text:
    Wiley Ulee PRIDGEN, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF ORANGE COUNTY et al., Appellees.
    No. 79-462.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.
    Rehearing Denied Oct. 30, 1980.

      H. Fránklin Robbins, Jr., Orlando, for appellant.
    Philip H. Trees, Orlando, for appellees.
   SHARP, Judge.

Pridgen urges that the circuit court erred in dismissing as untimely his amended petition for writ of certiorari. He was seeking review of final action taken by the Board of County Commissioners. We have jurisdiction to consider this appeal.

Pridgen applied to the Board of County Commissioners for a license to carry a concealed weapon. It was denied. Within 30 days of the denial, Pridgen filed a petition for. writ of mandamus in the circuit court. Review of the Board’s action should have been sought by filing a petition for writ of certiorari. The circuit court denied the petition for writ of mandamus “without prejudice to the plaintiff to file such further amendments in this proceeding as may be appropriate.” Thirty-one days after the circuit court ruled, Pridgen filed an “amended” petition for writ of certiorari in the circuit court. The court dismissed it because it was filed more than 30 days after the Board denied Pridgen’s application for a license.

Appellate courts have long held that an improvidently filed petition for writ of prohibition may be treated as a petition for writ of certiorari. Kilgore v. Bird, 149 Fla. 625, 6 So.2d 541 (1942); Wainwright v. Booth, 291 So.2d 74 (Fla.2d DCA 1974). Similarly courts have allowed an improperly filed interlocutory appeal to be treated as a petition for certiorari. Radio Communications Corp. v. Oki Electronics of America, Inc., 277 So.2d 289 (Fla.4th DCA 1973); Stein v. Bayfront Medical Center, Inc., 287 So.2d 401 (Fla.3d DCA 1973).

Against this background of judicial precedents, the Florida Supreme Court adopted Florida Rule of Appellate Procedure 9.040(c), which provides:

If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy. (Emphasis supplied).

The verb form “shall” generally connotes a mandate to do something, and gives the person so directed no discretion to refrain from compliance. Selection of the “command” form of the verb in the rule must have been deliberate in view of the prior case law, and we conclude it is mandatory. We also reject the Board’s argument that rule 9.040(c) is limited to treating erroneously filed petitions for writs of certiorari as appeals. The rule encompasses all “improper” remedies, whatever their label or title.

In this case the circuit court properly noted that mandamus was an inappropriate remedy, and allowed the petitioner to file amended pleadings. Pursuant to Rule 9.040(c), the court should have considered the amended petition for writ of certiorari on the merits, when it was filed.

Accordingly, we quash the court’s dismissal and reinstate the amended petition.

REVERSED and REMANDED.

COWART, J., concurs.

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

DAUKSCH, Chief Judge,

concurring specially:

While I concur with the majority opinion, I must note it is not without some reservations. The original petition for writ of mandamus was denied by the trial court without any reason given for the denial and without any motion or other response from the board of commissioners having first been filed. Therefore, I cannot know why the mandamus was denied. I should not speculate why it was denied but there could be reasons other than merely that an improper remedy was sought. The order is silent as to the reason. Because the order gives the appellant an undesignated period of time to file “such further amendments in this proceeding as may be appropriate,” I shall agree that the jurisdictional time limit was met when the first petition was filed. If the trial court had set a time limit for the filing of the “amendments” and the appellant had failed to make that deadline, or if a substantial reason had been set out in the order, then I might decide otherwise.

      . Fla.R.App.P. 9.030(b)(1)(A); State v. Furen, 118 So.2d 6 (Fla. 1960); Wexler v. Ring, 125 So.2d 883 (Fla.3d DCA 1961).

      . Fla.R.App.P. 9.030(c)(3); Fla.R.Civ.P. I.640(a).

      . Webster’s New Collegiate Dictionary 1056 (8th ed. 1979).

      . Tascano v. State, No. 55,394 (Fla. June 16, 1980); Murray v. State, 378 So.2d 111 (Fla.5th DCA 1980).

      . See Swartz v. State, 316 So.2d 618 (Fla.1st DCA 1975).

      . This is because the board evidently was not served with a copy of the petition either by summons, notice to its attorney or otherwise.


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM.

license: Public Domain

text:
    Edmund Dorr GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1034.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 1980.
    On Rehearing Nov. 12, 1980.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Lawrence v. State, 388 So.2d 1250 (Fla. 4th DCA 1980).

MOORE, BERANEK and HURLEY, JJ., concur.

ON REHEARING

PER CURIAM.

On petition for rehearing, we certify that our affirmance in this case passed upon the same questions we certified to be of great public importance in Lawrence v. State, 388 So.2d 1250 (Fla. 4th DCA 1980). The decision in this case should abide the decision in Lawrence. Accordingly, we adhere to our affirmance and certify the identical questions in Lawrence as passing upon matters of great public importance.

MOORE, BERANEK and HURLEY, JJ., concur.


author: ERVIN, Judge. BOOTH, Judge,

text:
    Edward Charles SIMONS, Appellant, v. STATE of Florida, Appellee.
    No. MM-254.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1980.
    Rehearing Denied Oct. 6, 1980.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Simons appeals his conviction for robbery of a grocery store. He contends the trial court erred in admitting eyewitness identification testimony and a group of mug shots which included his photograph. We reverse and remand.

Appellant, a former employee of the store, was identified by two employees as one of the robbers. One of the employees, a bag boy named Harry Nisenboin, stated at trial that Simons’s face during the robbery was colored with charcoal and covered by a stocking mask. His view of him was limited to no more than seven seconds. Following the robbery, Nisenboin overheard another employee identify Simons by name to an investigator. Later Nisenboin selected appellant’s photograph from one of six pictures shown him. The front of the photo bore the caption of the Jacksonville Sheriff’s Office and the date “1-30-72”. Written on the reverse side was Simons’s name.

On the day before Nisenboin was to appear as a witness at trial, he was asked by an assistant state attorney to go to the courtroom to see whether he could recognize Simons who was then to be arraigned on an amended information. At the arraignment, with Nisenboin present, Simons was called by name and represented by counsel. At trial, the following day, during direct examination of Nisenboin, the state elicited the response from him that he had in the courtroom the day before identified Simons. The defense moved for mistrial. Outside the presence of the jury Nisenboin stated that his in-court identification of appellant was based entirely upon his view of him during the robbery. The court ruled that since the witness’s identification was grounded upon a source independent of the pretrial taint, the motion would be denied.

We disagree that Nisenboin’s in-court identification testimony cured the suggestiveness which was inherent in the pretrial identification procedure. The state elicited testimony from the witness during its case-in-chief showing that he had identified the defendant at an arraignment which, for all practical purposes, was un-counseled. The admission of such evidence is contrary to the rule in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), holding that a pretrial corporeal identification conducted after a suspect has been indicted is a critical stage in the criminal proceeding at which the Sixth Amendment entitles the accused to the presence of Counsel. In Wade, during the government’s direct examination, witnesses to a robbery who had identified the defendant at an uncounseled pretrial lineup testified at trial that the defendant was the man who had committed the robbery. After granting certiorari review of Wade’s conviction, the United States Supreme Court stated that because a likelihood existed that the witnesses’ in-court identifications were based on their observations of the defendant at the pretrial lineup-and not at the scene of the crime-the conviction would be vacated pending a hearing before the trial court to determine whether the in-court identifications were, independent of the pretrial tainted lineup, or whether the introduction of the identification as evidence was in any event harmless error. 388 U.S. at 240, 87 S.Ct. at 1939.

Wade’s companion case Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), differed from Wade in one critical aspect. In Gilbert -unlike Wade-the prosecution during trial elicited testimony from its witnesses on direct examination that they had identified the accused at an uncounseled pretrial lineup. The Court stated that the identification testimony was “the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’ Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441.” 388 U.S. at 272-273, 87 S.Ct. at 1956. The state “therefore [would] not [be] entitled to an opportunity to show that that testimony had an independent source." Id. at 273, 87 S.Ct. at 1957. The Court announced that only a strict rule of exclusion barring such testimony could “be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.” Id. Gilbert’s conviction was vacated and the case remanded to the state court to determine only whether the error resulting from admitting such evidence was harmless beyond a reasonable doubt, as required by Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The Gilbert rule was also applied in Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), to an uncounseled preliminary hearing. At the hearing, the defendant’s name was called and, in the presence of the victim, he was taken before the bench and advised he was charged with rape. At trial the victim testified that her in-court identification was independent of her identification at the uncounseled confrontation. In reversing the denial of a petition for writ of habeas corpus, the Court stated: “[Petitioner's Sixth Amendment rights were violated by a corporeal identification conducted after the initiation of adversary judicial criminal proceedings and in the absence of counsel.” 434 U.S. at 231, 98 S.Ct. at 466. It continued that the prosecution “cannot buttress its case-in-chief by introducing evidence of a pretrial identification made in violation of the accused’s Sixth Amendment rights, even if it can prove that the pretrial identification had an independent source.” Id. As it had done in Gilbert, the Court remanded the case to the appellate court to consider whether the admission of the identification testimony was harmless beyond a reasonable doubt.

The state argues that the Gilbert -Moore rule has no application to this case because the defendant was represented by counsel at the arraignment on the amended information. We consider this a meaningless distinction. Counsel’s presence was simply for the purpose of assisting the defendant in pleading to the amended charge. He did nothing more; indeed, because the state had not provided him notice of its intention to have the witness present, he was unaware the witness would then be in the courtroom. Had counsel been informed of the state’s purpose, he could conceivably have taken corrective steps to avoid the suggestiveness, such as, by requesting the postponement of the arraignment until a lineup be arranged; by moving the witness be excused from the courtroom while the charges were read; by cross-examining the witness to test his identification before it hardened. See Moore v. Illinois, supra, 434 U.S. at 230, n. 5, 98 S.Ct. at 465 n. 5. The state cannot seek to finesse an identification which was inherently suggestive by arguing that counsel’s mere presence cured the taint.

We are not unaware that following remand by the United States Supreme Court to the Seventh Circuit Court of Appeals, the latter court held that the admission of the pretrial identification testimony was harmless constitutional error. U.S. ex rel. Moore v. People of Ill., 577 F.2d 411 (7th Cir. 1978), cert. den., 440 U.S. 919, 99 S.Ct. 1242, 59 L.Ed.2d 471 (1979). In so deciding, the court addressed two questions: (1) whether the victim’s in-court identification was reliable even though the pretrial confrontation was suggestive, and (2) whether Illinois presented clear and convincing evidence that the victim’s identification at trial was based upon her observations of Moore independent of the uncounseled pretrial confrontation. The factors overlap as to both questions, and they include the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

While there are certain similarities between the facts in Moore and those here, one being that the witnesses in both cases were positive their in-court identifications were independent of the pretrial error, the witnesses’ level of certainty alone is clearly not a sufficient ground to conclude the error is harmless beyond a reasonable doubt since Gilbert v. California, supra, forbids the introduction of in-court identification testimony notwithstanding the witness’s certitude that his identification is based entirely upon his view of the defendant at the crime scene. Detailed facts corroborating the assertion must also be demonstrated. In the present case, those facts were not clearly and convincingly established.

Addressing the question whether an adequate opportunity existed for the witness to view the criminal at the time of the robbery, we find the record discloses Nisen-boin, who had never before seen the defendant, had at most only seven seconds to view the robber’s charcoal-colored face, covered at all times by a stocking mask; whereas in Moore, the victim, who had encountered the defendant at a bar for several minutes the night before the rape, during the assault saw the rapist’s unmasked face for a full-10-15 seconds. Additionally, in Moore, the victim was able to describe the criminal accurately to the officers, and was able to select her assailant twice from photographs displayed to her. True, Nisenboin identified Simons’s photograph from the photo-pack shown him; nevertheless we do not know whether any suggestiveness tainted the photographic identification. Moreover, as opposed to the detailed description which the victim in Moore gave to the police, Nisenboin’s description of Simons was at best sketchy: the robber was white, his eyes were deep-set and his nose had a bump on it. We note also that in Moore -unlike the facts here-important corroborating evidence linking the defendant with the crime was found at the scene; a letter and a notebook, both identified as belonging to the defendant. Finally, in the present case, the assistant state attorney directed the witness to go to the courtroom for the specific purpose of determining whether he could identify Simons, known previously to Nisenboin by name as one of the robbers. In Moore, the record was ambiguous whether the victim knew at the time the defendant came into the courtroom he was the suspect she was asked to identify. U.S. ex rel. Moore v. People of State of Ill., supra, at 415, n. 15.

We think it impossible to state that the prosecution has shown beyond a reasonable doubt that the one-on-one confrontation was, under the circumstances, harmless error. While one other witness also identified appellant, and her testimony was not infected by any pretrial suggestiveness, it would be highly conjectural to say that the jury would nevertheless have convicted defendant solely on her testimony. Two other store employees, present during the robbery, who had previously known Simons while he was there employed, were unable to identify him, one stating he did not know whether Simons was involved in the robbery, the other positive that Simons was not involved.

Since this case must be remanded for new trial as to the first point, with Nisenboin’s identification testimony excluded, we do not address the second point raised, the admissibility of the “mug shots.” We express concern, however, whether their prejudicial effect may outweigh whatever probative value they have for identification purposes.

Our opinion today should not be interpreted, as suggested by the dissent, as upholding “the ‘right’ of a defendant not to be seen in the courtroom by the victim or any other witness.” Infra at 267. Rather, consistent with Gilbert — Moore, we repeat there is no right of the government to cause a witness to be present at a pretrial judicial proceeding for' the sole purpose of bolstering that witness’s later in-court identification of a defendant. And should the government produce testimony at trial of such a tainted one-on-one confrontation, it must either be prepared to demonstrate, if it can, why the error caused by its misconduct was harmless beyond a reasonable doubt, or, if it cannot, suffer the sanction of having the case remanded for new trial and the tainted identification testimony excluded from evidence.

REVERSED and REMANDED for new trial.

ROBERT P. SMITH, Jr., J., concurs.

BOOTH, J., dissenting with opinion.

BOOTH, Judge,

dissenting:

The majority reverses the judgment of conviction of armed robbery because, at the time of defendant’s arraignment for that crime, one of the victims of the robbery was in the courtroom, saw the defendant and recognized him as the robber. The majority finds that this viewing of defendant violates some unspecified “right” of an accused and that the prosecution was guilty of misconduct in allowing the victim to view the arraignment. On this basis, the majority requires, as an object lesson to the prosecution, that sanctions be imposed against the State in the form of a new trial without the identification testimony of the victim Ni-senboin.

The public should not suffer the insult of a reversed conviction and the expense of a new trial where this court does not find that the original trial was unfairly conducted or the evidence insufficient to support the jury verdict of guilty. If the conduct of the State offends the majority and deserves disapproval, the majority’s purpose can be accomplished by an opinion which so states without setting aside the conviction. This is particularly true where a new rule is announced, as here, prohibiting victims of crimes from viewing the accused in a courtroom setting prior to giving their identifying testimony at trial.

Decisions cited in support of the reversal here all involve the infringement of right to counsel either by submitting an accused to a lineup or to a pretrial hearing, in each instance without the presence of his counsel Even in those cases, however, convictions were not reversed absolutely, as here, but were remanded for determination as to the effect of the violation. Here, the majority holds, as a matter of law, that the testimony of the witness was tainted and a new trial required.

In this case, defendant was represented by counsel, who was present at the arraignment. His complaint is, apparently, that he and his counsel were unaware of the witness observing in the back of the courtroom. Defendant suggests that, had his counsel been aware, counsel could have had the witness removed or waived his client’s appearance at the arraignment. Other conceivable stratagems could include a paper sack over the head. The fact that such steps might have been taken does not mean that the defendant or his counsel had a “right” to prevent the witness from seeing him. The privilege against self-incrimination is not applicable to an accused’s appearing in court or standing for identification because this is not “testimonial” activity. Schmerber v. California, 384 U.S. 757, 761, 764, 86 S.Ct. 1826, 1830, 1832, 16 L.Ed.2d 908 (1966); United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149 (1967). The Supreme Court of the United States has also held that the face of a defendant is not suppressible evidence in the courtroom regardless of illegality in connection with the defendant’s physical presence in the courtroom. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). In Crews the court also held that illegal lineups had not tainted the identification testimony.

There is no “right” of a defendant not to be seen in the courtroom by the victim or any other witness. Indeed, the rights of the public and the press to observe judicial proceedings in person or through television cameras and news photographs runs contrary to any such claim. Had this victim seen the defendant on a television newscast of the arraignment or in a newspaper, the witness would not be disqualified from testifying and identifying the accused at trial. No more so here.

The essential question in cases such as this is whether the circumstances under which a witness sees the accused “at or after initiation of adversary judicial criminal proceedings” has materially affected the evidentiary value of the identifying testimony. This is a question for the trial court. The presence of counsel at lineups or showups insures that the admissibility and the credibility of the identifying testimony can be fully put at issue at trial. Counsel’s presence in the instant case provided that safeguard. Further, the trial court conducted a hearing and determined that the identification of defendant was based on the witness’ independent knowledge apart from seeing defendant in the courtroom. The record of that hearing, as well as the record as a whole, supports the trial court’s determination.

Assuming that some right of defendant was violated by his being seen in the courtroom, the áffirmance of the judgment nonetheless is firmly supported by Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), on remand U.S. ex rel. Moore v. People of Illinois, 577 F.2d 411 (7th Cir.1978), certiorari denied 440 U.S. 919, 99 S.Ct. 1242, 59 L.Ed.2d 471 (1979). In Moore, the accused was taken to a pretrial hearing without counsel where the sole victim and identifying witness was present. The victim in that case had seen her assailant for 10 to 15 seconds. She had viewed photographs but refused to make a positive ■identification without seeing the defendant in person. The day following the defendant’s arrest, a policeman took the victim to the preliminary hearing. He told her she was going to view a suspect and to identify him if she could. He had her sign a complaint naming the defendant as her assailant. The court called defendant’s name, read the charges and outlined the corroborating evidence. The victim heard all this and was then called to come forward to the bench. At that point the State’s attorney asked the victim to identify the defendant, and she verbally did so. In Moore, the witness subsequently testified on direct examination that she had identified the defendant at the preliminary hearing. Despite the “suggestiveness” of the circumstances under which the identification was made, the absence of defense counsel and the use of the testimony concerning identification at preliminary hearing, the United States Supreme Court remanded the cause for determination by the lower court as to whether the testimony had been properly admitted at trial. Following remand, the Circuit Court of Appeal determined that the witness’s testimony had not been tainted by the suggestive circumstances of the preliminary hearing and that any error was harmless. The conviction was affirmed..

The facts here are stronger than those in Moore for finding that the identification was independent of the courtroom viewing and not harmful error. The robbery occurred at closing time, as six employees were preparing to leave the store. The witness, Harry Nisenboin, testified that the area was brightly lit; that the robber stood a short distance away from him and put his gun into his, Nisenboin’s face; that the robber had a loose stocking over his head and some charcoal stripes on his cheeks and forehead; that he had deep set eyes and a prominent ridge ón his nose; that the stocking did not distort his features very much; and “you could see his face.” Nisenboin identified defendant in a photo lineup prior to trial. His identification of defendant at trial was clear and positive. It was corroborated by the identification of another of the victims.

The majority’s concern with the alleged misconduct of the State has led it to overlook the essential question in the case, which is whether the interest of justice requires a new trial. The evidence shows, and the jury found that the defendant was guilty of armed robbery. The trial court correctly determined that the fairness of the proceedings had not been affected by the victim’s viewing of the accused in the courtroom, and that determination, as well as the conviction, should be affirmed.

I respectfully dissent.

      . The dissent suggests, infra page 267, that the Gilbert-Moore test is somehow vitiated by the Court’s later opinion in United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980) because Crews held that the victim’s in-court identification was not tainted by evidence (line-up and photographic identification) which was the product of an illegal arrest. On the contrary, the Gilbert-Moore rule was unaffected by Crews. That rule was conceived as a prophylactic device, designed more to guard against egregious, overreaching prosecutorial conduct than to suppress evidence seized in violation of constitutional safeguards. Crews, unlike the situation here, simply did not involve any prosecutorial misconduct affecting the defendant’s trial. Observe the following comments:
      In this case, the robbery victim’s presence in the courtroom at respondent’s trial was surely not the product of- any police misconduct. She had notified the authorities immediately after the attack and had given them a full description of her assailant. The very next day, she went to the police station to view photographs of possible suspects, and she voluntarily assisted the police in their investigation at all times. Thus this is not a case in which the witness’ identity was discovered or her cooperation secured only as a result of an unlawful search or arrest of the accused. Here the victim’s identity was known long before there was any official misconduct, and her presence in court is thus not traceable to any Fourth Amendment violation. 445 U.S. at 471, 100 S.Ct. at 1250.

      . At trial, the defense and the state stipulated that Nisenboin identified a photograph of defendant as one of the robbers. Because, however, the officer who displayed the photographs to Nisenboin did not testify, the testimony of the officer relating to the procedure involved during the photographic display was stricken as hearsay. Whether the opportunity for suggestiveness was exercised during the display by revealing to Nisenboin Simons’s name, listed on the reverse side of the photograph, is not revealed from this record.

      . The dissent’s assertion that the trial court is in the better position to so decide, infra at page 267, is not well founded. The trial court’s order denying the motion for mistrial addressed only the question whether, given the tainted arraignment procedure, the witness’s in-court identification was based solely upon his observations of the defendant at the time of the robbery. Such a determination, as above observed, does not comply with the Gilbert-Moore test. The trial court was not asked to decide, and did not decide, if the error was harmless beyond a reasonable doubt. This is a question reserved as much for appellate determination as it is for trial decision. As noted in Chapman: “While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts.” 386 U.S. at 24, 87 S.Ct. at 828. Indeed, the Chapman Court itself reviewed the record, applied the test and was unable to declare a belief that the error was harmless beyond a reasonable doubt. Additionally, in Moore, following remand to it by the United States Supreme Court, the Seventh Circuit Court of Appeals, without further remand to the district court, examined the record and applied the test adversely to defendant’s contentions. U.S. ex rel. Moore v. People of III., supra.

      . U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

      . Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977).

      . Testimony at the hearing on motion for mistrial was that defense counsel saw the witness sitting in the courtroom and spoke to him. Defense counsel testified he had not “registered recognition,” although he had taken the deposition of the witness.

      . U. S. v. Crews, 445 U.S. 463, 472, 100 S.Ct. 1244, 1250, 63 L.Ed.2d 537 (1980), in part as follows:
      Nor did the illegal arrest [of defendant] infect the victim’s ability to give accurate identification testimony. Based upon her observations at the time of the robbery, the victim constructed a mental image of her assailant. At trial, she retrieved this mnemonic representation, compared it to the figure of the defendant, and positively identified him as the robber....
      This is not to say the the intervening photographic and lineup identifications-both of which are conceded to be suppressible fruits of the Fourth Amendment violation-could not under some circumstances affect the reliability of the in-court identification and render it inadmissible as well. Indeed, given the vagaries of human memory and the inherent suggestibility of many identification procedures, just the opposite may be true. But in the present case the trial court expressly found that the witness’ courtroom identification rested on an independent recollection of her initial encounter with the assailant, uninfluenced by the pretrial identifications, and this determination finds ample support in the record. In short, the victim’s capacity to identify her assailant in court neither resulted from nor was biased by the unlawful police conduct committed long after she had developed that capacity.
      Respondent argues, however, that in one respect his corpus is itself a species of ‘evidence.’ When the victim singles out respondent and declares, ‘That’s the man who robbed me,’ his physiognomy becomes something of evidentiary value, much like a photograph showing respondent at the scene of the crime. And, as with the introduction of such a photograph, he contends that the crucial inquiry for Fourth Amendment purposes is whether that evidence has become available only as a result of official misconduct. [The majority rejects this contention, supra, in the opinion of Mr. Justice White at 445 U.S. at 477, 100 S.Ct. at 1253.]

      . Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972).

      . U.S. ex rel. Moore v. State of Illinois, 577 F.2d 411, 415 (7th Cir. 1978):
      Whether the victim was unable or simply unwilling to make a positive identification from the photographs is not crystal clear from the record. . . . [I]t may well be that her inability or unwillingness to make a positive identification was due either to the quality of the photographs or to her expressed desire to see the suspects in person so that she would be sure she was pointing her finger at the right man.
      In any event, whatever the cause, the victim’s refusal to make a positive photographic identifi,cation admittedly complicates our inquiry because, although she had no doubt that Moore was her assailant once she had an opportunity to view him in person, her first confrontation with him after the rape occurred in highly suggestive circumstances. We suspect that not even the victim could say with certainty that the suggestiveness inherent in the pretrial confrontation had no influence whatsoever on her identification of Moore. We are convinced, however, that the suggestive circumstances in which confrontation took place at most reinforced the witness’s conviction in the identification she made, but did not induce the identification.

      . See, Fuller v. Wainwright, 268 So.2d 431 (Fla. 4th DCA 1972), and Garrard v. State, 335 So.2d 603 (Fla. 3d DCA 1976); conviction in each case upheld, even though identifying witness was shown a photograph of defendant shortly before trial and was told that photograph was of the defendant.


author: PER CURIAM.

text:
    Bunny BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. NN-352.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1980.
    Rehearing Denied Nov. 12, 1980.
    Michael Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., and Lynda Campbell, Legal Intern, Tallahassee, for ap-pellee.
   PER CURIAM.

Brown appeals his conviction on a charge of sexual battery. Because Brown has not demonstrated reversible error, we affirm.

Brown is correct that the trial judge erred in admitting into evidence a doctor’s testimony about the results of two gonorrhea tests. The doctor did not perform the tests, had no personal knowledge of who performed the tests, and was unaware of the process by which the samples left the hospital for a state laboratory, and returned as test reports. The test results were total hearsay and should not have been admitted into evidence. The doctor clearly was not a “custodian or other qualified witness” as contemplated in Florida’s Uniform Business Records as Evidence Act, Fla.Stat. § 92.36, which was controlling at this trial.

However, given the totality of the evidence, this error was harmless. Fla.Stat. § 924.33.

The other issues raised by Brown are without merit and do not warrant discussion.

Accordingly, the judgment of the trial court is affirmed.

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


author: MeCORD, Judge.

text:
    Kathryn W. GUICE, as Personal Representative of the Estate of John Michael Guice, Deceased, Appellant, v. Harvell ENFINGER, Sheriff of Santa Rosa County, Florida, and Northeastern Fire Insurance Company of Pennsylvania, an insurance corporation, Appellees.
    No. TT-125.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1980.
    Rehearing Denied Nov. 12, 1980.
    Roderic G. Magie of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.

      Julius F. Parker, Jr., of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellees.
   MeCORD, Judge.

Appellant appeals from a final summary judgment entered by the trial court in favor of appellees. Appellant filed this suit against appellees, the Sheriff of Santa Rosa County and his insurer, for the wrongful death of her husband who hung himself with his belt while incarcerated in the county jail. Appellant contends that the Sheriff’s employees were negligent in failing to remove the deceased’s belt from him when he was admitted to jail in an intoxicated condition and that the deceased’s death was a reasonably foreseeable consequence of that negligence. We disagree.

On the night of March 29, 1977, deceased was arrested by officers of the Gulf Breeze Police Department and charged with driving while intoxicated and possession of a small amount of marijuana. He was taken to the Santa Rosa County Jail where he was allowed to make a phone call. The jailer testified that because he was aware of the deceased’s intoxicated condition, he placed him in the sickbay, which is next to the jail office. He testified that he put the deceased to bed without removing any of his articles of clothing; that he checked on him several times during the night, the last check being made at 4:00 a. m.; that he found him sleeping on the bed each time. Around 7:00 a. m., another jail employee found that the deceased had hung himself with his belt.

The Superintendent of the Escambia County Jail testified that the Escambia County Sheriff’s Department required the routine removal of all belts from all prisoners brought in for incarceration, whether or not they were drunk, for the specific purpose of preventing prisoners from hanging themselves. An officer of the Florida Highway Patrol with 22 years experience testified that upon arrest by the Highway Patrol, individuals charged with driving while intoxicated are relieved of their belts and any other items of clothing which can be used to injure themselves after being booked at a correctional facility. The Chief Deputy Sheriff at the Santa Rosa County Jail testified that there was no policy of the Santa Rosa County Sheriff’s Department to take belts from prisoners when they were booked, except in cases of prisoners who exhibit , a suicidal tendency. There are no facts in the record to indicate that the deceased had suicidal tendencies and no facts to indicate that the booking officer at the jail should have been suspicious of suicidal tendencies of the deceased.

The trial court considered the primary issue before it to be whether the negligence, if any, of the Sheriff’s Office was the proximate cause of the deceased’s death. The court found that the act of the deceased in taking his own life was an independent, intervening cause of his death for which the Sheriff’s Office is not liable. Relying on Kwoka v. Campbell, 296 So.2d 629 (Fla. 3d DCA 1974), the court declared that the question of proximate cause in a negligence action is one for the court where there is an active and efficient intervening cause. The trial court thereupon entered summary judgment in favor of appellees.

Under the circumstances of this case, the deceased’s suicide was not sufficiently foreseeable to impose upon the Sheriff’s employees the duty to remove the deceased’s belt. He had never threatened or attempted suicide in the past, had demonstrated no overt suicidal tendencies, and was expected to bond out the next morning. Under these facts, although the deceased’s act of hanging himself was a possible consequence of the failure to remove his belt, it was not a probable consequence and was not foreseeable.

Under established case law in Florida, a defendant is not liable for injuries resulting to a plaintiff when there is an independent intervening cause, unless that independent intervening cause is a foreseeable and probable consequence of the wrongful actions of the defendant. Adair v. The Island Club, 225 So.2d 541 (Fla. 2d DCA 1969), and Cone v. Inter-County Tele phone & Telegraph Company, 40 So.2d 148, 149 (Fla.1949). As stated in Cone :

... Not every negligent act of omission or commission gives rise to a cause of action for injuries sustained by another. It is only when injury to a person who himself is without contributing fault has resulted directly and in ordinary natural sequence from a negligent act without the intervention of any independent efficient cause, or is such as ordinarily and naturally should have been regarded as a probable, not a mere possible, result of the negligent act, that such injured person is entitled to recover damages . . . Conversely, when the loss is not a direct result of the negligent act complained of .. . but is merely a possible, as distinguished from a natural and probable, result of the negligence, recovery will not be allowed .. . “Possible” consequences are those which happen so infrequently from the commission of a particular act, that in the field of human experience they are not expected as likely to happen again from the commission of the same act. [Citations omitted.]

On the basis of the facts of this case and above-cited authorities, we affirm.

MILLS, C. J., and THOMPSON, J., concur.


author: LARRY G. SMITH, Judge.

text:
    RANGER INSURANCE COMPANY, Appellant, v. TRAVELERS INDEMNITY COMPANY, Appellee.
    No. UU-298.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1980.
    Rehearing Denied Nov. 6, 1980.

      E. Harper Field and Susan B. Kirkland of Field, Granger, Santry & Mitchell, Tallahassee, for appellant.
    Richard T. Jones of Jones & Langdon, Gainesville, for appellee.
   LARRY G. SMITH, Judge.

Ranger Insurance Company appeals the trial court’s order dismissing, with prejudice, its complaint against appellee-Travel-ers Indemnity Company. The two insurance carriers are, respectively, the excess automobile liability insurer and the primary automobile liability insurer for the City of Tallahassee. Ranger’s complaint sought to recover against Travelers based upon its contention that Travelers exercised bad faith in failing to settle a claim under Travelers’ primary policy insuring the City, as a consequence of which Ranger became liable for and paid funds in settlement of the claim over and above the amount it otherwise would have been required to pay in discharge of its excess liability. The questions presented on appeal are (1) whether an excess carrier has the right, in the absence of a contract or assignment from its insured, to maintain a cause of action against the primary carrier for damages resulting from the primary carrier’s bad faith refusal to settle a claim against their common insured; and (2) if such a cause of action is maintainable in Florida, whether the complaint in this instance was sufficient to state a cause of action for bad faith refusal to settle. We have determined that the excess carrier has a cause of action against the primary carrier under the doctrine of “equitable subrogation”, and that although the complaint was deficient, it was error to dismiss it with prejudice. We therefore reverse the order of the trial court.

The complaint alleges that Mr. and Mrs. Raker were injured in an automobile accident with a vehicle owned by the City of Tallahassee and driven by one of its employees. Travelers provided primary liability coverage up to $100,000 for one injury. Ranger provided liability coverage for injuries in excess of $100,000. About a month before the scheduled trial of the Rakers’ law suit against the City, Mrs. Raker offered to settle for $125,000, and Mr. Raker offered to settle his claim for $75,000. Travelers counter-offered the sum of $30,-000 in settlement of the claims of both Mr. and Mrs. Raker.

The complaint alleges further that Travelers failed to make any effort to pursue further negotiations with the Rakers even though Ranger advised Travelers that Ranger would contribute toward a settlement over Travelers $100,000, policy limit. Upon trial of the case Mrs. Raker was awarded damages of $170,000, and Mr. Raker was awarded $37,500, with an additional $1,492.50 court costs. Travelers paid the sum of $100,000 under its policy for Mrs. Raker’s damages, and the sum of $38,992.50 for Mr. Raker’s damages and costs. Ranger, as it was obligated to do under its insurance policy with the City, paid the excess of $70,000 for Mrs. Raker, together with interest accrued on the judgment.

The allegations of bad faith are that Travelers failed to actively negotiate for settlement with the Rakers until approximately one week prior to trial; its offer of $30,000 for both claims was unreasonable in the light of the Rakers’ demand, the liability of the City, the lack of any comparative negligence on the part of Mrs. Raker, and the severity of the damages. The complaint also alleged Travelers’ wrongful refusal to accept its own attorney’s settlement advice and evaluation of the value of the claims, and possible jury verdict.

Both sides represent that this case is one of first impression in Florida. No appellate court in this state, so far as we have been able to determine, has been called upon to decide whether or not an excess carrier, under the circumstances alleged here, has a cause of action against the primary carrier for alleged bad faith in its settlement or refusal to settle claims under the primary insurance policy. We find, however, that the doctrine of “equitable subrogation,” or as it is sometimes referred to, “legal” subrogation-meaning subrogation by operation of law, as opposed to “conventional” subrogation, which arises under an express or implied agreement-is well established in Florida. It was explained and applied, for example, in Allstate Life Insurance Co. v. Weldon, 213 So.2d 15, 18 (Fla. 3rd DCA 1968), in which the court referred to several earlier cases. Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916), held (72 So. at 645): “Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right.” The two distinct types of subro-gation are explained in Goodwin v. Schmidt, 149 Fla. 85, 5 So.2d 64 (1941) at 66: “Subro-gation is either legal, that is, the right arising by operation of law, or else it is conventional, in which case the right arises by reason of contract between the parties.” And the court in Ulery v. Asphalt Paving, Inc., 119 So.2d 432 at 436 (Fla. 1st DCA 1960) stated:

Subrogation, a creation of equity, is founded on the proposition of doing justice without regard to form, and was designed to afford relief where one is required to pay a legal obligation which ought to have been met, either wholly or partially, by another. Trueman Fertilizer Co. v. Allison, Fla., 81 So.2d 734. The right of subrogation has been sustained in almost every conceivable type of action where the party invoking it has been required to pay a debt for which another is primarily answerable, and which in equity and good conscience the other ought to pay. . . .

Appellant cites substantial and persuasive authority for its position that an excess insurer is entitled to maintain an action against the primary insurer under the circumstances presented here. Peters v. Travelers Insurance, 375 F.Supp. 1347 (C.D.Cal.1974); Vencill v. Continental Casualty Co., 433 F.Supp. 1371 (S.D.W.Va.1977); Home Ins. Co. v. Royal Indemnity, 327 N.Y.S.2d 745 (Sup.Ct.1972); aff’d without opinion, 332 N.Y.S.2d 1003 (App.Div.1972); Western World Ins. Co. v. Allstate Ins. Co., 150 N.J. Super. 481, 376 A.2d 177 (1977); Estate of Penn v. Amalgamated General Agencies, 148 N.J.Super. 419, 372 A.2d 1124 (1977); Offshore Logistics Services, Inc. v. Awkwright-Boston Mfgs. Mutual Ins. Co., 469 F.Supp. 1099, 1103 n.7 (E.D.La.1979); and American Fidelity & Casualty Co. v. All-American Bus Lines, 190 F.2d 234 (10th Cir. 1951) reh. denied, cert. denied 342 U.S. 851, 72 S.Ct. 79, 96 L.Ed. 642.

The rationale for finding the existence of a cause of action in behalf of the excess insurer is stated in the well reasoned opinion of the Supreme Court of Minnesota in Continental Casualty Company v. Reserve Insurance Company, 238 N.W.2d 862 (Minn. 1976), at 864:

The threshold question is whether a primary insurer owes any duty to an excess insurer in the settlement negotiation process. It is clear that any liability insurer owes its insured a duty of good faith in deciding whether to accept or reject a settlement. This duty includes an obligation to view the situation as if there were no policy limits applicable to the claim, and to give equal consideration to the financial exposure of the insured. Lange v. Fidelity and Cas. Co. of New York, 290 Minn. 61, 185 N.W.2d 881 (1971). Breach of this duty by rejecting in bad faith an offer within policy limits subjects the insurer to liability to its insured in the amount of a judgment in excess of those limits. Larson v. Anchor Cas. Co., 249 Minn. 339, 82 N.W.2d 376 (1957); Boerger v. American Gen. Ins. Co., 257 Minn. 72, 100 N.W.2d 133 (1959). We hold that an excess insurer is subro-gated to the insured’s rights against a primary insurer for breach of the primary insurer’s good-faith duty to settle. See, Peter v. Travelers Ins. Co., 375 F.Supp. 1347 (C.D.Cal.1974). As one commentator has observed, “In the case of excess coverage, the primary insurer should be held responsible to the excess insurer for improper failure to settle, since the position of the Tatter is analogous to that of the insured when only one insurer is involved.” R. Keeton, Insurance Law, § 7.8(d). When there is no excess insurer, the insured becomes his own excess insurer, and his single primary insurer owes him a duty of good faith in protecting him from an excess judgment and personal liability. If the insured purchases excess coverage, he in effect substitutes an excess insurer for himself. It follows that the excess insurer should assume the rights as well as the obligations of the insured in that position.

The Minnesota Supreme Court also acknowledged important policy considerations which favor the right of the excess carrier to maintain bad faith actions against the primary carrier. The first of these considerations is the public and judicial interest in fair and reasonable settlement of lawsuits. A second consideration is the avoidance of a result which would permit an unfair distribution of losses among insurers. In this respect the Minnesota Court pointed out that excess and primary policies provide two distinct types of coverage, at different rates, involving different amounts and kinds of risks. Further, that “Whether on insurance-economics principles or general equitable principles, a party should not be made to bear a loss that rightfully belongs to another party.” Id. at 865.

The rationale supporting a bad faith cause of action for the excess insurer is succinctly stated in Peters v. Travelers Ins., 375 F.Supp. 1347 (C.D.Cal.1974), at 1350:

That an excess insurer may recover from the primary for a breach of duty does not increase the duty or the liability of the primary. Under the doctrine of equitable subrogation, the duty owed an excess insurer is identical to that owed the insured. The excess will not be able to force the primary into accepting any settlement which his duty to the insured would not require accepting.... In considering whether it will settle a claim, the primary insurer may consider its own interests, but it must equally consider the interests of the insured, which becomes the interests of the excess insurer by subrogation.

See also Valentine v. Aetna Ins. Co., 564 F.2d 292 (C.A. 9th 1977).

A good example of the need for the application of equitable subrogation to the relationship between a primary and excess liability insurance carrier is demonstrated in Northwestern Mutual Insurance Co. v. Farmers Insurance Group, 76 Cal.App.3d 1031, 143 Cal.Rptr. 415, 425 (1978):

. . . denying recovery, that is, relieving a primary insurer of its duty to effect reasonable settlement where excess coverage exists, would tend to deter settlements. ... It would give the primary insurer a disincentive to settle, particularly when the proposed settlement was near, at or in excess of primary’s policy limits. This may be illustrated by assuming a case in which the primary policy limit is $20,000, the excess policy limit is $50,000, the reasonable settlement offer is $18,000, liability is likely but not certain, and the damages are such that, if recovery is had, it will likely be in an amount well in excess of the primary policy limit. In such a situation, if the primary insurer is not faced with the possibility of liability for bad faith failure to effect settlement, it will have at risk only $2,000 if it refuses to settle for $18,000 and proceeds to trial on the possibility of a favorable judgment. If the reasonable settlement offer were $20,000, it would risk nothing at all by going to trial.

We find no merit in appellee’s contention that an excess carrier’s action against the primary carrier for bad faith in settlement must be based upon a contract. It is true, as appellee contends, that bad faith actions are grounded upon contractual rights. Government Employees Insurance Co. v. Grounds, 332 So.2d 13 (Fla.1976). However, as appears from the foregoing discussion a cause of action based upon equitable subro-gation is not dependent upon the existence of a contract between the plaintiff and the defendant. Allstate Life Ins. Co. v. Weldon, supra. For additional cases see Right to subrogation as against primary insurer, of liability insurer providing secondary insurance, 31 A.L.R.2d 1324. Appellee cites Universal Underwriters Insurance Company v. Dairyland Mutual Insurance Company, 102 Ariz. 518, 433 P.2d 966 (1967), expressing a contrary view, which was applied by the United States Court of Appeals in Rocky Mountain Fire and Casualty Company v. Dairyland Insurance Company, 452 F.2d 603 (9th Cir. 1971) (construing Arizona law). Although the Arizona Supreme Court recognized the primary insurer’s duty of good faith to its insured, the court found:

There is no privy [sic] of contract between these two insurance companies nor is there any principle of law which we are aware that would give Universal such a windfall because of Dairyland’s mistreatment of its assured. . ..

Since the Arizona court did not discuss the doctrine of equitable subrogation we may assume that remedy is not recognized in Arizona (although it clearly is in Florida), or if it is recognized, was not considered as a proper remedy under the circumstances. It is noted, however, that although the Arizona court refused to allow a bad faith action by the excess carrier, it allowed recovery by Universal (the excess carrier) against Dairyland (the primary carrier) on the theory that “where two companies insure the same risk and one is compelled to pay the loss, it is entitled to contribution from the other.”

We further find no merit in appel-lee’s contention that equitable subrogation is not available because, by application of Section 768.28(5), Florida Statutes (1975), the sovereign immunity statute, the City is liable for damages only up to the amount of $100,000. Appellee argues that since Ranger’s rights can be no greater than the City’s, the City actually has no excess exposure upon which to base a right of action for bad faith to which Ranger can be subrogated. We observe, first, that if we accepted appel-lee’s argument that the City has no excess exposure, then of course it could have no excess insurance. Secondly, appellee’s contention in this respect overlooks Section 768.28(10), Florida Statutes (1975), which provides for waiver of sovereign immunity to the extent that the City has purchased excess coverage. See Circuit Court, etc. v. Dept. of Nat. Resources, 339 So.2d 1113 (Fla.1976).

Finally, as to appellee’s contention that the complaint fails to state a cause of action for bad faith against the insurer, we conclude that the allegations are sufficient to show a disregard of the City’s interests, and a causal connection between Traveler’s actions and loss or damage allegedly suffered by Ranger. We do not agree with appellee that the complaint is deficient because it fails to allege the existence of an offer by the person claiming against the insured to settle within the policy limits. See American Fidelity Fire Ins. Co. v. Johnson, 177 So.2d 679 (Fla. 1st DCA 1965). As stated in Thomas v. Western World Insurance Co., 343 So.2d 1298, 1302 (Fla. 3rd DCA 1977), reh. denied, cert. dismissed Fla., 349 So.2d 955, under some circumstances the offer of settlement is not a prerequisite to excess liability. In Thomas, an insurer wrongfully refused to defend the insured, so that there was no offer within the policy limits, yet suit was allowed. In Davis v. Nationwide Mutual Fire Insurance Co., 370 So.2d 1162 (Fla. 1st DCA 1977), no offer was made because an insurance attorney misrepresented the policy limits to the injured party, negligent driver, and car owner. In Valentine v. Aetna Ins. Co., supra, the trial court found that the personal injury litigation could have been settled for $500,000, even though the last demand before negotiations broke off was for $750,-000, where the circumstances indicated that the personal injury plaintiff would have been willing to take less. Since the jury verdict in Valentine was $700,000, there was found to be damages of $200,000 because of the insurer’s breach of its duty to negotiate and settle in good faith.

The complaint here alleges the existence of an offer of settlement by the injured parties, and Ranger’s offer to contribute toward that settlement so that Travelers’ contribution would not exceed its $100,-000 policy limit. The language of the complaint on this point is lacking in specificity. We think it is essential, consistent with the authorities cited in support of appellant’s position, for the excess carrier to allege that it offered to contribute a specific sum for which settlement could have been made, or that it was ready and willing to contribute, and offered to contribute an indefinite amount which, together with Travelers’ primary coverage of $100,000, would have produced a settlement at a figure less than Ranger was ultimately required to pay. We do not foreclose the possibility, if such be the case, that a cause of action might still be maintained if Ranger can allege and prove that its failure to communicate to Travelers an offer meeting these requirements should be excused as an exercise in futility because of Travelers unresponsive attitude. Even in such event, it would appear necessary to allege that Ranger was ready and willing to contribute an amount for which settlement could have been made. See Valentine, supra. Therefore, although we agree that the complaint was deficient, we determine that it was error to dismiss the complaint with prejudice, where there had been no prior dismissal without prejudice, since it is not apparent that the pleading cannot be amended so as to state a cause of action. Sapp v. City of Tallahassee, 348 So.2d 363, 366 (Fla. 1st DCA 1977); Hansen v. Central Adjustment Bureau Incorporated, 348 So.2d 608, 610 (Fla. 4th DCA 1977); and Anthony v. Jacksonville Transportation Authority, 383 So.2d 650 (Fla. 1st DCA 1980).

Although we have indicated the possibility of an amended complaint being filed by Ranger, we caution that in so doing we are not ruling as a matter of law that any specific set of facts and circumstances would or would not be sufficient for recovery, since ordinarily this is a matter which must be determined by the jury. Campbell v. Government Employees Insurance Co., 306 So.2d 525, 85 A.L.R.3d 1200 (Fla.1974).

The order dismissing the complaint with prejudice is REVERSED, and the cause is REMANDED for further proceedings.

ERVIN and SHIVERS, JJ., concur.


author: SCHWARTZ, Judge.

text:
    Gerard HEALEY, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1543.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Rehearing Denied Nov. 7, 1980.
    Bennett H. Brummer, Public Defender and Rory S. Stein and Howard K. Blum-berg, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and NESBITT, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.

       Chief Judge Haverfield participated in the decision but did not hear oral argument.

   SCHWARTZ, Judge.

Healey appeals from the judgment and sentence entered after a jury found him guilty of manslaughter. We reverse on the basis of our agreement with his contention that he was entitled to discharge under the speedy trial rule.

On October 29, 1976, the defendant was arrested in connection with the homicide of Herman Wayne Robinson, Jr. Trial was set for February 28, 1977. Healey then moved for a continuance of the trial, which was granted on February 18,1977. On March 8, and again on March 25, the prosecution was granted continuances. After the state indicated its desire to appeal from the April 15 granting of a defense motion to suppress, the trial court specifically extended the time for trial under Fla.R.Crim.P. 3.191(d)(2)(iv) “to and including 90 days after the return of the final mandate from the appellate court.” An appeal was taken, but was voluntarily dismissed by the state on June 17; the final order of this court issued July 8,1977. On August 31, the trial court granted a defense motion to dismiss the information. On November 10, the state refiled an information against the defendant. On December 23, 1977, the court denied a defense motion for discharge based on the speedy trial provisions of Fla.R. Crim.P. 3.191. That motion should have been granted.

On the undisputed facts, the state was obliged to bring Healey to trial by October 6, 1977, 90 days after the receipt of this court’s mandate, as specifically provided in the order of extension. State v. Jenkins, 389 So.2d 971 (Fla.1980); State ex rel. Mullen v. Swigert, 352 So.2d 962 (Fla. 1st DCA 1977). We disagree with the state’s contention that any post-July 8, 1977 delay may be attributed to the defendant by virtue of his successful motions to suppress and to dismiss. Tucker v. State, 357 So.2d 719 (Fla.1978); see, State v. Thurston, 372 So.2d 959 (Fla. 3d DCA 1979). We also reject the claim that Healey’s return to his home in Pennsylvania after the charges against him were dismissed rendered him unavailable for trial under Fla.R.Crim.P. 3.191(e). State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978).

Thus, discharge could be denied only if the initial defense continuance of February 18 is treated as obviating the necessity of compliance with the subsequent specific extension of the speedy trial time granted by the lower court under rule 3.191(d)(2)(iv). See, State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980); State v. Kurtz, 354 So.2d 890 (Fla. 4th DCA 1978), cert. denied, 360 So.2d 1249 (Fla.1978). We believe that State v. Jenkins, supra, and Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980) show that this is not the case. In Fluellen, the supreme court emphasized that, notwithstanding a prior defense continuance, the sixty-day demand provision of rule 3.191(a)(2) remains in effect. This ruling impliedly rejects the position asserted in Bufford and Kurtz that a continuance eliminates the applicability of all of rule 3.191 except 3.191(d)(3). More important, an opposite holding would have the obviously unacceptable effect of rendering meaningless a subsequent court order which expressly determined when the defendant must be tried. The Jenkins opinion demonstrates that, to the contrary, such an order is controlling. At 389 So.2d 975, the supreme court said that the constitutional reasonableness test, as opposed to the requirements of rule 3.191, applies “when no specific time period is prescribed by order or rule.” [e.s.] Since, in this case, the defendant was not tried within the specific time period “prescribed by order,” the judgment under review is reversed and the cause remanded with directions to discharge the defendant.

Reversed and remanded.

      . This holding renders it unnecessary to consider his claims of error in the instructions to the jury.

      . The state further contends that Healey’s counsel delayed the case and “thwarted” its intention to appeal the August 31 dismissal by failing to prepare a formal appealable order as he was requested by the trial judge. This claim is entirely without substance since the state neither itself prepared such an order nor actually took such an appeal. Much less did it obtain, as is required, a further trial court order again extending the speedy trial time. See, State v. Jenkins, supra; State v. Barnett, 366 So.2d 411 (Fla.1978). All the state actually did was unsuccessfully move for rehearing of the order of dismissal and then file a new information. Neither action had any effect upon the speedy trial time. E. g., Stuart v. State, 360 So.2d 406 (Fla.1978).


author: DANIEL S. PEARSON, Judge.

text:
    Leland Wayne HARPOLD and Thomas Hinz, Appellants, v. The STATE of Florida, Appellee.
    No. 79-712.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Rehearing Denied Nov. 7, 1980.

      Miskin & Febles and Stuart R. Miskin, Miami, for appellants.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

We affirm the judgments of conviction upon a holding that (1) the police acted with founded suspicion in stopping the defendants outside of the Miami International Airport Terminal, see State v. Mitchell, 377 So.2d 1006 (Fla.3d DCA 1979); State v. Battleman, 374 So.2d 636 (Fla.3d DCA 1979); Myles v. State, 374 So.2d 83 (Fla.3d DCA 1979); and thus the sniff of the gray molded suitcase by an officer’s dog during this stop was not tainted by any prior illegality; (2) the dog sniff itself was not a search requiring a showing of probable cause, United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538, 550, n. 8 (1977); State v. Goodley, 381 So.2d 1180 (Fla.3d DCA 1980); Mata v. State, 380 So.2d 1157 (Fla.3d DCA 1980); United States v. Sullivan, 625 F.2d 9 (4th Cir. 1980); United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975), cert. denied, 424 U.S. 918, 98 S.Ct. 1121, 47 L.Ed.2d 324 (1976), and the positive alert given by the concededly qualified dog provided the necessary probable cause required for the search of this suitcase pursuant to a warrant thereafter obtained, State v. Goodley, supra; and (3) notwithstanding that the trial court denied the defendants’ suppression motion on a finding that the confrontation between the police officers and the defendants was a mere encounter or contact, not requiring founded suspicion, see State v. Price, 363 So.2d 1102 (Fla.2d DCA 1978); United States v. Wylie, 569 F.2d 62. (D.C.Cir. 1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978), the ruling will be upheld for the reasons stated in this opinion, see, Postell v. State, 383 So.2d 1159 (Fla.3d DCA 1980).

Affirmed.

      . Only this gray molded suitcase contained contraband. Hinz (already under surveillance) removed it from the baggage carousel when the defendants arrived in Miami from Detroit earlier in the day. It remained with Hinz in the waiting taxicab when Harpold paid a quick visit to a Holiday Inn. It remained with Hinz when the taxicab dropped Harpold at the Arrowhead Hotel. Hinz took it with him into a residence where he remained for about five hours. Hinz exited the residence with the suitcase when Harpold picked him up ih another cab for their return trip to the airport. It was Hinz who carried the suitcase towards the airport when the defendants met up with the police officer. The undisputed testimony is that Harpold was never seen in possession of this suitcase. We do not, however, concern ourselves with the fact that although the dog sniff provided probable cause for the arrest of Hinz and the seizure of the suitcase, no probable cause existed for the arrest of Harpold. Harpold’s luggage was searched after his arrest, but no contraband was found therein.
      Harpold’s lack of possession became the subject of a sworn motion to dismiss, which, however, Harpold later abandoned. After the trial court denied the motion to suppress, both defendants entered nolo contendere pleas, reserving only the right to appeal the suppression ruling. By his nolo contendere plea, Harpold conceded the charge in the information that he . possessed (presumably, constructively) the contraband found in the suitcase.

      . Our holding assumes, without deciding, that a stop occurred. The trial court based its mere encounter finding on the following evidence. Hinz approached the police officer, who was walking towards the terminal. Hinz engaged him in conversation about the officer’s dog. Hinz claimed he raised dogs, knew quite a bit about them, and commented on the beauty of the dog as the officer, dog and the two defendants walked along. They continued to chat innocuously until they reached the terminal sidewalk where the officer identified himself, showed the defendants his badge, and asked them “would they mind showing [him] some identification?” The defendants handed the officer their drivers’ licenses, and within seconds, the dog gave a positive alert to the presence of narcotics within the suitcase Hinz had set down.


text:
    Louis Irwin COOPER, Appellant, v. Susan Ruth COOPER, Appellee.
    No. 79-1166.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Rehearing Denied Nov. 7, 1980.
    Klein,- Oshinsky & Solomon, Hallandale, for appellant.
    Richard Touby, Richard M. Gale, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); South Dade Farms v. Peters, 88 So.2d 891 (Fla.1956); Schoenthal v. Schoenthal, 138 So.2d 802 (Fla. 3d DCA 1962).


text:
    METROPOLITAN HEALTH CARE SERVICES, INC., George Marholin and Eleanor Marholin, his wife, and Gary Scott and Karen B. Scott, his wife, Appellants, v. UNIVERSITY FEDERAL SAVINGS AND LOAN ASSOCIATION OF CORAL GABLES, Appellee.
    No. 79-2215.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Rehearing Denied Nov. 7, 1980.
    Gars, Dixon & Shapiro and Steven E. Chaykin, Miami, for appellants.
    Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Fara Manufacturing Co., Inc. v. First Federal Savings and Loan Association of Miami, 366 So.2d 164 (Fla.3d DCA 1979); Orthwein v. Cobbs Fruit & Preserving Co., 229 So.2d 607 (Fla. 1st DCA 1969).


author: BASKIN, Judge.

text:
    Daniel SCHUMER and Colonial Penn Insurance Company, Appellants, v. Louis BECKER and May Becker, his wife, Appellees.
    No. 79-2423.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Rehearing Denied Nov. 12, 1980.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and John W. Wylie and R. Owen Ricker, Jr., Miami, for appellants.
    Cohen & Cohen, Miami Beach, Greene & Cooper and Joan M. Bolotin, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

We reverse the final judgment in the amount of $8,000 entered by the trial court in favor of appellee, Louis Becker, and remand this cause with directions to the trial court to enter a final judgment for Louis Becker in the amount of $1,600 in accordance with the verdict returned by the jury prior to extensive questioning by the trial judge.

In its special verdict interrogatory, the jury assessed total damages incurred by appellee Becker at $8,000 and determined that Becker was 80% liable when, as a pedestrian, he was injured by an automobile driven by appellant, Daniel Schumer, and insured by appellant, Colonial Penn Insurance Company. The jury assessed the driver’s fault at 20%. After questioning the jury, the court determined that $8,000 represented net rather than total damages.

The verdict appropriately apportioned damages on the basis of fault. Lawrence v. Florida East Coast Railway Co., 346 So.2d 1012 (Fla.1977); Hoffman v. Jones, 280 So.2d 431 (Fla.1973). The trial court was, therefore, not authorized to inquire further, and its repeated questioning of the jury concerning the effect of its award, however well-intentioned, served only to suggest to the jury that its decision was incorrect. The court went beyond polling the jury. The additional questioning disclosed that the jury, which returned with a signed special jury interrogatory three times, became totally confused by the court’s explanations concerning reductions and net amounts of damages. Adkins v. Seaboard Coast Line Railroad Co., 351 So.2d 1088 (Fla. 2d DCA 1977). The verdict returned prior to the court’s explanations of the consequences of apportionment expressed the jury’s decision and must be reinstated.

Reversed and remanded with directions.


text:
    The CITY OF MIAMI BEACH and the State of Florida, Appellants, v. MILLPIN, INC., a Florida Corporation, Appellee.
    No. 80-70.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Rehearing Denied Nov. 12, 1980.
    John A. Ritter, City Atty. and Alan K. Marcus, Asst. City Atty., Janet Reno, State’s Atty. and Theda R. James, Asst. State’s Atty., for appellants.
    Joel Hirschhorn and Harry M. Solomon, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Bloch v. Frick, 12 So.2d 604 (Fla.1943); § 78.02 Fla.Stat. (1979).

Affirmed.


author: FAGAN, OSEE R., Associate Judge. ANSTEAD, Judge,

text:
    CITY OF POMPANO BEACH, Appellant, v. L. M. OLTMAN, Gerald F. Glass and Floyd F. Toomey, and other not named but made parties as members of a class, Appellees.
    No. 78-197.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Rehearing Denied Nov. 13, 1980.

      Arthur C. Koski of Koski, Mateer & Gillespie, P. A., Boca Raton, for appellant.
    Roger H. Harper of Delray Beach, for appellees.
   FAGAN, OSEE R., Associate Judge.

The City of Pompano Beach appeals from an adverse final judgment rendered in a class action brought on behalf of users of the city water system. The complaint attacked the validity of a rate ordinance requiring water users outside the city to pay double the rates for in-city users. Plaintiff-appellees sought injunctive relief and an award of money damages for the amount of the alleged wrongful charges.

The suit was brought in May, 1967, and following various evidentiary hearings before the trial judge in 1971 and 1972 a Final Judgment was rendered November 7, 1977 which declared the rates for users of water outside the city to be unjustly discriminatory and illegal. The final judgment awarded a money judgment against the city for the sum of $338,282.10, being only a portion of the difference in revenues collected under the rate ordinance held to be invalid, and the court awarded pre-judgment interest of $189,754.23. The trial judge made his own determination as to the rates that the city should have charged water users outside the city in excess of the rates charged users in the city and awarded interest at 6% on the amounts he found to be excessive for each of the years the rate ordinance was in effect prior to the date of the judgment.

All the property involved here is now included in the corporate limits of the city.

The city has appealed on various grounds and plaintiff-appellees have cross-appealed, agreeing with the city, however, that the trial judge improperly engaged in rate making.

We reverse for the reasons that we now summarize. The findings of fact and conclusions of law were based on two erroneous premises: that the City of Pompano Beach is under a duty to explain and justify its legislative decisions in setting its utility rates and that the city may not charge users residing outside the corporate limits a different rate than that charged within the city (except for actual additional costs of rendering such service). Further the trial judge erroneously engaged in rate making, a legislative function. And finally, the inclusion in the judgment of interest on an unliquidated amount in dispute is clearly erroneous. Bryan and Sons Corp. v. Klefstad, 256 So.2d 382 (Fla. 4th DCA 1972).

The city adopted a rate ordinance in 1965 and an amended ordinance in 1968. The rates charged under both ordinances to users outside the city were double that charged to users within the city. The present suit first- attacked the 1965 rate ordinance and was later consolidated with a similar action attacking the 1968 ordinance. Following the close of plaintiffs’ evidence the city moved for judgment in its favor and that motion was renewed after plaintiffs were allowed to reopen and present additional evidence. These motions were denied.

Plaintiffs’ evidence consisted primarily of the testimony of an expert witness whose entire thesis was that the city earned too high a “rate of return” on its water system and that the “rate of return” was greater from users outside the city than from users within the city. These conclusions were reached by plaintiffs’ “expert” by calculations based on assumed and unsupported data from which were drawn the varied conclusions to support an erroneous thesis. The witness testified that the city is entitled to “. . . no rate of return because everything is taken care of above the line, or within their operations.”, that the city is not entitled to make a profit on its investment, “.. .. they have no equity. The profit is on equity.” The witness further testified that the “rate of return” as calculated by him was above 9.9% and “I believe that is an excessive rate of return.” After later calculations this witness made new determinations that the “rate of return” for the entire water system was. 12.01% with outside users contributing 17.89% and in-city users contributing 9.52%. His later testimony was that an 8% “rate of return” was proper, and that users both in and outside the city were paying rates in excess of those which would produce his determined “reasonable rate of return.” In response to a question by the court as to whether there was a recognized increased cost of service to water users outside the city this witness answered, “No sir.”

Plaintiff also produced a witness who was then sheriff of Broward County and a former Pompano Beach city commissioner, who testified that additional water rates were charged to those outside the city because of the many advantages otherwise provided by the city to those in proximity to it.

Plaintiff’s final witness was the city engineer who testified that additional charges are necessary for water users outside the city because of increased pumping capacity and pressures required, the greater expense of distribution of water to such users, the greater demands on the total system because of such outside additional users in larger feeder mains, additional peak-loading, additional plant capability, and additional well-field and storage capacities required. Such testimony, by which plaintiffs were bound, in no way supported their position.

Inherent in the authority to own and operate a utility is the authority to set reasonable rates and charges for such services and the power to do all things reasonably necessary in the conduct of such functions. Gainesville Gas & Electric P. Co. v. City of Gainesville, 63 Fla. 425, 58 So. 785 (1912); State v. City of Miami, 113 Fla. 280, 152 So. 6 (1933); State v. City of Miami, 155 Fla. 180, 19 So.2d 790 (1944).

A municipality must furnish utility services to all its users at reasonable and non-discriminatory rates, and Florida courts will intervene and strike down utility rate ordinances that are proven to be unreasonable or discriminatory. Storey v. Mayo, 217 So.2d 304 (Fla.1968).

Utility rate making by municipalities is a legislative function reviewable by the courts as are all legislative actions, but the authority of the courts in such matters is limited to making a judicial determination as to the validity of such rate ordinances. Courts may not engage in rate making, since this is an unlawful incursion in the legislative arena. Cooper v. Tampa Electric Co., 154 Fla. 410, 17 So.2d 785 (1944); Mohme v. City of Cocoa, 328 So.2d 422 (Fla.1976).

The city has the clear right to charge higher rates to users of its utility system outside the city than .to users inside the city. Clay Utility Co. v. City of Jacksonville, 227 So.2d 516 (Fla. 1st DCA 1969); Mohme v. City of Cocoa, supra. The Supreme Court, in Mohme, discussed at length the problems created for Florida cities by those on the urban fringe who enjoy but fail to pay their proportionate share of the cost of municipal services, and concluded that a differential in utility rates is justified to help defray other costs which “. . . cannot be pinpointed even under sophisticated cost accounting techniques.” Mohme, p. 425. That the property and homes of plaintiffs are now within the corporate limits of the city buttresses the observations made by Mr. Justice Sundberg in Mohme.

While its utility rates must be reasonable and non-discriminatory a municipality is entitled to make a reasonable profit from its utility operations and to use the proceeds thus derived for other valid municipal purposes. Hamler v. City of Jacksonville, 157 Fla. 240, 25 So.2d 648 (1946); Town of Riviera Beach v. State, 53 So.2d 828 (Fla.1951); Pinellas Apartment Ass’n v. City of St. Petersburg, 294 So.2d 676 (Fla. 2d DCA 1974); Contractors & Builders Ass’n v. City of Dunedin, 329 So.2d 314 (Fla.1976). One may logically ask how can the public be better served than by the provision of municipal services made possible through reasonable earnings of the municipality from reasonable and competitive rates charged to users of its publicly owned and operated utility.

Like other actions taken by legislative bodies, a utility rate ordinance is presumed valid, and the burden rests on those who attack such rates to clearly demonstrate that such rates are arbitrary, unreasonable, or discriminatory. The city has no duty to explain or justify its actions in setting rates until such burden has shifted to it by the establishment of a prima facie case of invalidity based on competent evidence. City of Tampa v. Tampa Waterworks Co., 45 Fla. 600, 34 So. 631 (1903); Clay Utility Co. v. City of Jacksonville, 227 So.2d 516 (Fla. 1st DCA 1969); Mohme v. City of Cocoa, 328 So.2d 422 (Fla.1976); City of North Miami Beach v. Southern Gulf Utilities, Inc., 339 So.2d 173 (Fla.1976).

The trial judge incorrectly construed the evidence under the applicable controlling law. Plaintiffs failed to make a prima facie case by competent evidence of the invalidity of the ordinances under attack, and we therefore reverse with directions that a final judgment be entered in favor of defendant, City of Pompano Beach.

REVERSED.

HERSEY, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I fully concur with Judge Fagan’s opinion and holding that the appellees failed in their burden of proof. In addition, I believe that a substantial part of the action was barred by the doctrine of re judicata, there having been a previous disposition adverse to the appellees which was not subsequently appealed or otherwise disturbed.


text:
    Jerrie Douglas BROWN et al., Appellants, v. Michelle CALDWELL, a minor, etc., Appellee.
    No. UU-185.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1980.
    Rehearing Denied Nov. 10, 1980.
    Robert D. Bell, of Fisher, Bell, Hahn, Winn & Ptomey, Pensacola, for appellants.
    Lefferts L. Mabie, Jr., and Louis K. Ro-senbloum, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   LARRY G. SMITH, Judge.

In this negligence suit the trial judge awarded judgment of $15,000.00 to appellee, Margaret Colville, as mother and next friend of Michelle Caldwell, for future medical expenses to be incurred by the daughter after reaching majority. Appellants, who were defendants below, contend that this award was in error because the daughter’s claim for future medical expense was adjudicated earlier in the case when the daughter received a judgment for $50,-000.00, which has been paid and satisfied; and further, because the mother’s claim for medical expenses incurred in behalf of her daughter is limited to those expenses incurred during the daughter’s minority. We agree that the judgment cannot be sustained under the circumstances presented and reverse.

Michelle Caldwell, a minor, suing by her mother and next friend, Margaret Colville, received a jury verdict of $50,000.00 for personal injuries. Margaret Colville, suing individually in the same case, sought recovery of expenditures incurred by her in securing medical treatment for her daughter, together with damages for loss of her daughter’s services while a minor. The same jury verdict found 0 — ,” or zero damages, with respect to the mother’s claims, although the uncontradicted evidence disclosed medical expenses of $2,757.00.

In post-trial proceedings, the trial judge found that the jury’s verdict denying recovery to the mother for medical expenses was contrary to the court’s instructions. Consequently, the court ordered: “That the plaintiff, Margaret Colville, a parent of Michelle Caldwell, is granted a new trial on the sole issue of damages for medical expenses of her injured daughter.” The motion for new trial by plaintiff-appellee was in all other respects denied. Subsequently, appellants paid the $50,000.00 judgment in favor of Michelle Caldwell, and received a satisfaction of judgment.

Prior to the new trial on Margaret Col-ville’s claim, but after the satisfaction of Michelle’s judgment, another trial judge (successor to the initial trial judge) entered an order in which he ruled, over appellants’ objections, that upon the new trial Margaret Colville would be entitled to recover, for the benefit of the plaintiff, Michelle Caldwell, all medical expenses “reasonably to be incurred by Michelle Caldwell after she reaches legal age in addition to the medical expenses incurred by the minor child prior to her attaining majority . . .,” and loss of the child’s services prior to reaching majority. The trial judge, who heard and considered the evidence without a jury, rendered judgment for Margaret Colville, which provided for recovery of $3,017.00 as medical expenses and loss of services during her daughter’s minority, and recovery of $15,000.00 by “Margaret Colville, as the mother and next friend of Michelle Caldwell, . . . for the use and benefit of Michelle Caldwell for future medical expenses reasonably to be incurred by Michelle Caldwell after attaining her majority.”

Appellants do not contest the award of $3,017.00; but they contend the award of $15,000.00 for future medical was erroneous as a matter of law. We agree. A parent can only recover his pecuniary loss as a result of injury to his minor child. City Stores Company v. Langer, 308 So.2d 621 (Fla. 3rd DCA 1975), appeal dismissed 312 So.2d 758 (La.). The parent’s right of action is totally independent of any action by the child. Although the child must sue by his “next friend” (if there is no guardian or other like fiduciary, Rule 1.210(b), Florida Rules of Civil Procedure), the “next friend,” who in this instance was the plaintiff’s mother, does not become a party to the suit. Youngblood v. Taylor, 89 So.2d 503 (Fla.1956); Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (1926). Thus, there were two separate and independent causes of action in this case; one by the minor, Michelle, the other by her mother. The minor’s case was fully adjudicated and settled by the rendition and payment of her judgment for $50,000.00.

Any claim for future medical incurred beyond the majority of the minor plaintiff was an element of damages recoverable by the minor, albeit by her next friend, her mother. The order for new trial entered prior to the satisfaction of Michelle’s judgment was limited to the medical expense claims of the mother, which could include only those expenditures incurred in behalf of her daughter during her minority. See Florida Standard Jury Instructions 6.2c, “Medical expenses: .. . care and treatment of claimant’s minor child . ..,” and “care and treatment of minor claimant after reaching majority The general rule is that the obligation of a parent for support and care of a minor child ceases at majority. Although an exception to this general rule may arise when the child is, from physical or mental deficiencies, unable to support himself, Perla v. Perla, 58 So.2d 689 (Fla.1952), there is no showing in this case that such a burden has been lawfully imposed upon appellee. Cf. Fincham v. Levin, 155 So.2d 883 (Fla. 1st DCA 1963). To the contrary, at the time of the new trial Michelle was 20 years of age, and had been married for two years. Furthermore, there was no finding by the court, and there is no evidence in the record before us, showing payment by appellant of any medical expenses incurred by her daughter during her majority.

We are cognizant of appellant’s argument that errors were made in the jury instructions in the first trial. However, any such errors were waived by the failure to appeal, and by satisfaction of Michelle’s judgment.

REVERSED with directions to enter modified judgment striking the award of $15,000.00.

ERVIN and SHIVERS, JJ., concur.


author: HENDRY, Judge.

text:
    The STATE of Florida, Appellant, v. Arthur Nathaniel WRIGHT, Appellee.
    No. 79-1923.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Janet Reno, State’s Atty. and Ira N. Lo-ewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Joseph C. Segor, Asst. Public Defender, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   HENDRY, Judge.

This is an appeal of an order of the Circuit Court for Dade County, discharging defendant, Arthur Nathaniel Wright, pursuant to Florida Rule of Criminal Procedure 3.191(a)(2).

The defendant was charged with armed robbery on March 29, 1979. He was arrested on the armed robbery charge, and other outstanding charges on April 27, 1979.

The public defender, who represented the defendant, requested discovery pursuant to Florida Rule of Criminal Procedure 3.220. The State filed its discovery response on May 3, in which it listed three witnesses; the victim Rick Doane, and officers P. Richardson and M. Files of the Public Safety Department.

On June 6, 1979 defense counsel took the deposition of the victim, Doane. The State made no appearance. In the course of taking the deposition, Doane informed defense counsel that on the night of the robbery he was visited by a friend named Steve Churchman, who was an eyewitness to the robbery; that Churchman talked to the police and filled out a report, that he had identified the defendant from a photo and that Churchman was called to the police station where he picked the defendant out of the photo line up. Doane could not recall Churchman’s address, but stated it was in the telephone book.

Five days later, on June 11, 1979, defendant filed his demand for speedy trial. On the same date, he filed a motion to exclude the testimony of officer Richardson to which the State responded. The motion was denied. Defense counsel deposed officer Richardson on June 13, 1979.

Defendant filed a second demand .for speedy trial on June 13, 1979, the date the case was set for trial. On the morning of that day, the court heard and denied a motion to suppress identification. The court then recessed for lunch.

Upon returning from the noon recess, the prosecutor informed the court that he had just located and talked with a “new” witness named Steve Churchman; that Churchman was on his way to the courthouse and that he would probably testify for the State. The prosecutor stated that he was unaware of the witness’s name and address until that very day, and for that reason he was requesting a continuance. Defense counsel objected to a continuance on the ground that the State had prior knowledge of the witness, and that the State was negligent in its efforts to locate Steve Churchman since he himself had found Churchman’s name, address and telephone number in the telephone book. The court continued the case until the next day, giving defense counsel the opportunity to depose Churchman. The next day defense counsel orally moved to exclude the testimony of Churchman on the ground that the State had failed to list him in its discovery response. In the alternative, he requested a continuance charged to the State. The court denied the motion to exclude, but continued the case until July 9, charging the continuance to the State.

On June 15, 1979 defense counsel filed a motion for production of favorable evidence, with which the State agreed to comply. On June 20,1979, defense counsel filed a motion to compel the name and address of an unidentified witness referred to in the police reports which had been furnished to him. There was also a motion to compel production of evidence. The court granted these motions.

On June 25, 1979 the State again moved for a continuance on the ground that the lead officer was going to be on vacation' from July 8, 1979 to July 31, 1979. This motion was denied and so was the State’s motion to accelerate the trial date. At the same hearing, the court granted the defendant’s motion to suppress the photographic identification of the defendant made by Churchman, and denied defendant’s motion to exclude testimony concerning a statement allegedly made by the defendant to the victim.

The State renewed its motion for continuance on July 3 and 4. Both motions were denied. The State’s motion to strike the demand for speedy trial was also denied. On July 9, the State was not ready for trial due to the non-availability of the lead officer, whereupon the case was nolle prossed.

On July 24, 1979 the State refiled an information against the defendant.

On September 19, 1979 the defendant filed a written motion, for discharge to which the State filed a written response. After hearing on the motion the court granted the motion and entered an order of discharge. This appeal is from that order.

Appellant’s contention on appeal is that the trial court erred in discharging the defendant pursuant to Florida Rule of Criminal Procedure 3.191(a)(2), when defense counsel had moved for a continuance subsequent to the filing of defendant’s demand for speedy trial so that he could engage in further discovery relating to a witness whose identity was known to defense counsel at the time his demand for speedy trial was filed.

The pertinent provision of section (a)(2) of Rule 3.191 reads as follows:

every person charged with a crime- by indictment or information shall upon demand filed with the court having jurisdiction and upon service of a copy of such demand upon the prosecuting attorney be brought to trial within 60 days. . . .

This should be read in connection with the following provisions of section (c) of the Speedy Trial Rule:

A demand for speedy trial binds the accused and the State. No demand for speedy trial shall be filed or served unless the accused has a bona fide desire to obtain trial sooner than otherwise might be provided. A demand for speedy trial shall be deemed a pleading by the accused that he is available for trial, has diligently investigated his case, and that he is prepared or will be prepared for trial.

After a demand for speedy trial has been filed, the court should not summarily dismiss a defendant at the expiration of the 60 day period provided in the rule. It is not only appropriate, but necessary, to ascertain whether or not the accused had a “bona fide desire” to obtain the speedy trial, and to determine whether or not the accused or his attorney “has diligently investigated his case and that he is prepared ... for trial”. If these prerequisites to the filing of the demand were not met, the demand for speedy trial should be stricken as being null and void.

It is apparent from the record that defense counsel sought a continuance on June 14, 1979, so as to engage in further discovery relating to Steve Churchman, a witness whose identity defense counsel was aware of five days before he filed his demand for speedy trial.

It is the State’s contention that defense counsel had not “diligently investigated his case”, therefore his demand for speedy trial was a spurious pleading. The «State further contends that the matter of Steve Churchman’s testimony could reasonably have been anticipated by the accused or his counsel, therefore defense counsel’s action in seeking and obtaining a continuance vitiated his earlier demand for speedy trial.

The defendant argues that the facts surrounding defendant’s discharge support the trial court’s conclusion that the delay in trying this case was not occasioned by any failure on the part of the defendant to be prepared for trial but was as a result of the State’s failure to comply with the rules of discovery and that the continuance was in no way an indication that the defendant lacked a bona fide desire to obtain a speedy trial. We cannot agree with the defendant’s contentions, therefore we must reverse. State ex rel. Ranalli v. Johnson, 277 So.2d 24 (Fla.1973); Turner v. State ex rel. Pellerin, 272 So.2d 129 (Fla.1973); State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971); Savinon v. State, 277 So.2d 58 (Fla.3d DCA 1973).

In Turner, supra, wherein defense counsel moved to compel disclosure of favorable evidence and to compel certain witnesses to give depositions after he had filed his demand for speedy trial, the Supreme Court held:

Notwithstanding the state’s conduct surrounding pre-trial discovery, respondent’s energetic interventions through motions constitute the antithesis of “a bona fide desire to obtain trial”. They certainly are not suggestive of the wondrous thought that respondent “is available for trial, has diligently investigated his case, and that he is prepared ...”

For the reasons stated and upon the authorities cited, the order granting the motion to discharge the defendant is reversed and the cause remanded for trial.

Reversed and remanded.