the cost of repairs actually made where plaintiff shows that the repairs did not put the property in as good a condition as it was before the injury. In such cases, the cost of the repairs made plus the diminution in value will ordinarily be the proper measure of damages, with the burden on the plaintiff to prove in addition to the cost of repairs, that he suffered the additional damage of diminution of value by virtue of the vehicle having been involved in the accident. See, e.g., Traders & General Insurance Co. v. Robison, 289 So.2d 178, 185 (La.App.1973) (applying La. law). If the defendant takes the position that the cost of repair has enhanced the value of the property, then it is the burden of defendant-wrongdoer, as noted by Judge Schwartz dissenting in Alonso v. Fernandez, supra at 689-90, to show that that is the case.

Accordingly, other jurisdictions, interpreting the law which permits a plaintiff to prove damages to chattel by evidence of cost of repair, have held that when a plaintiff introduces evidence to show the reasonable and necessary costs of restoring the damaged property to its original condition, a prima facie case is made out by the plaintiff. The necessity of repairs is established by evidence that a collision caused by the defendant damaged the vehicle, and the reasonableness of the cost of repair is established, at least prima facie, by evidence of the cost of repair. The burden then shifts to the defendant to show that the repairs as made have increased the value of the property. Geddes & Smith, Inc. v. St. Paul Mercury Indemnity Co., 47 Cal.Rptr. 564, 407 P.2d 868 (Cal.1965), en banc (when there is a complete lack of evidence tending to show a diminution in value of injured personalty, the court must not assume that the diminution in value was of lesser amount than the proved reasonable costs of necessary repairs); Rhodes v. Firestone Tire & Rubber Co., 51 Cal.App. 569, 197 P. 392 (1921) (when a plaintiff establishes repairs are necessary and cost reasonable, he establishes a prima facie case. . . the defendant having failed to make a showing as the reduction of damages, cannot now complain); Kiely v. Ragali, 93 Conn. 454, 106 A. 502 (1919) (evidence of costs of repairs of automobile is admissible proof of difference between value of automobile before the accident and after it occurred); Smith v. Champaign Urbana City Lines, Inc., 116 Ill.App.2d 289, 252 N.E.2d 381 (1969) (Illinois rule that paid automobile repair bill is admissible evidence without other foundation as prima facie evidence of necessity and reasonableness of repairs); Couture v. Marquis, 107 N.H. 47, 217 A.2d 175 (1966) (rejecting requirement of proof of value before and after accident as weight of authority holds cost of repair is competent evidence of damage and absent evidence that cost unreasonable, is sufficient to support verdict). In Slaughter v. Barrett, 239 Ark. 957, 395 S.W.2d 552 (1965), the court found that plaintiff’s testimony and repair bill were sufficient to justify the trial court in submitting the question of damages to the jury. The court stated at 552, “We have frequently held that the difference in the market value of a vehicle before and after an accident may be established by proof of the amount paid in good faith for repairs made necessary by the collision”. Accord St. Paul Fire & Marine Insurance Co. v. Gray, 240 Ark. 66, 398 S.W.2d 506 (Ark.1966). The court in the Slaughter case, supra, stated that then the defendant was at liberty to go forward with proof that the cost of repairs exceeded the difference in market value. See, e.g., Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127 (1950) (burden on defendant to show enhancement). Accord McCullough-Baroid Petroleum Service NL Industries v. Sexton, 618 S.W.2d 119 (Tex.App.1981). See also 15 Blashfield, Automobile Law and Practice § 480.18 (3d ed. 1969) (the plaintiff meets this burden and makes out a prima facie case... by showing making of repairs, fact that repairs were necessary by the accident, the cost thereof, and that cost was reasonable; defendant may then show, if he can, diminution in value of damaged vehicle was less than repair bill).

We hold in this case that the plaintiffs’ vehicle repair bills and testimony that the repairs were limited to the damages caused by collision made a prima facie case to be submitted to the jury, and, therefore, it was not error to deny appellants’ motion for directed verdict. To the extent that Alonso v. Fernandez, supra, and Traveler’s Indemnity Co. v. Skyway Marine, Inc. are inconsistent we recede from those holdings.

Affirmed.


author: HUBBART, Chief Judge.

text:
    The STATE of Florida, Appellant, v. Ignacio RIOS and Felipe Ruiz, Appellees.
    Nos. 80-186, 80-209.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Rehearing Denied March 29, 1982.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellant.
    Nathaniel L. Barone, Jr., Miami, for ap-pellees.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   HUBBART, Chief Judge.

The central issue presented for review is whether an information charging a defendant with trafficking or endeavoring to traffic in stolen property in violation of Section 812.019(1), Florida Statutes (1979), is subject to dismissal upon a sworn motion under Fla.R.Crim.P. 3.190(c)(4), which states one undisputed fact, namely, that the property forming the subject matter of the information was not in fact stolen property, but belonged to a municipal police department. We hold that the information is not subject to such a dismissal because the above undisputed fact does not in itself preclude as a matter of law a conviction for endeavoring to traffic in stolen property under Section 812.019(1), Florida Statutes (1979). We, accordingly, reverse the orders of dismissal under review and remand for further proceedings.

I

The facts pertaining to the above issue are as follows. The defendant Ignacio Rios was charged in a three-count information before the Circuit Court for the Eleventh Judicial Circuit of Florida as follows:

“IN THE NAME AND BY AUTHORITY OF THE STATE OF FLORIDA:
COUNT I
I, ADDISON MEYERS, Assistant State Attorney of the Eleventh Judicial Circuit of Florida, on the authority of JANET RENO, State Attorney, prosecuting for the State of Florida, in the County of Dade, under oath, information makes that IGNACIO RIOS on the 9th day of October, 1979, in the County and State aforesaid, did unlawfully and felo-niously traffic in, or endeavor to traffic in property that he knew or should have known was stolen, to-wit: A TELEVISION SET, in violation of 812.019(1) Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
COUNT II
And I, ADDISON MEYERS, Assistant State Attorney of the Eleventh Judicial Circuit of Florida, on the authority of JANET RENO, State Attorney, prosecuting for the State of Florida, in the County of Dade, under oath, further information makes that, IGNACIO RIOS, on the 12th day of October, 1979 in the County and State aforesaid, did unlawfully and feloniously traffic in, or endeavor to traffic in property that he knew or should have known was stolen, to-wit: BLENDERS, in violation of 812.019(1) Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
COUNT III
And I, ADDISON MEYERS, Assistant State Attorney of the Eleventh Judicial Circuit of Florida, on the authority of JANET RENO, State Attorney, prosecuting for the State of Florida, in the County of Dade, under oath, further information makes that, IGNACIO RIOS, on the 16th day of October, 1979, in the County and State aforesaid, did unlawfully and feloniously traffic in, or endeavor to traffic in property that he knew or should have known was stolen, to-wit: AUTOMOBILE STEREO SPEAKERS, in violation of 812.019(1) Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.”

The defendant Felipe Ruiz was similarly charged in a three-count information before the same court as follows:

“IN THE NAME AND BY AUTHORITY OF THE STATE OF FLORIDA:
COUNT I
I, ADDISON MEYERS, Assistant State Attorney of the Eleventh Judicial Circuit of Florida, on the authority of JANET RENO, State Attorney, prosecuting for the State of Florida, in the County of Dade, under oath, information makes that FELIPE RUIZ on the 2nd day of October, 1979, in the County and State aforesaid, did unlawfully and felo-niously traffic in, or endeavor to traffic in property that he knew or should have known was stolen, to-wit: A TELEVISION SET, in violation of 812.019(1) Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
COUNT II
And I, ADDISON MEYERS, Assistant State Attorney of the Eleventh Judicial Circuit of Florida, on the authority of JANET RENO, State Attorney, prosecuting for the State of Florida, in the County of Dade, under oath, further information makes that, FELIPE RUIZ, on the 18th day of October, 1979, in the County and State aforesaid, did unlawfully and feloniously traffic in, or endeavor to traffic in property that he knew or should have known was stolen, to-wit: A TELEVISION SET, in violation of 812.019 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
COUNT III
And I, ADDISON MEYERS, Assistant State Attorney of the Eleventh Judicial Circuit of Florida, on the authority of JANET RENO, State Attorney, prosecuting for the State of Florida, in the County of Dade, under oath, further information makes that, FELIPE RUIZ, on the 23rd day of October, 1979, in the County and State aforesaid, did unlawfully and feloniously traffic in, or endeavor to traffic in property that he knew or should have known was stolen, to-wit: TELEVISION SETS, in violation of 812.019(1)' Florida Statutes.”

The defendants Rios and Ruiz filed identical sworn motions to dismiss under Fla.R. Crim.P. 3.190(c)(4) which stated in relevant part as follows:

“1. There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the Defendant.
2. That the Information alleges that Defendant, [IGNACIO RIOS] [FELIPE RUIZ], unlawfully and feloniously trafficked in or endeavored to traffic in several items which were allegedly of stolen character.
3. That the said items as listed in the Information were at all times, prior to and during the Defendant’s alleged criminal conduct, in the actual possession and control of and belonging to the City of Miami, Florida Police Department.
4. The undercover officer, DET. G. BOYD, and the STATE OF FLORIDA has stipulated that said property was never stolen property.”

The state filed no traverse to these motions and agreed at hearings held below that the above factual allegations were true. The trial court, accordingly, entered orders dismissing the above informations. The state appealed these dismissals, which appeal we have jurisdiction to entertain. § 924.07(1), Fla.Stat. (1979).

II

Section 812.019(1), Florida Statutes (1979), the statute under which the instant prosecution was brought, provides as follows:

“Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree, punishable as provided in 084.” s.s. 775.082, 775.083, 775.-

The Florida Supreme Court in State v. Tomas, 370 So.2d 1142 (Fla.1979), has construed the above statute as follows:

“An examination of this enactment [§ 812.019(1), Fla.Stat. (1979)] reveals nothing to support the conclusion that persons could be convicted under its provisions for conduct that is essentially innocent in nature. The terms ‘traffic’ and ‘stolen property’ are defined in sections 812.012(6) and (7), from which it is clear that the statute applies only to certain acts relating to the disposition of ‘property that has been the subject of any criminally wrongful taking.’ The term ‘endeavors’ has recently been construed by us in the context of a closely related provision to mean ‘an overt act manifesting criminal intent.’ (citation omitted).” Id. at 1143.

It, therefore, seems clear that Section 812.019(1), Florida Statutes (1979), as thus construed, requires as one of the essential elements of trafficking in stolen property that the property in question be stolen property, that is, property that has been the subject of any criminally wrongful taking. By contrast, however, endeavoring to traffic in stolen property does not appear to require this essential element, but is complete, as the Court states, upon proof of an overt act manifesting criminal intent directed toward committing the substantive crime of trafficking. This result seems particularly apt in view of Section 812.028(3), Florida Statutes (1979), which strikes down as a defense to such a prosecution a claim that “[p]roperty that was not stolen was offered for sale as stolen property.” A defendant, then, cannot be heard to complain in prosecutions of this nature that the property offered to him for sale as stolen property was not, in fact, stolen if he thereafter traffics in said property. True, he is not thereby trafficking in stolen property as the property is not stolen, but he is certainly endeavoring to do so with requisite criminal intent. He is, therefore, guilty under our law of the crime of endeavoring 812.019(1), Florida Statutes (1979). to traffic in stolen property under Section

We further reject any suggestion that the defense of legal impossibility should bar any criminal attempt prosecution, where, as here, the crime which the defendant attempted was legally impossible to commit due to the fact that the subject property was not stolen. The defense of legal impossibility has never been adopted in Florida in any criminal attempt prosecution and is generally discredited by the overwhelming weight of authority in other jurisdictions. [See Appendix to this opinion.] The more appropriate inquiry in criminal attempt prosecutions should focus, we think, on the defendant’s intent to commit a crime and any overt act done to effectuate this intent. “A person [then] is guilty [in our view] of an attempt to commit a crime if, acting with a kind of culpability otherwise required for the commission of the crime, he purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be.” ALI, Model Penal Code § 5.01(a) (proposed official draft, May 4, 1962).

This analysis is fully supported by recent decisions of the First and Fourth District Courts of Appeal with which we are in complete agreement. State v. Cohen, 409 So.2d 64 (Fla. 4th DCA 1982) (7 FLW 180); State v. Skinner, 397 So.2d 389 (Fla. 1st DCA 1981); Padgett v. State, 378 So.2d 118 (Fla. 1st DCA 1980). It is further supported by the Model Penal Code § 5.01(a), supra; see also ALI, Model Penal Code § 5.01(a) Comment 4 (Tent. Draft No. 10, May 6, 1960), and the trend of the better reasoned modern authority on the subject. W. LaFave & A. Scott, Criminal Law, 443-45 (1972); a Iso see Appendix to this opinion. Finally, the result reached seems both sensible and fair as without doubt a person who with requisite criminal intent traffics in property represented to him as stolen, although not in fact stolen, is engaging in criminal-type conduct, in no sense innocent in nature, which society should have a right to punish under its criminal law.

Ill

Turning to the instant case, it is clear that the informations in this cause were not subject to dismissal upon sworn motion under Fla.R.Crim.P. 3.190(e)(4). The undisputed fact that the property described in the instant informations was not stolen property, but belonged to the City of Miami Police Department, does not defeat a prosecution for endeavoring to traffic in stolen property under Section 812.019(1), Florida Statutes (1979). Indeed, it is not a recognized defense to such a prosecution under our law that the property offered for sale as stolen property was not, in fact, stolen. The orders under review are, accordingly, reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

APPENDIX

The following jurisdictions (32) have rejected the defense of legal impossibility by statute or court decision.

FEDERAL

United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976).

STATE

Alabama: Ala.Code § 13A—4r-2(b) (1978)

Alaska: Alaska Stat. § 11.31.100(b) (1980)

Arizona: State v. Carner, 25 Ariz.App. 156, 541 P.2d 947 (Ct.App.1975); Ariz.Rev. Stat.Ann. § 13-1001B (1978)

Arkansas: Ark.Stat.Ann. § 41-701 (1977)

California: People v. Rojas, 55 Cal.2d 252, 358 P.2d 921, 10 Cal.Rptr. 465 (Cal.1961); People v. Wright, 105 Cal.App.3d 329, 164 Cal.Rptr. 207 (Ct.App.1980); Shadle v. City of Corona, 96 Cal.App.3d 173, 157 Cal.Rptr. 624 (Ct.App.1979)

Colorado: Colo.Rev.Stat. § 18-2-101 (1978); Darr v. People, 193 Colo. 445, 568 P.2d 32 (Colo.1977) (en banc) (following statute)

Connecticut: Conn.Gen.Stat.Ann. § 53a-49 (1972)

Delaware: Del.Code Ann. tit. 11, § 531 (1975)

Georgia: Ga.Code Ann. § 26-1002 (1978)

Hawaii: Hawaii Rev.Stat. § 705-500 (1976)

Illinois : Ill.Ann.Stat. ch. 38, § 8-4(b) (1981 Supp.)

Indiana: Ind.Code Ann. § 35-41-5-1(b) (Burns 1979)

Kansas: Kan.Stat.Ann. § 21-3301(2) (1974)

Kentucky: Ky.Rev.Stat. § 506.010 (1975)

Maine: Me.Rev.Stat.Ann. tit. 17-A, § 152(2) (1981 Supp.)

Missouri: Mo.Stat.Ann. § 564.011(2) (1979)

Montana: Mont.Code Ann. § 45-4-103(2) (1981)

Nebraska: Neb.Rev.Stat. § 28-201 (1979)

Nevada: Darnell v. State, 92 Nev. 680, 558 P.2d 624 (Nev.1977)

New Hampshire: N.H.Rev.Stat.Ann. § 629:1 (1974)

New Jersey: State v. Moretti, 52 N.J. 182, 244 A.2d 499 (N.J.), cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968); N.J.Stat.Ann. § 2C:5-1 (1981)

New York: N.Y.Penal Law § 110.10 (McKinney 1975)

North Dakota: N.D.Cent.Code § 12.1-06-01(1) (1976)

Ohio: Ohio Rev.Code Ann. § 2923.02(B) (1975)

Oklahoma: Okla.Stat.Ann. tit. 21, § 44 (1981 Supp.)

Oregon: State v. Korelis, 21 Or.App. 813, 537 P.2d 136 (Ct.App.), aff’d., 273 Or. 427, 541 P.2d 468 (1975); Or.Rev.Stat. § 161.425 (1979)

Pennsylvania: Pa.Stat.Ann. tit. 18, § 901(b) (1973)

Tennessee: Bandy v. State, 575 S.W.2d 278 (Tenn.1979) (legal impossibility defense rejected solely in prosecution for attempted receiving stolen property)

Texas: Tex.Penal Code Ann. § 15.01 (Vernon 1974)

Utah: Utah Code Ann. § 76-4-101(3) (1978); State v. Sommers, 569 P.2d 1110 (Utah 1977) (following statute)

Washington: Wash.Rev.Code § 9A.28.020(2) (1977); State v. Hunter, 29 Wash.App. 218, 627 P.2d 1339 (Ct.App.1981); State v. Davidson, 20 Wash.App. 893, 584 P.2d 401 (Ct.App.1978)

Wyoming: Wyo.Stat. § 6-1-201 (1981 Supp.)

New York is among those jurisdictions rejecting the legal impossibility defense by statute although it had previously recognized the defense in the leading case of People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (N.Y.1906). See People v. Bel Air Equipment Corp., 46 A.D.2d 773, 360 N.Y.S.2d 465 (App.Div.1974), aff’d. on other grounds, 39 N.Y.2d 48, 382 N.Y.S.2d 728, 346 N.E.2d 529 (N.Y.1976); People v. Ettman, 99 Misc.2d 120, 415 N.Y.S.2d 599 (Crim.Ct.1979); see also Darr v. People, 568 P.2d at 33 n.3.

Florida, as previously noted, has never adopted the defense of legal impossibility by court decision, and, by statute, has rejected the defense in prosecutions, as here, for endeavoring to traffic in stolen property. § 812.028(3), Fla.Stat. (1979).


author: BARKDULL, Judge. JORGENSON, Judge,

text:
    The FLORIDA HIGH SCHOOL ACTIVITIES ASSOCIATION, INC., Anthony Pariso, and Fred Cooley, Appellants, v. George THOMAS, by and through his mother and next best friend, Mamie Thomas; etc., et al., Appellees.
    No. 81-2534.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.

      Walton, Lantaff, Schroeder & Carson and John Patrick Joy and George W. Chesrow, Miami, for appellants.
    Arky, Freed, Stearns, Watson & Greer and Richard M. Dunn, Miami, for appellees.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   BARKDULL, Judge.

The appellees, as representatives of a class, brought a complaint for declaratory decree and injunctive relief seeking to enjoin the appellant Association, and Pariso and Cooley, as Principal and Coach (respectively) of the high school attended by their sons, from enforcing a rule of the Florida High School Activities Association, Inc. (hereinafter referred to as FHSAA), limiting the number of players that may participate in post-season football championship play.

Following an evidentiary hearing, the trial court entered a temporary restraining order in words and figures as follow:

“THIS CAUSE is before the Court on plaintiff’s Complaint for Declaratory and Injunctive Relief, and their Motion for Temporary Restraining Order. On November 20, 1981, plaintiffs filed this action together with their motion for temporary restraining order. Plaintiffs allege that the defendants were improperly prohibiting the participation of the plaintiffs’ sons in play-off games for the State Championship.
“Plaintiffs brought to the Court’s attention the emergency nature of the motion. Killian High School was scheduled to compete in a play-off football game on November 27, 1981, and if winners, on December 4,1981, December 11,1981 and December 18,1981. To avoid the obvious irreparable injury which would have been suffered by a deferred ruling in this cause, the Court set a hearing on plaintiffs’ motion for injunctive relief for November 24,1981 at 4:00 p. m. In light of the emergency situation, defendants received timely and adequate notice of the motion and hearing. Therefore, this Court proceeded to receive evidence and hear argument of counsel.
“Based upon the evidence presented by the parties hereto, the Court finds and concludes as follows:
1. This Court has jurisdiction of the parties and subject matter herein.
2. The sons of all of the plaintiffs are students at Killian High School, have participated as members of that high school’s football team for at least one (1) year, and are otherwise eligible to participate in high school football.
3. The Florida High School Activities Association, Inc. is the state authority which controls all high school interscholastic activities including interscholastic athletics. It is, in effect, mandatory for the principal of every high school or secondary school in the State of Florida which wishes to participate in interscholastic activities to belong to the Florida High School Activities Association, Inc. Thus, Killian High School, in order to be accredited, must abide by the Florida High School Activities Association, Inc.’s rules and regulations.
4. The aim of the Florida High School Activities Association, Inc. is to promote, direct and control all interscholastic activities of high school students, both athletic and non-athletic; to establish, maintain and enforce such regulations as may be necessary to assure that all such activities are a part of and contribute towards the entire educational program of the State of Florida; to cooperate closely with the State Department of Education in the development of that program; to safeguard the physical, mental and moral welfare of high school students and protect them from exploitation.
5. Football is an American tradition which has formed a great cornerstone in shaping the lives of literally millions of Americans. It is uniquely adapted to educating our youth to the unquestioned merit of mental and physical discipline, wholesome and worthy competition under rules of good sportsmanship and fair play, and the achievement of excellence. Americans who have drawn upon their early lessons in football include Presidents Reagan, Kennedy and Eisenhower and Supreme Court Justice White. Thus, while football may be a privilege, it is an essential part of the American educational mosaic.
6. Rule 5 of the Florida High School Activities Association’s “Contest Regulations” (Rule 5), states:
Each team will be allowed a maximum of 44 players in uniform for each game.
7. Rule 5 does not apply to regular season football games. Except for certain eligibility requirements, there are no limitations on the number of student participants in the football program during the regular season.
8. Because of Rule 5, the defendant Cooley (head football coach at Miami Kil-lian High School) advised the individual plaintiffs’ sons and the members of the class who are on the Killian High School football team that they could not participate in the play-offs for the State Championship.
9. Regardless of whether or not the Florida High School Athletic Association, Inc. is a state agency or private voluntary organization, the result in this case must be the same. This Court is reluctant to interfere with the internal affairs of such an organization. However, it is a fundamental concept of our jurisprudence that every wrong must have a remedy: a person must be able to secure judicial redress from mistake, fraud, bad faith, collusion or arbitrariness. This Court finds that the plaintiffs’ sons and members of their class are victims of arbitrariness and irrationality with respect to the application of Rule 5.
10. It is clear that the Florida High School Activities Association has the responsibility for supervision and control of all facets of interscholastic athletics in the private and public schools of the State of Florida. As such the Florida High School Activities Association is an arm of the State Department of Education. The activities of the Association are so intertwined with that of the state, its conduct must be deemed to be state action in the constitutional sense. Mitchell v. Louisiana High School Activities Association, Inc., 430 F.2d 1155 (5th Cir. 1970); Florida High School Activities Association, Inc. v. Bradshaw, 369 So.2d 398 (Fla.2d DCA 1970). While the participation in high school athletics is a privilege, such a classification does not carry with it the right by the state to dispense with this privilege arbitrarily and irrationally. Shapiro v. Thompson, 394 U.S. 618, 627 n.6, 89 S.Ct. 1322, 1327 n.6, 22 L.Ed.2d 600 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Vitek v. Jones, 445 U.S. 480, 490-91, 100 S.Ct. 1254, 1262, 63 L.Ed.2d 552 (1980).
11. As stated above, Rule 5 by its own standards is arbitrary and irrational and creates two classes of football players. One class is the football player who practices every day and is eligible to play in all games, play-offs and championship games. The other class is the football player who practices every day, and is eligible to play only in regular season games despite his contribution to the team’s success. As a result, and based upon the facts of this case, Rule 5 is unconstitutionally impermissible and must be struck down by this Court.
12. Finally, in this day and time when we are confronted with crime, vice and the rampant abuse of drugs and other forms of anti-social behavior, it is shocking and reprehensible to all society that an ‘official’ body would arbitrarily deny and abridge to our youth the right to participate in an athletic program and in particular football play-offs and championship games, a game which is not only wholesome and pure but socially acceptable. Sullivan v. Florida High School Activities Association, et al., 38 Fla.Supp. 18 (Circuit Court, Dade County 1972). The very goal of putting on that uniform, the chance to someday start in a game, or even play before your peers, family and fans is the reason for going out for the team and taking your bumps and bruises. This reward is earned. Anyone who has labored on the athletic field is well aware of the hard work, sacrifice and trauma (not to mention the pound of dirt you eat) that occurs during the weeks of practice. To create a situation where a student athlete is reduced to a blocking dummy during the week and being told ‘give us your hard work, sacrifice and trauma during practice, but you cannot put on the school uniform nor play’ runs directly counter to the American tradition of fair play. To allow an unlimited roster during the season and then to limit that roster during the play-offs and championship games is arbitrary and irrational.
13. This Court finds that the witnesses called by defendants were unable to advance any credible reasons for the existence of Rule 5.
14. The Court finds that irreparable injury will occur to the class of plaintiffs if defendants enforce Rule 5 during the current play-offs. Further, the Court finds that no injury will occur to defendants as a result of an Order enjoining enforcement of Rule 5 in the play-offs.
“Based upon the foregoing facts and conclusions, it is
ORDERED AND ADJUDGED as follows:
1. The case is certified as a class action in accordance with the class allegations contained in plaintiffs’ Complaint and their Amendment to Complaint.
2. The activities of the Florida High School Activities Association, Inc. (‘FHSAA’) constitute state action.
3. Rule 5 discriminates against all student participants who occupy a roster position of number 45 or above on the football rosters of AAAA schools.
4. This Court finds that Rule 5 is arbitrary, capricious and unconstitutional.
5. Defendants are enjoined from enforcing this Rule from the date of this Court’s oral Order on November 24,1981.”

This appeal ensued, the appellants urging that the trial court erred in holding Rule 5 unconstitutional under the equal protection clause of the Florida Constitution, and that the trial court erred in interfering with the internal affairs of a voluntary association. We affirm.

We dispose of the second point first. It has heretofore been held in Florida that the FHSAA partakes of a public or quasi-public body. Florida High School Activities Association, Inc. v. Bryant, 313 So.2d 57 (Fla. 3d DCA 1975); Lee v. Florida High School Activities Association, Inc., 291 So.2d 636 (Fla. 3d DCA 1974); Sullivan v. Florida High School Activities Association, 38 Fla. Supp. 18 (Cir.Ct.1972). This is particularly true when if you do not belong to the Association a school’s athletic team cannot participate in contests against teams who are members of the Association and, in fact, the Dade County School Board has required all Dade County schools to be members of this Association. Therefore, we find no merit in this point.

The first point presents a more difficult problem. However, it appears from the evidence that the arbitrary limitation of 44 players being permitted to participate in championship activities is unreasonable under the circumstances. It is clear from this record that there are, among those without the 44 who are not permitted to participate in championship play, players who did in fact contribute to their team’s ability to advance to the championship series and that the enforcement of Rule 5 is depriving them of the benefits of the fruits of their labors without a reasonable justification in the record. However, it appears from the record of the evidence adduced that the adoption of Rule 5 does not meet the three evils it was to cure: (1) to preserve “bench control”; (2) to control costs; (3) to create parity among the Class AAAA.

As to the first, the evidence is that there never has been a “bench control” problem in championship games, so this could not have contributed to the reasons for the classification. Next, the amount of money that the Association is required to spend is limited by its bylaws and, therefore, it is not impacted by the number of players who participate. Lastly, the events that eliminated certain of the participants from the championship eliminations clearly indicate that the number of players had nothing to do with parity. The record in this case shows, without contradiction, that permitting an unlimited number of players contributes substantially both to the welfare of the individual student participant and to the overall general welfare of the school and community. We find that the plaintiffs had standing to bring the instant action. Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976); Harrell v. Hess Oil and Chemical Corp., 287 So.2d 291 (Fla.1973); Fla.R.Civ.P. 1.220. We find that they were representatives of the class, and that the trial court correctly held that the classification limiting team members in championship play-offs, as established in Rule 5, was in fact arbitrary. Therefore, the trial court was correct in enjoining its application. Florida High School Activities Association, Inc. v. Bryant, supra; Lee v. Florida High School Activities Association, Inc., supra; Sullivan v. Florida High School Activities Association, supra; Sullivan v. University Interscholastic League, 616 S.W.2d 170 (Tex.1981); compare, Moran v. School District # 7 Yellowstone County, 350 F.Supp. 1180 (D.C.Mont.1972).

Therefore, the order granting temporary restraining order here under review be and the same is hereby affirmed.

Affirmed.

JORGENSON, Judge,

concurring in part, dissenting in part.

I agree with the majority that the plaintiffs below, appellees here, constitute an appropriate class and, further, that the Florida High School Activities Association, Inc., is fairly characterized as a public (or quasi-public) body. Florida High School Activities Association, Inc. v. Bryant, 313 So.2d 57 (Fla. 3d DCA 1975).

I would not, however, reach the constitutional issue as framed by these pleadings that Rule 5 is “arbitrary” and “irrational”. The record reflects that no attempt has ever been made to change or otherwise amend the Rule by members of this plaintiff class or anyone else since 1967.

Mr. Fred Rozelle who is executive director of the FHSAA gave competent testimony with respect to the reasons for Rule 5. Other evidence was received that no attempt has been made to amend Rule 5 pursuant to the by-laws of the governing body. Since the plaintiff class has made no effort to utilize alternatives available to it prior to this litigation, I would deny the relief requested. Webb v. Hill, 75 So.2d 596 (Fla.1954); Florida High School Activities Association, Inc. v. Bradshaw, 369 So.2d 398 (Fla. 2d DCA 1979); State Board of Education v. NCAA, 273 So.2d 912 (La.App.1973).

I would reverse.

       In Dade County, the evidence shows and I find that a specific Dade County School Board rule requires all county schools to be members of the FHSAA and to follow FHSAA rules.

      . On Friday night, December 11, 1981, Killian High school (which dressed 89 players) was defeated in a semi-final championship game by Vero Beach High School (which dressed 47 players). Central Theatres, Inc., v. State, 161 So.2d 558 (Fla. 2d DCA 1964); Section 90.202(11)(12), Florida Statutes (1981).

      . “Q Do you feel that there are any benefits to the students by playing football?

      “A Yes, I certainly do.
      “Q (By Mr. Dunn) Could you tell us what those benefits are?
      “A My personal feeling is that every kid that participates in any kind of activity is one less kid you have problems with. I think it benefits the kids to be involved in things at school.

      “Q Do you feel there are any advantages to the kids directly?
      “A Definitely.
      “Q Can you tell me what those are?
      “A I have had parents time and time again tell me, ‘As long as I know our son is with you, I know where he’s at from 2:15 until around 6:45 to 7:00; I know where he’s at, and I ain’t got to worry about him.’
      And this is one of the main things that I feel that I can help the kid. I can’t help him if he’s not with me.”

      .“2. Paragraph 20 shall be amended as follows:
      20. There are 43 members of the class who attend Killian High School. There are 16 districts which make up Class AAAA and each district has a champion. It is impossible at this time to accurately state the number of class members from other schools within the districts which make up class AAAA. However, it is believed that there are in excess of 150 members of the class.
      “3. Paragraph 21 shall be amended as follows:
      21. The class alleged by this action consists of all high school students who
      (a) attend an FHSAA member school with an AAAA classification and which school is a District football champion;
      (b) played football for the interscholastic varsity team;
      (c) are members of the football team at such school and constitutes the 45th player on the football roster or a number higher than 45 on the roster; and
      (d) will be prohibited from playing in the post-season championship games because of Rule 5.”

      . This cause having statewide impact possibly on the results of the 1981 championship series and certainly on future championship contests, the cause will be certified to the Supreme Court of Florida under the provisions of Article V, Section 3(b)(4), Constitution of the State of Florida, being a decision that passes upon a question of great public interest.

      . An amendment to Rule 5 was made in 1966 increasing from thirty-six to forty-four the number of players who would be eligible to participate in playoff games.

      . No relation to Pete Rozelle of the National Football League.


text:
    Jose AFON, Appellant, v. Salvatori BENEDETTO, d/b/a Barclay Plaza Hotel, Appellee.
    No. 81-874.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Busot, Mellman, Iglesias, Romero & Lamar and Richard Mellman, Coral Gables, for appellant.
    Mottlau & Wakefield, Daniels & Hicks and Patrice A. Talisman, Miami, for appel-lee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. See: San Marco Company, Inc. v. Langord, 391 So.2d 326 (Fla. 1st DCA 1980).


text:
    Joseph HARPER and Elizabeth Harper, his wife, Appellants, v. Alonzo GRAY and United States Fidelity & Guaranty Company, a foreign corporation authorized to do business in the State of Florida, Jointly and Severally, Appellees.
    No. 81-876.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Headley & Headley, Daniels & Hicks and Patrice A. Talisman, Miami, for appellants.
    Ponzoli & Wassenberg and Ronald P. Ponzoli, Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Fla.R.Civ.P. 1.260(a)(1).


text:
    Roberta Gail SPANIER, Appellant, v. Melvin J. SPANIER, Appellee.
    No. 81-546.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Gars, Dixon & Shapiro and Sandy Karlan, Miami, for appellant.
    Ann Mason Parker, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    The STATE of Florida, Appellant, v. Randall ANDERSON, Appellee.
    No. 81-466.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Jorge De ARMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-569.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Sheldon “Skip” Taylor, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Reversed. See Fla.R.Crim.P. 3.830.


text:
    Senen Francisco BRITO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-91.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Wolbert, Saxon & Middleton, Gainesville, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant, Senen Francisco Brito, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 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.


text:
    DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Appellant, v. CAPITAL BANK OF MIAMI, N.A., Appellee.
    No. 81-658.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Dennis E. LaRosa and William Hatch, Tallahassee, for appellant.
    Frank, Strelkow & Gay and Carl Allen Schmitt, North Bay Village, for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

The final summary judgment under review is affirmed because, in our view, (a) the record in this cause conclusively establishes, without genuine issue of material fact, the defendant Capital Bank of Miami’s affirmative defenses as pled herein, and (b) the establishment of these affirmative defenses entitled the defendant Capital Bank of Miami to judgment as a matter of law. Landers v. Milton, 370 So.2d 368, 370 (Fla.1979); Connell v. Sledge, 306 So.2d 194, 196 (Fla. 1st DCA 1975), cert. dismissed, 336 So.2d 105 (Fla.1976).

Affirmed.


author: HERSEY, Judge. HURLEY, Judge,

text:
    Henry WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-613.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Henry Williams appeals his conviction on two counts of sale of cocaine. Only one point is raised for our consideration. Appellant argues that the trial court erred in refusing to sever the two counts for separate trials, relying on Paul v. State, 385 So.2d 1371 (Fla.1980). A brief review of the facts is necessary to put the applicable principles in proper perspective.

The state’s evidence indicates that on August 16, 1979, Gercy Neal, Jr., a law enforcement officer, was assigned to buy drugs as part of an undercover investigation in Belle Glade, Florida. At a bar, he met a black male named Freddy and asked him where to obtain some heroin or cocaine. Freddy took Neal to a disco and put him in contact with the proprietor, appellant. Appellant inquired whether Neal wanted heroin or cocaine; Neal requested $25.00 worth of cocaine. Appellant left, returning in about five minutes with the cocaine. He gave Neal the cocaine but wouldn’t accept Neal’s money directly. Neal gave the money to Freddy who then gave it to appellant.

Six days later on August 22, 1979, Neal was back in the area attempting to purchase drugs. He asked someone on the street where appellant lived and was directed to appellant’s apartment. Appellant asked Neal if he wanted heroin or cocaine and Neal again asked for $25.00 worth of cocaine. The transaction was then completed.

Appellant was charged in one Information with two counts of sale of cocaine. Prior to trial appellant filed a motion to sever the offenses. The motion was denied and the case proceeded to jury trial. At trial the case for the defense consisted of the testimony of appellant, who admitted the two meetings with Neal but denied selling him drugs.

Paul v. State, supra, which, according to appellant, mandates a reversal, actually involved consolidation of offenses separately charged requiring construction of Rule 3.151, Florida Rules of Criminal Procedure. That rule provides that separately charged offenses may be consolidated only if they are “based on the same act or transaction or two or more connected acts or transactions.” This same language is used to describe the circumstances under which offenses may be joined in the same indictment or information and, if so joined, when offenses must be severed under Rule 3.152(a), Florida Rules of Criminal Procedure. Therefore, the rule evolved in Paul for application of Rule 3.151 controls the application of Rule 3.152(a) where the facts are substantially similar and only the procedural posture is different. See Macklin v. State, 395 So.2d 1219 (Fla. 3d DCA 1981).

The principle ennunciated in Paul is, in effect, that separate trials are required for similar offenses which are unrelated in terms of time or sequence. The Supreme Court in that case adopted as its opinion the dissent of Judge Smith in Paul v. State, 365 So.2d 1063 (Fla. 1st DCA 1979) insofar as it related to Rule 3.151. Therefore, a discussion of the applicability of Paul necessitates reference to Judge Smith’s dissent. More specifically,

[Consolidation rule 3.151 . . . refer[s] to ‘connected acts or transactions’ in an episodic sense, and ... the rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are ‘connected’ only by similar circumstances and the accused’s alleged guilt in both or all instances. Id. at 1066.

Here, the sales of drugs occurred during the course of an ongoing investigation, within a limited period of time and in a limited geographical area. The principle participants to both transactions were the same. Accordingly, we view the transactions, although separate in time, as nevertheless being clearly and directly connected in an “episodic sense.”

In the Paul case the appellant committed two separate rapes on two separate victims more than a month apart. Such circumstances are obviously quite different from two drug sales to the same officer during an on-going undercover investigation within a period of one week. We therefore have no difficulty in reconciling the views we express here with the rationale of Paul.

Appellant’s conviction is affirmed.

AFFIRMED.

LETTS, C. J., concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

I must respectfully dissent because I believe that severance is required by the recent pronouncement of our Supreme Court in Paul v. State, 385 So.2d 1371 (Fla.1980) (adopting part of the dissent of Judge Smith in Paul v. State, 365 So.2d 1063 (Fla. 1st DCA 1979)). See Rubin v. State, 407 So.2d 961 (Fla. 4th DCA 1981). As I view them, the charges in the present case are “[b]ased on similar but separate episodes, separated in time, which are ‘connected’ only by similar circumstances and the accused’s alleged guilt in both or all instances.” See 365 So.2d at 1065-66. Therefore, I cannot join in the majority’s conclusion that these crimes are “clearly and directly connected in an episodic sense,” i.e., are part of a single criminal episode.

The majority emphasizes that both sales occurred during the course of an ongoing investigation. I fail to see the relevance of that fact. Whether crimes form part of a criminal episode depends on the activities of the defendant, not the activities of the police in investigating the defendant.

In this case each sale was a separate and distinct transaction. The two charges did not arise from one continuous sequence of events. Cf. Jacobs v. State, 396 So.2d 713, 717 (Fla.1981). The fact that both sales were to the same undercover officer is hardly enough to distinguish this case from Paul, supra. Similarly, the fact that both sales occurred within a week’s time is not enough. See Macklin v. State, 395 So.2d 1219 (Fla. 3d DCA 1981) (defendant charged with two taxicab holdups occurring five days apart); McMullen v. State, 405 So.2d 479 (Fla. 3d DCA 1981) (five similar robberies within nine days). Thus, I believe that Paul controls.

Since appellant freely admitted coming into contact with the undercover officer, but denied selling drugs, identity was never at issue. Consequently, the “Williams” rule, now codified as Section 90.404(2)(a), Fla.Stat. (1981), is inapplicable to the case at bar. Finally, it should be noted that the majority’s definition of a criminal episode for charging purposes is totally inconsistent with the concept of a criminal episode which we have developed for speedy trial analysis. See, e.g., Giglio v. Kaplan, 392 So.2d 1004, 1005 (Fla. 4th DCA 1981). Logic compels consistency. Therefore, I respectfully suggest that today’s decision is deficient in that it fails to follow Paul v. State, supra, and our own precedent.


text:
    Scott Harlan BROWN and Thomas Gordon Reed, Appellants, v. STATE of Florida, Appellee.
    No. 80-848.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of guilty of trafficking in cannabis. The sole question is whether the circuit court’s denial of appellants’ motion to suppress was correct.

It is difficult for us to understand the events that led to the seizure of the cannabis involved in this case. The circuit court based its denial of appellants’ motion to suppress upon a finding that the police had probable cause to seize the cannabis. In turn, that finding was based upon proffers of what the witnesses would testify to made by both lawyers. The death of the lawyer who represented appellants in the circuit court, before any brief was filed here, makes the situation more complex.

Since the record leaves much doubt as to what really occurred, the order denying the motion to suppress is hereby set aside and the cause is remanded with directions to have a further hearing at which time testimony can be taken toward developing whether the police had probable cause to make the seizure in question. See State v. Kovach, 350 So.2d 801 (Fla. 2d DCA 1977).

REMANDED WITH DIRECTIONS.

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


author: GLICKSTEIN, Judge.

text:
    Albena CARRIER, Appellant, v. Joseph A. CARRIER, Sr., Appellee.
    No. 80-1745.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Ronald Payne, Fort Lauderdale, for appellant.
    Michael E. Muchnick of Litman, Much-nick & Wasserman, Hollywood, for appellee.
   GLICKSTEIN, Judge.

The wife appeals from a final judgment of dissolution of marriage. The trial court’s order awarded her custody of the parties’ two minor children, ages one and ten, exclusive use of the marital home during the minority of the children, $32.56 per week child support for each child, $46.50 per week rehabilitative alimony for five years, $124.00 per month or whatever sum constituted one-half of the required first mortgage payment, $16.00 per month toward the maintenance of the home, and attorneys’ fees of $250.00 and costs of $96.00. The wife contends it was error to award alimony of only $46.50 per week and only rehabilitative alimony.

Appellee relies upon our decision in Crees v. Crees, 342 So.2d 1014 (Fla. 4th DCA 1977), in support of the trial court’s award of only rehabilitative alimony. In Crees we said, “The evidence in this case just does not reflect a permanent inability on the part of appellee to become self-sustaining. Without that, there can be no award of permanent alimony.” Id. at 1016. We believe the foregoing doctrine was overruled by our later decision of Garrison v. Garrison, 351 So.2d 1104 (Fla. 4th DCA 1977). In Garrison we held permanent dependence on a husband was not an essential element requiring proof before an award of permanent alimony could issue.

In the present case, at the time of the final hearing in September of 1980, the wife was thirty-nine years old and had been married to appellee for nineteen years. Their standard of living, prior to their separation, was good. She never worked outside the home during the marriage, except when she temporarily sold Avon products and secured occasional cleaning jobs in the neighborhood three or four times a month. She testified she has a high school education but no skills and does not own an automobile, although she recently learned to drive. She further testified that whatever jobs appeared available were at the minimum wage level and not worth leaving her minor children at home without her supervision. She raised the parties’ four children. In our mind the foregoing facts compel the award of permanent alimony. McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978).

We also agree with the wife’s contention that the award of $46.50 per week was error. When the parties separated, the husband was voluntarily paying the wife $210.00 per week. In the nine months prior to the final hearing the husband had been voluntarily paying the wife $185.00 per week because of a cutback in his overtime. There was no evidence that the wife’s needs were any less than they were when the husband was voluntarily paying $185.00 per week. She was receiving approximately $800.00 per month prior to the final hearing for all of her needs and those of the children; it was error to reduce that sum. Accordingly, we reverse the alimony provision of the final judgment and remand the cause with directions to enter an award of permanent alimony of $380.00 per month payable $88.37 per week. The judgment is otherwise affirmed.

AFFIRMED in part and REVERSED in part and REMANDED.

ANSTEAD and HURLEY, JJ., concur.

      . The figure of $380.00 is based upon total benefits of $800.00 per month. The $800.00 represents the alimony to be awarded and the child support, mortgage, and maintenance payments already awarded.


author: BERANEK, Judge.

text:
    Charles MATTERA, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-241, 81-297.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied Feb. 24, 1982.

      Richard L. Jorandby, Public Defender, and Richard B. Greene, 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.
   BERANEK, Judge.

These consolidated cases involve two robberies, one occurring on May 11, 1980, at Geppetto’s Tail of the Whale Restaurant in Fort Lauderdale, and the other occurring on May 21, 1980, at a Howard Johnson’s in Lauderdale-By-The-Sea. Both robberies were committed by a white male with a northeastern accent wearing a stocking mask. The second robbery was accomplished with the use of a gun. The appellant was charged with both robberies and in each case the prosecution filed a notice of intent to offer evidence of a collateral offense and the appellant filed a motion in limine to exclude the evidence. Although presented prior to trial, the court reserved ruling on the appellant’s motion.

Trial on the first robbery was held on January 19 and 20,1981. Prior to the testimony of the arresting officer, the trial court heard argument as to whether the officer could testify to the later robbery at Howard Johnson’s. This officer had stopped the appellant on the date of the second robbery pursuant to a BOLO issued after the robbery, and had found a stocking mask in the car. The court limited the officer’s testimony to stopping the car and finding the mask; no mention was made of the second robbery. In a somewhat inconsistent ruling and over defendant’s objection, the court then allowed the prosecution to introduce testimony of the victim of the second robbery. The victim could not identify the appellant, but merely stated that he had been robbed by a male with a northeastern accent wearing a stocking mask and carrying a gun. The appellant was convicted of robbery and sentenced to Í5 years.

Trial on the second robbery was held February 3 and 4, 1981. Four of the eight witnesses testified solely to the first robbery. The appellant was convicted of armed robbery and sentenced to 30 years to run concurrently with his other sentence. His sole point on appeal in both cases is that the trial court erred in allowing testimony of a collateral offense which was irrelevant and prejudicial. We agree and reverse.

Evidence of other crimes is admissible to prove identity, common scheme or design, intent, motive or pattern. Section 90.404(2), Florida Statutes (1979); Walker v. State, 403 So.2d 1109 (Fla. 2d DCA 1981). In both cases the evidence of the other robbery was ostensibly admitted on the issue of identity. As stated in Drake v. State, 400 So.2d 1217, 1219 (Fla.1981).

The mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared. A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations.

Here, the only similarities between the two robberies were the use of the stocking mask by a white male with a northeastern accent, hardly unique or unusual circumstances. Further, there were substantial dissimilarities: the crimes occurred ten days apart in different municipalities; one was planned with the help of an employee, while the other was not; one involved a gun, the other did not; one occurred at a restaurant, the other at a motel; and different words were said in each case. The State should not be permitted to select a few similarities while ignoring the large number of dissimilarities. Furthermore, even if the evidence were admissible, the prosecutor made the first robbery a feature of the second robbery trial, not merely an incident. Four of the State’s eight witnesses testified solely to the first robbery. The use of the evidence to this extent constituted reversible error. Ziegler v. State, 404 So.2d 861 (Fla. 1st DCA 1981); Williams v. State, 117 So.2d 473 (Fla.1960). We conclude that the admission of the evidence constituted prejudicial error requiring new trials in both cases.

REVERSED AND REMANDED.

GLICKSTEIN and HURLEY, JJ., concur.


author: ANSTEAD, Judge.

text:
    Oscar PUTNAM, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    No. 80-882.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    James M. Gann, Belle Glade, and Thomas A. Hoadley of Hoadley & Gavigan, P. A., West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellee.
   OPINION ON REHEARING

ANSTEAD, Judge.

By petition for rehearing the appellee has correctly pointed out that the appellant failed to properly raise in the trial court the issue of lack of prejudice as required by our prior decision in McInnis v. State Farm Mutual Automobile Insurance Co., 208 So.2d 481 (Fla. 4th DCA 1968). In our previous opinion we held that there was an issue of fact as to whether the appellee was prejudiced by the appellant’s admitted violation of a policy provision requiring the insurance company’s consent to a settlement with the tortfeasors responsible for appellant’s injuries. McInnis requires that lack of prejudice be specifically pleaded in response to an insurance company’s reliance on such a provision.

Despite the appellant’s failure to properly raise the issue we might still have reversed in the interest of justice to allow the appellant to properly raise the issue since there is evidence of lack of prejudice in the record. See Gold Coast Crane Service, Inc. v. Watier, 257 So.2d 249 (Fla.1971). However, subsequent to our decision herein the Florida Supreme Court has explicitly ruled that such procedure would be improper; Dober v. Worrell, 401 So.2d 1322 (Fla.1981). In Dober the Supreme Court expressly receded from that portion of the Gold Coast Crane Service decision which would have authorized us to remand the case for resolution of the issue of lack of prejudice.

Accordingly, we grant the petition for rehearing, withdraw our opinion of May 13, 1981, and hereby affirm the judgment of the trial court.

LETTS, C. J., and HURLEY, J., concur.


text:
    Juan Reynaldo FORTE, Appellant, v. Carlos TORRES and Caridad Torres, Appellees.
    No. 82-268.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1982.
    Robbins & Reynolds and Marc Reynolds, Miami, for appellant.
    Lawrence R. Davidson, Legal Aid Society of Dade County Bar Ass’n, Miami, for ap-pellees.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Treating this proceeding as an appeal from a non-final order relating to child custody under Fla.R.App.P. 9.130(a)(3)(C)(i-ii), we reverse and hold for naught the order of January 21, 1982, which was improperly entered totally without notice to the appellant, the father of the child, or evidentiary hearing. The child shall be at once returned to the place she was residing immediately prior to the order. No motion for rehearing shall be entertained and the mandate shall issue forthwith.


author: BLANCHE, Justice. DIXON, Chief Justice

text:
    Jesse JOHNSON v. JOHNS-MANVILLE SALES CORPORATION.
    No. 81-C-1385.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Kerry P. Camarata, Law Offices of Gerald P. Webre, Metairie, for plaintiff-applicant.
    David L. McComb, G. Phillip Shuler, of Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-respondent.
   BLANCHE, Justice.

Jesse Johnson filed suit against his former employer, Johns-Manville Sales Corporation, for misrepresentation and breach of a retirement plan contract. The trial court rendered judgment in favor of plaintiff in the sum of $2,494.80 per year from October 12, 1972 until his sixty-fifth birthday, and $1,294.80 per year thereafter until death. Damages in the amount of $5,000 were also awarded to plaintiff for misrepresentation, inconvenience and attorney’s fees. On appeal, the Fourth Circuit reversed, 398 So.2d 1193, finding that plaintiff’s suit for benefits under the retirement plan was a suit on a labor contract within § 301(a) of the Labor Management Relations Act, 29 U.S.C. 141 et seq. Under that federal law, if a covered contract provides for arbitration of grievances, the arbitration procedure, rather than a judicial proceeding, must be pursued. The court of appeal ordered the trial court’s judgment set aside and dismissed the plaintiff’s suit.

Jesse Johnson contends that the Johns-Manville retirement plan was in effect for several years prior to the entrance of labor and management into a collective bargaining agreement. Since the agreement, when eventually adopted, made only passing mention of the retirement plan already in effect, plaintiff argues that this retirement plan was not a part of that agreement, and that his action for misrepresentation and breach of contract is not a suit on a labor contract within the provisions of the Labor Management Relations Act. We granted writs to consider this issue.

The facts underlying the instant suit are as follows: Plaintiff began working for Johns-Manville in Marrero in 1946. On October 8, 1970, he was injured in a work-related accident. Plaintiff was 54 years old at the time. Disabled as a result of this accident, plaintiff was placed on medical leave of absence and paid monthly worker’s compensation benefits. Pursuant to company policy, after plaintiff had been on medical leave for two years, his employment was terminated. Notified of his right to apply for retirement benefits following termination, plaintiff met with Darryl Wells, Manager of Employee Relations at defendant’s Marrero plant. Wells allegedly informed plaintiff that he was not eligible for disability retirement payments, but that he was entitled to vested deferred retirement benefits which would commence when plaintiff reached age 65. Plaintiff signed a Notice of Intention to Apply for Vested Deferred Benefits, but consulted an attorney concerning his eligibility for disability payments under the retirement plan. This suit for misrepresentation and breach of contract followed.

Eligibility for disability and vested deferred retirement benefits is governed by the Modified Retirement Plan (MRP) adopted by Johns-Manville in August of 1966, prior to the entrance of defendant’s labor and management into a collective bargaining agreement. At issue is the classification of that Retirement Plan as part of the labor contract adopted by management and labor at the Marrero plant in August of 1970.

Defendant maintains that the existing retirement plan was incorporated into, or made a part of, the collective bargaining agreement adopted in 1970 and in effect at all times pertinent to this case. Although the language of the MRP is not reproduced in that labor contract, Article 25 of the agreement reads:

ARTICLE XXV
BENEFIT PLANS
95. The following Benefit Plans in effect on the effective date of this AGREEMENT shall continue in full force and effect for its duration:
(a) A & H Insurance
(b) Group Life Insurance
(c) Hospitalization Insurance
(d) Surgical Insurance
(e) Retirement Plan
(f) Major Medical Insurance

As noted by the court of appeal, this language expressly obliges Johns-Manville to continue in full effect the existing retirement plan, the MRP. As the MRP is incorporated into the agreement, the employer is unable to revoke or change the terms of that retirement plan for the duration of that contract — a significant employee benefit.

Plaintiff was a Committeeman involved in the negotiations between his union, Local 447 of the Oil, Chemical & Atomic Workers International, and Johns-Manville which resulted in the 1970 collective bargaining agreement. At trial, he testified that certain provisions of the MRP were the subject of contract negotiation. Specifically, the parties discussed lowering the age limit for eligibility for vested benefits. Additionally, the defendant’s Employee Relations Manager in Marrero, Darryl Wells, offered un-contradicted testimony that the MRP formed a part of the collective bargaining agreement. A breach of the MRP, therefore, would constitute a breach of the labor contract.

Where suit for breach of a labor contract is brought against a covered employer (one engaged in interstate commerce) the controlling law is contained in the Labor Management Relations Act, 29 U.S.C. § 141 et seq. The federal law governs whether the action is brought in federal or in state court. Talbot v. National Supermarkets of La., 372 F.Supp. 1050 (E.D.La.1974). Under § 301(a) of that Act, if the collective bargaining agreement provides for arbitration of grievances, a claim for breach of contract must be submitted to the arbitration procedure before a judicial remedy may be sought. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965).

As plaintiff in this case failed to submit his claim for disability retirement benefits to the arbitration procedure set out in Article 19 of the 1970 agreement, his suit in the state district court cannot be maintained. Accordingly, the judgment of the court of appeal dismissing plaintiff’s suit is affirmed.

AFFIRMED.

DIXON, C. J., dissents with reasons.

WATSON, J., dissents.

DIXON, Chief Justice

(dissenting).

I respectfully dissent; this is not a suit on a labor contract. The labor contract only contained an agreement to continue in effect the retirement plan. That failure — to continue the retirement plan in effect— would have been subject to arbitration. A dispute about the amount of benefits due under the retirement plan is not a labor dispute, nor is this suit a suit on a labor contract.


author: CHARLES A. MARVIN, Justice Ad Hoc.

text:
    STATE of Louisiana v. Randall MOTT, a/k/a Randy Mott and One Raymond Mott.
    No. 81-KA-1482.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.
    Cleveland J. Marcel, Jr., of Marcel & Alfred, Houma, for defendants-appellants.
   CHARLES A. MARVIN, Justice Ad Hoc.

Defendants, who are brothers, appeal their conviction and sentence for the crime of 2d degree battery, contending that the injury sustained by the victim was not serious bodily injury within the meaning of the statute and that the sentence imposed on each defendant is excessive. LRS 14:34.1. CCrP 894.1. We affirm.

ASSIGNMENT OF ERROR NO. 1

We find that there was substantial evidence presented from which the jury could have determined that this victim suffered either or both unconsciousness and extreme physical pain from the blows and kicks inflicted by the defendants. For the purpose of the statute, either unconsciousness or extreme physical pain resulting to the victim of a battery is sufficient to constitute the crime of 2d degree battery.

“Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.-
“For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
“Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.” LRS 14:34.1 Our emphasis. '

The victim was delivering his child to the home of the sister of his estranged wife. The sister was married to defendant, Raymond Mott. The defendant testified that Raymond Mott said, “I’m going to make sure you never wave at [my wife] again,” and then began to strike at the victim with his fists. Eventually the two men wrestled each other to the ground when the defendant Randall Mott came out of the house and kicked the victim in the head. The victim said, “I was unconscious after that. I don’t know what happened and .. . the next thing [I] remember was when the police arrived.” The victim showed the jury where on his face and head he had a broken bone and where he was sutured by a doctor. Photographs of the victim taken on the same day were exhibited to the jury. These photographs clearly depicted some of the injuries described by the victim and by the doctor who examined him.

Other witnesses testified that Raymond Mott “started” the fight and that Randall Mott kicked the victim more than one time when the victim was in a helpless condition because of the first kick and could not defend himself. Some of these witnesses testified that Raymond Mott repeatedly struck the victim with his fist about the head after Randall Mott first kicked the victim. There was also testimony that one or more observers were thwarted in their verbal attempts, and from making physical attempts, to prevent further injury to the victim by Raymond Mott’s statements that his brother and the victim were fighting in Raymond’s yard and that the observers should not try to interfere. One or more witnesses also testified that Raymond Mott was urging his brother to inflict further injury upon the victim when the victim was in a helpless condition. The beating ceased only when the police neared the scene.

The medical specialist who testified saw the victim in the hospital emergency room several hours after the fight. This doctor said he found the results of blunt head trauma, both eyelids swollen almost completely shut, facial swelling and discoloring, bruising, subconjunctival hematomas in both eyes, and a non-displaced left zygo-matic cheek fracture. The victim was given anti-swelling medication to prevent brain swelling, and was hospitalized for about 48 or 72 hours. The photographs depict an approximate one-half inch laceration that the doctor said had been sutured over the victim’s left eye in the emergency room.

The doctor medically categorized the facial injuries as “serious” and the victim’s pain from these injuries as “moderate to severe pain of the left facial area.”

The terms unconsciousness and extreme physical pain in LRS 14:34.1 give adequate warning of the conduct proscribed and provide a workable standard for judges and juries to fairly administer the law. See State v. Thompson, 399 So.2d 1161, 1168 (La.1981). Under the circumstances presented in this record, we find no error in the jury determination that the injuries or injury sustained by this victim was serious bodily injury within the intendment of § 14:34.1. Other states have reached the same result where serious bodily injury was an element of the crime charged and where the injury was a broken nose or jaw. See, and compare cases annotated, “Assault with Dangerous Weapon — Kicking”, 33 A.L.R.3d 929, and particularly, Brown v. State, 605 S.W.2d 572 (Tex.Cr.App.1980) and Commonwealth v. Alexander, 237 Pa.Super. 111, 346 A .2d 319 (1975).

ASSIGNMENT OF ERROR NO. 2

In this assignment each defendant asserts that his sentence is excessive. Raymond Mott was sentenced to one year in the parish jail. Randall Mott was sentenced to nine months in the parish jail. Both were fined $200 and were assessed with court costs. Defendants argue that these sentences were “arbitrary” and that no consideration was given to mitigating factors. CCrP 894.1.

These mitigating factors for Raymond Mott include no prior criminal convictions and gainful employment as a city policeman. The mitigating factors offered by Randall Mott include no prior arrest or conviction record, gainful employment, and being the father of an infant child.

The trial judge said:

“. . . [T]he Court having ordered a . . . and having reviewed that pre-sentence investigation, and in keeping with the provisions of Code of Criminal Procedure Article 894.1; the Court has after reviewing the pre-sentence investigation has determined that the defendants conduct did in fact cause great and serious bodily harm to the victim in this matter. The Court has also taken into consideration the possibility that there may have been some provocation on the part of victim— although this was not definitely shown at the time of trial — the Court is certainly satisfied that both defendants particularly being former police officers in this parish, one of them at least, and were at the time I think police officers in another parish of this state; certainly were apprised that their conduct could cause great bodily harm to the victim in the matter. One of the defendants; namely, Raymond Mott according to the pre-sen-tence investigation has had some prior criminal history as far as brushes with the law and for that reason the Court is inclined to impose a more serious penalty on that defendant. The other defendant Randall Mott according to the trial of the matter and the facts brought forth therein probably caused the greatest degree of punishment to the victim; however it is apparently his first offense. For those reasons as previously stated and set forth the defendant Raymond Mott is hereby sentenced to pay a fine of $200 and costs and to serve a term of one year in the parish jail. The defendant Randall Mott is- hereby sentenced to pay a fine of $200.00 and costs and serve a term of nine months in the parish jail.”

The trial judge articulated specific reasons and individualized each sentence, being more lenient with Randall Mott, who was a first offender. Neither sentence in this case approaches the maximum allowed under the statute. Where a trial judge recites some of the CCrP 894.1 factors, such as the violent nature of the crime and the defendant’s criminal history [or absence thereof], a factual basis for the sentence is present and it is not necessary for the trial judge to enumerate each factor of § 894.1. State v. Douglas, 389 So.2d 1263 (La.1980). We find no error in the sentencing proceedings and do not find the sentences excessive.

The conviction and sentence of each defendant is AFFIRMED.

       Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones, of the Court of Appeal, Second Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . Serious bodily injury in the Texas statute (V.T.C.A. Penal Code § 1.07(a)(34) was there defined as bodily injury that causes “... serious permanent disfigurement, or protracted ... impairment of the function of any bodily member or organ.” In Brown, the victim’s nose was broken and, before the fracture was reduced or set, was deformed. The court said that while this treatment prevented disfigurement and impairment, the injury itself was “serious” within the meaning of the statute before medical treatment. 605 S.W.2d at p. 575.

      . In Alexander, the Pennsylvania court quoted the aggravated assault statute as defining serious bodily injury as that “which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” The court described the incident in this language: “The [one] blow blackened both of Rosenzweig’s eyes, fractured his nose, and required stitches to close the other wounds on his face. The victim was treated at the emergency ward of a hospital and released.”
      That court held those injuries to constitute “serious bodily injury” within the meaning of the statute. Three judges dissented.
      Here the victim suffered a fracture, unconsciousness, and was medicated to prevent his brain from swelling.