author: JOANOS, Judge.

text:
    SAM ROGERS ENTERPRISES and Auto-Owners Insurance Company, Appellants, v. Odell WILLIAMS, Appellee.
    No. XX-152.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1981.

      John K. Vreeland of Lane, Trohn, Bertrand, Williams & Smith, Lakeland, for appellants.
    Kenneth C. Glover, Lakeland, for appel-lee.
   JOANOS, Judge.

In this workers’ compensation appeal, the employer/carrier challenges the deputy commissioner’s order which found that the employer’s bad faith refusal to notify the carrier of the claim imputed bad faith to the carrier. As a result, the carrier was ordered to pay the claimant’s attorney’s fees pursuant to § 440.34(2)(b), Florida Statutes (1979). The employer/carrier asserts that the deputy erred in two respects: first, § 440.34(2)(b) applies only to acts of bad faith attributable solely to the carrier; and second, even if the employer’s acts can be imputed to the carrier, those acts did not meet the definition of “bad faith” provided for in the statute. We reject both of these arguments and affirm the deputy’s order.

On October 25, 1979 the claimant was injured in a work-related accident. When he was admitted into the hospital on the same day, the admissions report reflected that Sam Rogers Enterprises was the employer and that the injury was a “possible workmen’s compensation.” The claimant’s wife testified that she asked the admissions clerk to call Sam Rogers Enterprises to verify hospitalization coverage. According to Mrs. Williams, the clerk did make a telephone call but, as a result of the information obtained by the call, the claimant was required to be admitted under his group insurance policy rather than workers’ compensation coverage.

While the claimant was in the hospital for three weeks, Mrs. Williams stated that she made numerous attempts to verify whether the claimant’s medical expenses would be covered by workers’ compensation. She testified that she went to the employer’s office on three occasions, each time asking to speak with Sam Rogers (the owner) and stating the purpose of her visit. Although she saw Mr. Rogers on the premises, she was never able to talk with him and he never called her with regard to the messages she left. Mrs. Williams then went to claimant’s supervisor, who assured her that claimant would receive workers’ compensation coverage but also advised her to talk with Mr. Rogers. Despite the supervisor’s assurances, claimant’s medical expenses were not paid. Finally, on November 26th, claimant sought legal advice.

According to the stipulated testimony of the carrier’s insurance clerk (her statement was lost in recording), Auto Owner’s did not receive actual notice of the injury from the employer until November 26, 1979. The carrier proceeded to pay compensation benefits to claimant on November 30th.

The deputy commissioner found that the employer’s actions in this case were in bad faith and caused economic loss to the claimant. Although § 440.34(2)(b) refers only to the carrier’s bad faith in the handling of the claim, the deputy imputed bad faith to the carrier through § 440.41(1), Florida Statutes (1979), which provides:

In any case where the employer is not a self-insurer, in order that the liability for compensation imposed by this chapter may be most effectively discharged by the employer, and in order that the administration of this chapter in respect of such liability may be facilitated, the division shall by regulation provide for the discharge, by the carrier for such employer, of such obligations and duties of the employer in respect of such liability, imposed by this chapter upon the employer, as it considers proper in order to effectuate the provisions of this chapter. For such purposes:
(1) Notice to or knowledge of an employer of the occurrence of the injury shall be notice to or knowledge of the carrier.

The deputy reasoned that under § 440.41, the employer was the carrier’s alter ego for purposes of § 44Q.34(2)(b) and the manner in which the claim was handled. Therefore, concluded the deputy, even though the carrier was diligent in responding to the claim once it received actual notice of the injury, § 440.41(1) imputes the employer’s knowledge of the injury and its dilatory tactics in handling the claim to the carrier.

The employer/carrier disagrees with the deputy’s statutory interpretation and argues that § 440.34(2)(b) was not intended to apply to an employer’s wrongful acts. In oral argument, the employer/carrier referred to several statutory provisions in an effort to shed light on the legislative intent of § 440.34(2)(b). Under § 440.34(2), any payment of attorney’s fees that is required by subsection (b) may not “be recouped, directly or indirectly, by any carrier in the rate base, premium, or any rate filing.” This provision, in effect, makes the carrier fully responsible for attorney’s fees under subsection (b) while relieving the employer from even indirect liability for those fees. The employer/carrier argues that it is illogical as well as unfair to require a carrier which has acted without fault to bear the full penalty for wrongful acts which were committed by the employer. In conjunction with this argument, the employer/carrier also contends that § 440.41’s provision imputing the employer’s knowledge or notice to the carrier applies only to impute an employer’s liability for “compensation” to the carrier and does not operate to impute liability for a “penalty” provision such as § 440.34(2).

In response to the claimant’s contention that § 440.34(2)(b) was clearly intended to prevent exactly the type of recalcitrant conduct engaged in by the employer in this case, the employer/carrier points to § 440.-185(2) and (9). Those sections provide for a $100 civil penalty to be assessed against an employer who fails to notify the carrier of an injury within 7 days of receiving actual knowledge of the injury. The employer/carrier argues that the civil penalty is the counterpart to the attorney’s fees “penalty” assessed against the carrier for bad faith.

A common thread in each of the employer/carrier’s arguments is the proposition that § 440.34(2)(b) is a penalty provision. The claimant contends, however, that bad faith in handling of the claim forced him to seek the assistance of an attorney; therefore, an assessment of attorney’s fees is really only a recovery of the claimant’s monetary damages rather than punitive damages. Under this rationale § 440.41(1) would operate to impute notice to the carrier since that section was intended to assist in the effective administration and discharge of “liability for compensation.”

Claimant’s analysis of the purpose and effect of § 440.34(2)(b) coincides nicely with this Court’s recent decision in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). In that case, the carrier argued that “bad faith” under § 440.34(2)(b) should be defined by the strict interpretation given that term in cases dealing with punitive damages. As in the case before us, the carrier’s basic assumption was that § 440.34(2)(b) was primarily intended to be a penalty provision. We reject this assumption for the same reasons that it was rejected in McDonald.

Every provision of the Workers’ Compensation Act should be construed in keeping with the remedial purpose of the act as a whole. As its primary function, the act was intended to place the burden of supporting an injured worker on industry rather than society. Sullivan v. Mayo, 121 So.2d 424 (Fla.1960). To effectuate that function most efficiently, the legislature intended that the worker have a relatively quick and simple method of recovery and that the employer’s liability limits be well-defined. As stated in McDonald, “the philosophy of the act is that an employee shall receive the benefits to which he is entitled with reasonable promptness, consistent with the employer’s right to make a reasonable investigation regarding his liability.” 395 So.2d at 210.

The amendments to the new (1979) act emphasize that the provisions entitling the claimant to benefits should be self-executing, without the necessity (and inevitable delay) of administrative or legal assistance. For this reason, a claimant is now generally required to pay his or her own attorney’s fees. The limited instances where attorney’s fees are awardable, however, involve occasions where the employer/carrier’s actions in totally rejecting the claim for disability (§ 440.34(2)(c)) or medial benefits (§ 440.34(2)(a)) or, as in this ease, in ignoring and mishandling the claim (§ 440.-34(2)(b)) necessitated the claimant’s use of legal assistance to recover payment of benefits. Therefore, the court in McDonald concluded that the “award of attorney’s fees under the bad faith provision of the new act does no more than reimburse the claimant for expenses incurred in the assertion of his right to benefits.” 395 So.2d at 208.

Déspite the obvious deterrent effect, the attorney’s fee award of § 440.-34(2)(b) was clearly intended to compensate the claimant for the monetary losses sustained in trying to force some action on the claim. Admittedly, § 440.34(2)(b) refers only to the carrier’s bad faith in handling the claim. It seems to us, however, that § 440.41, which has as its stated purpose the effective administration and discharge of liability for compensation, should impute the employer’s notice of the claim to the carrier. To hold otherwise would frustrate both the general intent of the Workers’ Compensation Act as well as the specific intent of § 440.41. Requiring the claimant to pay for attorney’s fees which were necessitated by the employer’s action would be inconsistent with the purpose of placing the burden of work-related injuries on the industry. By the same token, liability for the monetary damages suffered by the claimant as a result of delayed notice would certainly not be “effectively discharged” if the employer’s notice could not be imputed to the carrier under § 440.41(1).

In reaching this result, we have not neglected or ignored § 440.34(2), which prevents the carrier from recovering the attorney’s fees payment from the dilatory employer. Where, as in this case, the carrier has acted diligently, this provision does seem to result in an unfair burden on the carrier. Unfortunately, the legislature has left us with a situation where any decision we make will result in an inconsistency. We have chosen to construe § 440.34(2)(b) consistently with § 440.41 and the purpose of the Workers’ Compensation Act. This interpretation is in keeping with our obligation to construe remedial legislation “in such a manner as to effectuate the purpose ?for which it was enacted.” McDonald, 395 So.2d at 210, citing Gillespie v. Anderson, 123 So.2d 458 (Fla.1960).

AFFIRMED.

MILLS and SHAW, JJ., concur.

      . Section 440.34(2)(b) entitled a claimant to recover attorney’s fees from a carrier or employer:
      “In cases where the deputy commissioner issues an order finding that a carrier has acted in bad faith with regard to handling an injured worker’s claim and the injured worker has suffered economic loss. For purposes of this paragraph, ‘bad faith’ means conduct by the carrier in handling of a claim which amounts to fraud, malice, oppression, or willful, wanton or reckless disregard of the rights of the claimant . . . . ”


source: Caselaw Access Project

license: Public Domain

text:
    Loretta Jean BELL, Alias v. STATE.
    7 Div. 778.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Hubert H. Wright, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Jones, Jr., Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Etowah County returned an indictment against the appellant, Loretta Jean Bell, charging her with the first degree murder of Walter Lee Bell by stabbing him with a knife. Appellant entered a plea of not guilty. A jury found the appellant guilty of murder in the second degree, and fixed her punishment at imprisonment in the penitentiary for twenty years. The trial court entered a judgment in accordance with the verdict, and appellant appeals to this Court.

The appellant was represented at all proceedings in the trial court by counsel of her choice, and is represented in this Court by the same counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in her brief three reasons why her conviction should be reversed. First, the trial court erred to her prejudice by denying her the right to file a motion for a new trial; second, by allowing a signed waiver of her full Miranda rights, and a signed confession to be admitted in evidence; third, by allowing a dying declaration in evidence.

The stabbing of the deceased, who was the husband of the appellant, occurred about 3:00 A.M. on February 11, 1979 at the V.F.W. Club on East Mighan Boulevard in the City of Gadsden, in Etowah County, and he died at 5:46 P.M. the same day. State’s witness, W. A. O’Bryant, a Lieutenant in the Detective Division of Gadsden Police Department, testified, in substance: That around dinner time on February 11, 1979 he went to the home of appellant’s grandmother where the appellant came to the door. That at that time Officer O’Bryant did not know if Mr. Bell was deceased or not. That Officer O’Bryant stated to appellant his official capacity, identified himself to her, and asked if he could come in and talk with her; that she invited him to come in; that he informed her of her rights, and asked her if she understood them; that she stated that she did. He told her she was not under arrest at this time, but that she was a suspect in the investigation of an alleged stabbing. That he would like for her to come to police headquarters and give a statement as to what happened. That she voluntarily said she would. That after a short period of time she came to police headquarters. That Chief Carter of the Gadsden Police Department was in O’Bryant’s office with him when the appellant arrived. That both O’Bryant and Chief Carter explained her rights to her, and she said she understood them, and she voluntarily signed a waiver. That the waiver contains the same rights he gave her at the home where he first saw her on the 11th day of February, 1979. The paper was then handed to the Court Reporter and marked state’s exhibit number one for identification purposes. State’s counsel made known to the court that he intended to introduce state’s exhibit one in evidence. Whereupon, the appellant objected on the ground that the corpus delicti has not been proven. The court sustained the appellant’s objection. Whereupon, the state then put on two witnesses who testified, in substance, that they were present at the V.F.W. Club, and saw the appellant stab the deceased. State then called Dr. B. J. Steinberg, whose qualifications were admitted by appellant, who testified that he was a general surgeon; that he examined the deceased in February of 1979; that he had a stab wound of the chest that perforated his lung. That his lung then collapsed, and he died within hours to a day. That his death was fast.

State’s exhibit one was again offered in evidence. Appellant again objected on the ground that the corpus delicti has not been proven. The trial court overruled the appellant’s objection, and allowed state’s exhibit one to be place in evidence. State’s exhibit one is in words and figures, as follows:

“WAIVER OF COUNSEL OF DEFENDANT IN CUSTODY
“I, Loretta Jean Bell, have been informed by the undersigned law enforcement officers, prior to being questioned by them, that I am suspected of the offense of assault with intent to murder, in Etowah County, Alabama, on the 11th day of February, 1979, and have been informed by them of my rights as follows:
“1. That I may remain silent and do not have to make any statement at all.
“2. That any statement which I might make may be used against me in court.
“3. That I have a right to consult with an attorney before making any statement and to have such attorney present with me while I am making a statement.
“4. That if I do not have enough money to employ an attorney, I have the right to have one appointed by the court to represent me; to consult with him before making any statement; and to have him present with me while I am making a statement.
“5. That if I request an attorney, no questions will be asked me until an attorney is present to represent me. “After having my rights explained to
me, I freely and voluntarily waive my right to an attorney. I am willing to make a statement to the officers. I fully understand my rights to an attorney and I have (read — had read to me) this waiver of counsel and fully understand it. No threats or promises have been made to me to induce me to sign this waiver of counsel and to make a statement to the officers.
“This the 11th day of February, 1979. 12:10 P M.
“Loretta J. Bell
“All of the rights in the above waiver of counsel were read and, explained to the above defendant by me and he freely and voluntarily waived his right to an attorney. No threats, promises, tricks, or persuasion were employed by me or anyone in my presence to induce him to waive his rights to an attorney and to make a statement without an attorney. He freely and voluntarily signed the above waiver of counsel in my presence after having (read-had it read).
“Name Set. W. A. O’Brvant
“Title Detective Division
“Gadsden Police Dept
“Witnessed By:
“Sgt. W. A. O’Brvant
“STATE’S EXHIBIT 1 ”

Officer O’Bryant was recalled by the state, and testified, in substance, the following: That appellant made a written statement to him later that afternoon. Whereupon, the appellant objected to any evidence about the written statement on the ground that the corpus delicti had not been proven. Whereupon, the court inquired of appellant’s counsel, as follows: “Do you want to go outside the presence of the jury?” to which appellant’s counsel answered: “I object to it on the grounds that the corpus delicti has not yet been proven to this jury; that the man died, yes, but the cause of death, no. It is out of order at this point and the procedure is not proper. We object to it.” The court replied, “Subject to being connected up, I will let it in. Overruled.” State’s counsel proceeded with his examination of Officer O’Bryant, and he further testified, in substance, as follows: That he has a written statement which appellant signed. That he typed it as she told it, and she read it, and signed it after her rights were explained to her. That no threats or promises or coercion was made to her to make her sign it. That the statement was given voluntarily. That he has the statement with him.

Whereupon, the statement was marked for identification as state’s exhibit number two by the Court Reporter, and was offered and received in evidence, and is in words and figures, as follows:

“STATE’S EXHIBIT _2
“Date February 11, 1979
“Page No. One
“STATEMENT OF: Loretta Jean Bell B/F 23 520 Pioneer St. East Gadsden Ala. 492-5956
“I am making this statement in regards to the stabbing of my husband Walter Lee Bell on the morning of 2-11-79. I am making this statement after having my rights explained to me. Walter & I are separated and have been for some time. I am presently living with my grandmother and Walter is living with his mother. At approx. 10:00 P.M. I left my house walking and was going to the V F W Club on East Meighan Blvd. A neighbor picked me up and I rode to the Club with him. His name is Rickey Hardy. I got to the Club and went inside. I had been there for approx. 2 hours when I saw Walter and another Dude come in together. Walter never saw me and he went to the Bar. He stayed at the Bar for several minutes and then he came thru walking toward the stage where the Disk Jockey is at. He saw a friend of mine, Geraldine St. George and stopped and talked to her. Walter then saw me and came over to where I was at. I got up and went to the Rest room and when I returned from the restroom, Walter was setting in my chair. He started cursing me and began calling me names such as Bitches & Whores. I did not pay any attention to him. Walter then left the table and went to the dance floor and danced. He stayed away from where I was setting until the Club was ready to close. The Club closes at 3:00 A.M. The Club turned all the lights on and everyone was standing around talking. I walked over near the door and was setting on the edge of a table when Walter came to where I was at. He began to curse me and call me names again. He also shoved me and pushed me. He also swung at me but I dodged the blows and he never struck me. I finally got enough of his doings so I reached down in my blouse inside my Bra and brought out the black handle knife. It is a locked blade and the blade was open. When I went in the club the knife was in my purse. I took it out and opened the knife and placed it inside my Bra. When I reached in my bra and got the open Knife I turned and swung at Walter. The knife stuck in his back. He ran out the door and the knife was still in his back. Walter ran out the door and I did not see him anymore. I then went to the phone and called my Uncle, Lester Pearson. He came and got me and carried me home to my Grandmothers house. I then called the Police and told them what had happened. I gave them
“Loretta J. Bell
“Witness Sgt. W. A. O’Bryant
“Asst Chief N. L. Carter
“Date 2-11-79 Page No. 2
“STATEMENT OF: Loretta Jean Bell (Cont. from page # 1)
“all the information on Walter Lee as best as I could. I also told the Police that I wanted to turn myself in. They said that they would send a car but one never came. I stayed up until after 6:00 A.M. waiting and when the Police never came I layed down. This was all I knew about the stabbing until Sgt. O’Bryant came to my house. He explained my rights to me and then I had my cousin to drive me to Police Headquarters. This statement is true and correct to the best of my knowledge.
“Witness Sgt. W. A. O’Bryant
“Asst. Chief N. L. Carter
Loretta J. Bell”

Later during the trial the state called Dr. Henry D. Santina, who, after stating his qualifications as a doctor and pathologist, testified, in substance, the following: That he is under contract with Alabama Department Of Forensic Sciences to perform forensic autopsies for the State. That on February 13, 1979 he examined the body of the deceased, Walter Bell, who died in February, 1979. That he found two wounds in the left shoulder area. The wound in the front was an inch and a half wide, and the wound in the back was an inch wide. The depth of the wounds were through the entire shoulder, and they met. That the cause of death was a massive hemorrhage from a large vein that crossed beneath the collar bone. That it is called subclavian, sub meaning under the clavian from the clavical, which is the collar bone. The vein was cut about one-half of inferior aspect, and there were about two quarts of blood in the space over here, and there was some of this lighter material of blood. There was a tremendous amount of blood in the left lung area, about two quarts — about a quart and a half. That the effect of that much blood would be that he would be unconscious, and probably dying, and, yes, this blood in that chest cavity would prevent the lung from expanding, and he would have difficulty breathing, but he would have more difficulty from the loss of blood, and would be dying, or would be already dead.

State’s witness, Helen A. Green, testified, in substance, that she was the mother of the deceased. That she saw him at the hospital before his death. That she talked with him about his condition. Whereupon, state’s counsel asked the witness: “What did he say?” The appellant’s objection to the question was overruled, and then Mrs. Green’s answer was: “He told me he was dying.”

State’s witness, Shirley Turner, testified, in substance, the following: That she is a sister of the deceased. That she saw and talked to the deceased while he was in the hospital about his condition. Whereupon, state’s counsel asked: “What did he say to you about his condition?” Whereupon, appellant’s counsel said: “On that predicate I certainly object to it, if it please the court.” The court overruled the objection, and the witness answered. “He told me he was hot, and that he was burning, and that he was going to die.”

Officer O’Bryant was recalled, and testified, as follows:

“LIEUTENANT W. A. O’BRYANT, (recalled) at this time and testified as follows:
“FURTHER DIRECT EXAMINATION
“BY DEPUTY DISTRICT ATTORNEY MOORE:
“Q. Lieutenant, you are still under oath, sir. I want to ask you again did you have occasion to talk with Mr. Walter Bell shortly before his death?
“A. Yes, sir.
“Q. And did he make a statement to you, sir?
“MR. WRIGHT: I object to it, if it please the Court.
“THE COURT: Overrule.
“A. He made a statement to myself and Chief Carter, which the interview was recorded on a mini tape recorder.
“Q. Can you tell us what he said? Have you got any written statement about it?
“MR. WRIGHT: We object to it, if it please the Court. I would like to ask this witness on voir dire two questions.
“THE COURT: All right.
“VOIR DIRE EXAMINATION
“BY MR. WRIGHT:
“Q. Now, Lieutenant, prior to this under oath I believe you testified that we didn’t advise him as to his condition or as to what a dying declaration is. Now, that’s true?
“A. I didn’t. I did not.
“Q. All right, and further: Carter — referring to now Chief Carter who was with you — Carter said it was not a dying declaration as we left the hospital because I just cannot tell a man that he is dying. That’s true, isn’t it?
“A. Yes, sir.
“MR. WRIGHT: All right sir.
“DEPUTY DISTRICT ATTORNEY MOORE CONTINUING WITH DIRECT EXAMINATION:
“Q. But according to Mr. Wright’s statement there Chief Carter did think Mr. Bell was dying?
“A. Yes.
“MR. WRIGHT: I object to what somebody else thought.
“THE COURT: Yes, I sustain.
“DEPUTY DISTRICT ATTORNEY MOORE: Your Honor, he brought it up.
“THE COURT: Well, I sustain what he thought Chief Carter was thinking.
“Q. Do you have notes taken of that interview, sir?
“A. Yes, sir.
“Q. Would you tell us what he said, please?
“MR. WRIGHT: I object to it.
“THE COURT: Overrule.
“MR. WRIGHT: We except.
“A. Can I explain these notes, Mr. Moore?
“MR. WRIGHT: No sir. We object to that.
“THE COURT: Just answer the question.
“A. It was a question and answer.
“MR. WRIGHT: Your Honor, we would like a standing objection to each—
“THE COURT: —All right, you have it, Mr. Wright.
“Q. Okay. Tell us what he said.
“A. Chief Carter asked the question: ‘Walter, can you answer a few questions? Can you tell us a little bit about what happened?’ Bell: ‘Stabbed in the back.’ Chief Carter: ‘Who stabbed you?’ Bell: ‘My wife.’ Chief Carter: ‘What is her name?’ Bell: ‘Loretta.’ Chief Carter: ‘Is it Loretta Jean Bell?’ Bell: ‘Yes.’ Chief Carter: ‘Where did this occur?’ Bell: ‘At the VFW near Glencoe.’ Chief Carter: ‘Can you tell us what happened? Was this last night or early this morning? About what time was it?’ Bell: ‘Late.’ Chief Carter: ‘This is the 11th of February, late last night after midnight. Can you tell us what happened?’ Bell: T was going out the door. She pushed me and threw a knife in my face. I tried to get it and said ain’t no use in fighting. So I walked out the door and I felt something hit me in the back and I folded up. So I pulled it out of my shoulder. I thought it was in my neck so I ran.’ Chief Carter; ‘What did you do with the knife then, Walter?’ Bell: ‘The police got it.’
“Q. That’s enough, I think. You made notes of this conversation?
“A. No, sir, no notes. It was on a tape recorder.
“Q. Okay. Do you have a copy of that, what he said?
“A. No, sir, that is the one I had in the file. There is no other copies.
“Q. That one right there?
“DEPUTY DISTRICT ATTORNEY
MOORE: Your Honor, we would offer that in its entirety as to what Walter Bell said.
“MR. WRIGHT? I object, to it, if it please the Court.
“THE COURT: I sustain.
“DEPUTY DISTRICT ATTORNEY MOORE: Your witness.
“CROSS-EXAMINATION
“BY MR WRIGHT:
“Q. At the time that statement was made neither you or Chief Carter advised him as to a dying declaration as to what it was or what it consisted of or anything else? You just took a statement from the man, right?
“A. I believe I—
“We told him that we wanted to talk to him. As I stated a while ago, Mr. Wright, no, I did not tell him it was a dying declaration.
“Q. And as a matter of fact—
“A. —Neither did Chief Carter, to the best of my knowledge.
“Q. And as a matter of fact when you left the hospital Chief Carter made the statement to you that it was not a dying declaration because I just can’t tell a man he is dying?
“A. I don’t know whether it was those exact words, but it was something—
“Q. —In substance that is what he meant?
“A. That he just couldn’t tell a man he was dying, yes, sir.
“MR. WRIGHT: If it please the Court, we move to exclude any and all evidence relating to this statement made by the deceased.
“THE COURT: Overrule.
“MR. WRIGHT: We except. Are you through with this witness?
“DEPUTY DISTRICT ATTORNEY MOORE: Yes, sir.
“MR. WRIGHT: Subject to recalling him tomorrow maybe.’ ”

The appellant did not deny the stabbing of the deceased. She claimed it was in self-defense. She testified that she went to police headquarters and told Officer O’Bryant what happened, and he wrote it down as she told it to him. She and two other witnesses testified to sufficient facts to present the issue of self-defense to the jury.

The jury returned a verdict finding appellant guilty of murder in the second degree, and fixed her punishment at twenty years in the penitentiary. The court duly sentenced the appellant to twenty years imprisonment in the penitentiary in accordance with the verdict. The appellant then requested the court to furnish her a free transcript, and counsel. This request was refused by the court until such time as the appellant gave notice of appeal. Whereupon, appellant gave notice of appeal, and the trial judge determined she was a pauper, and ordered a free transcript, and appointed counsel to represent her on appeal.

The first error complained of by appellant is that the trial court, after having duly sentenced her, denied her the right to file a motion for a new trial because she was a pauper, and was entitled to a free transcript, and a court-appointed counsel. The trial court refused to order a free transcript, and to appoint counsel to represent her until after she gave notice of appeal as required by law. The appellant being a pauper, and being convicted, and sentenced to the penitentiary, was entitled to a free transcript, and a court-appointed counsel to represent her on appeal, but was not entitled to such relief until after she gave notice of appeal within the time provided by law, 42 days. When an appeal is taken from a judgment in the Circuit Court in a criminal case, the trial court retains jurisdiction for the purpose of granting a motion for a new trial. We hold that the trial court did not err to the prejudice of appellant when it refused to order a free transcript, and to appoint counsel to represent the appellant on appeal until after she gave notice of appeal as is required by law. Appellant was free to file a motion for a new trial as provided by law. Code Of Alabama, 1975, Sec. 12-22-133. The Court notes that the holding in this case on this question is confined to the facts of this case.

The second error complained of in appellant’s brief is that the trial court allowed in evidence, over a timely objection of, and a motion to exclude from the evidence by the appellant, state’s exhibit one, a written waiver of her full Miranda rights signed by the appellant, and state’s exhibit two, a written confession signed by the appellant. At the trial the grounds assigned by appellant to the introduction of state’s exhibits one and two were that the corpus delicti had not been proven.

Without conceding merit to appellant’s second error claiming that the state had failed to make proof of the corpus delicti before the introduction of appellant’s signed confession, we hold that any alleged error for failure to prove the corpus delicti was cured by later proof of the corpus delicti, which made the confession admissible. Laffitte v. State, Ala.Cr.App., 370 So.2d 1108; Certiorari Denied, Ala., 370 So.2d 1111; Cooley v. State, 233 Ala. 407, 171 So. 725; Long v. State, 39 Ala.App. 372, 105 So.2d 136, 268 Ala. 1, 105 So.2d 144; Certiorari Denied, 268 Ala. 692, 105 So.2d 145.

The appellant claims as reversible error that the fact that state’s exhibit one, the written Miranda rights signed by the appellant, was erroneously allowed in evidence because appellant was not specifically advised that she was a suspect of the offense of murder in the first degree for which she was indicted. That she was advised by the officer that she was a suspect for an assault with intent to murder. The evidence before the trial judge sustains his decision that state’s exhibit one contains the necessary Miranda warnings; that they were explained to the appellant; that she freely, and voluntarily, signed the waiver. In addition, appellant testified in her own behalf and freely admitted that she told Officer O’Bryant what had happened, and he wrote it down as she said it, and that she signed state’s exhibit one and two. The appellant did not deny the stabbing of the deceased. She relied on the defense of self-defense.

It was the duty of the trial court to determine that the appellant was not threatened, or coerced in any manner, or promised any reward, or hope thereof, or offered an inducement, to get her to sign the waiver of her Miranda rights, and the confession. The trial court determined that her signatures to exhibits one and two were voluntarily, knowingly, and understandingly, made. This Court has no right to disturb the finding of the trial judge where there is evidence in the record to sustain it.

We hold that the trial court did not err in allowing in evidence state’s exhibit one and two. Hall v. State, Ala.Cr.App., 365 So.2d 1249; Certiorari Denied, Ala., 365 So.2d 1253; Clark v. State, 56 Ala.App. 67, 318 So.2d 813; Myhand v. State, 259 Ala. 415, 66 So.2d 544.

The appellant’s third contention made in her brief is that a dying declaration made by the deceased was admitted in evidence without a proper predicate being laid. It is the duty of the trial judge to determine if the declarant of a dying declaration was in extremis at the time the declaration was made, and if made under a sense of impending death as a result of his wound, and if it is not otherwise objectionable, it should be admitted. In law the sanction of an oath is present. Each case must be considered by the trial judge on its merits. In determining if a declaration should be allowed in evidence, the trial judge should consider statements of the deceased, the nature and gravity of his wounds, his physical condition, the length of time between the infliction of the wound and death, the cause of death, and all other facts tending to prove the state of mind of the deceased at the time the declaration was made. This Court should not disturb the finding of the trial judge if there was sufficient evidence to sustain it. The appellant contended at the trial that it was necessary that Officer O’Bryant and Officer Carter inform the deceased that he was dying at the time, or immediately before he made the declaration to them, for it to be a dying declaration. This is not correct. The deceased had earlier in the day stated to his mother and sister that he was going to die. It was necessary that at the time he made the declaration to 0‘Bryant and Carter that he believed he was going to die as a result of his wound. We hold that there was sufficient evidence before the trial judge to sustain his ruling. Ragland v. State, 238 Ala. 587, 192 So. 498; Sidney v. State, 265 Ala. 136, 89 So.2d 745; Kissic v. State, 266 Ala. 71, 94 So.2d 202, 67 A.L.R.2d 530; Young v. State, Ala.Cr.App., 363 So.2d 1007; Thomas v. State, 31 Ala.App. 1, 9 So.2d 150.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Danny Clifford JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 58559.
    Supreme Court of Florida.
    July 30, 1981.
    Jack O. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, for petitioner.
    Jim Smith, Atty. Gen. and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

The conflict of decisions having been dispelled, the petition is denied. See State v. Segarra, 388 So.2d 1017 (1980).

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


text:
    REESMAR SALES MILLWORK CORP., a Florida Corporation, Appellant, v. BOYNTON BUILDERS SUPPLY, INC., a Florida Corporation, Appellee.
    No. 80-415.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    John H. Duhig, Miami, for appellant.
    Thomas J. Wooley, Jr., and Gene Moore, Boynton Beach, for appellee.
   PER CURIAM.

Appellant sued for goods sold and delivered and services rendered to appellee. In response thereto appellee pleaded an affirmative defense that the goods were defective and counterclaimed for damages incurred as a result of the defective goods. The trial court found the appellant was entitled to recover $3,270.50 on its complaint; that appellee was entitled to recover $5,442.99 on its counterclaim. The trial court, therefore, entered final judgment for appellee for $2,172.49.

Appellant contends that neither the pleadings nor the proof support the final judgment. Our study of the briefs and record compels us to disagree. We find both the pleadings and the proof adequate to support the judgment.

Accordingly, the judgment appealed from is affirmed.

LETTS, C. J., and DOWNEY and MOORE, JJ., concur.


text:
    John Anthony BRADSHAW, Appellant, v. The STATE of Florida, Appellee.
    No. 80-966.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Rehearing Denied March 13, 1981.
    Leonard J. Cooperman, Marathon Shores, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Based on the evidence adduced in this case, the trial court’s instruction to the jury permitting them to consider possession as a lesser-included offense of the charged crime of sale and delivery of a controlled substance was not error. Cf. Anderson v. State, 392 So.2d 328 (Fla. 3d DCA 1981) [the offense of possession under appropriate circumstances may be a category four lesser-included offense of sale under Brown v. State, 206 So.2d 377 (Fla.1968), so as to be excluded from the separate sentencing requirement of Section 775.021(4), Florida Statutes (1979)]. We have considered the other points on appeal raised by appellant and find them to be without merit.

Affirmed.


text:
    Roger JONES, Appellant, v. STATE of Florida, Appellee.
    No. 79-718.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Rehearing Denied Sept. 2, 1981.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed with directions that appellant be granted a new trial in accordance with the Supreme Court’s decision in Tascano v. State, 393 So.2d 540 (1980), rehearing denied February 27, 1981.

ANSTEAD, MOORE and BERANEK, JJ., concur.


author: FERGUSON, Judge.

text:
    George SUNE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1734.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Rehearing Denied Sept. 4, 1981.

      Kurt Marmar, Henry Gonzalez, Goodhart & Rosner, Miami, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

George Sune appeals from conviction and sentencing after he pled nolo contendere to counts of bribery, unlawful compensation and conspiracy. Sune expressly reserved the right to appeal from the court’s denial of his motion to suppress recordings of certain conversations Sun had with a Mario Vega, upon a finding by the trial judge that this motion was dispositive of the case. In exercise of that right, Sune now asks this court to determine whether the tape recordings which were obtained as a result of electronic interception by means of a recording device placed on Sune’s home phone without a warrant or the existence of exigent circumstances, should be suppressed as violative of Article I, Section 12 of the 1968 Florida Constitution.

After reviewing the record, we find ourselves unable to address the merits of Sune’s appeal because the issue is not dis-positive on appeal. Brown v. State, 376 So.2d 382 (Fla.1979); Corraliza v. State, 391 So.2d 330 (Fla. 3d DCA 1980). Where the same information that is available on the recordings which Sune seeks to suppress, could be obtained from the testimony of Vega, the other participant in the recorded conversations, the trial judge clearly erred in finding the issue raised by the motion to suppress dispositive on appeal. See, e. g., Campbell v. State, 386 So.2d 629 (Fla. 5th DCA 1980). See also Brown, supra at 385.

Nor is there any record evidence of a stipulation between counsel for Sune and the State that the ruling on the admissibility of the recordings is dispositive of the appeal which would permit us to reach the merits. Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), affirmed, 392 So.2d 1324 (Fla.1981). See also Basten v. State, 382 So.2d 1362, 1363, n.1 (Fla. 2d DCA 1980).

Appeal dismissed. See Hardison v. State, 385 So.2d 738 (Fla. 2d DCA 1980).


author: McCORD, Judge. McCORD, Judge.

text:
    The BARNETT BANK OF TALLAHASSEE, a Florida banking corporation, Appellant, v. Kenneth R. CAMPBELL, Appellee.
    No. WW-186.
    District Court of Appeal of Florida, First District.
    June 17, 1981.
    Rehearing Denied Aug. 13, 1981.

      John C. Cooper, of Douglass, Davey & Cooper, Tallahassee, for appellant.
    Gordon D. Cherr, of Frates, Jacobs, Far-rar, Novey, Blanton & Poole, Tallahassee, for appellee.
   McCORD, Judge.

This appeal is from a final judgment denying appellant Bank’s claim for a deficiency judgment on a promissory note. We affirm.

The note in question was executed by Campbell Mechanical Services, Inc. (by its president, appellee). Appellee, individually, was a co-maker, endorser and guarantor of the note which was secured by certain business equipment and seven motor vehicles. Campbell Mechanical Services thereafter filed bankruptcy and defaulted on the note. Appellant Bank took possession of the collateral pursuant to a bankruptcy court order, and disposed of it in two private sales — one was to appellee of miscellaneous equipment and the other disposed of the motor vehicles to Tallahassee Motors. The second sale is the subject of this dispute.

After disposition of the collateral, the Bank sought a deficiency judgment against appellee. In defense at the trial, appellee disputed the reasonableness of the notice of the sale of the motor vehicles and the commercial reasonableness of the conduct of the sale. He denied that appellant Bank complied with notice requirements of Florida law.

Mr. Sims, a loan officer of the Bank, testified that he told appellee in September 1976 that the Bank intended to sell the collateral. On December 13,1976, appellant Bank sent written notice to appellee at 160 S.W. Capital Circle of its intent to sell the motor vehicles after December 23, 1976. The notice letter was returned to the Bank undelivered. The actual address of appel-lee’s place of business is 160 Vfe S.W. Capital Circle. (Some of appellee’s equipment apparently was stored at 160 S.W. Capital Circle, but that is a separate parcel of property and a different building.) The address on the note and security agreement is 4386 Shelfer Road. Neither the note, the security agreement nor the guaranty signed by appellee listed a personal address for him. Since 1971 or 1972 when Campbell Mechanical Services began to do business with the Bank, its mailing address has been P. O. Box 5738, Tallahassee. Also since 1971 or 1972, appellee had his personal checking account with appellant Bank, and at all times his personal address was listed with the Bank as P.O. Box 5741.' The address to which the notice was sent to appellee appears on the business stationery of Campbell Mechanical Services (the bankrupt corporation) and was the address listed on the corporation resolution authorizing loans from appellant Bank signed by appellee. The Bank made no further effort to contact appellee even though it had the other addresses mentioned above and knew that ap-pellee’s attorney’s office was in the same office building as the Bank.

The note signed by appellee stated in part that he:

.. . consents that from time to time, without notice to the undersigned and without affecting any liability of the undersigned, (a) any collateral for payment of this note may be exchanged, released, surrendered, sold (by foreclosure or otherwise) applied or otherwise dealt with at the election of the holder . . .

Appellee also signed a separate letter of guaranty waiving the right to notice, which stated in part:

Guarantor agrees to pay and discharge each such indebtedness and obligation of debtor to bank when due, in accordance with the terms of the obligation and hereby waives all notice of acceptance of this guaranty, notice of demand, maturity, payment or default of any indebtedness and any other requirement or notice necessary to bind the guarantor hereunder.

The trial court refused to grant a deficiency against appellee, finding that appellant Bank did not give appellee reasonable notice of the sale; that appellant sent notice to an address that was not the address furnished to appellant nor was it on the contract or on appellant’s record; that appellant was in communication with appel-lee’s attorney, whose office was in the same building with appellant and had a correct address for appellee in its records but, unreasonably, made no further effort to notify appellee of the impending sale; that appellant Bank knew appellee wished to reacquire the collateral; that appellee had no knowledge of the date after which the sale would take place. The trial court also found that the- sale was conducted in a commercially reasonable manner and that appellee knew appellant Bank would have to sell the collateral if appellee did not make arrangements to reacquire it.

This case is controlled by our opinion in Barnett v. Barnett Bank of Jacksonville, N.A., 345 So.2d 804 (Fla. 1st DCA 1977). There, we pointed out that § 679.-501(3), Florida Statutes, provides that §§ 679.504(3) and 679.505(1), which deal with the disposition of collateral, may not be waived; that § 679.504(3) provides in part as follows:

Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor . . .

A guarantor is a debtor under the definition of debtor set forth in § 679.105(l)(d). Hepworth v. Orlando Bank & Trust Company, 323 So.2d 41 (Fla. 4th DCA 1975). The failure of the secured party to give the requisite notice prior to a sale or disposition of the collateral precludes an action for deficiency against the guarantor.

Appellant Bank contends that this Court’s opinion in Fewox v. Tallahassee Bank & Trust Company, 249 So.2d 55 (Fla. 1st DCA 1971), should control this case. Unlike the case sub judice, however, Fewox did not involve a security agreement and the unwaivable notice required to be given to debtors of sale of the collateral. The trial court’s finding that appellant Bank did not give appellee reasonable notice of the sale is supported by competent substantial evidence, and the trial court was correct in refusing to grant a deficiency. Compare In Re Carter, 511 F.2d 1203 (9th Cir. 1975).

AFFIRMED.

SHIVERS and JOANOS, JJ., concur.

ON MOTION FOR REHEARING

McCORD, Judge.

On motion for rehearing, appellant, among other contentions, states that our opinion failed to consider the holding in Bondurant v. Beard Equipment Company, 345 So.2d 806 (Fla. 1st DCA 1977), in that Bondurant ruled that a written notice of private sale of collateral is not a requirement for obtaining a deficiency judgment against the debtor. Appellant misconstrues our opinion in the case sub judice in this regard. It does not hold that a written notice of private sale of collateral is required. It does hold that reasonable notice of the sale of collateral is required, and Bondurant is in accord with that holding. Under the particular circumstances of the case sub judice, reasonable notice was not given. The two cases are thus factually distinguishable.

Motion for rehearing is denied.

SHIVERS and JOANOS, JJ., concur.


text:
    FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Angel DE JESUS and Zaida Riveria De Jesus, Appellees.
    No. 80-886.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Rehearing Denied Sept. 4, 1981.
    Demos, Carter & Dougherty and James Dougherty, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Grover, Ciment, Weinstein & Stauber, Miami Beach, for appellees.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

In this appeal from a final judgment confirming an arbitration award of $4,000 rendered against it, Fidelity & Casualty Company of New York claims the trial court lacked jurisdiction to confirm the arbitration award and erred in taxing arbitration costs of $395.00 against Fidelity. We affirm. Because there is no requirement that a petition to confirm an arbitration award be filed within ninety days after receipt of the award, the trial court had jurisdiction. Travelers Insurance Co. v. Allen, 356 So.2d 1287 (Fla.3d DCA 1978), cert. denied, 364 So.2d 893 (Fla.1978). See, e. g., §§ 682.13, 682.14, Fla.Stat. (1979) (motion to vacate, modify or correct arbitration award must be filed within ninety days) (emphasis added).

We affirm also the award of arbitration costs on the authority of State Farm Mutual Automobile Insurance Co. v. Rutkin, 199 So.2d 705 (Fla.1967). See Government Employees Insurance Co. v. Lang, 387 So.2d 976 (Fla.2d DCA 1980); Eagle Star Insurance Co. v. Parker, 365 So.2d 780 (Fla.4th DCA 1978); McNair Continental Insurance Co., 245 So.2d 634 (Fla.lst DCA 1971). To the extent that our holding is inconsistent with American Service Mutual Insurance Co. v. Wilson, 323 So.2d 645 (Fla.3d DCA 1975), we recede from our holding in Wilson, supra.

Affirmed.


author: COBB, Judge.

text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH CO., a New York Corporation, Appellant, v. G. Troy RAY, Jr., as Tax Collector of Seminole County, Florida, Appellee.
    No. 81-17.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.
    Rehearing Denied Aug. 13, 1981.
    William B. Barfield, Miami, Nathan H. Wilson, Jacksonville, William H. Adams, III of Mahoney, Hadlow & Adams, Jacksonville, and Drury B. Thompson, Atlanta, Ga., of counsel, for appellant.
    Nikki Clayton, County Atty. for Seminole County, and Robert A. McMillan, Asst. County Atty. for Seminole County, Sanford, for appellee.
   COBB, Judge.

This appeal involves a dispute between the telephone company and the county tax collector as to the legal rate that the county may charge as an occupational license tax. Both parties below, Southern Bell Telephone & Telegraph Company and Ray, as Tax Collector of Seminole County, moved for summary judgment. The trial court agreed with the tax collector’s interpretation of the disputed statute, and entered summary judgment in his favor.

The State of Florida has levied occupational license taxes upon a variety of businesses and occupations since 1891. The state charged telephone companies a license fee of $100 unless the company’s lines were only twenty-five miles or less, in which case its license fee was $25.00. Ch. 4010, § 9(16), Laws of Fla. (1891). In 1913, the State of Florida began taxing individual telephones rather than telephone lines. The state imposed a license tax on telephone systems in the amount of ten cents for the first one thousand phones, eight cents for the second one thousand phones, and six cents for all phones over two thousand. Ch. 6421, § 54, Laws of Fla. (1913). The rate of taxation on telephone systems remained at this amount until 1967. See § 987, Fla.Stat. (1920); § 1260, Fla.Stat. (1927); § 205.57, Fla.Stat. (1965).

In 1967, the rate at which the license tax for telephone systems was computed was raised to fifteen cents for the first one thousand phones, twelve cents on the second one thousand phones, and nine cents for each phone over two thousand. § 205.-512, Fla.Stat. (1967). In 1972, the State of Florida repealed the state’s authority to collect occupational license taxes and enacted a new chapter authorizing county governments to collect such taxes. Ch. 72-306, Laws of Florida (1972). This new legislation prohibited the counties from levying any occupational license tax at a rate greater than that “provided by Chapter 205 in effect for the year beginning October 1, 1971.” § 205.033(l)(b), Fla.Stat. (Supp. 1972).

In 1980, the Florida Legislature amended section 205.033 by adding the following language:

However, beginning October 1, 1980, the county governing body may increase occupational license taxes authorized by Chapter 205. The amount of such increase above the license tax levied on October 1, 1971, may be up to 100% for occupational license taxes which are $100 or less; 50% for occupational license taxes which are between $101 and $300; and 25% for occupational license taxes which are more than $300. Such authority to increase occupational license taxes shall not apply to licenses granted to any utility franchised by the county for which a franchise fee is paid.

§ 205.033(l)(b), Fla.Stat. (Supp.1980). This amendment to the statute took effect on July 1, 1980.

On August 26, 1980, the Seminole Board of County Commissioners passed an ordinance that raised the occupational license tax on telephone systems to twenty-three cents on the first one thousand phones, eighteen cents on the second one thousand phones, and fourteen cents on each phone over two thousand. Seminole County Ordinance No. 80 — 40. The ordinance was to take effect on October 1, 1980.

On October 3, 1980, Southern Bell Telephone and Telegraph Co. filed a complaint for declaratory judgment and injunctive relief against Ray, as Tax Collector of Seminole County. The complaint alleged that the ordinance passed by Seminole County provided for the taxation of telephone systems at a rate higher than that allowed by the newly-amended section 205.033(l)(b), because the license tax paid by Southern Bell Telephone and Telegraph Co. was more than $300 and, therefore, any increase should be limited to 25% under the statute. The tax collector, on the other hand, successfully contended before the trial court that since the 1971 rate for all phones was less than $100 per phone, the statute authorized it to increase the rate per phone by 100% — or, in other words, to double the rate ' per phone in computing the occupational tax.

This is a statutory interpretation issue. Southern Bell argues that the word “tax” as used in section 205.033(l)(b) means “the total amount of tax,” while Ray, as Tax Collector of Seminole County, argues that the word “tax” as used in the statute refers to the “tax rate.”

The principles governing the construction of statutes generally apply in the construction of license tax statutes. City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla.1950). Such statutes are penal in nature and therefore strictly construed against the government. Texas Co. v. Amos, 77 Fla. 327, 81 So. 471 (1919). The construction urged by Southern Bell is sensible and consistent with the plain meaning, as strictly construed, of the 1980 amendment of section 205.033: the term “license tax levied on October 1, 1971” means the amount of such tax rather than the rate of such tax. If the Legislature had intended the amendment to authorize an increase based on existing tax rates of telephone systems in 1971, it would have been a simple matter to have so stated in the amendment. Since the Legislature did not do so, this court should not violate a basic precept of statutory construction to accomplish that end. Based on the 1980 amendment, the rate for the first one thousand phones cannot exceed .1875 cents; the rate for the second one thousand phones cannot exceed fifteen cents; and the rate for phones over two thousand cannot exceed .1125 cents.

Accordingly, the judgment below is reversed and this cause remanded for entry of judgment consistent with this opinion.

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

      . Lachman v. Walker, 52 Fla. 297, 42 So. 461 (1906).


text:
    CITY OF MIAMI BEACH, a Florida municipal corporation, Appellant, v. Bertram M. GERSON, Clara D. Clements and Beatrice Wolland, and Amelia King Buckley, Appellees.
    No. 80-1837.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied Sept. 1, 1981.
    John A. Ritter, City Atty., Dubbin, Schiff, Berkman & Dubbin and Andrew H. Moriber, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and George B. Foss, Jr., Henry R. Carr; W. F. Esslinger, Miami, for appel-lees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Huntley v. Baya, 136 So.2d 248 (Fla. 3d DCA), cert. denied, 143 So.2d 492 (Fla.1962).


text:
    Ernest THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1225.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied Sept. 4, 1981.
    Ernest Thomas, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), appeals from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850. This is the second time this case has been before this court on appeal from a denial of motion to vacate pursuant to Fla.R.Crim.P. 3.850. The argument raises five points on appeal; they are all basically a reargument of the first appeal and are hereby summarily denied on the authority of Doerr v. State, 275 So.2d 592 (Fla. 4th DCA 1973); Clements v. State, 310 So.2d 420 (Fla. 3d DCA 1975); Neal v. State, 349 So.2d 844 (Fla. 2d DCA 1977).

Affirmed.

      . See: Thomas v. State, 390 So.2d 104 (Fla. 3d DCA 1980).


text:
    The STATE of Florida, Appellant, v. Virchus Dane TILLMAN, Appellee.
    No. 80-2269.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied Aug. 25, 1981.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Carl L. Masztal, Miami, for appellee.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

The State appeals an order of suppression. The State concedes that the findings in the trial court’s order concerning the illegality of the initial stop of the defendant are correct, and that the trial court acted properly in suppressing the fingerprint evidence actually seized during the course of the stop and detention. The trial court’s order also suppressed the defendant himself and does not specify whether its suppression of “fingerprints” and “fingerprint standards” applies to latent or standard fingerprints, which were obtained prior to the defendant’s illegal stop and detention, or to new standards which may be sought by the State pursuant to Fla.R.Crim.P. 3.220(b)(l)(iii).

An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution nor as a defense to a valid charge. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1836). The defendant himself is not considered as suppressible fruit and the illegality of his initial stop and detention by the Public Safety Department officers and detectives does not deprive the State of an opportunity to prove his guilt through evidence which is not tainted by police misconduct. See: United States v. Crews, supra.

The fingerprint standards, which were taken from the defendant on the field strip during the course of his illegal stop and detention, were properly suppressed. However, so much of the order which suppresses the defendant’s “fingerprints” and “fingerprint standards” is too broad and should not include pre-existing latent fingerprints or fingerprint standards which are obtained independent of the illegal stop, whether they are currently in existence or will be taken in the future.

The order also should not suppress the latent fingerprints which were taken from the scene of the burglary and grand theft in the instant cause. The defendant does not have standing to suppress the latent prints which were taken from the victim’s property. The defendant has not shown that he had any reasonable expectation of privacy or interest of possession or ownership in the premises from where the latent fingerprints were lifted. See: Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 386 (1978); United States v. Sal-vucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619, (1980); Mixon v. State, 51 So.2d 190 (Fla.1957); Brown v. State, 245 So.2d 68 (Fla.1971). The police had lawfully obtained the latent prints from the crime scene prior to the defendant’s illegal stop and detention. The latents in the instant case were, in fact, matched to already existing fingerprint standards of the defendant. Since the illegally obtained fingerprints taken on the field strip were not the only link between the defendant and the burglary and grand theft in the instant cause, it is clear that routine investigatory procedure would have led to the inevitable link between the defendant and the instant crimes. See: United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1978).

The exclusionary rule enjoins the government (or State) from benefiting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality. United States v. Crews, supra. Also see: State v. Traas, 343 So.2d 1294 (Fla.2d DCA 1977); State v. Jackson, 240 So.2d 48 (Fla.3d DCA 1970).

Therefore, so much of the order under review that suppresses more than the fingerprints taken on the “field strip” is reversed.

Affirmed in part, reversed in part.


text:
    Conchita PALMAR, Appellant, v. Emilio PALMAR, Appellee.
    No. 80-1496.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied Aug. 25, 1981.

      Prunty, Ross, Olsen & Israel and John W. Prunty; Harold Peter Barkas, Miami, for appellant.
    Koeppel, Stark & Newmark and Gary M. Carman, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The wife appeals and the husband cross-appeals from a final judgment of dissolution of marriage, the wife contending there is insufficient evidence to support the awards for child support, attorney’s fees, and lump-sum alimony, and the husband contending that there was no valid marriage and no justification for the lump-sum alimony award of $37,000.

Conchita and Emilio Palmar were first married on July 5, 1974. That marriage was dissolved on September 30, 1974. On June 11,1978 the parties were re-married in Las Vegas, Nevada, a marriage the husband claims was never consummated. Prior to and during the interval between the two marriages, the parties shared a relationship with the husband providing support for the wife and a child born to the couple sixteen years before dissolution of the second marriage on May 29, 1980.

The husband stipulated to his financial ability to pay any award determined reasonable by the court and we find no error in denying the wife discovery of husband’s financial assets. The husband also stipulated that he would pay tuition for a private high school and for four years of college including travel and expenses. Where neither party objected to the use of proffers by counsel as a means of determining child support, we may not consider the issue raised for the first time on appeal. See, e. g., Hartley v. Florida East Coast Railway Co., 339 So.2d 630 (Fla.1976); Johnson v. RCA Corp., 395 So.2d 1262 (Fla.3d DCA 1981); Allender v. First Federal Savings & Loan Association of Titusville, 389 So.2d 1226 (Fla.5th DCA 1980); Jaruagua Enterprises, Inc. v. Dom, Inc., 339 So.2d 702 (Fla.3d DCA 1976). Nor do we find here a fundamental error justifying exception to the above rule. Sanford v. Rubin, 237 So.2d 134 (Fla.1970).

We find no error in the trial court’s determination that a valid, if short-lived, marriage was entered into by the parties on June 11, 1978.

The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose including an award of lump-sum alimony. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no findings of an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Where the record brought forward by appellant is inadequate to demonstrate reversible error the trial court should be affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

We cannot find an abuse of discretion in the $7,500.00 award of attorney’s fees to wife where counsel for the parties stipulated that such an award was reasonable and the record shows the attorney filed a complaint, an amended complaint and motions on behalf of the wife and participated in two proceedings before the circuit court of Dade County on behalf of the wife.

Affirmed.

      . It is unclear whether the stipulation is limited to an award for child support.


author: NESBITT, Judge.

text:
    William RAFKIND, Robert Macht and Lee Lebow, Appellants, v. Sue Ann SIMON, as Personal Representative of the Estate of George A. Simon, Deceased, Appellee.
    No. 80-2028.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied Sept. 4, 1981.

      Tobin, Bayer & Jacobson and Theodore R. Bayer, Miami, for appellants.
    Herbert A. Warren, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   NESBITT, Judge.

This appeal presents the question of whether a partner may assign his interest in a partnership without obtaining consent of the remaining partners where the joint venture agreement prohibits such an assignment without consent. We find that he may not and affirm the declaratory judgment entered on the appellee’s permissive counterclaim.

In this case, the appellee’s decedent misappropriated funds entrusted to him by the appellants. In an attempt to make restitution, he assigned to them his partnership interest in a joint venture agreement. Under the joint venture agreement, an assignment was prohibited without the written consent of a majority of the partners. Appellants then sought consent of the remaining partners to the assignment. Although more biographical and financial information was requested by the remaining partners, no consent was given prior to the decedent’s death.

We begin our analysis by recognizing the common law rule that a contractual provision against the assignment of the contract will usually be regarded as an effective restriction. Health Application Systems, Inc. v. Hartford Life and Accident Insurance Company, 381 So.2d 294 (Fla. 1st DCA 1980); Troup v. Meyer, 116 So.2d 467 (Fla. 3d DCA 1959). It is true, as appellants urge, that Section 620.69(1), Florida Statutes (1979) purportedly authorizes a partner to assign his profits in a partnership and that, under 620.69(2), an assignee becomes entitled to receive the assignor’s interest in the partnership upon dissolution of the partnership. However, this right is not absolute. As indicated by Section 620.-645, Florida Statutes (1979), which sets forth the rules for determining the rights and duties of partners, those “rights and duties of the partners in relation to the partnership shall be determined subject to any agreement between them, by the following rules: . . .. ” [emphasis supplied]. As indicated by the italicized portion, the common law rule prohibiting the assignment remains when properly incorporated into the articles of partnership as was done in this case.

Appellants argue that, since Section 620.695, Florida Statutes (1979), allows a judgment creditor to subject a partner’s interest to a charging lien, Section 620.69 should be interpreted to permit an assignment of a partner’s interest irrespective of any prohibition in the agreement between the partners. It is maintained that they may accomplish the same objective by obtaining a judgment against the partner’s interest. The answer to this contention is that the Legislature has chosen not to treat assignees the same as judgment creditors, and this is so perhaps because the Legislature is cognizant that it is powerless to altogether oust the courts from their jurisdiction to protect the judgment creditor.

In the alternative, the appellants contend, as between the immediate parties, that the decedent’s personal representative is estopped to deny her decedent’s assignment. They correctly rely upon Davis v. Evans, 132 So.2d 476 (Fla. 1st DCA), cert. denied, 136 So.2d 348 (Fla.1961) for the proposition that an estoppel which would have bound a decedent binds his personal representative. In this case, it is readily apparent that the appellants, as purported assignees, were well aware of the prohibition against the decedent’s assignment of his partnership interest. This is evident by their request for the requisite consent from the remaining partners. It is established that there can be no estoppel where there has been no reliance. 22 Fla.Jur.2d Estop-pel and Waiver, § 54. In this case, because the parties had equal knowledge and the same means of ascertaining whether the partnership interest could be assigned, there can be no estoppel. Overstreet v. Bishop, 343 So.2d 958 (Fla. 1st DCA 1977).

Affirmed.

      .This was called a joint venture agreement, which is similar to a partnership agreement, and is governed by the Uniform Partnership Act, § 620.56, et seq., Fla.Stat. (1979). See, §§ 620.585 and 620.59, Fla.Stat. (1979); Proctor v. Hearne, 100 Fla. 1180, 131 So. 173 (1930); Deal Farms, Inc. v. Farm & Ranch Supply, 382 So.2d 888 (Fla. 1st DCA 1980); In re Buchman, 600 F.2d 160 (8th Cir. 1979).

      . As to the appealability of permissive counterclaims, see, S. L. T. Warehouse Company v. Webb, 304 So.2d 97 (Fla. 1974); Mendez v. Flagler Family Association, Inc., 303 So.2d 1 (Fla. 1974); Travelers Express, Inc. v. Acosta, 397 So.2d 733 (Fla. 3d DCA 1981).

      . Though not dispositive in this case, the death of a partner ordinarily causes the dissolution of the partnership. § 620.71(4), Fla.Stat. (1979).


text:
    EXECUTIVE CENTERS OF AMERICA, INC., Appellant, v. DURABILITY SEATING & INTERIORS, INCORPORATED, Appellee.
    No. 80-1339.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Sept. 1, 1981.

      Holland & Knight and Thomas K. Equels, Coral Gables, for appellant.
    Daniel P. Tunick, Miami, for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

This is another case challenging the award of an attorney’s fee pursuant to Section 57.105, Florida Statutes (Supp.1978) which requires a showing by the prevailing party that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. The trial court entered an order authorizing attorney’s fees. By additional orders a motion for rehearing or consideration was denied and a judgment for attorney’s fees in the amount of $3,700 was entered in favor of appellee, Durability Seating & Interiors, Inc. This appeal is from the several orders. We reverse.

Executive Centers of America, Inc. (ECA) is the landlord in an industrial complex where Durability Seating and Interiors, Inc. (DSI) is a tenant. ECA brought suit against DSI alleging breach of the lease agreement and fraud in the inducement. Simultaneously ECA filed a motion for temporary restraining order on October 11, 1979 seeking to freeze funds of DSI on deposit with Plaza Bank. Plaza Bank, also a creditor of DSI, on becoming aware of the lawsuit and pending motion accelerated the maturity date on its loan to DSI and offset the balance of the loan against all funds of DSI which Plaza Bank held in checking accounts. The effect of the bank’s unexpected action was to render moot ECA’s motion for temporary restraining order.

ECA’s motion for injunction was noticed for immediate hearing, and an injunction issued on October 19,1979, conditioned upon ECA executing and filing a bond. Plaza Bank filed an answer saying that it had no property of DSI in its hands, possession or control.

On October 25, 1979, DSI moved to dissolve the injunction. On November 30, 1979, ECA took a voluntary dismissal of the underlying suit for breach of the lease agreement and fraud. On December 13, 1979 the court entered an order terminating the injunction for the reason that “Plaintiff has heretofore filed its voluntary dismissal.... ” A subsequent order dated December 17, 1980 purports to also terminate the injunction for the same reason.

On April 29, 1980 the trial court entered its order authorizing attorney’s fee pursuant to Section 57.105, Florida Statutes (Supp.1978), finding that “Defendant was the prevailing party in this cause and . . . there was a complete absence of a justicia-ble issue of either law or fact raised by the Plaintiff ... in the obtainment of the injunction which was subsequently terminated.”

An award of attorney’s fees under Section 75.105 is justified only if there is a total or absolute lack of justiciable issue. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980), pet. for rev. denied, 392 So.2d 1373 (Fla.1980). See also Denes and Denes & Associates, Inc. v. Walter E. Heller & Co. of Florida, Inc., 396 So.2d 760 (Fla. 3d DCA 1981); T.I.E. Communications Inc. v. Toyota Motors Centers, Inc., 391 So.2d 697 (Fla. 3d DCA 1980); Hernandez v. Leiva, 391 So.2d 292 (Fla. 3d DCA 1980).

The court had before it at the hearing on the motion for temporary restraining order, the complaint, an affidavit in support of the motion, and counsel for the respective parties. It was “after argument of counsel for the respective parties,” and “on consideration thereof,” that the injunction issued. At that stage of the proceedings ECA was the prevailing party and it must be assumed that ECA had demonstrated to the court that it was entitled to the extraordinary relief sought. The record is void of anything to the contrary.

ECA’s taking of an involuntary dismissal without prejudice cannot be deemed evidence that the complaint and motion for restraining order are totally devoid of merit. Such a dismissal does not go to the merits of the case. Fla.R.Civ.P., 1.420(a); Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978). Even a voluntary dismissal with prejudice is alone insufficient to support a finding by the court that there is a complete absence of a justiciable issue. Holding a party liable for attorney’s fees solely because they bring a law suit and then take a voluntary dismissal would have the deleterious effect of discouraging parties from seeking voluntary dismissals and is not what is contemplated by Section 57.105.

Granting a plaintiff a temporary injunction after a hearing with notice is clearly inconsistent with a finding of total lack of justiciable issue. Further, we reject ap-pellee’s contention that for the purpose of determining whether appellant raised a jus-ticiable issue of either law or fact in this civil action, the court should disregard the underlying suit for alleged breach of contract and fraud, and look only to the injunction. If the injunction were wrongfully obtained by ECA resulting in damage to DIS, the remedy is an independent action against the injunction bond. Rice v. White, 147 So.2d 204 (Fla. 1st DCA 1962).

Reversed.

      . The parties disagree as to whether the injunction order was signed before the hearing. It is clear however that it was not filed until after-wards.

      . Quotes taken from order granting injunction.


text:
    In re The ESTATE OF Morris SIMON, Deceased. Dr. Sidney SCHREIBER, as Administrator of the Estate of Pearl Simon, Deceased, Appellant, v. Alfred R. PALMER, Appellee.
    No. 80-1535.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Sept. 4, 1981.

      Golding & Wagenheim and Sheldon Golding, Fort Lauderdale, for appellant.
    Erstling & Erstling and Julius H. Ers-tling, South Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Dr. Sidney Schreiber, as administrator for the estate of Pearl Simon, appeals from a circuit court order awarding a fee of $25,000.00 to appellee, Alfred R. Palmer, for services rendered as curator, personal representative and attorney to the estate of Morris Simon.

Morris Simon died at the age of eighty-six at a hospital on Miami Beach, Florida, without any known heirs. The estate consisted solely of $77,471.11 cash. Attorney Palmer as curator arranged for the funeral and canvassed area banks to locate assets. A wallet containing an identification card listing the name and address of Pearl Simon was found among Simon’s personal effects. After writing to that address, attorney Palmer received notice from attorney Milton Blum of Chicago, Illinois identifying Pearl Simon as the widow of Simon and stating that she was in extremis. Attorney Palmer then ascertained through questioning Blum as to the possibility of children and divorce from Simon, that Pearl was the sole heir of the decedent.

Palmer filed a petition for fees for his services as curator, personal representative, and attorney but did not notify Pearl or attorney Blum of this petition as required by Section 733.106(3), Florida Statutes (1979).

Palmer testified that he worked 150 hours on the estate, 50 of which were time spent by a paralegal. Palmer testified that his usual fee is $125.00 per hour for routine work. This would amount to a fee on a straight hourly basis of $18,750.00. There was also expert testimony that a fee between $30,000.00 to $32,000.00 would be appropriate for Palmer in this case.

An award of attorney’s fees with respect to services rendered in connection with an estate is not to be overturned without a showing of abuse on the part of the trial court. Estate of Granger, 391 So.2d 311 (Fla. 4th DCA 1980) (no abuse where complex lawsuit involved novel questions); Estate of McCune, 223 So.2d 787 (Fla. 4th DCA 1969).

Though the trial judge correctly determined that he was not bound by the testimony of the expert witness as to the amount of reasonable fees, Estate of Ryecheck, 323 So.2d 51 (Fla. 3d DCA 1975), we hold that the court abused its discretion in awarding $25,000.00 fees to Palmer where the estate consisted solely of cash, there was no complex litigation, the estate was admittedly not complicated and the discrepancy between the amount of the award and the number of hours spent times the stated hourly rate is not explained.

Reversed and remanded with instructions to compensate appellee for his services at a rate to be determined as provided in Section 733.617, Florida Statutes (1979).


text:
    Francisco GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1735.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Sept. 1, 1981.
    Katz & Marmar and Kurt Marmar, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

No error has been demonstrated in the judgment and three year minimum mandatory sentence imposed for aggravated battery with a firearm, which are therefore affirmed. See Jenrette v. State, 390 So.2d 781 (Fla. 3d DCA 1980). The conviction for possession of a firearm in the commission of the aggravated battery is reversed. State v. Pinder, 375 So.2d 836 (Fla.1979); Thompson v. State, 397 So.2d 354 (Fla. 3d DCA 1981); Jenrette v. State, supra; Hegstrom v. State, 388 So.2d 1308 (Fla. 3d DCA 1980), review granted, Fla., Case no. 59,893, January 26, 1981.

Affirmed in part, reversed in part.


text:
    Johnnie Lee JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1390.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Rehearing Denied Aug. 26, 1981.
    Johnnie Lee Jones, in pro. per.
    Jim Smith, Atty. Gen., for appellee.'
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that Petitioner is entitled to no relief, the denial of his motion is affirmed. The improper prosecutorial comments did not constitute fundamental error and were waived by Jones’ failure to move for a mistrial. State v. Cumbie, 380 So.2d 1031 (Fla.1980).

Affirmed.


author: SCHWARTZ, Judge.

text:
    Jose MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2002.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Rehearing Denied Sept. 1, 1981.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

The trial judge denied the defendant’s Fla.R.Crim.P. 3.850 motion without an evi-dentiary hearing. The record before us does not conclusively refute the motion’s sworn allegations (a) that he was given erroneous advice by appointed counsel concerning the non-existence, under the law, of his alleged defense of self-defense to the charges against him, see State v. Lyles, 316 So.2d 277 (Fla.1975); Giles v. State, 363 So.2d 164 (Fla. 3d DCA 1978); and (b) that, in pleading guilty, he was not informed and did not understand that he was waiving his right to trial by jury. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Weeks, 166 So.2d 892 (Fla. 1964); Sharp v. State, 303 So.2d 56 (Fla. 4th DCA 1974); Clark v. State, 256 So.2d 551 (Fla. 4th DCA 1972). Therefore, the order under review is reversed in part and the cause is remanded for an evidentiary hearing on these issues alone.

      . We repeat our admonition in Giles v. State, 363 So.2d 164, 166 (Fla. 3d DCA 1978) as to the consequences of a determination that any of these statements were untrue.

      . The other grounds in the motion were refuted by the contents of the plea colloquy.


author: ORFINGER, Judge.

text:
    Felton J. FUTRELL, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-299, 79-300 and 80-1362.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.
    Rehearing Denied Aug. 12, 1981.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara A. Butler, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant is correct in his position that because he is a juvenile he was entitled to be sentenced under the procedures specified in section 39.111(6), Florida Statutes (1979), which requires, among other things, the pri- or receipt and consideration of a predisposition report, notwithstanding the fact that his prosecution was initiated by direct information. See Austin v. State, 400 So.2d 495 (Fla. 5th DCA 1981). The sentences are therefore vacated and the cause is remanded with directions to resentence the defendant in accordance with the cited statute.

Sentence VACATED and REMANDED.

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


text:
    Anthony James MELTON, Appellant, v. STATE of Florida, Appellee.
    No. XX-255.
    District Court of Appeal of Florida, First District.
    July 17, 1981.
    Rehearing Denied Sept. 1, 1981.
    Michael Allen, Public Defender and Melanie Hines Alford, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

In view of the trial court’s instruction to the jury, we do not find the remarks of Assistant State Attorney Harry Harper to the jury in his closing argument to require reversal. These remarks were as follows:

Now, I don’t know if any of y’all have been watching any of the other trials in this Courtroom, but one of the amusing things about defending cases, criminal cases and whatnot, the defense lawyers in wanting to defend their clients, is some of the argument they will come up with just to try to thwart the jury using common sense.

As in Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973), and Simpson v. State, 352 So.2d 125 (Fla. 1st DCA 1977), however, such remarks constitute a gratuitous insult to the adversary system of justice which the prosecutor serves, are highly improper and unethical.

AFFIRMED.

McCORD and SHIVERS, JJ., and LILES, WOODIE A., (Retired) Associate Judge, concur.


author: PER CURIAM. BASKIN, Judge

text:
    Harvey ROBBINS, Esq., Petitioner, v. The Honorable George ORR, Judge of the Circuit Court of the 11th Judicial Circuit, Respondent.
    No. 81-860.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Rehearing Denied Sept. 4, 1981.
    James P. Ryan, North Miami, for petitioner.
    Robert A. Ginsburg, County Atty., and Roy Wood, Asst. County Atty., for respondent.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Prohibition denied. State ex rel. Sarasota County v. Boyer, 360 So.2d 388 (Fla.1978); State ex rel. Losey v. Willard, 54 So.2d 183 (Fla.1951).

BASKIN, Judge

(dissenting).

After the trial court entered an order granting return of their money, defendants assigned to their attorney as his legal fee their interest in the $68,000 taken from them when they were arrested. Three days later, when defendants failed to return from lunch for the conclusion of a hearing on their motions to suppress in their pending criminal case, the trial court issued an alias capias and ordered the money to be returned to the court registry by defendants’ newly substituted counsel. Defense counsel filed a Notice of Attorney’s Charging Lien and another Motion for Return of Property. After conducting a hearing, the trial court denied the Motion for Return of Property but recognized the validity of the charging lien. While proceedings were pending in this court on defense counsel’s Petition for Writ of Prohibition or in the Alternative Certiorari, the state instituted forfeiture proceedings.

Because I find the trial court lacked authority to require defense counsel to return the money after the court released the funds to him,1 would treat the petition as a request for mandamus and grant the petition. Estevez v. Gordon, 386 So.2d 43 (Fla. 3d DCA 1980); see Garmire v. Red Lake, 265 So.2d 2 (Fla.1972). There is nothing in the record to suggest that counsel was subject to a fine or any other punishment by the court.

      . Our recent opinion in Sawyer v. Gable, 400 So.2d 992 (Fla. 3d DCA 1981) does not dictate denial of this petition. We ruled that the trial court in Sawyer had jurisdiction to decide the property question. There, the trial judge refused to exercise jurisdiction. Here the court recognized it had jurisdiction, but after it ordered the money returned to defense counsel, the court lacked authority to retrieve the funds.


text:
    Dr. Benjamin KOHL and Esther S. Kohl, his wife, Appellants, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 80-2217.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Rehearing Denied Sept. 1, 1981.

      Young, Stern & Tannenbaum and Glen Rafkin and Burton Young, North Miami Beach, for appellants.
    Robert A. Ginsburg, County Atty., and Stanley R. Price, Asst. County Atty., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. City of Miami Beach v. Wiesen, 86 So.2d 442 (Fla.1956); Allapattah Community Association, Inc. of Florida v. City of Miami, 379 So.2d 387, 393 (Fla. 3d DCA), cert. denied, 386 So.2d 635 (Fla.1980).


text:
    William J. PHILLIPS, Bill Hadden, Merle T. Ledbetter, Leo Beck, Eugene Bowen and Monroe Phagan, as the Board of Trustees of Local 272 Annuity Pay Plan, Appellants, v. CHESAPEAKE LIFE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 80-2127.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Kurzban & Kurzban and Steven M. Weinger, Miami, for appellants.
    Walton, Lantaff, Schroeder & Carson and Laurence A. Schroeder, Miami, for appellee.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Perry v. Langstaff, 383 So.2d 1104 (Fla.5th DCA 1980), pet. for rev. denied, 392 So.2d 1376 (Fla.1980); Florida Rules of Civil Procedure, 1.340(a).


text:
    Ezequiel MUHTAR and Raquel Muhtar, his wife, Appellants, v. O. M. WILSON MOVING & STORAGE, INC., a Florida Corporation, Appellee.
    No. 80-1823.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.
    Rehearing Denied Aug. 31, 1981.
    Rudolph Browd, Miami, for appellants.
    Lamchick, Glucksman & Johnston and Steven G. Glucksman, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Upon consideration of the appeal and cross-appeal, the orders entered by the trial court are affirmed.


text:
    Juan E. ACOSTA, Appellant, v. Carmen DeLara ACOSTA, Appellee.
    No. 81-69.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.
    Rehearing Denied Sept. 1, 1981.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser and Allan M. Glaser, Miami Beach, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); McDonald v. McDonald, 368 So.2d 1283 (Fla.1979); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Archibald v. Archibald, 390 So.2d 1213 (Fla.3d DCA 1980); Farrington v. Farrington, 390 So.2d 461 (Fla.3d DCA 1980).


author: HENDRY, Judge.

text:
    The STATE of Florida, Petitioner, v. Abel PHILLIPE, Respondent.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.
    Rehearing Denied Sept. 4, 1981.
    Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., for petitioner.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for respondent.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

This case is before us on the state’s petition for Writ of Certiorari to review a decision of the Circuit Court of Dade County, Florida rendered in its appellate capacity. In the decision under review the Circuit Court held that the County Court erred in ruling that used “Breathalyzer” ampules and/or their contents are not salvageable for any subsequent, meaningful testing procedures which could produce relevant and material evidence to aid an accused in defending against charges based on results of the initial “Breathalyzer” test. We have jurisdiction. Art. V, Sec. 4(b)(3), Fla.Const. (1972); Fla.R.App.P. 9.030(b)(2)(B).

At a hearing on motions to compel production, to dismiss and to suppress, the trial court heard extensive expert testimony on the question of whether it is possible to later perform any scientific tests which might call into question the results of the initial “Breathalyzer” test, and rendered its order denying the motions. Respondent pled nolo contendere to a charge of driving with unlawful blood alcohol, reserving the right to appeal the denial of his motions. He was convicted and sentenced to temporary revocation of his driver’s license and completion of DUI Countermeasures program. A timely appeal was taken to the Circuit Court, which resulted in a reversal of the trial court’s ruling. The state has petitioned this court for a Writ of Certiora-ri to review the Circuit Court’s decision.

It is our view based upon a careful examination of the briefs and the record that the trial court’s conclusions are fully supported by the record testimony. In arriving at this view we have examined in particular the Circuit Court’s statement of error set forth in its opinion:

[W]e find additional, uncontroverted evidence in the record establishing that other tests of value cpuld be performed upon stored ampules, even if duplicative retests were impossible. Specifically, one expert testified without rebuttal that ampules could be examined to determine the amount of solution initially present, and that a significant discrepancy from the norm could produce inaccurate test results. In addition, the testimony was un-controverted that the ampules could be examined to determine the existence of any optical defects.

However, our reading of the record confirms that there was indeed qualifying or conflicting testimony as to these specific points. We therefore hold that the trial court was justified in concluding that these tests either were not scientifically reliable or significant, or that the results were not otherwise material, probative, or valuable to the defense. Thus, the state’s failure to produce the used ampule and/or its contents did not deprive defendant of his constitutional rights to due process and to confront evidence and witnesses against him.

Since we find that the trial court’s order is adequately supported by the record, we likewise find that the decision of the Circuit Court goes beyond its proper appellate function and is an impermissible exercise in reweighing the testimony and substituting its judgment for that of the trial court. State v. Nova, 361 So.2d 411 (Fla. 1978); Roberts v. State, 390 So.2d 769 (Fla.3d DCA 1980); see also State v. Battleman, 374 So.2d 636 (Fla.3d DCA 1979); State v. Riocabo, 372 So.2d 126 (Fla.3d DCA), cert. dism., 378 So.2d 348 (Fla.1979).

The Petition for Writ of Certiorari is granted, the order under review is quashed, and the order of the trial court is reinstated.


text:
    Peter TOMPKINS and Elizabeth Vreeland, Appellants, v. Raymond F. KRAEMER and Rose Kraemer, his wife, Appellees.
    No. 81-889.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.
    Rehearing Denied Sept. 1, 1981.
    Sugarman & Arnold and Naomi Behar, Coral Gables, for appellants.
    Edward S. Kanbar, Miami Beach, for ap-pellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The plaintiffs have perfected this interlocutory appeal to review an order granting a motion to amend the final judgment of foreclosure. We have jurisdiction to review the matter as an order entered after final judgment. Fla.R.App.P. 9.130(a)(4).

A final judgment of foreclosure was entered on March 25,1981. On April 13,1981, the defendant served a motion to alter or amend the final judgment so as to authorize the defendants to pay the judgment in monthly installments, which motion was granted.

A motion to alter or amend a judgment must be served not more than ten days after entry of the judgment pursuant to Florida Rule of Civil Procedure 1.530(g) and no enlargement of time is authorized for the making of such a motion. Fla.R. Civ.P. 1.090(b). Because the motion was untimely served, the trial court lost jurisdiction to alter or amend the judgment. Environs Palm Beach v. Donovan, 361 So.2d 718 (Fla.4th DCA 1978); Kitzmiller v. South east Services, Inc., 358 So.2d 271 (Fla.3d DCA 1978).

In this case, the motion could not be considered as one praying for relief from judgment because no ultimate facts were alleged to activate the provisions of Florida Rule of Civil Procedure 1.540(b). Duncan v. Allman, 386 So.2d 6 (Fla.4th DCA 1979). See, American National Bank v. Lau, 268 So.2d 567 (Fla.2d DCA 1972), cert. denied, 273 So.2d 81 (Fla.1973).

This disposition renders it unnecessary to determine whether the defendants were entitled, under the substantive law, to the relief granted.

For the foregoing reasons, the amended final judgment is reversed with directions to reinstate the original final judgment of foreclosure.