author: BOUTALL, Judge.

text:
    SUCCESSION of Alvin P. LICHTENTAG.
    No. 11201.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1980.
    Rehearing Denied Jan. 19, 1981.
    See also, La., 363 So.2d 706.

      James S. Quinlivan, Jr., Gerard R. Kehoe, R. Songy, River Ridge, for Sidney J. Dupuy, Executor of the Succession of Mrs. Nolia E. Langenbecker, Widow of Alvin P. Lichten-tag.
    Barry F. Viosca, Metairie, for Robert A. Katz, Testamentary Executor, defendant-appellant.
    Before SAMUEL, BOUTALL and BARRY, JJ.
   BOUTALL, Judge.

This appeal is from a judgment determining the amount of the marital portion of a surviving spouse and alloting some succession charges.

Alvin P. Lichtentag married Nolia E. Langenbecker on February 4, 1941, with a marital contract governing their financial affairs. No children were born of the marriage, and on December 14, 1975, Mr. Li-chtentag died testate. The will granted a legacy to Mrs. Lichtentag consisting mainly of the usufruct of the income of a trust (the extent of which is in contest) with the naked ownership of the principal to his grand-niece and grand-nephew. Mrs. Li-chtentag then filed on January 29, 1976, a petition to claim the marital fourth due the surviving spouse in necessitous circumstances provided in La.Civil Code Art. 2382. Shortly thereafter Mrs. Lichtentag was interdicted and her curatrix filed a renunciation of the Succession of Mr. Lichtentag with reservation of her right to the marital fourth.

A declaratory judgment was then sought on the validity of the renunciation and on appeal, Succession of Lichtentag, 363 So.2d 706 (La.1978), the Supreme Court held that a renunciation could be made, but that the value of the legacy must be included in determining the marital fourth. Because of that judgment, the renunciation was revoked and Mrs. Lichtentag’s curatrix filed on December 8, 1978 a “Petition to be Placed in Possession of Legacy and Marital Portion”, praying to be put into possession of both. However, Mrs. Lichtentag died on January 7,1979, and her heirs continued the litigation, represented by the executor of her estate. The matter was later tried and the trial court rendered judgment sending the executor of Mrs. Lichtentag’s succession into possession of 25% of Mr. Lichtentag’s gross estate, including all income earned, less one-fourth of all debts and less the legacy, fixing the value of the legacy, and alloting certain succession charges and taxes. It is this judgment which forms the basis of this appeal by the testamentary executor of the estate of the decedent spouse, Alvin P. Lichtentag.

The preliminary issue is whether Nolia Langenbecker Lichtentag was entitled to claim her marital portion under C.C. Art. 2382 and whether her heirs may now claim it.

Appellant contends that Mrs. Li-chtentag was not left in necessitous circumstances because she had assets in excess of $40,000 and as legatee received a significant portion of decedent’s estate. However, jurisprudential interpretation of the term “rich” and “in necessitous circumstances” demonstrates that there is no sound basis for this contention. The receipt of a legacy from the decedent is not a consideration in a determination of the survivor’s circumstances. Instead a legacy is considered as a deduction from the marital portion to which the survivor may be entitled. Succession of Piffet, 39 La.Ann. 556, 2 So. 210 (1887); Dupuy v. Dupuy, 52 La.Ann. 869, 27 So. 287 (1899); Succession of Morris, 137 La. 719, 69 So. 151 (1915). The conditions of being rich or in necessitous circumstances are to be considered in relation to each other, that is, by a comparison of the patrimonial assets of the deceased with those of the survivor, as well as the economic condition of each spouse generally. As stated in Succession of Henry, 287 So.2d 214 (La.App. 3rd Cir. 1973) p. 217:

“[3] The word ‘rich’ as applied to the deceased spouse, and the words ‘necessitous circumstances’ as applied to the economic condition the surviving spouse is left in, are relative terms. Moore v. Succession of Moore, 7 So.2d 716 (La.App. 2nd Cir. 1942). Thus the value of the assets of the one must be compared with the value of the assets of the other at the time of death to make the determination. Malone v. Cannon, [215 La. 939, 41 So.2d 837 (1949)] supra; Smitherman v. Smitherman, 240 So.2d 6 (La.App. 2nd Cir. 1970).
“A review in this respect of representative decisions finds that the smallest ratio of the value of the estates the courts have recognized is 5 to 1. But apparently no specific test has been accepted as a guide in determining this question. Smitherman v. Smitherman, supra; see also 25 La.L.Rev. 259, 271.”

The decedent in this case left an estate of approximately $1,400,000 and the surviving spouse had approximately $40,000 in assets. Although $40,000 is still today a considerable sum, nevertheless a comparison of the relative conditions of the spouses, along with a consideration of the economic conditions in which the spouses lived during marriage, requires us to conclude that the decedent died “rich” and the survivor was “in necessitous circumstances” within the requirements of C.C. Art. 2382. There being no children, the survivor is entitled to take out of the succession of the deceased the fourth of the succession in full property.

The next question is whether the surviv- or’s heirs may inherit her claim to that marital portion, Mrs. Lichtentag having died on January 7, 1979, several months prior to trial and judgment of the claim for the marital portion, but three years after her original petition to be placed in possession of the marital portion and one month after the petition filed by her curatrix following the adverse appellate decision.

The survivors right to claim the marital portion is a personal right and must be exercised by the survivor or the right is lost and is not inherited by his or her heirs. Succession of Bancker, 154 La. 77, 97 So. 321 (1923); Succession of Justus, 44 La.Ann. 721, 11 So. 95 (1892). This survivor did make a judicial demand prior to her death. Once her right to the marital portion was judicially urged, it became a patrimonial asset and is heritable by her heirs, who may then recover the portion. Succession of Piffet, 39 La.Ann. 556, 2 So. 210 (1887) distinguished in Bancker and Justus, supra.

We now consider the composition of the marital portion as affected by the legacy.

There being no children of the decedent, C.C. Art. 2382 provides in plain language that the surviving spouse is entitled to “the fourth of the succession in full property” as the marital portion. Mrs. Lichtentag is thus entitled to the ownership of an undivided Vi interest of her husband’s estate and her ownership passes to her heirs. Prior jurisprudence has placed some limitations on the right of the surviving spouse to receive this statutorily fixed amount by providing for deductions. At issue here is the deduction of the legacy left the surviving spouse.

Considering the punctuation in the first paragraph of Art. 2382, we must state that the inclusion of a legacy in the marital portion seems to apply only in the instance of more than three children. Apparently as a matter of policy, prior jurisprudence has declared the inclusion of a legacy even when there are no children. See Succession of Piffet, supra. In any event we are bound by the prior decision in this case, Succession of Lichtentag, 363 So.2d 706 (La.1978) which is final and is certainly the law of this case. Accordingly, we proceed to fix the value of the legacy.

The will was made August 1, 1968, and is subject to two codicils of November 9,1968, and April 6,1975. It contains the following bequests to the surviving spouse:

“(5) I hereby direct and bequeath to my wife Nolia Elizabeth Langenbecker, should she survive me, the usufruct of my property, which I own at 7450 St. Charles Avenue, New Orleans, Louisiana, for the balance of her life as long as she occupies it as her home. This usufruct ends should my wife remarry or should my wife not occupy the property as her home.
“(6) I bequeath to my wife, Nolia E. Lichtentag, all of the contents, appurtenances, and personal properties located in the property, 7450 St. Charles Avenue, New Orleans, Louisiana, together with all of my automobiles, that I may possess as of the date of my death, and all of my jewelry.
“(7) I direct and bequeath the balance of my estate consisting of all of my stocks and bonds, and all of my real estate, and cash, and such other properties that I may have of whatever nature and kind, to be placed in a usufructuary trust. I direct and bequeath the usufruct of the income of this trust to my wife, Nolia E. Lichtentag. I direct that Robert Alexander Katz, my executor, be the Trustee of this trust.
“(8) I direct my trustee and executor, Robert Alexander Katz, to pay out of the income of this trust all of the personal insurance, expenses of maintaining the property at 7450 St. Charles Avenue, New Orleans, Louisiana, during the time my wife occupies said property.
“(9) My executor and trustee is directed to distribute such funds out of the usufructuary trust account to my wife, in addition to the above, for her personal needs and use, on a monthly basis, including but not limited to expenses for food, medical care and attention not to exceed the sum of $1,300.00 (Thirteen hundred dollars) per month, unless an emergency arises or as the trustee in his discretion deems necessary.
“(10) I direct and instruct my trustee and executor, Robert Alexander Katz, to diminish or to sell such principal assets of the usufructuary trust as become necessary should the income of my property or assets be inadequate to provide the necessities of life and medical expenses for my wife, Nolia E. Lichtentag.”

Mrs. Lichtentag died before there was a judicial determination of the net assets of the estate and the value of her legacy and before there was an acceptance by her or any of the heirs. The estate is still under a very active administration as disclosed by the record. Under these facts, we see no compelling reason to resort to the inheritance tax tables. The usufructs are terminated by the terms of the will upon Mrs. Lichtentag’s death and are terminated by law as well. See C.C. Arts. 606 and 607, R.S. 9:1964. The values may be fixed with more preciseness than resort to an abstract table.

We note that this approach was used by the court in Succession of Piffet, supra, under a factual situation remarkably similar to ours. The court stated at 2 So. 211:

“The district judge found all the facts required by law to entitle the surviving husband to claim the marital portion, as well as his heirs to claim under him, and in his judgment he directed that the amount of indebtedness from Piffet to his wife be deducted from the active mass of the succession, and that one-fourth of the remainder, after deducting the debts, (which are insignificant,) be set apart as the marital portion, subject to deduction therefrom of the value of the stock of goods bequeathed to the husband as above stated, and of the amount received bv him under his usufruct of the two pieces of immovable property, as stipulated in the will. After a thorough consideration of the case, we have reached the conclusion that the judgment of the district court is correct in every particular, and we shall therefore affirm it.” (Underscoring ours.)

With these principles in mind, we now examine each bequest to determine the value of the legacy. The first bequest is the usufruct of the family home in Article 5 of the will. The trial judge determined this to be valued at $5,760.00. He based this upon the following facts: that Mrs. Li-chtentag’s health was so poor that she had to vacate the premises on July 20, 1976, and be placed in a full service nursing home; she occupied the premises 7 months and 6 days; the rental value was $800 per month; hence value equalled amount of rental value for this period. We agree, finding this to be consistent with the principles expressed above.

On the issue of this usufruct, we note that the will provided not only for its termination at death but also for its termination should Mrs. Lichtentag not occupy the property as her home. When her occupancy ceased because of ill health, the usufruct ended in accordance with the will. The term of the usufruct lasted 7 months and 6 days.

In considering the value during this term, we agree with the use of the monthly rental value. It is apparent that the usufruct granted was not a full usufruct. It could only exist while Mrs. Lichtentag was occupying the home. There is no showing that Mrs. Lichtentag could occupy the home and rent it to others to receive more than the $800 rental value, or otherwise enjoy all of the full rights of usufructuary generally. See for example, C.C. Arts. 547, 548 and 555. Because this limited type of usufruct amounts to little more than the right of occupancy, she has received only this value (i. e. the amount of the monthly rental value) under this bequest in her legacy.

Accordingly, we affirm the value of $5,760.00 as fixed by the trial judge.

We next consider the value of the second bequest, the personal property in Article 6. The trial judge fixed this amount at $4,475.00. The record justifies the fixing of this value and no error is pointed out to us on appeal.

The third bequest is the usufruct of the income of the trust to the wife, Articles 7, 8, 9, 10. If this bequest was one of trust income, we would be faced with the myriad issues argued to us in a determination of value. We point out that the bequest is not trust income but a usufruct of trust income, which we consider to be quite different. It is argued to us that there cannot exist a usufruct of trust income because there is no specific authorization for it. However R.S. 9:1961 provides that an interest in income may be given absolutely or conditionally. R.S. 9:1737 permits a settlor to dispose of property in trust to the same extent that he may dispose of that property free of trust. Finally, R.S. 9:1736 provides that a trust or a disposition in trust may be made subject to any condition not forbidden in the Trust Code and not against public order or good morals. We find no prohibition against this testamentary disposition of usufruct of trust income. Indeed C.C. Art. 540 provides that a usufruct may be established by all sorts of titles including a last will.

Appellant has contended that the will is ambiguous and offers testimony as to the true meaning of the will and the intent of the testator. We find no ambiguities and, as did the trial judge, we disregard that testimony and confine ourselves to the terms of the will. Additionally we point out that the newly enacted R.S. 9:1851 through 1854 provisions of the La. Trust Code as added by Act No. 67 of 1977 are not applicable to this case. That act did not become effective until September 9, 1977, after the date of Mr. Lichtentag’s death on December 14, 1975, and after the succession was opened and the petition for the marital fourth was filed by Mrs. Lichtentag on January 29, 1976. The rights of the parties are therefore to be considered without reference to that law.

In setting the value of this usufruct of income we apply the principles discussed above, that is, because of the death of the legatee before there was a final determination of rights under the succession and the legacy, we value this portion of the-legacy on the basis of what was received by the legatee. We further point out that the nature of this bequest, a usufruct of income, supports this method of determination. A usufruct of income is an imperfect or quasi usufruct is defined in C.C. Art. 534, because the usufruct is of a thing which is useless to the usufructuary if she did not consume or expend it. Under C.C. Art. 549, the usufructuary has a right of disposal of the income at her pleasure, but under the obligations of returning the equivalent value at the expiration of the usufruct. We refer to our discussion of such a usufruct in Succession of Rosenthal, 369 So.2d 166 (La.App. 4th Cir. 1979) at p. 172.

What then is the value of such a usufruct in this case? Whatever money was given to the usufructuary must be returned by her estate. Because we are computing a value to be deducted from the marital portion, the income received is balanced by the corresponding obligation to repay. In this case the legatee was not paid any income from the trust but was instead paid an interim allowance for her living expenses, etc. Since she received no trust income, there is nothing to be paid back, and, accordingly, we can assign no value to this usufruct as a deduction from the marital portion.

The trial judge decreed that the value of the trust created in the will was $104,129.61 as follows:

“7) The value of the trust created in the decedent’s will in the sum of ONE HUNDRED FOUR THOUSAND ONE HUNDRED TWENTY-NINE AND 61/100 (104,129.61) DOLLARS. The surviving spouse was seventy years old at the time of decedent’s death. The court determines that the surviving spouse had a life expectancy of 8.48 based upon the American Experience Mortality Table contained in LSA-R.S. The court determines that the monthly income figure is $1,300.00 per month. The above evaluation is based upon a life expectancy of 8.48 years and a monthly income of $1,300.00 discounted at six (6%) percent.”

Additionally, he awarded the usufructu-ary the sum of $48,967.00 representing accumulated income beneficiary payments at the rate of $1300.00 per month from Mr. Lichtentag’s death to Mrs. Lichtentag’s death. For the reasons above we believe both of these decrees to be in error. Because Mrs. Lichtentag was only a usufruc-tuary of the trust income and died before she received anything, we find no value to her of the usufruct. Similarly if we awarded the unpaid accumulated income, we would also have to require its repayment. The award would thus be futile.

The judge found, and we agree, that the money actually paid Mrs. Lichtentag was an interim allowance advanced by the executor in the sum of $48,100.00. L.C.C. Art. 2382. We conclude this amount to be a proper deduction from the marital portion.

The next error complained of is the finding that no federal estate taxes are to be apportioned to Mrs. Lichtentag under the provisions of LSA-R.S. 9:2433. In view of our decision holding that the legacy differs from that as found by the trial judge, we must examine the consequences of Louisiana’s Estate Tax Apportionment Law (R.S. 9:2431 et seq.) as to each portion.

From the will Mrs. Lichtentag gets a specific legacy (automobiles, furnishings, etc.) valued at $4,475.00 and a usufruct of the St. Charles Ave. home valued at $5760.00. Section 2433 provides that no usufruct shall be subject to apportionment and that the tax shall be chargeable against the naked ownership of the property. As to the specific legacy the federal estate tax law gives an exemption for such legacies under the provisions of 26 U.S.C.A. § 2056. Therefore, while R.S. 9:2432 provides for apportionment generally, section 2435 provides an allowance for exemptions and deductions allowed by the law imposing the tax.

Similarly, the marital portion of the surviving spouse is granted by operation of law. for one-fourth of the decedent’s estate and comes within the allowance of marital deduction from federal estate tax. It does not appear that the aggregate of deductions allowed will exceed the limitations of 26 U.S.C.A. § 2056(c).

Since there is no federal tax due by the surviving spouse, under either R.S. 9:2433 or 9:2435, none of the federal tax is apportioned to Mrs. Lichtentag. Persons other than the one entitled to the benefit of the exemption should not share in the exemption to the detriment of the exempt legatee. See Succession of Bright, 300 So.2d 614 (La.App. 4th Cir. 1974).

Finally, appellant asserts error in the apportionment of administrative expenses because the judgment did not specifically include court costs and attorney’s fees of the estate. The judgment provides for plaintiff to be charged with the pro-rata share (Vi) of ail administrative expenses incurred on behalf of the estate, only rejecting federal estate taxes and Vi of the executor’s fee of 5% which was held to be a legacy.) The judgment thus includes court costs and attorney’s fees.

On the question of the executor’s fee, we note that the will of decedent set an executor’s fee of 5%. C.C.P. Art. 3351 provides that an administrator or executor shall be allowed a sum equal to 21/2% of the amount of the inventory as compensation and that the court may increase it upon showing that it is inadequate. The trial court heard evidence offered to support an increase and refused to increase, awarding 2V2% as executor’s fee and the other 214% as a legacy to the executor.

We conclude that the entire 5% should be awarded as executor’s fee. We do not interpret C.C. Art. 3351 as prohibiting a testator from setting a fee for the person he selected to execute his will and administer his estate. The article itself provides that the fee may be increased by the court where circumstances warrant. We perceive no reason to intrude upon the discretion and desires of the testator in providing for the handling of his estate. The intention of the testator is clear that he desired a fee of 5% be paid to his executor for handling his estate. He made other provisions for the executor as legatee. The case of Succession of Kock, 24 La.Ann. 243 (La.1872) points out the problems in reaching the solution proposed by the trial court. We adhere to the principles of that case and amend the judgment appealed to award the entire 5% as executor’s fee.

Having reached the conclusions above, we must further note that this succession is under active administration, and that a number of the parcels of real estate and stocks have been sold, and at this time it is impossible to place the appellee in possession with a detailed description of the property and other assets belonging to this succession. We must remand the matter to the trial court for that purpose.

Accordingly, we affirm in part, amend in part, reverse in part and recast the judgment appealed to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the will of the decedent, Alvin P. Lichtentag, is not ambiguous, and therefore, all parole evidence as to the intent of the testator is inadmissible.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff, Sidney Joseph Dupuy, III, executor of the Succession of Nolia E. Langenbecker, widow of Alvin P. Lichtentag, be and he is hereby sent and placed into possession of twenty-five (25%) percent of decedent’s gross estate, including all income earned by decedent’s estate, less and except the following:
1) Plaintiff’s pro-rata share (one-fourth) of all debts owed by the decedent and paid by decedent’s estate;
2) The value of the legacy received by Nolia Lichtentag in the sum of FOUR THOUSAND FOUR HUNDRED SEVENTY-FIVE AND NO/lOO DOLLARS:
3) The amount of interim allowance advanced by the executor to Nolia Li-chtentag in the sum of FORTY-EIGHT THOUSAND ONE HUNDRED AND NO/lOO DOLLARS;
4) The value of the right of occupancy of the premises located at 7450 St. Charles Avenue, New Orleans, Louisiana, in the sum of FIVE THOUSAND SEVEN HUNDRED SIXTY AND NO/lOO DOLLARS;
5) The value of the assets of Nolia Lichtentag at the time of decedent’s death in the sum of $36,721.09;
6) Nolia Lichtentag’s pro-rata share (one-fourth) of all administrative expenses incurred on behalf of decedent’s estate, including court costs, attorney’s fees and executor’s fee of 5% awarded to the executor, Robert Alexander Katz. No federal taxes are to be charged to administrative expenses or apportioned to Nolia Lichtentag.

This matter is remanded to the trial court for further proceedings in accordance with the rulings contained in this opinion, and in due course a detailed judgment of possession be rendered.

JUDGMENT AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART AND RECAST

      . The law governing the case is that in existence prior to the revision of Title VI, Book III effective January 1, 1980. Art. 2382 (as amended by Act 115 of 1974) provided as follows:
      “Art. 2382. Marital portion of surviving spouse in necessitous circumstances.
      “Art. 2382 If either the husband or the wife die rich, leaving the survivor in necessitous circumstances, the latter has a right to take out of the succession of the deceased what is called the marital portion; that is, the fourth of the succession in full property, if there be no children, and the same portion in usufruct only, when there are but three or a smaller number of children; and if there be more than three children, the surviving, whether husband or wife, shall receive only a child’s share in usufruct, and he is bound to include in this portion what has been left to him as a legacy by the husband or wife who died first.
      “Whenever, during the administration of any succession, it appears that the surviving spouse will be entitled to the marital portion above provided for, upon final liquidation of the estate of the deceased, the survivor in necessitous circumstances shall be entitled to demand and receive from the executor or administrator of such succession, a periodical allowance to be fixed by the court wherein the proceedings are pending. Should the marital portion, as finally fixed, not be equal to the allowance as fixed by the court, the surviving spouse shall be charged with the amount of such deficiency.
      (Amended by Acts 1974, No. 115 § 1.)”

      . We refer to the Civil Code articles on usu-fruct in existence prior to the recent re-writing of the section on usufructs.


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    WILLSWOOD PLANTATION, INC. v. Clarence P. FORET.
    No. 11300.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Writ Refused Jan. 26, 1981.

      Pilie & Pilie, M. Arnaud Pilie, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, David S. Kelly, New Orleans, for defendant-appellee.
    Lee, Hoppe, Martiny & Caracci, Henry B. Hoppe, Jr., Metairie, for defendant-appel-lee.
    Before REDMANN, GULOTTA and BARRY, JJ.
   BARRY, Judge.

This is an appeal by a judgment creditor seeking to hold a surety liable on its suspen-sive appeal bond.

Willswood Plantation, Inc. (Willswood) filed suit against Clarence Foret for past due rents on a lease and judgment was rendered awarding plaintiff $29,100.00 plus interest and costs. The judgment was silent as to Willswood’s right to possession of the premises. Foret filed a motion for a new trial which was denied on May 11, 1977. Notice of the denial was mailed June 21, 1977 from which appellant had thirty days to appeal suspensively.

On June 24, 1977 Foret filed a motion for a suspensive appeal which was granted on July 5, 1977 subject to posting a $44,000.00 bond. The bond was issued by United States Fidelity and Guaranty Company (USF&G) on July 15, 1977 but not filed until July 26,1977. Under LSA-C.C.P. Art. 2123 the appeal was untimely as the thirty days allowed for perfecting a suspensive appeal had expired. Foret was granted a devolutive appeal on July 7, 1977 and on July 11, 1977 the devolutive appeal bond was timely filed.

During the pendency of the devolutive appeal Willswood filed a petition for possession of the premises in that same lower court proceeding. Foret pleaded an exception of res judicata as final judgment had been rendered, the exception was maintained, and Willswood appealed.

This Court held that the judgment sustaining the exception of res judicata on the petition for possession was a nullity since jurisdiction of the trial court had been divested because of the devolutive appeal. LSA-C.C.P. Art. 2088. The money judgment was affirmed and after it became executory the past due rents awarded Wills-wood were due and eviction was justified. Willswood Plantation, Inc. v. Foret, 370 So.2d 607 (La.App. 4th Cir. 1979). Judge Stoulig reasoned that the money judgment was executory because the suspensive appeal had never been perfected.

On September 5, 1979 Willswood filed suit to collect its judgment against USF&G as Foret’s suspensive appeal surety. This action was taken after plaintiff had issued a writ of fieri facias against Foret which was returned “nulla bona”.

The trial court held that USF&G was not liable because the suspensive appeal had not been perfected and therefore no liability existed. It is this judgment which Wills-wood now appeals.

Appellant does not contest the fact that the suspensive appeal bond was filed untimely and that the suspensive appeal was never perfected. However, appellant urges that a surety’s liability arises out of contract once the bond is issued even though the bond is not filed and there is no suspen-sive effect.

Appellant’s theory of contract requires that the judgment creditor be a third party beneficiary of the surety bond. This position would have merit if the suretyship obligation had been completed by the timely filing of the bond. However, in order for any benefit to flow in favor of the third party the creditor’s rights must have been in some way affected by perfecting the appeal.

Appellant cites jurisprudence holding a surety liable after an appeal is perfected but subsequently abandoned. That is not our situation. There is an obvious distinction between a suspensive appeal which is never perfected and one which is abandoned. If a suspensive appeal never became viable the effect of the judgment is not suspended and the judgment creditor is free to proceed with execution of the judgment; the obligation of the surety, which only comes into play with a suspension of the creditor’s rights, has not arisen. Once a suspensive appeal is perfected, execution of the judgment is suspended to the detriment of the creditor and thus creates an obligation of the surety under its bond. This is true even if the appeal is later abandoned. In our case the judgment was never suspended as noted in Willswood, supra.

In the early case of Byrne v. Riddell, 4 La.Ann. 3 (1849) an order was granted without designating whether the appeal was suspensive or devolutive. The creditor sought to collect the full judgment against the surety, but the court treated the appeal as devolutive and held the surety liable only for costs, even though the bond provided it would satisfy whatever judgment may be rendered against the debtor.

“The surety in a bond given for an appeal taken after the lapse of .. . [the delay for filing a suspensive appeal] will be bound, in case the appellant be cast, only for costs, though the bond was for an amount large enough for a suspensive appeal, and the surety bound himself, in case the appellant should be cast and fail to satisfy the judgment, ‘to satisfy whatever judgment may be rendered against him.’ ” Byrne, supra, at p. 3.

This reasoning was cited with approval in Ingargiola v. Capell, et al., 13 Orl.App. 321 (La.App.1916).

Another early case resolved a similar situation where there was no valid order of appeal but an appeal bond was filed. Sears v. Bearsh, 7 La.Ann. 539 (1852). The court said that without a valid order of appeal the clerk was without authority to accept the appeal bond. The court emphasized that the liability of sureties on judicial bonds is fixed by the law which authorizes the taking of bonds, and since no law authorized the taking of that bond without a valid order of appeal the bond would be inoperative. The court further reasoned that the inducement of the surety for issuing the bond was the supposed existence of an order of appeal and that this error alone would entitle him (the surety) to relief.

The fact that USF&G is a compensated insurer is of no moment. Since the bond it issued never took effect we are not concerned with its provisions or the necessity for a liberal interpretation in favor of the obligee.

Accordingly, the judgment of the trial court is affirmed, appellant to pay all costs of this appeal.

AFFIRMED.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. George Clark SMITH, Respondent.
    No. 59789.
    Supreme Court of Florida.
    Dec. 18, 1980.
    Paul A. Gross, Bar Counsel, Miami, and Stanley A. Spring, Staff Counsel, Tallahassee, for complainant.
    George Clark Smith, in pro. per., for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Plea of a violation of Disciplinary Rule 6-101(A)(3) of the Code of Professional Responsibility. Respondent, George Clark Smith, by his plea admits to neglect of a legal matter entrusted to him. Specifically, Clark was retained to represent two persons injured by a hit-and-run driver but failed to take any action for fifteen months because he erroneously felt that there was no basis for a claim under the uninsured motorist coverage in question. We approve the petition and hereby reprimand respondent, George Clark Smith, for this violation. The publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $221.00 are hereby taxed against the respondent.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


text:
    THE FLORIDA BAR. In re Karl F. LOUCKS, II.
    No. 59877.
    Supreme Court of Florida.
    Dec. 18, 1980.

      Karl F. Loucks, II, Fort Lauderdale, pro se.
    Cynthia Prettyman, Bar Counsel, Fort Lauderdale, for respondent.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign Pending Disciplinary Proceedings, pursuant to article XI, Rule 11.08, as amended effective October 1,1979, of the Integration Rule of The Florida Bar.

The Petition states:

1. The Petitioner has been a member of The Florida Bar since 1972.
2. There is one disciplinary matter pending concerning the Petitioner. There are no criminal proceedings pending which concern the Petitioner.
3. The one disciplinary matter which concerns the Petitioner is The Florida Bar v. Karl F. Loucks, II, File No. 15E80F04.
4. The Florida Bar Judicial Circuit Grievance Committee 15“E” voted that probable cause for further disciplinary proceedings existed in The Florida Bar v. Karl F. Loucks, II, File No. 15E80F04 on April 2, 1980.
5. The Florida Bar Judicial Circuit Grievance Committee 15“E” found probable cause to believe Petitioner, in Case No. 15E80F04, violated Disciplinary Rules l-102(a)(3), (4), (5) and (6), which prohibit an attorney from: 1) engaging in illegal conduct involving moral turpitude; 2) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation or other conduct that adversely reflects on his fitness to practice law, and violation of Florida Bar Integration Rule, article XI, Rule 11.02(4) which requires attorneys to hold funds or property entrusted to them for a specific purpose in trust and apply said funds or property only to that specific purpose.
The Petitioner is charged with misappropriating $9,997.00 of funds being held in trust, by a law firm he was an employee associate with, to his own use:
A. The Petitioner was employed as an associate attorney at the law firm of Barnett, Alagia and Prosperi from July 1, 1978 until June 5, 1979.
B. The Petitioner while employed by the law firm of Barnett, Alagia and Prosperi had primary responsibility for representing John Chappie in a suit for money damages.
C. The law firm of Barnett, Alagia and Prosperi received funds on behalf of John Chappie to be held in the law firm’s trust account.
D. The Petitioner had received authorization from John Chappie to receive checks from the law firm’s trust account which checks were payable to Petitioner.
E. The Petitioner was authorized to cash these trust account checks and deliver the cash to John Chappie.
F. On four (4) separate occasions, checks were drawn at the [Respondent’s] request totaling approximately $12,000.00.
G. The Petitioner delivered to John Chappie only $2,003.00, misappropriating to his own use $9,997.00.
6. The law firm of Barnett, Alagia and Prosperi made restitution to John Chappie by transferring to him funds the law firm had earned as a fee in representing John Chappie.
7. No other cases or complaint [sic] are currently under investigation by The Florida Bar.
8. The Petitioner has agreed to make restitution to the law firm of Barnett, Alagia and Prosper [sic] for their payment to John Chappie of the funds Petitioner misappropriated.
9. The Petitioner is no longer residing in Florida or actively engaged in the practice of law.
10. The Petitioner does not believe the granting of this petition will cause any harm to the public or administration of justice.
11. The Petitioner freely and voluntarily submits this petition.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.08(3), as amended effective October 1, 1979, are fully satisfied, the Petition for Leave to Resign is hereby approved conditioned upon Petitioner not applying for reinstatement for a period of three (3) years.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    William and Charlene ADAMS, Appellants, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, Appellee.
    No. 78-1582.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Rehearing Denied Dec. 24, 1980.
    Charlene Adams, in pro per., for appellants.
    Curtin R. Coleman of Coleman, Leonard & Morrison, Fort Lauderdale, for appellee.
   PER CURIAM.

Charlene Adams, appellant/co-defendant appeals the entry of an adverse final judgment. We reverse.

On October 30, 1975, appellee, “Merrill Lynch”, filed an amended complaint against appellant, Charlene Adams, and her erstwhile husband, William Adams, for the sum of $17,204.05, due on a commodities trading account, which Merrill Lynch contended the Adamses had opened and maintained. The Adamses were represented by the same lawyer who filed an answer and counterclaim on their behalf on December 5, 1975. The answer admitted opening the account in question and they charged Merrill Lynch with trading in the account without their approval, causing a substantial loss.

Pursuant to a stipulation of the parties, appellant, on May 1, 1977, filed an amended answer and counterclaim. In said answer Charlene Adams expressly denied that she ever opened any account of any kind with Merrill Lynch and generally denied any relationship with appellee. However, the amended affirmative defenses and counterclaim were both cast in language which indicated that the account belonged to both husband and wife and appellants sought damages in the amended counterclaim for alleged improper handling of the account by appellee.

On October 7, 1977, the lawyers who had represented both Charlene and William Adams obtained an order allowing them to withdraw as counsel for Charlene Adams. Thereafter she was not represented by counsel during the trial of the cause.

The testimonial evidence at trial showed that appellant did not claim any interest in the account, had not authorized it to be opened, and had no contact whatsoever with Merrill Lynch. Both Charlene and William Adams so testified. The only evidence linking Charlene Adams to the account was certain allegations in the original answer and counterclaim which were offered and received into evidence over objection. In this respect, the trial court erred.

Though Mr. and Mrs. Adams’ first answer contained an admission “that they opened an account with the Plaintiff,” Charlene Adams subsequently averred that “heretofore [she] had no personal and direct knowledge as to the matters set forth in the pleadings.” Upon this basis, the trial court permitted Charlene Adams to file an amended answer and counterclaim. Her answer was a flat denial that she either opened or authorized the account. Thus, long before trial, Merrill Lynch was aware of Charlene Adams’ unequivocal denial. Given this background, her first answer, an unsworn and unauthorized pleading, should not have been admitted into evidence as a judicial admission.

The same rule applies to the allegations in her counterclaim. The first counterclaim filed on behalf of Mr. and Mrs. Adams contained the allegation that they “opened an account with the Plaintiff.” This, in turn, was amended to read, “an account was opened with the Plaintiff. . This account is in the joint names of the Defendants.” It is well established Florida law that a complaint or counterclaim which is but a tentative outline of a pleader’s position is inadmissible as evidence to prove a fact alleged therein. Hines v. Trager Construction Co., Inc., 188 So.2d 826 (Fla. 1st DCA), cert. denied, 194 So.2d 618 (Fla.1966). Neither a complaint nor a counterclaim is admissible in evidence to prove or disprove a fact in issue. Harrold v. Schulep, 264 So.2d 431 (Fla. 4th DCA 1972).

Finally, we are compelled to note that with the exception of the “pleadings evidence,” all of the evidence offered by both sides indicated that Charlene Adams had no connection with the commodities trading account. This was the explicit testimony of Mr. and Mrs. Adams and it was corroborated by Merrill Lynch. Neither signature cards nor testimony that Charlene Adams verbally authorized the account was produced. In short, plaintiff’s case was built on surmise which cannot withstand objective scrutiny. Thus the case must be reversed and remanded for new trial as to appellant, Charlene Adams.

DOWNEY and HURLEY, JJ., and SHARP, G. KENDALL, Associate Judge, concur.

ON MOTION FOR REHEARING

PER CURIAM.

The motion for rehearing is hereby denied.

Merrill Lynch has filed a motion for rehearing in which it (a) asserts that this court’s statement in the opinion filed September 10, 1980, that Mr. Adams explicitly testified that Mrs. Adams had no connection with the commodities trading account involved in this litigation is unsupported by the record, and (b) urges that the testimony of Mrs. Adams estops her from denying that she was a knowing participant in the account.

Our review of the record leads us to conclude that Merrill Lynch’s assertion as to the lack of record support for our statement as to the explicit testimony of Mr. Adams relative to the lack of any connection between Mrs. Adams and the account is correct. Mr. Adams in a deposition dated September 23, 1976, did testify that Mrs. Adams had no connection with the account. However, while other portions of the deposition were, on motion of Merrill Lynch, admitted into evidence, the portion containing the exculpatory testimony relative to Mrs. Adams was not admitted into evidence. We therefore recede from our statement that Mr. Adams gave explicit testimony that Mrs. Adams had no connection with the account in question.

However, our misstatement is immaterial to our decision of September 10, 1980, since Merrill Lynch’s argument for affirmance rested on estoppel. We found no merit in that argument and adhere to our opinion. Further, a reiteration of the estoppel argument in the motion for rehearing is an insufficient and improper- ground for granting the motion. Fla.R.App.P 9.330(a).

The motion for rehearing is hereby denied.

DOWNEY and HURLEY, JJ., SHARP, G. KENDALL, Associate Judge, concur.

      . William Adams is no longer an appellant, his appeal having been dismissed.


author: MOORE, Judge.

text:
    Edward CAMPBELL, Chairman, etc., et al., Appellants, v. Paul R. VETTER, Appellee.
    No. 77-757.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1980.
    Rehearing Denied Jan. 22, 1981.

      J. T. Frankenberger, City Atty., James A. Thomas, Deputy City Atty., Sherman Bennett Mayor, City Atty., and Matthew J. Schaefer, Asst. City Atty., Hollywood, for appellants, Edward Campbell and City of Hollywood.
    Sheldon M. Schapiro of Stone, Schapiro & Dell, P. A., Hollywood, for appellee.
   MOORE, Judge.

This case is before us on a petition for writ of common law certiorari. The respondent, Vetter, was discharged from his employment as a police officer for the City of Hollywood. The discharge was affirmed by the petitioner, Civil Service Board of the City of Hollywood (Board), and upon review by the circuit court, the Board’s affirmance was reversed. The circuit court ordered that Vetter be reinstated with full back pay. The Board now wants this Court to quash the order of the circuit court.

Previously, when this case was before us we considered the appropriate scope of our review by certiorari directed to circuit courts acting in their review capacity over local administrative boards. Campbell v. Vetter, 375 So.2d 4 (Fla. 4th DCA 1979). We were unable to determine whether our writ should issue because the circuit court had reversed the order of the Board without an opinion. Accordingly, we temporarily relinquished jurisdiction to the circuit court to allow the court to prepare an opinion explaining the “theory and reasoning upon which it reversed the order of the Board”. We have received that opinion. The issue before us now is whether we should exercise our discretion by issuing our writ of certiorari, and quash the court’s order. We find that the court properly exercised its jurisdiction, and conformed to the essential requirements of law. We deny certiorari.

The circuit court found that the Board’s decision was not supported by substantial competent evidence, that the essential requirements of law were not observed, and that Vetter was not accorded procedural due process. Although we agree with the court in all respects we will discuss only the absence of substantial competent evidence to support the Board’s decision. In doing so, we again clarify the appropriate standards of review.

In reviewing decisions of lower tribunals the circuit court’s scope of review is limited to a determination of whether procedural due process has been accorded, whether the essential requirements of law have been observed, and whether the decision is supported by substantial competent evidence. Metropolitan Dade County v. Mingo, 339 So.2d 302 (Fla. 3rd DCA 1976); McGuaran v. Susskind, 175 So.2d 218 (Fla. 3rd DCA 1965); City of Miami v. Babey, 161 So.2d 230 (Fla. 3rd DCA 1964). In its review capacity, a circuit court may not reevaluate conflicts in the evidence to determine whether there is substantial competent evidence to support the decision of the lower tribunal. Chastain v. Civil Service Board of Orlando, 327 So.2d 230 (Fla. 4th DCA 1976). Such action would amount to an improper granting of a trial de novo. See, Southern Gulf Utilities v. Metropolitan Dade County Water and Sewer Board, 180 So.2d 481 (Fla. 3rd DCA 1965); City of Opa Locka v. Carlile, 323 So.2d 661 (Fla. 3rd DCA 1975).

In exercising our common law cer-tiorari jurisdiction to review a decision of the circuit court acting in its review capacity, our review is even more limited in scope. It extends only to a determination of whether the circuit court followed procedural due process and observed the essential requirements of law. As with the circuit court, we may not reweigh the conflicting evidence.

The petitioners contest the circuit court’s finding that there was a lack of substantial competent evidence upon which the Board based its order. Issuance of our writ of certiorari would be proper only if the circuit court failed to observe the essential requirements of law in making that finding. Thus, if the record fails to disclose any competent evidence to support the decision of the Board, the circuit court was correct in reversing the Board’s order. See, Kennington v. Gillman, 284 So.2d 405 (Fla. 1st DCA 1973); Lee v. State, 374 So.2d 1094 (Fla. 4th DCA 1979); Griffin v. State, 367 So.2d 736 (Fla. 4th DCA 1979). Certiorari may not be used as a substitute for appeal, nor to give a losing party a second appeal. Admission of evidence is to be determined by the fact finding tribunal subject to review by the circuit court. The correctness of the reviewing court’s decision cannot be subject to further appellate review. See, Kennington v. Gillman, supra, at 406.

We find that the circuit court did not reweigh the evidence presented before the Board. Rather, the court analyzed the quality and quantity of the evidence to determine whether such evidence was substantial and competent to support the Board’s findings that Vetter had violated departmental rules and regulations. The circuit court found that the case against Vetter was permeated with the introduction, over his objection, of hearsay evidence, and concluded that there was no substantial competent evidence to support the Board’s findings of fact and conclusions of law. We realize that a certain amount of hearsay evidence can be tolerated in an administrative proceeding even though similar evidence in a trial court would mandate reversal because of its prejudicial effect. Jones v. City of Hialeah, 294 So.2d 686 (Fla. 3rd DCA 1974). However, in this case, the evidence against Vetter was so infected with the introduction of hearsay that the circuit court was entirely justified in concluding that, without the hearsay evidence, the charges against Vetter were unsubstantiated by other competent evidence.

The Board has failed to demonstrate that the circuit court sitting in its review capacity failed to accord procedural due process or observe the essential requirements of law. Accordingly, the petition for writ of certio-rari is denied.

CERTIORARI DENIED.

ANSTEAD, J„ and STUART M. SI-MONS, Associate Judge, concur.

      . Although the Board erroneously styled its couse as an appeal, we treated the appeal as a petition for writ of certiorari and granted review on that basis.

      . In Jones v. City of Hialeah, the court allowed such an amount of hearsay evidence as would be compatible with fundamental fairness. In the present case, the rules concerning hearsay evidence were expressly stated in the Civil Service Act of the City of Hollywood, as follows: Section 16(21) provided that “proceedings shall be as informal as compatible with justice.” Section 16(3) provided that “the admission of evidence shall be governed by the rules applied by the court in civil cases.” Thus, there appears to be a stricter limitation on hearsay than in Jones.


text:
    Donald A. WARBRITTON, Appellant, v. STATE of Florida, Appellee.
    No. 78-2258/T4-260.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.
    Rehearing Denied Dec. 29, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal of a judgment and sentence entered by the Circuit Court for Orange County, Florida. The public defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On June 26,1980, this court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed the brief and the record herein and no reversible error appears. The motion of the public defender to withdraw is hereby granted, and the judgment and sentence are hereby affirmed.

AFFIRMED.

COBB, SHARP and COWART, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author:
WESSEL, JOHN D., Associate Judge. LETTS, Chief Judge,
      BERANEK, Judge,

text:
    Elisha H. SPRIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1027.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1980.
    Rehearing Denied Jan. 21, 1981.

      Richard L. Jorandby, Public Defender, and Cathleen H. Brady, Asst. Public Defender, 15th Judicial Circuit of Florida, West Palm Beach, for appellant,
    Jim Smith, Atty. Gen., and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   WESSEL, JOHN D., Associate Judge.

During the closing arguments the prosecutor picked up the knife which was admitted into evidence as used by the appellant during an armed robbery, and said to the jury, “It’s not funny ... this is a weapon.”, and proceeded to stick the knife into the jury rail.

Appellant claims it was error for the Trial Court to allow this communication even without a motion for mistrial. It is clear that the prosecutor’s acts were designed to inflame the jury. Accordingly, we rebuke and admonish the prosecutor for his improper communication. Prejudicial comments or communications by a prosecutor in closing argument may be grounds for mistrial. Johnson v. State, 88 Fla. 461, 102 So. 549 (1924); Daugherty v. State, 154 Fla. 308, 17 So.2d 290 (1944); Glassman v. State, 377 So.2d 208, 3rd DCA (1979).

However, the Defendant’s own bizarre conduct, together with the continuous laughing and interruptions during the trial certainly provoked the prosecutor and solicited these comments. Pait v. State, 112 So.2d 380 (Fla.1959).

The evidence against the Defendant was overwhelming, and the Appellant’s failure to request the Court to rebuke the prosecutor for his misconduct during the trial, together with the overwhelming evidence forces the conclusion that the communication was harmless error. Washington v. State, 343 So.2d 908 (Fla.App.1977). Clark v. State, 363 So.2d 331 (Fla.1978).

AFFIRMED.

LETTS, C. J., specially concurs.

BERANEK, J., dissents with opinion.

LETTS, Chief Judge,

specially concurring:

I find myself reluctantly concurring with Judge Wessel. It is tempting to agree with the dissent because of the prosecutor’s reprehensible conduct. Nonetheless, I feel to do so would merely permit of an obviously guilty defendant to put society to the enormous expense and trouble of retrying him. In my view it is not the function of this court to teach prosecutors how to behave.

It is up to the trial judge to keep the decorum in his court and I will not presume to reverse Judge Kaplan based on the record before us. It goes without saying that to pull the knife-in-the-jury-rail trick is deserving of rebuke. However, defense counsel’s reaction to it being done was hardly one of outrage and I cannot see fundamental error under all the circumstances.

BERANEK, Judge,

dissenting:

I respectfully dissent. The prosecutor’s theatrical use of a knife admitted into evidence by sticking it into the jury rail in close proximity to the jurors during closing arguments should not have been tolerated by the trial court. The defendant’s conduct during the trial was bizarre, and the patience of the court and trial counsel may well have been sorely tested. Despite this fact, I would reverse and remand for a new trial. When the prosecutor stuck the knife in the jury rail, defense counsel objected. The objection was overruled, and defense counsel did not request a mistrial. I would find fundamental error and remand for a new trial.

      . Transcript, p. 312-3, provides:
      MR. SMITH (Prosecutor)
      ***** sC
      I’ll tell you what happens. He pulls a knife out, like this, and he says, “I’m going to kill you. This is a robbery unless I get the money.”
      (Defendant laughs)
      “Lay down on the floor.”
      Now, he thinks this is funny. Well, I’ll tell you something. On the day this happened, he may be the only one who thought it was funny, because I’ll tell you Cecile Pollard was scared and her sister was so scared she was shaking and crying, and it’s not funny, and this isn’t any play toy. It’s a weapon.
      MR. DYER: I object to that, Your Honor. I’d also like the record to reflect Mr. Smith just stuck a knife in the jury rail.
      MR. SMITH: Let the record so reflect.
      THE DEFENDANT: He’s murderous.
      THE COURT: Overrule the objection. Go ahead.


text:
    Lyndell HART, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-48, 80-51.
    District Court of Appeal of Florida, Fifth District.
    Nov. 26, 1980.
    Rehearing Denied Dec. 21, 1980.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Killian v. State, 387 So.2d 385 (Fla.2d DCA 1980).

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


author: DAUKSCH, Chief Judge.

text:
    Sylvia MARTIN, as personal representative of the Estate of Robert Smith Martin, deceased, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Public Service Car Leasing Co., Inc., a Maryland corporation, and Hardgrove Spofford Norris, Appellees.
    No. 80-146.
    District Court of Appeal of Florida, Fifth District.
    Nov. 26, 1980.
    Rehearing Denied Dec. 30, 1980.

      Geoffrey B. Dobson, of Meredith, Dobson & Cushman, St. Augustine, for appellant.
    Emory P. Cain, Jacksonville, for appel-lees.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in a personal injury case in which a young boy was killed. The trial court allowed three errors to infect the trial and for that we must reverse the judgment and remand this case for retrial.

First, a juror was improperly impaneled over the plaintiff’s challenge for cause after all preemptory challenges had been exhausted. The juror was employed at the hospital which processed the claim for insurance regarding the accident subject of this lawsuit. That juror was directly responsible for processing the claim. The claim was made against the same insurance company, a mutual company, which insured the juror. Additionally, and most seriously, the juror worked for the hospital of which the defendant doctor was the president, chief of staff, a member of the executive committee and a member of the board of directors. No matter how objective the jur- or might think she would be, it is unquestionable she would be less than objective about a ease involving her employer, her hospital, her mutual insurance company and regarding an insurance claim she processed. Boca Teeca Corp. v. Palm Beach County, 291 So.2d 110 (Fla. 4th DCA 1974).

Second, the court allowed in evidence statements made to an investigating police officer at the scene of the accident which were made by persons allegedly involved in the accident. Sec. 316.066(4), Fla.Stat. (1979); State v. Coffey, 212 So.2d 632 (Fla.1968); Wiggen v. Bethel Apostolic Temple, 192 So.2d 796 (Fla.3d DCA), quashed on other grounds, 200 So.2d 797 (Fla.1967).

Third, the trial court allowed highly improper, inflammatory and patently prejudicial remarks to be made to the jury by the defense lawyer. Some of the comments were objected to and some were not. For those which were objected to, we reverse. For the others, we display them for defense counsel to reflect upon.

And I say to Mrs. Martin, I’m sorry, and you’re sorry, but you have got to put away sorrow. You don’t buy a boy, as you would on the market. That’s not what we are talking about.
Should you also ought to be sorry also for Dr. Norris?
* * * * * *
Because Dr. Norris is in a place where he’s having to defend himself in a courtroom through no fault of his own because some boys got out there on a highway where they didn’t belong and they got in his way, and he has to wear and bear that thought the rest of his life.
I say the doctor is a victim as well.
* * * * * *
The thing that Mrs. Martin needs is to let that boy be a happy loving memory. She should not have to think about this any more. But if you give her an award, then every time she spends those dollars, she’s going to think about this case, and I submit that that’s just too much for her to bear.
* * * * * *
And I tell you, if the truth means nothing, then we can accept people like Ricky Hicks and David Sikes and we can give Mrs. Martin lots of money just like we are selling beef.
I think that’s what he’s doing, selling beef. We can do that.
But, if the truth does mean something and if you believe, as I do, that when a witness gets on the stand and you are supposed to believe him, then you are going to have to disregard the false testimony and come to the truth yourself.
******
But in my heart, and from what I’ve heard, I believe that your only just verdict can be one for the defendants.

The callousness of some of these remarks is unworthy of a member of the bar.

The judgment is reversed and this cause is remanded for a new trial.

REVERSED AND REMANDED.

COBB and SHARP, W., JJ., concur.


author: BERANEK, Judge.

text:
    Robert J. KAUFFMANN, Appellant, v. Frank J. BAKER, Jr., and Dorothy H. Baker, Appellees.
    No. 79-1137.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 23, 1981.

      Robert L. Thomas, Apopka, for appellant.
    Timothy W. Gaskill, of DeSantis, Cook, Meehan, Cohen, Gaskill & Silverman,'P. A., North Palm Beach, for appellees.
   BERANEK, Judge.

Robert J. Kauffmann, plaintiff/purchaser, appeals from a final judgment denying specific performance of a contract for the purchase and sale of real property. The record contains no trial transcript as no court reporter was present at the trial. Appellant prepared and served upon appel-lees/sellers, Frank and Dorothy Baker’s counsel, a proposed statement of the facts. Appellees’ counsel refused to sign the statement saying, “The only agreement I have with your version of the facts is that you properly named the parties. Everything else is in dispute.” (Emphasis in original). Appellant then set for hearing a “motion for reconstruction of record” although no such written motion was ever filed. The record does contain a transcript of that hearing which reflects the trial court made no attempt to settle any factual differences between the parties or approve any version of the facts. In fact, neither party requested the court to do so and the proposed statement of facts played no part in the hearing. Instead, the court read its trial notes to counsel and stated, “The only recollection I would have I would assume was when it was fresh in my mind as it would be when I prepared my judgement (sic), at this point no.” On the basis of this record, appellant contests certain factual findings contained in the trial court’s final judgment.

The trial court found that the parties purposefully inflated the purchase price ($44,500 rather than the option price of $42,100) to assist appellant in obtaining financing and that this constituted fraud upon the lending institution, rendering both parties guilty of “unclean hands.” We affirm. The granting or withholding of specific performance and the application of the clean hands doctrine are questions for the lower court whose determination and discretion will not be disturbed unless clearly erroneous. Roberts v. Roberts, 84 So.2d 717, 720 (Fla.1956); Vorpe v. Key Island, Inc., 374 So.2d 1035, 1037 (Fla. 2d DCA 1979). Since the record reflects substantial competent evidence to support the trial court’s determination, appellant has failed to demonstrate error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

For the guidance of the bar, however, we deem it advisable to discuss the ramifications of Florida Rules of Appellate Procedure 9.200(b)(3), regarding construction of the record when a transcript is unavailable, and 9.200(f)(2), regarding supplementation of the record. These rules provide:

9.200(b)(3): If no report of the proceedings was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.
9.200(f)(2): If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined because the record is incomplete until an opportunity to supplement the record has been given.

The Committee Notes to Rule 9.200(f)(2) indicate,

This rule is intended to assure that any portion of the record before the lower tribunal which is material to a decision by the court will be available to the court. It is specifically intended to avoid those situations which have occurred in the past where an order has been affirmed because appellate counsel .failed to bring up the portions of the record necessary to determine whether or not there was an error. See Pan American Metal Products Co. v. Healy, 138 So.2d 96 (Fla. 3d DCA 1962). The rule is not intended to cure inadequacies in the record which result from the failure of a party to properly make a record during the proceedings in the lower tribunal. The purpose of the rule is to give the parties an opportunity to have the appellate proceedings decided on the record before the lower tribunal. This rule does not impose on the lower tribunal or the court a duty to review on their own the adequacy of the preparation of the record. A failure to supplement the record after notice by the court may be held against the party at fault. (Emphasis supplied).

Appellant’s purported statement of the facts failed to comply with Rule 9.200(b)(3), primarily because appellant did not file it in accordance with the rule and never submitted it to the trial court for settlement and approval. Moreover, the lack of a written pleading or motion directed to the reconstruction hearing makes us wonder precisely what appellant wanted the trial court to do.

Under Rule 9.200(f)(2), this court is required to allow an opportunity for supplementing an incomplete record before deciding the case based on the insufficiency of the record. By moving to reconstruct the record, appellant here already has had his opportunity. Furthermore, appellees noted the absence of an adequate record in their brief, choosing to rely on the facts set forth in the lower court’s final judgment, which was detailed and made extensive factual findings. Appellant’s reply brief urged that the record contained additional facts, citing a memorandum of law and the transcript from the reconstruction of the record “motion” hearing.

Under these circumstances, where the record deficiencies are apparent and the record itself reflects appellant’s awareness of them, we find no need to award a second opportunity to supplement the record. To hold otherwise would necessitate our leading the parties by the hand in an attempt to get an adequate record. The trial court’s admitted inability to independently recollect the proceedings additionally compels this determination. The trial judge is not obliged to transcend his recollection and trial notes to establish a record. Haist v. Scarp, 366 So.2d 402 (Fla.1978).

We have considered the First District’s recent opinion in Kuenstler v. Andreasen, 386 So.2d 896 (Fla. 1st DCA 1980), and find it inapplicable to this case as appellant herein has never sought this court’s aid to supplement the record. To the extent Kuenstler places an affirmative duty upon the appellee to assist in preparation of the record, we choose not to follow it and instead adopt the Fifth District’s rationale in Mills v. Heenan, 382 So.2d 1317 (Fla. 5th DCA 1980). The appellant retains the burden of overcoming the presumption of correctness attributed to a trial court’s final judgment. Appellant’s burden includes a demonstration of error from the record, which he must supply. Litigants who proceed on contested factual issues without a court reporter take a calculated risk. If the facts are determined adversely they may well be unable to demonstrate error on appeal due to the absence of a record. If opposing counsel will not stipulate and the trial court remembers the evidence differently or cannot remember it at all the resulting record may be totally insufficient.

Trial counsel should not be encouraged by Rule 9.200(f)(2), to litigate without making a proper record. Rule 9.200(b)(3), requires and allows inclusion of a “statement of evidence” only “as settled and approved” by the trial court. In the present case the only version of the facts which the trial court “approved” was that contained in the final judgment. Since there is no record support for appellant’s contrary factual arguments that judgment is affirmed.

AFFIRMED.

DOWNEY and GLICKSTEIN, JJ., concur.


author: BASKIN, Judge. SCHWARTZ, Judge

text:
    David Alan COSTER, Ramon Rodriguez, Pedro Reyes and Mark Pridgeon, Appellants, v. The STATE of Florida, Appellee.
    Nos. 79-1839 to 79-1841.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Rehearing Denied Jan. 22, 1981.
    Bennett H. Brummer, Public Defender and Peter Raben and Bruce Alter, Asst. Public Defenders, for Mark Pridgeon.
    Weiner, Robbins, Tunkey & Ross, and Ronald A. Dion, Miami, for Ramon Rodriguez and Pedro Reyes.
    No appearance for David Alan Coster.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

In consolidated appeals from their convictions and sentences, for drug related charges entered upon pleas of no contest with reservations of their rights to appeal, defendants contest the trial court’s denial of their motions to suppress the introduction into evidence of quaaludes seized without a warrant from defendant Coster’s house.

As grounds for suppressing the evidence, defendants Pridgeon, Rodriguez, and Reyes challenge the validity of the police officers’ entry into a private dwelling without complying with Section 901.19(1), Florida Statutes (1977), the “knock and announce law”. They contend that the officers failed to announce their authority and purpose. Defendants Rodriguez and Reyes also contend that the search was unreasonable because the officers had sufficient time but failed to obtain a warrant. Defendant Coster has adopted the arguments of his co-defendants.

The state responds, however, that all defendants except Coster, the owner of the residence, lacked standing to challenge the seizure of the quaaludes. Defendant Prid-geon counters that the question of standing was not presented to the trial court by the state and has therefore been waived.

Before addressing the merits of the standing question, we must first decide whether the state has waived its objection that defendants lacked standing to contest the illegal search of co-defendant Coster’s house and the subsequent seizure of the bags of quaaludes.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the court decided:

“[T ]he question is whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it.... [Tjhis aspect of the analysis belongs more properly under the heading of substantive Fourth Amendment doctrine than under the heading of standing ...” (Emphasis added)

Id. at 140, 99 S.Ct. at 429, 58 L.Ed.2d at 399.

The court explained its position further in Rawlings v. Kentucky, - U.S. -, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), and United States v. Salvucci, - U.S. -, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). In Rawlings, the Supreme Court stated:

Prior to Rakas, petitioner might have been given ‘standing’ in such a case to challenge a ‘search’ that netted those drugs but probably would have lost his claim on the merits. After Rakas, the two inquiries merge into one: whether governmental officials violated any legitimate expectation of privacy held by petitioner.

Rawlings v. Kentucky, supra - U.S. at -, 100 S.Ct. at 2562, 65 L.Ed.2d at 643. See also United States v. Salvucci, supra - U.S. at -, n.4, 100 S.Ct. at 2550, n.4, 65 L.Ed.2d at 625, n.4. Compare Rawlings v. Kentucky, (Blackmun, J., concurring), supra - U.S. at -, 100 S.Ct. at 2564, 65 L.Ed.2d at 646, where Justice Blackmun argued that a two-pronged method of reviewing Fourth Amendment claims remains.

Relying on these statements, we conclude that since the question of standing is no longer distinct from substantive Fourth Amendment issues, it was not waived by the state’s failure to object on that ground. See also Norman v. State, 388 So.2d 613 (Fla. 3d DCA 1980).

We next consider whether defendants had interests or rights protected by the Fourth Amendment which were violated by an illegal search. We examine the facts.

Public Safety Department Detective Hodges told defendant Pridgeon he would buy 10,000 quaaludes. He went to the designated residence at 11:35 p. m. where he observed five men and 12 packages of quaa-ludes inside the house. After seeing the narcotics, he left, ostensibly to obtain money for the transaction. He then advised his backup units to proceed to the house and told them what they would find. The officers in the backup unit went to the house. A shout. of “police” and banging were heard, and defendants Reyes and Rodriguez ran from the Florida room, dropping a brown paper bag. Two officers entered through the unlocked rear doors. Defendant Coster was found in the bathroom with several large bags of quaaludes and pills scattered on the floor. Defendant Pridgeon was discovered hiding under the bed. Twelve bags of quaaludes were retrieved from various places in the residence.

A possessory interest in seized items no longer affords automatic standing to a defendant seeking to suppress the fruits of an unlawful search and seizure. United States v. Salvucci, supra. In Salvucci, the Supreme Court rejected the legitimately-on-premises standard as too broad a gauge by which to measure Fourth Amendment rights. See also Rawlings v. Kentucky, supra.

Because this court must inquire into the findings of the trial court with regard to whether defendants had a legitimate expectation of privacy in the area searched before we can arrive at a determination of the standing question, this case is not yet ripe for a decision on the correctness of the denial of the motion to suppress. No evidence was adduced regarding any proprietary interest or control over the premises by defendants Reyes, Rodriguez, or Pridgeon. It is, therefore, necessary that we relinquish this cause to the trial court for a determination of their rights to expectations of privacy. We also remand this cause as to defendant Coster, even though there was evidence that he owned the house because Salvucci does not necessarily establish an expectation of privacy by virtue of ownership.

We therefore remand this cause to enable the trial court to determine whether or not each defendant had a legitimate expectation of privacy in the area searched so as to afford him standing under the Salvucci doctrine. United States v. Salvucci, supra; Priori v. State, 386 So.2d 618 (Fla. 1st DCA 1980).

Reversed and remanded.

SCHWARTZ, Judge

(dissenting in part).

I agree with the opinion of the court as it concerns the appellants Rodriguez, Reyes, .and Pridgeon. As to Coster, I concur with the determination to remand for an eviden-tiary hearing, but I do so only because the record is unclear as to whether he actually' owned the house where the search took place. A finding that he did, however, would, in my view, establish ipso facto his “reasonable expectation of privacy” as to the premises. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) clearly established the principle that the constitutionally-protected rights of the owner of a home are necessarily violated by an unlawful search of that residence, even when, as in Alderman itself (but unlike this case), he is not present at the time of the intrusion. See also, Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (adopting and following analysis of Aider-man). I disagree with the majority’s apparent conclusion that Salvucci, which dealt only with the rights of non-owners to challenge allegedly invalid searches, affected this doctrine in any way. See also, State v. Muzevsky, 388 So.2d 21 (Fla. 4th DCA 1980).

      . Defendants Ramon Rodriguez, Pedro Reyes, Mark Pridgeon, and David Coster were convicted of possession with intent to sell a controlled substance. They were sentenced to five years probation with four months incarceration as a condition for Rodriguez, Reyes, and Pridgeon, and six months incarceration for defendant Coster.


author: MILLS, Chief Judge.

text:
    Willie JONES, Appellant, v. STATE of Florida, Appellee.
    No. TT-376.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.

      Michael J. Minerva, Public Defender, Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   MILLS, Chief Judge.

Appellant Willie Jones contends that his conviction for possession of a weapon by a state, prisoner was erroneous because the metal pipe he had in his possession was not a weapon as defined by the statute and rule. We affirm.

Section 944.43, Florida Statutes (1979), provides:

Every prisoner committed to the custody of the department who, while in such custody, possesses or carries upon his person or has under his control any instrument or weapon of any kind or any explosive substance, contrary to any rule or regulation promulgated by the department, is guilty of a felony of the third degree, . ..

Rule 33-3.06, F.A.C., the relevant rule of the Department of Corrections defines the prohibited instrument as one that is “customarily used or designed to be used as a dangerous weapon. . .. ”

Jones filed a motion to dismiss the information under Rule 3.190(c)(4), Fla.R. Crim.P., alleging that the object confiscated was a piece of metal pipe or tubing with a coupling mechanism at one end, that the object appeared to be a piece of machinery, and that it did not appear to be altered in any way from its original form of manufacture. Urging that the rule required a showing that the object was altered or modified in order for it to be “designed to be. used as a dangerous weapon,” the motion asserted that there were no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against Jones. We disagree.

The undisputed fact is that'Jones, a state prisoner, was in possession of a metal pipe, but whether that pipe was customarily used or designed to be used as a dangerous weapon was a disputed fact, one which is properly resolved by the trier of fact and not to be resolved by a motion to dismiss. As stated in State v. West, 262 So.2d 457 (Fla. 4th DCA 1972):

The trial court may not try or determine factual issues in a summary judgment proceeding; nor consider either the weight of the conflicting evidence or the credibility of the witnesses in determining whether there exists a genuine issue of material facts; nor substitute itself for the trier of the fact and determine controverted issues of fact. (262 So.2d at 458)

Accordingly, we affirm the trial court’s denial of the motion to dismiss the information.

The second error urged by Jones is that the trial court should have granted his motion for judgment of acquittal. There are two prongs to this issue.

The first prong is that at the end of all the evidence Jones moved for judgment of acquittal because the state had failed to introduce the applicable rule of the Department required by the statute. The court allowed the State to reopen the evidence and introduce the rule. The decision to allow the State to reopen the evidence is within the broad discretion of the court and Jones has not established that the decision here was an abuse of discretion. Dees v. State, 357 So.2d 491 (Fla. 1st DCA 1978). Accordingly, we find no error on this issue. In light of the way this issue has been presented to this court, we do not rule on the applicability, if any, of Section 90.-202(9), Florida Statutes (1979).

The second prong is the allegation that the evidence ' is insufficient to support Jones’ conviction in that the evidence did not establish that the pipe was a dangerous weapon as defined by the rule. Evidence which would support the jury’s verdict was that a correctional officer testified that he saw Jones on the prison grounds with his hands in his pockets. Because he thought Jones looked suspicious, the officer went up to Jones, searched him, and found a metal pipe concealed in Jones’ right pant leg. A prison investigator who interviewed Jones after the incident testified that Jones had explained that he had the pipe because some friends of his had had some trouble that morning and he expected trouble later in the morning. The piece of pipe at issue looked like this:

As noted in our ruling on the first issue, we believe that the question of whether the pipe was an instrument customarily used or designed to be used as a weapon was a jury question. In determining this factual question, the jury was authorized to consider the configuration of the instrument, the way in which it was carried, and Jones’ explanation of his possession of it. These factors provide sufficient evidence to support the conviction and we affirm the judge’s denial of the motion for judgment of acquittal.

AFFIRMED.

BOOTH and LARRY G. SMITH, JJ., concur.


author: McCORD, Judge.

text:
    DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF LABOR, Appellant, v. FLORIDA HOME BUILDERS ASSOCIATION et al., Appellees, v. FLORIDA BUILDING TRADES COUNCIL et al., Intervenors.
    No. MM-159.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.
    Rehearing Denied Jan. 22, 1981.
    Kenneth H. Hart, Jr., Tallahassee, for appellant.
    Stephen W. Metz, Tallahassee, for appel-lees.
    Jerry G. Traynham of Patterson & Traynham, Tallahassee, for intervenors.
   McCORD, Judge.

This is an appeal from a final order of the Division of Administrative Hearings finding appellant’s Rule 8C-16.05(2)(e) 2 and 5 to be an invalid exercise of delegated authority. Among other issues raised on this appeal, appellant contends that appellees do not have standing to challenge its rule pursuant to § 120.56, Florida Statutes. We agree.

Section 120.56, Florida Statutes, in pertinent part states as follows:

(1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority-
(2) The petition seeking an administrative determination under this section shall be in writing and shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule ... (emphasis supplied)

Here appellees are building contractor-associations, and the hearing officer found that the builders represented by the associations were competitively disadvantaged by operation of the challenged rule. Our ruling is governed by our opinion in Fla. Dept. of Ed. v. Fla. Ed. Ass’n/United, etc., S78 So.2d 893 (Fla. 1st DCA 1979). There appellee was a confederation of bargaining units representing 30 thousand of the 90 thousand teachers of Florida. While the rule there being challenged would affect teachers, we said:

However, no teacher is a party to this case. Accordingly, we find FEA/United lacks standing under the facts and principles stated in Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230, 1235-1236 (Fla. 1st DCA 1978).
Here, no party has sustained or is in immediate danger of sustaining some direct injury as a result of the challenged rule.
Accordingly, FEA/United is not a “substantially affected” person as contemplated in Florida Department of Offender Rehabilitation v. Jerry, supra.

By the same token, the builders who are affected by the rule in the case sub judice are not parties. The builder associations are not substantially affected parties and therefore have no standing to challenge the rule.

Reversed.

MILLS, C. J., and SHIVERS, J., concur.


text:
    Robert Andrew WEISZ, Appellant, v. STATE of Florida, Appellee.
    No. 79-794.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1980.
    Rehearing Denied Jan. 21, 1981.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a conviction after a jury trial for possession of marijuana. Prior to trial, the defendant filed a motion to suppress the marijuana and certain tape recordings growing out of a related police investigation. Defendant also moved for discharge based on speedy trial grounds. The motion to suppress and the motion to discharge were denied. Defendant appeals and we affirm.

On the motion to suppress, defendant asserted the absence of a warrant regarding the marijuana and that the police were acting outside their geographic jurisdiction when they secured the tape recordings.

At trial, the defendant’s objections were not exactly the same as those previously asserted on the motion to suppress. At one point in the trial, counsel seemed to disavow reliance on the grounds previously asserted in the motion to suppress. In any event, the tape recordings were not admitted into evidence because the jury could not understand them due to poor recording quality. Testimony as to the existence of the tapes was heard by the jury, but we conclude this did not result in reversible error if error at all. The objection at trial as to physical evidence was that the total amount of marijuana in question had not been tested. Defendant did not object to the absence of a warrant at trial and cannot now raise this point. Kiddy v. State, 378 So.2d 1332 (Fla. 4th DCA 1980).

We also conclude reversible error has not been demonstrated in regard to the defense arguments on failure to test all of the marijuana. The defendant was charged with possession of marijuana in excess of 100 pounds. The court directed a judgment of acquittal as to the allegation of “in excess of 100 pounds” and the jury returned a verdict of guilty against appellant for possession and delivery of cannabis over five grams. The defendant’s arguments regarding testing of the entire quantity of marijuana (26 bales) constitute harmless error at most.

As to the speedy trial argument, defendant moved for a continuance on November 6, 1978, when the case was set for trial on the last day of the speedy trial time. The defendant now claims that his continuance on that day should be charged to the State. We conclude the trial court correctly found to the contrary. Under the circumstances of this case, the defendant waived the strict requirements of the speedy trial rule. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980). The judgment and conviction below is affirmed.

AFFIRMED.

MOORE and BERANEK, JJ., and KAP-NER, LEWIS, Associate Judge, concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Joseph Herald ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1455.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1980.
    Rehearing Denied Jan. 14, 1981.
    Richard L. Jorandby, Public Defender, and Jon May, 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.
   PER CURIAM.

Affirmed.

MOORE and GLICKSTEIN, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I am in agreement with the majority’s holding that the trial court did not err in denying appellant’s motion for post-conviction relief which was predicated on a claim of ineffective assistance of counsel. In my view the trial court’s thorough analysis and detailed conclusions are fully supported by the record, and, in an area of the law somewhat lacking in clear guidelines, worth setting out here:

The motion and the files and records, referred to hereinabove and made a part hereof by reference, conclusively show that the defendant prisoner is entitled to no relief, on the following findings based thereon:
1. Defendant’s conviction herein is presumed to be valid and errorless.
2. Assuming all the factual allegations of paragraph 6(a) through (c) of defendant’s motion to be true, defendant has failed in his burden to establish a prima facie showing of ineffective assistance of retained counsel, under the Sixth Amendment, that is to say, that his retained counsel failed to render reasonably effective assistance of counsel (whether retained or appointed) to his prejudice as required in Meeks v. State, 382 So.2d 673 (Fla.1980).
3. In the alternative, even if a prima facie showing of failure to render reasonably effective assistance of counsel has been made, such ineffective assistance was known to defendant at time of trial, knowingly and voluntarily concurred in by him, and cannot support this collateral attack. Carillo v. State, 382 So.2d 429 (3 DCA 1980) and Burau v. State, 353 So.2d 1183 (3 DCA 1978). Defendant could have raised his complaints before and during trial, thereby preserving his complaint for his direct appeal. Martin v. State, supra. Even though his complaint of ineffective assistance of counsel is of constitutional dimension, he has knowingly waived the error, Harvey v. State, 383 So.2d 770 (3 DCA 1980), consenting thereto.
4. The motion does not allege, nor do the aforementioned files and records show, any actual prejudice to the defendant (apart from the conviction and sentence); that is to say, absent defense counsel’s alleged errors of commission and/or omission, a different result would have been reached by the jury. Harvey v. State, supra. The evidence of guilt was overwhelming. The defendant was caught in the act of burglary and was positively identified by the two eyewitnesses at trial. It is pure conjecture to assume that had they been deposed pretrial defendant might have somehow benefited. See Mauldin v. State, 382 So.2d 844 (1 DCA 1980) and Martin v. State, supra. At the risk of being trite, what this defendant needed in this case was a lawyer who was also a hypnotist — someone capable of placing the jury in a trance so as to make the evidence disappear.
5. Defense counsel’s decision not to engage in pre-trial discovery is a matter of trial tactic and strategy, consistent with his interest in eliminating unnecessary expense to the defendant. It is also consistent with defendant’s obvious confession of guilt to his counsel who was retained to plead defendant guilty for a concurrent sentence, and failing that, to “preach his funeral”. The same is true of counsel’s failure to make opening statements and to cross-examine witnesses. Many lawyers waive opening so as not to disclose their defense, if any, and trial strategy. Likewise, many lawyers do not cross-examine unless there is some favorable point they wish to bring out to the jury, not disclosed on direct. Although defense counsel announced he would stand mute, he did not do so. He cross-examined the two police officers on proffers and objected to introduction of the physical evidence. He gave closing arguments and participated in the charge conference, asking for all the lesser included offenses, successfully obtaining a lesser verdict under count two. Judgment matters on trial strategy and tactics cannot form the basis for post-conviction relief. Robinson v. State, 378 So.2d 1346 (3 DCA 1980).
6. Even assuming reasonably ineffective assistance of counsel under the Sixth Amendment, the motion does not allege, and it cannot be shown at an evidentiary hearing herein, any State involvement therein by the Court, prosecutor or other official who could have corrected it. Fitzgerald, supra, page 1338.
7. In the alternative, even assuming ineffective assistance of counsel herein, the error is harmless beyond a reasonable doubt. The motion does not allege that defendant could prove at an evidentiary hearing that pre-trial discovery and investigation could produce exculpatory or favorable evidence either as to guilt or penalty.


author: BOOTH, Judge.

text:
    CITY OF JACKSONVILLE BEACH, a body corporate and politic, Petitioner, v. The Honorable Gordon A. DUNCAN, Jr., as Circuit Judge of the Fourth Judicial Circuit, in and for Duval County, Florida, Respondent.
    No. XX-367.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1980.
    As Modified on Denial of Rehearing Jan. 21, 1981.
    Stephen Stratford, of Arnold, Stratford & Booth, Jacksonville, for petitioner.
    Angela B. Corey, of Howell & Howell, Jacksonville Beach, for respondent.
   ON PETITION FOR WRIT OF PROHIBITION

BOOTH, Judge.

This cause is before us on petition for writ of prohibition to review the order of the circuit court denying a motion to dismiss the complaint in a tort action against the City of Jacksonville. Petitioner asserts that the circuit court exceeds its jurisdiction in entertaining the suit because the city is immune under the doctrine of soverign immunity, as most recently clarified by the Florida Supreme Court in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), and further because notice requirements were not complied with.

Soverign immunity and the notice requirement have occasionally been referred to as questions going to the subject matter jurisdiction of the trial court. We hold that the determination of these questions are within the trial court’s jurisdiction and that alleged error in those determinations does not form the basis for invoking this court’s original jurisdiction. As to the notice requirement of Florida Statutes § 768.28, it is a condition precedent to suit but may be waived. Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978). Compliance with conditions precedent is a matter for determination by the trial court, and refusal to dismiss the complaint on that basis is not grounds for writ of prohibition.

Accordingly, the alternative writ is discharged and the petition denied.

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

      . See, e. g., State Road Department v. Brill, 171 So.2d 229 (Fla. 1st DCA 1964).