author: McCORD, Judge.

text:
    CITY PRODUCTS CORPORATION and Underwriters’ Adjusting Company, Appellants, v. Ernest HARRIS, Appellee.
    No. SS-164.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.

      Yvonne E. Reed of Walton, Lantaff, Schroeder & Carson, Miami, for appellants.
    Ira J. Druckman, Miami, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from the deputy commissioner’s finding that appellants are liable to appellee/claim-ant for attorney’s fees because appellants did not accept appellee as permanently disabled within 21 days after notice by letter from the treating physician. The deputy commissioner concluded that a November 28, 1978, letter from the treating physician to the employer/carrier constituted sufficient notice of permanent impairment, thereby imposing on employer/carrier at least a duty to inquire and investigate as to its liability for permanent disability at that point. The November letter from the treating physician informed employer/carrier that:

... I do not think that further orthopedic management at this time is necessary and I feel that we will continue to follow him at intervals as required ... He probably is able to return to a light duty type status ... He will probably be left with a residual permanent disability of 10 to 15 percent. He is scheduled to return for a follow-up visit in December and I will be happy to keep you advised of his continued progress at that time.

Employer/carrier accepted appellee as permanently totally disabled on January 9, 1979, within 21 days after receiving the treating physician’s letter of December 13, 1978, which read, in part, as follows:

Mr. Harris was seen in final consultation in my office on December 12, 1978. As noted in my previous letter, he was discharged from care at this time with a permanent disability of 10 to 15 percent of the body as a whole.

Appellants contend that the November letter did not constitute sufficient notice of permanent impairment but that such notice was received for the first time in the December letter. They assert that because they accepted the permanent disability rating within 21 days after receipt of the December letter, acceptance was timely and, therefore, appellee’s lawyer is not entitled to a fee pursuant to § 440.34, Florida Statutes (1977). We agree. The November letter was predicated on a probability that appellee would suffer a permanent disability of 10 to 15 percent. Appellants were justified in waiting to hear from the treating physician in December before accepting appellee as permanently disabled. Therefore, because appellants accepted the permanent disability rating within 21 days after receipt of proper notice of permanent disability, appellee’s lawyer is not entitled to a fee.

REVERSED.

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


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    Samuel Walter SURRATT, Jr., Appellant, v. Raymond H. HODGES, as Personal Representative of the Estate of Charles Albert Giramaire, Deceased, Appellee.
    No. 80-195.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1980.
    H. Clyde Hobby of McClain & Hobby, P. A., Dade City, for appellant.
    Philip 0. Allen of DeVane, Munson, Anderson & Allen, Lakeland, for appellee.
   GRIMES, Judge.

This appeal considers the proper disposition of a case on remand after the reversal of a judgment entered in favor of a defendant upon the defendant’s motion for a directed verdict made at the close of the plaintiff’s case.

The case began when Raymond Hodges, as personal representative of the estate of Charles A. Giramaire, filed a complaint against Mr. and Mrs. Surratt alleging fraud, undue influence, and conversion and seeking damages and the return of both real and personal property. The Surratts answered the complaint, and Mr. Surratt filed a counterclaim seeking to quiet title in the real and personal property mentioned in the complaint.

The parties went to trial before a jury which heard evidence as to how Mr. and Mrs. Surratt obtained the great bulk of Mr. Giramaire’s property during the time of his final illness. At the conclusion of Mr. Hodges’ case, the court granted Mr. Sur-ratt’s motion for directed verdict on both the complaint and the counterclaim. Subsequently, the jury considered the case against Mrs. Surratt and awarded Mr. Hodges $25,000 damages. However, the court then granted Mrs. Surratt’s motion for judgment notwithstanding the verdict and entered a final judgment in favor of the Surratts.

On appeal, this court ruled that the purported transfers of assets by Mrs. Surratt to Mr. Surratt under a power of attorney given by Mr. Giramaire to Mrs. Surratt were void, and it set aside those transfers. Hodges v. Surratt, 366 So.2d 768 (Fla.2d DCA 1978). We reinstated the jury verdict against Mrs. Surratt and directed the trial court to enter judgment against her in accord with that verdict. We also set aside the directed verdict and judgment for Mr. Surratt and remanded the case for further proceedings with respect to him which were consistent with the opinion. On remand, Mr. Hodges filed a motion for entry of a judgment in compliance with the directions of this court, and in response Mr. Surratt filed a motion for new trial. The- court granted Mr. Hodges’ motion and entered judgment in his favor against both Mr. and Mrs. Surratt.

In this second appeal Mr. Surratt argues that he was entitled to a new trial after this court remanded the case because he never had the opportunity to present testimony in support of his answer or counterclaim since the court entered judgment in his favor based on a directed verdict which came at the conclusion of the plaintiff’s case. To preclude him from now presenting his side of the case will, he contends, deny him his right to a full and fair hearing and thus to due process of law. We agree. In a case which is remarkably on point, the Third District Court of Appeal considered a similar factual situation and said:

We candidly admit that after finding error in the directed verdict for the defendants in the earlier proceeding we made a mistake in directing the trial judge to direct a verdict for the plaintiff for both compensatory and punitive damages. This is so because we denied the defendants their day in court in that they never had an opportunity to present any defenses. Necessarily, for the proper determination of their motion for directed verdict, the defendants at the time of the first trial had to admit without contest all the evidence introduced and reasonable inferences therefrom in favor of the plaintiff, and this formed the basis of the factual statement set forth in the earlier opinion. However, after we determined that the trial court erred in directing a verdict for the defendants, we should have returned the matter to the trial court for further proceedings in accordance with the rules of civil procedure and ordinary due process.

Trio Towing Service, Inc. v. Murrell, 325 So.2d 21, 22 (Fla.3d DCA 1975). See also Peile v. Diners Club, 287 So.2d 737 (Fla.3d DCA 1974).

We reverse the judgment against Mr. Surratt and remand the case for a new trial.

SCHEB, C. J., and RYDER, J., concur.

      . Procedurally, the court properly sustained the counterclaim at that juncture because Mr. Hodges’ attorney conceded that he had no additional evidence with which to oppose it and that if the directed verdict against his client was correct, Mr. Surratt was also entitled to the relief sought in his counterclaim.

      . The only relevant difference between the two cases is that in its original reversal, the Third District had ordered the trial court to enter a directed verdict for the plaintiff whereas here our court merely remanded the case for further proceedings consistent with its opinion.

      . Of course, Mr. Surratt will be bound by the law established in our first opinion to the extent that it is applicable to the facts presented at the new trial.


text:
    Larry STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 80-544.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1980.

      J. David Langford, Avon Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This appeal involves the legality of a search warrant which failed to identify the person or group of persons authorized to effect its execution.

The state charged appellant with possession of marijuana with intent to sell and possession of narcotic paraphernalia. The charge resulted from the seizure of the contraband from appellant’s residence pursuant to a search warrant. He moved to suppress the contraband, alleging that the omission of those authorized to execute the warrant rendered it facially defective and incapable of proper execution. The court denied the motion, and appellant pled nolo contendere, reserving the right to appeal the denial of his motion. We conclude the court erred in not suppressing the evidence seized under the warrant.

Section 933.07, Florida Statutes (1979), governs the issuance of a search warrant. It instructs judges that where they find probable cause they “shall” issue a signed warrant to “any sheriff and his deputies or any police officer or other person authorized by law to execute process” From this we have no choice but to conclude that the legislature has mandated that a warrant be issued to a specific class of persons.

The search warrant under attack was a form of warrant in which the printed salutation began with the words: “IN THE NAME OF THE STATE OF FLORIDA TO.” Presumably, through oversight, nothing was typed after these words. The effect was that no person or group of persons were directed by the issuing judge to execute the warrant. Consequently, the warrant did not comply with section 933.07. Search warrants which do not conform strictly to the statutory requirements are void. Pell v. State, 97 Fla. 650, 122 So. 110 (1929).

The state relies primarily upon State v. Cain, 272 So.2d 548 (Fla.2d DCA 1972), in which we held that the failure to date a search warrant was a nonfatal technical defect when there was no proof of prejudice to the defendant and the date of issuance was determinable from the face of the warrant. In the case at bar, the omitted designation could not be discerned from the warrant. The defective warrant here is more like the warrant considered in Martin v. State, 344 So.2d 248 (Fla.2d DCA 1976). In that case we noted that the failure of the issuing magistrate to sign the original of the search warrant was a fatal defect. The court reasoned that section 933.07 mandated the signing of the warrant and that strict compliance with that statute was required.

There is another reason why the court should have granted the motion to suppress. Section 933.08, Florida Statutes (1979), requires that one of the officers mentioned in the warrant’s direction serve the warrant. Service of a warrant by an unauthorized person requires the suppression of the evidence seized. Hesselrode v. State, 369 So.2d 348 (Fla.2d DCA 1979). If service of a warrant by one not specified in the direction is not legal, when no one is designated to serve the warrant, its execution becomes impossible. The fact that the deputy who served the search warrant was among that class of persons authorized by section 933.07 to be directed to do so is irrelevant because there was no direction whatsoever.

Lest we be perceived as being unduly technical, we believe it appropriate to restate the position taken by this court in Hesselrode. There Judge Ryder said:

Save for the First and Fifth Amendments, the Fourth Amendment, from which we receive Section 12 to Article I of our own Florida Constitution, is probably most important to the liberty of all freedom loving citizens. One cannot sit idly by and observe its meaning be slowly eroded away even by well-meaning police and prosecutors.
A court is reluctant to suppress evidence, which if obtained in a lawful fashion, would have been of compelling importance to the prosecution for felony. But there is no other course by which a court can insist upon compliance by police officers with the requirements of law with respect to searches and seizures than to suppress evidence illegally obtained.
We share the frustration so eloquently expressed by the learned trial judge below but as keepers of the law, we must maintain the integrity of our constitution adopted by the people and statutes given to us by our legislators.

369 So.2d at 351.

REVERSED.

SCHEB, C. J., and HOBSON, J., concur.


author: COWART, Judge.

text:
    Wilbur HOLMES, Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Appellee.
    No. 77-547/T4-5.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 1980.
    Wilbur Holmes, pro se.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Gregory C. Smith and Barbara Ann Butler, Asst. Attys. Gen., Daytona Beach, for appellee.
   COWART, Judge.

Appellant had a fair trial that reached a just result but it was not a perfect trial. Technical error was committed in admitting hearsay into evidence. Nevertheless, in our opinion, after an examination of the entire case, it does not appear that a different result would have been reached at trial if the error had not occurred nor that the error resulted in a miscarriage of justice. We are constrained by Section 59.041, Florida Statutes (1979), from reversing the judgment below and it is, therefore,

AFFIRMED.

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


author: COBB, Judge. SHARP, Judge,

text:
    SANDRA FASHIONS, INC., Appellant, v. Gladys O. DOYLE et al., Appellees.
    No. 78-1994/T4-207.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 1980.
    Wendell J. Kiser and Robert C. Barrett of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Kenneth H. Hart, Jr., Tallahassee, and Ollie Evans, Miami, for appellee, Florida Dept, of Commerce, Division of Employment Security.
    Gladys 0. Doyle, pro se.
   COBB, Judge.

The employee, Gladys Doyle, was notified on a Thursday afternoon that her employer, Sandra Fashions, Inc., wanted her to report for work the next day, Friday. She believed that she was entitled to a 24-hour notice under her union contract and, since she had an appointment to have her hair done, she declined to go to work on Friday.

The claims representative found that Doyle had declined to come to work on Friday due to non-compelling personal reasons and, therefore, was ineligible for unemployment compensation benefits for the week that included that Friday. On appeal, the appeals referee found that Doyle had been unavailable for work for only one day and that it was the policy of the Bureau of Unemployment Compensation that no penalty would be imposed if only one day of availability was involved. The Board of Review affirmed the referee, and the employer now brings the Board’s decision before this court via a misnomered petition for certiorari, which is treated here as an appeal filed pursuant to Rules 9.030(b)(1)(C), and 9.110(a)(2), Florida Rules of Appellate Procedure. See Fla.R.App.P. 9.040(c).

Section 443.05(l)(c), Florida Statutes, provides that an unemployed individual is eligible to receive benefits for a particular week if he is able to work and available for work during that week. With regard to being available the courts have stated that:

One seeking employment must assume the responsibility of managing his personal affairs in such a manner as will enable him to reasonably comply with the conditions of the work he seeks. If he fails to discharge this responsibility, it cannot be said that he is available for work in the usual commercial sense.

McCormick v. Henry Koerber, Inc., 252 So.2d 599, 602 (Fla. 1st DCA 1971); Andrus v. Fla. Dept. of Labor and Employment Security, 379 So.2d 468, 470 (Fla. 4th DCA 1980).

Doyle’s belief that her union contract entitled her to 24-hour notice cannot alter state law in regard to unemployment compensation; such a condition, if so applied, would give a union employee a favored status over a non-union employee. If so construed, the unemployment compensation statute would be discriminatory and probably unconstitutional. Auchter Co. v. Fla. Dept. of Commerce, 304 So.2d 487 (Fla. 1st DCA 1975), affirmed sub nom., Adams v. Auchter Co., 339 So.2d 623 (Fla.1976); Norman v. Employment Security Agency, 83 Idaho 1, 356 P.2d 913 (1960).

There does not appear to be a legal basis for the appeals referee’s rationale that Doyle was unavailable for work for only one day. Section 443.06(2), Florida Statutes provides that an individual shall be disqualified for benefits if the individual has failed without good cause to accept suitable work when offered to him. The statute make no exception for one day. In addition, the Bureau of Unemployment Compensation Manual provides that:

If at any time a worker is not available for one day only of the calendar or claim week, he may be considered available for the entire week and eligible to sign for a compensable claim. However, if an actual job is available and he could have worked on that day, he is considered unavailable for the entire week. If a claimant is not available for more than one day during a calendar or claim week, he is considered unavailable for all cases for the entire week.

It appears that the finding of fact of the claims representative that Doyle was unavailable for work due to a non-compelling personal reason is supported by competent, substantial evidence. However, the decision of the appeals referee that an employee is entitled to be unavailable for work for any reason he chooses for one day is erroneous as a matter of law.

REVERSED.

ORFINGER, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I respectfully dissent. There is evidence in the record to sustain the decision of the appeals referee and Board of Review, and since it is the agency statutorily entrusted with the interpretation of the unemployment compensation laws, we should affirm its decision.

The majority opinion ignores the evidence in the record which shows that neither the employee nor the employer had in the past adhered to the strict letter of the unemployment compensation laws. Doyle was employed by her employer over an eight year period. She was frequently laid off and frequently recalled because the employer’s work volume fluctuated in the normal course of business. When she was laid off, Doyle never sought other employment knowing she would shortly be recalled for work.

During these layoffs, it was the practice of the employer (whether required by a union contract or not) to give Doyle at least 24 hours recall notice before requiring her to return to work. Sometimes Doyle returned with the shorter notice; sometimes she did not. Never before had her unemployment compensation claims been challenged by her employer because she failed to return to work for a “non-compelling personal reason” when given less than 24 hours notice. Suddenly and without advance warning, the employer changed this practice, and Doyle now must forfeit one week’s unemployment compensation for one day’s work. She did return to work the following Monday.

Unemployment compensation laws are remedial and humanitarian, and they should be liberally and broadly construed. Williams v. State Dept. of Commerce, 260 So.2d 233 (Fla. 1st DCA), cert. denied, 264 So.2d 427 (1972). Doyle’s one day delay in returning to work seems no more egregious or “non-compelling” than the painter who thought it was going to rain and helped his friend move to Georgia instead of going to work. Williams. In this case, unlike Williams, the Board could also have found the employer contributed to Doyle’s failure to come to work on Friday, and it should be estopped to dispute her claim.

      . Board of Cty. Com’rs. v. Fla. Dpt. of Commerce, 370 So.2d 1209 (Fla.2d DCA 1979); C. F. Industries, Inc. v. Long, 364 So.2d 864 (Fla.2d DCA 1978).

      . See generally Alderman v. Stevens, 189 So.2d 168 (Fla.2d DCA 1966); Davis v. Evans, 132 So.2d 476 (Fla. 1st DCA), cert. denied, 136 So.2d 348 (1961).


author: JOANOS, Judge.

text:
    Gregory B. SWISHER, Appellant, v. STATE of Florida, Appellee.
    No. PP-388.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.

      J. Victor Africano, Live Oak, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   JOANOS, Judge.

Appellant, Gregory Swisher, appeals from the lower court’s denial of his motion for discharge under Florida Rule of Criminal Procedure 3.191. Appellant asserts that because the court failed to hold trial within the 180-day time limit set for persons charged with a felony, he was denied his right to a speedy trial. After reviewing the record, we find that the trial judge was correct in denying the motion for discharge.

Appellant was arrested on November 12, 1978, appointed a public defender on the next day and charged with a felony several days later. A 180-day time period begun from the date of arrest would have run out on May 9, 1979.

The trial initially was set for February 21, 1979, but was rescheduled for March 27 when appellant’s public defender withdrew and another attorney was appointed. On March 6, less than one month before trial, appellant filed notice to plead not guilty by reason of insanity and moved the court to appoint a psychiatrist. At the hearing on that motion, appellant’s attorney agreed to the appointment of two Gainesville psychiatrists recommended by the State, but he also requested the appointment of a Jacksonville psychiatrist who was presently available to see the appellant either in addition to the other two psychiatrists or in lieu of them. The trial judge responded that he would appoint only the two Gainesville psychiatrists primarily because of the additional expense that would result if appellant had to be examined in different cities. The State then suggested that the 180-day time limit should be tolled if any delay resulted from psychiatric examination. Appellant argued in opposition to that position asserting that he had requested his first attorney to file notice of the defense of insanity at an earlier time. Since neither side would move for a continuance, however, the court did not rule on the State’s suggestion.

On March 27, the day set for trial, appellant moved for a continuance on the ground that the earliest available appointment with the psychiatrists was April 9. The court granted the motion and ordered that the trial be reset on not less than 15 days notice. On May 16, 1979, the State filed a notice setting trial for June 20, 1979. Appellant then moved for a discharge alleging that the State had not complied with the time limitation set by Rule 3.191(a)(1), which, according to appellant, required trial to have commenced by May 8, 1979.

The court denied appellant’s motion basing its decision on the circumstance that as of June 18, 1979, one of the psychiatrists had not yet filed his evaluation. According to the trial court, this was an exceptional circumstance under Rule 3.191(f). The court then granted appellant’s oral motion to continue the trial without prejudice to his right to appeal. Appellant plead nolo contendere to the charges against him on July 9, 1979, but he reserved his right to appeal the speedy trial question.

Citing State ex rel. Smith v. Rudd, 347 So.2d 813 (Fla. 1st DCA 1977), appellant has argued that any order extending the speedy trial period due to exceptional circumstances must be issued before the speedy trial period has run and the motion for discharge is filed. The State, on the other hand, has contended that appellant automatically waived the 180-day time limitation either when he moved for and was granted a psychiatric evaluation or when he moved for and was granted a continuance.

State ex rel. Smith, supra, does stand for the proposition that exceptional circumstances will not justify the extension of the speedy trial period after that period has already expired and a motion for discharge has been filed. That principle, however, is not controlling in this situation.

We find that appellant’s late filing of his insanity defense notice combined with his subsequent motion for a continuance constituted a waiver of the specific time limits provided for in Rule 3.191(a)(1). Appellant did not move for appointment of a psychiatrist until three weeks before the date of trial. When the psychiatrists were appointed, the judge recognized that a continuance might be necessary to allow for evaluations but neither side was willing to move for a continuance. The judge’s concerns were validated when on the date set for trial, appellant moved for a continuance because psychiatric examinations could not be scheduled until a later date.

In essence, appellant suggests that his late request for psychiatric evaluation should be excused because of the problems between him and his first appointed counsel and should have been accommodated by allowing a continuance, yet his right to demand a trial within the inflexible time periods of Rule 3.191(a) should not have been forfeited. We do not agree. When appellant moved for and was granted a continuance, the 180-day time limit was waived to the extent necessary to allow a reasonable time for completion of the psychiatric evaluations. See Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). See also Chester v. State, 298 So.2d 529 (Fla. 3d DCA 1974). Under the circumstances of this case, the delay resulting from the examinations by the court-appointed psychiatrists was not unreasonable. The trial was reset for June 20, 1979, which was within 106 days of appellant’s motion for appointment of a psychiatrist and within 72 days of the initial examinations.

AFFIRMED.

WENTWORTH, J., and WOÓDIE A. LILES (Ret.), Associate Judge, concur.


text:
    James Lamar FUQUAY, as Personal Representative of John Fuquay, deceased, Appellant, v. REVELS MOTORS, INC., Guignard Freight Lines, Inc., and William Baker, Appellees.
    No. SS-74.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.

      David R. Lewis of Lewis, Paul, Isaac & Castillo, P. A., Jacksonville, for appellant.
    S. Thompson Tygart, Jr., Jacksonville, Dale S. Wilson, Green, Cove Springs, Michael I. Coulson and Joseph P. Milton of Howell, Howell, Liles, Braddock & Milton, Victor M. Halbach, Jr., and Ronald L. Palmer of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appel-lees.
   JOANOS, Judge.

This cause is before us on appeal from an order granting a motion to dismiss. The complaint alleged that in 1978, a 1974 Ford sedan owned and driven by John Fuquay was struck in the rear end by a truck owned by Guignard Freight Lines, Inc., and driven by an employee of Guignard. It was further alleged that the auto driven by John Fuquay exploded in flames and Mr. Fuquay died as a result. A wrongful death action was brought against the driver of the truck, William Baker, and Guignard, as well as Ford Motor Company and Revels Motors, Inc., a used auto dealership which sometime between 1974 and the collision sold the used Ford to the decedent. The cause against Revels Motors was dismissed and appellant has appealed that order.

The question before us at this time is whether or not the trial judge was correct in dismissing Count III of the Second Amended Complaint, the count for breach of warranty against Revels Motors. We have determined that the trial judge was correct and should be affirmed.

Count III alleged that the decedent had relied upon the skill and judgment of the auto dealer in making the purchase, and that Revels Motors, at the time the decedent purchased the auto, knew the purpose for which the buyer intended to use it, i. e., as a means of transportation on Florida highways. It was further alleged that Revels Motors impliedly warranted the auto was reasonably fit for the intended purpose of transportation “among and in traffic and in probable rear-end collisions.” Finally, Count III alleged “the Ford exploded in flames due to the faulty design and placement of the gas tank in the body of the vehicle when it was struck from the rear by another vehicle while being used for its intended purpose, causing mortal injuries to John Fuquay who was then a user of the product.” (emphasis ours)

Sections 672.314 and 672.315, Florida Statutes, provide for implied warranties of merchantability and fitness, and such warranties are applicable to used motor vehicles. See Knipp v. Weinbaum, 351 So.2d 1081 (Fla. 3d DCA 1977); cf., Brown v. Hall, 221 So.2d 454 (Fla. 2d DCA 1969). “A contract for the sale of second-hand goods, however, involves only such obligation as is appropriate to such goods for that is their contract description.” Comment 3 to § 672.314, Florida Statutes, 19A Florida Statutes Annotated 222 (1966).

The allegations of the complaint in the present case would be sufficient to state a cause of action against the manufacturer of the auto; see, e. g., Evancho v. Thiel, 297 So.2d 40 (Fla. 3d DCA 1974); Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla.1976). The complaint may also be sufficient to state a cause of action against a vendor of a new automobile. While we refrain from ruling on that point since it is not before us, we are aware that result was reached in Smith v. Fiat-Roosevelt Motors, Inc., 556 F.2d 728 (5th Cir. 1977). The rationale for holding a manufacturer of new automobiles liable as in Suvada v. White Motor Co., 51 Ill.App. 318, 210 N.E.2d 182 (1965), would appear to be that losses should be borne by those “who have created the risk and reaped the profit by placing the product in the stream of commerce.” " When liability has been imposed upon wholesale or retail vendors of new merchandise, it has been said it is because of their role in the producing and marketing process, which “enables them to exert pressure on the manufacturer to enhance the safety of the product.” See Peterson v. Lou Bachrodt Chevrolet Co., 61 Ill.2d 17, 329 N.E.2d 785 (1975). Neither rationale is applicable to a vendor of used automobiles.

In the present case appellee is a seller of used cars and has had no responsibility for the placement of the automobile into the stream of commerce. A vendor so removed from the original marketing chain is unable to exert any significant influence on the manufacturer, and we agree with the Illinois Supreme Court’s determination in Peters on, supra, that in such circumstances the vendor should not be liable, absent additional facts, for latent design defects in the product.

The dismissal of the cause against Revels Motors, Inc., is AFFIRMED.

WENTWORTH, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.

      . We do not hold that a cause of action for breach of implied warranty may never be stated against a used automobile dealer when a design defect is involved. In this particular complaint, however, no allegation was made that the used auto dealer knew or should have known of, or in any way had superior knowledge of the alleged design and placement defect. The result of finding that a cause of action exists under these circumstances would be to make the used automobile dealer a virtual insurer against every kind of defect.


author: THOMPSON, Judge. MILLS, Chief Judge,

text:
    M. W. W., a child, Appellant, v. STATE of Florida, Appellee.
    No. SS-137.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.

      Thomas S. Keith, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

The appellant was found guilty of possessing more than 20 grams of cannabis and was adjudicated delinquent. He appeals on the ground that his motion for a judgment of acquittal was improperly denied. We agree and reverse.

At the appellant’s trial, a police officer testified that he and several other officers executed a search warrant at a house in Jacksonville. As they arrived, the appellant was exiting the house. The search warrant and Miranda rights were read to the appellant, who, according to the officer, “had the outward appearance of being very high.”

During a search of the house, several “Baggies” of cannabis were found inside a closed drawer of an end table located in a bedroom, which the appellant identified as his bedroom. The officer could not remember whether the appellant said that he was the only person who stayed in the bedroom. However, the appellant did not mention that his brother shared the bedroom with him, although he did say that his brother had begun serving a prison sentence about 3 days before the search.

At the close of the officer’s testimony, the appellant moved for dismissal and a judgment of acquittal. The motions were denied. The appellant then testified that there was a trundle bed in his bedroom, and that his brother had shared that bedroom with him for all of the appellant’s life. The appellant stated that he had no knowledge of cannabis being in the bedroom, and that he only touched the stereo on top of the end table where the cannabis was found. He also denied smoking cannabis or being “high” in any way on the day of the search. The appellant did not know if his brother smoked cannabis. At the close of this testimony, he renewed his previous motions, and they were again denied.

The State correctly points out that on this appeal the test to review the denial of the motion for a judgment of acquittal is whether the trial judge, sitting as the finder of fact, might have reasonably concluded that the evidence excluded every reasonable hypothesis of innocence. However, such a conclusion is legally impermissible in this case.

The appellant did not actually possess cannabis. Thus, the question is whether he was in constructive possession; i. e., did he know of the presence of the cannabis in his bedroom and have the ability to maintain control over it. See Ellis v. State, 346 So.2d 1044, 1047 (Fla.1st DCA 1977), cert. den. 352 So.2d 175 (Fla.1977). If the bedroom was not in the exclusive but only in the joint possession of the defendant, constructive possession cannot be legally inferred but must be established by proof. Frank v. State, 199 So.2d 117, 120-21 (Fla.1st DCA 1967).

Proving access to or control of premises by proof of occupancy is enough to establish constructive possession, if, and only if, it is exclusive occupancy. See Thompson v. State, 375 So.2d 633, 634-35 (Fla.4th DCA 1979); Spataro v. State, 179 So.2d 873, 877 (Fla.2d DCA 1965). Here, the appellant and his brother had access to and control of the bedroom. Also, the appellant had an opportunity to hide cannabis therein, and his brother had the same opportunity up until only 3 days before the search. Thus, there was joint possession. Cf. Ellis, 346 So.2d at 1046-47 (fact that several persons during the weeks prior to a search, had access to a room where drugs were found, was emphasized by the court in determining that there was no exclusive control of that room).

Since there was joint possession of the bedroom, proof of the appellant’s knowledge of the cannabis therein must be shown by “evidence establishing actual knowledge ... or evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge. . . . ” Frank, 199 So.2d at 121. Such evidence is lacking here.

No evidence was offered which established that the appellant actually knew of the cannabis. Instead, the State contends that the following facts indicate that the appellant had knowledge of the cannabis; First, he did not tell the detective that he shared his bedroom with anyone. But this “fact” is not in the record; rather, it appears that the detective could not remember whether the appellant said that he was the only person who stayed in the bedroom.

Second, the appellant identified the bedroom as his. However, it is not unnatural for one of two brothers who shared a bedroom to identify the room as “his.” Moreover, the appellant testified that his brother had shared the bedroom with him for all of the appellant’s life, and he also denied any knowledge of the cannabis. Cf. Griffin v. State, 276 So.2d 191, 193 (Fla.4th DCA 1973) (fact that defendant told police to “get off his property” was not an admission of exclusive possession, especially because during the week before the drug search, other persons had entered the house occupied by the defendant); Brownlee v. State, 354 So.2d 120 (Fla.3d DCA 1978) (fact that defendant admitted that a bedroom was “his room” was legally insufficient to show knowledge of cannabis therein when room was occupied by defendant and another person); Johnson v. State, 381 So.2d 342, 343 (Fla.3d DCA 1980) (the defendant’s generalized statement about owning everything in an apartment was rendered entirely valueless by the absence of any indication that he knew that the cannabis was there, and by his affirmative statement that he did not know of the cannabis).

Third, the State argues that even though the appellant’s brother occupied the bedroom at one time, the brother had not occupied it for at least 3 days before the search. But this does not negate the reasonable hypothesis that the brother had access to the bedroom and an opportunity to hide cannabis therein only 3 days before the search, without the appellant’s knowledge.

Fourth, at the time of the search, the appellant appeared to be “very high.” The State argues that this indicates knowledge because in Molinaro v. State, 360 So.2d 119 (Fla.3d DCA 1978) cert. den 368 So.2d 1371 (Fla.1979), drugs were found on the seat of a car between the driver and passenger, and the fact that the passenger had passed out indicated that she knew of the drugs’ presence. 360 So.2d at 120. However, in Moli-naro, drugs were also found on the floorboard in front of the passenger. None of the drugs were concealed. The Court in Molinaro noted that these undisputed facts allowed for an inference that the defendant knew of the presence of the drugs. In the instant case, unlike Molinaro, the cannabis was concealed and not found immediately in front of the appellant. Moreover, the appellant denied being “high” in any way, while he also denied any knowledge of the cannabis. Furthermore, he stated that he only used the stereo on top of the bedroom end table, and not the table itself.

The State has failed to establish, either directly or indirectly, that the appellant had any knowledge of the cannabis. The State’s evidence is entirely circumstantial, and thus, no matter how strongly such evidence may suggest guilt, the conviction cannot be sustained unless the evidence excludes every reasonable hypothesis of innocence. See McArthur v. State, 351 So.2d 972, 976 n.12 (Fla.1977). In this instance, the evidence does not exclude the “possibility of possession and scienter by others.” Thompson, 375 So.2d at 636. Specifically, there is a reasonable doubt as to whether the appellant’s brother placed the cannabis in the end table drawer without the appellant’s knowledge. When the evidence presented in a case fails to exclude such a reasonable doubt, that evidence is legally insufficient to present a jury issue on the appellant’s knowledge of the presence of drugs. Therefore, the motion for a judgment of acquittal should have been granted. See Willis v. State, 320 So.2d 823, 825 (Fla.4th DCA 1975). See also McArthur v. Nourse, 369 So.2d 578, 580-81 (Fla.1979).

Accordingly, the judgment is reversed.

MeCORD, J., concurs.

MILLS, C. J., dissents with an opinion.

MILLS, Chief Judge,

dissenting:

I would affirm. There was competent substantial evidence supporting the trial court’s denial of the defendant’s motion.

        Cf. Winchell v. State, 362 So.2d 992, 995 (Fla.3d DCA 1978) cert. den. 370 So.2d 462 (Fla. 1979) (where there was joint possession of a motel room, the jury could infer that the defendant knew of unconcealed cannabis.)


author: PER CURIAM.

text:
    KRISPY KREME DOUGHNUT COMPANY and Gallagher Bassett Insurance Service, Appellants, v. Leland W. PIPKINS, Appellee.
    No. SS-289.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.
    James B. Cantrell of Pitts, Eubanks & Ross, Orlando, for appellants.
    Curtis B. Goff, Orlando, for appellee.
   PER CURIAM.

The employer/carrier appeal a workers’ compensation order awarding permanent partial disability benefits based on loss of wage earning capacity. We agree with appellant’s contention that the order must be reversed because there is no finding of permanent anatomical impairment which is a prerequisite to an award based on wage earning capacity loss. Agrico Chemical Company v. Laws, 384 So.2d 722 (Fla. 1st DCA 1980). This requirement is not altered by the rule in Tropicana Pools Inc. v. Truex, 287 So.2d 71 (Fla.1973), that a deputy commissioner may assign a permanent impairment rating based on the testimony of the claimant, despite contradictory testimony by the treating physician.

REVERSED AND REMANDED, to the deputy commissioner for further findings as directed by this opinion.

ERVIN, LARRY G. SMITH and SHIVERS, JJ., concur.

      . A statutory change, Section 440.25(3)(b), Florida Statutes (1978), although not applicable in this case, prohibits a finding of physical impairment greater than the highest permanent impairment rating given by a physician. Colonial and Semoran Shell Service, et al. v. Grissom, 389 So.2d 1219 (Fla. 1st DCA 1980).


author: SHAW, Judge. ROBERT P. SMITH, Jr., Judge,

text:
    Bosie JACKSON, Appellant/Cross-Appellee, v. ALACHUA COUNTY SCHOOL BOARD; Kemper Insurance Company, Appellees/Cross-Appellants.
    No. SS-398.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.
    Thomas W. Davis of Barton & Cox, Gainesville, for appellant/cross-appellee.
    Barry D. Graves of Ritch & Graves, P.A., Gainesville, for appellees/cross-appellants.
   SHAW, Judge.

The claimant, a 43-year-old custodian with the Alachua County School Board, sustained a compensable injury on September 24, 1976, while attempting to move a piano. He underwent two efforts at epidural nerve blocks and two surgeries in September of 1977 and June of 1978. Subsequent to the second surgery he was assigned a maximum medical improvement date of February 8, 1979 which was later changed to coincide with a June 18, 1979 myelogram. Dr: Cauthen admitted in response to cross-examination that the June 18th myelogram was performed solely for the purpose of ruling out the possibility of recurrent disc hernia. The myelogram did, in fact, rule out this possibility. It appears therefore that the record supports the deputy’s finding that the true date of maximum medical improvement was February 8,1979. The order is accordingly affirmed as to the issues presented in Points 1 and 2.

The deputy found that the claimant failed to demonstrate a wage earning capacity loss in excess of a 10% anatomical disability. This finding is not supported by competent substantial evidence. The claimant has a work history of heavy labor with no experience or training in inside office-type jobs. As a result of his industrial injury, he has undergone two epidural nerve blocks and surgeries, is permanently restricted from lifting weights in excess of 40 pounds, experiences pain in lifting weights in excess of 20 pounds and on torsional movements. According to the claimant he feels the need to lie down several times daily, he can walk only two or three blocks without something to lean on after-wards, he is unable to sweep because the twisting motion hurts his back and if he sits or stands for 25 or 30 minutes he has back pain and his legs hurt. He takes muscle relaxants and nerve pills and, when traveling for any appreciable distance, he must wear a back brace. There is nothing in the record or the deputy’s order to indicate that this testimony lacked credibility.

After obtaining MMI the record reflects that the claimant submitted applications and made inquiries at numerous named businesses for jobs within his limitations. He sought employment through newspaper ads and filled out an application with the Florida State Employment Service. His efforts to find employment continued up to the time of the hearing. It is the opinion of this court that such a work search meets the requirements of Exxon v. Alexis, 370 So.2d 1128, (Fla.1978).

The order is accordingly reversed as to Points 3, 4 and 5, and the cause is remanded with directions that the deputy reconsider his order in light of the factors enumerated in Walker v. Electronic Products & Engineering Company, 248 So.2d 161 (Fla.1971).

As to the issue on cross-appeal, the order is reversed. The deputy erred in computing the claimant’s average weekly wage by including retirement benefits which had not vested. Sunland Training Center v. Irving, 384 So.2d 745 (Fla. 1st DCA 1980).

The cause is remanded to the deputy with directions that he reconsider his order in light of this opinion.

BOOTH, J., concurs.

ROBERT P. SMITH, Jr., J., concurs in part, dissents in part with opinion.

ROBERT P. SMITH, Jr., Judge,

concurring in part and dissenting in part:

I concur in the court’s decision on the cross-appeal holding as a matter of law that retirement benefits which had not vested should not be included in computing the claimant’s average weekly wage. I disagree with the court’s decision that the claimant performed a sufficiently diligent work search to demonstrate his entitlement to disability benefits for a wage earning capacity loss exceeding his anatomical disability. I think the court reaches this factual conclusion by reevaluating the persuasiveness of claimant’s testimony and discounting evidence and legitimate inferences from evidence which led the deputy commissioner to a contrary finding that

. . . the claimant has failed to demonstrate any greater degree of disability from a diminution of wage earning capacity standpoint than the anatomical rating.

On this issue I would sustain the deputy.


text:
    Olga CANTILLO, Appellant, v. GATOR SHOE CORPORATION and Old Republic Insurance Company, Appellees.
    No. SS-488.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.

      David H. Levine of Ser, DeCardenas, Levine, Busch & Allen, P. A., Miami, for appellant.
    John F. McMath, P. A., Miami, for appel-lees.
   PER CURIAM.

The claimant appeals an order of the deputy commissioner entered November 13, 1979. We affirm except as to the finding claimant is not entitled to interest under the Florida Workers’ Compensation Act, Chapter 440. Claimant is entitled to interest on the award from the date she should have begun receiving payments. Parker v. Brinson Construction Company, 78 So.2d 873 (Fla.1955). Therefore, the portion of the order finding interest not applicable is reversed.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: BOOTH, Judge.

text:
    Edward FINOCCHIO, Appellant, v. U. S. FIDELITY & GUARANTY COMPANY, Appellee.
    No. TT-282.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.
    John W. Boult, Tampa, for appellant.
    Toby S. Monaco of Dell, Graham, Willcox, Barber, Ryals, Henderson & Monaco, P.A., Gainesville, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a final declaratory judgment entered in the Circuit Court, Alachua County, holding that appellee, U.S. Fidelity & Guaranty Company, was entitled to a setoff against uninsured motorist coverage provided appellant for personal injury protection benefits and medical payment benefits paid to or on behalf of appellant. We affirm.

The insured, appellant herein, was involved in an automobile accident on February 23, 1979 with an underinsured motorist, whose liability insurer paid the $10,000 policy limits to appellant. Appellant’s own insurer paid him $10,000 in PIP benefits and $5,000 in medical benefits under its policy, which provided for UM coverage of $100,-000. Appellant contends that Florida Statutes § 627.727(1), as amended effective October 1,1979, should be applied retroactively so as to make the setoff improper. Two recent cases from this court hold to the contrary. Carter v. Government Employee’s Insurance Company, 377 So.2d 242 (Fla. 1st DCA 1979, cert. denied, 389 So.2d 1108 (Fla.1980); Hall v. Liberty Mutual Insurance Company, 376 So.2d 1183 (Fla. 1st DCA 1979), cert. denied, 385 So.2d 757 (Fla.1979). We adhere to those opinions, recognizing that a contrary view has been taken in State Farm Mutual Automobile Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980).

Accordingly, the judgment below is affirmed.

ROBERT P. SMITH, Jr., and SHAW, JJ., concur.

      . Chapter 79-241, Laws of Florida: . [0]nly the underinsured motorist’s automobile liability insurance shall be set-off against underinsured motorist coverage . . .


author: WENTWORTH, Judge.

text:
    COUNTY SANITATION and Commercial Union Assurance Companies, Appellants, v. Mark A. ROSS, C. J. Goodrich Construction, and Florida Farm Bureau Insurance Co., Appellees.
    No. VV-473.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.
    Harry D. Robinson, P. A., West Palm Beach, for appellants.
    Marjorie D. Gadarian, of Jones & Foster, P. A., West Palm Beach, for appellees.
   WENTWORTH, Judge.

Employer/carrier Goodrich Construction and Florida Farm Bureau have moved to dismiss this appeal from a workers’ compensation order or to be dismissed as parties appellee because the notice of appeal was not amended to name Goodrich and Florida Farm or served on them within 30 days after entry of the order appealed. We deny the motion but extend the time for these parties to cross-appeal.

Claimant, Ross, sustained two work-related back injuries. At the time of the first accident he was employed by County Sanitation. At the time of the second accident he was employed by C. J. Goodrich Construction Company. Ross filed a claim for benefits under both employers and their carriers. Goodrich and its carrier asserted that all of claimant’s injury and disability were due to the accident which occurred when claimant was employed by County Sanitation. Goodrich sought reimbursement from County Sanitation for all disability and medical benefits paid to or in claimant’s behalf. The deputy commissioner found both accidents compensable and found that each employer/carrier was equally responsible for temporary total benefits and medical care after the second accident. County Sanitation was ordered to reimburse Goodrich for 50% of the temporary disability and medical benefits already paid.

County Sanitation filed' a timely notice of appeal specifically identifying the order appealed but listing the claimant as the only party appellee. Only the claimant was served with the notice of appeal. Goodrich, unaware that an appeal had been taken, began paying its portion of the temporary disability compensation due under the order. Approximately two months after the deputy’s order was rendered, Goodrich received an amended notice of appeal listing the claimant, Goodrich and its carrier as parties appellee. Fifteen days later, Goodrich and its carrier filed this motion to be dismissed as parties appellee.

Under the Florida Appellate Rules, 1962 Revision, when an appeal was taken, all parties to the cause not named as parties appellants were automatically parties ap-pellee. Rule 3.11, F.A.R. If the notice of appeal adequately identified the order appealed from, the notice was sufficient to withstand a motion to dismiss. Greyhound Corporation v. Carswell, 181 So.2d 638 (Fla. 1966). Notices of appeal which failed to name certain defendants as appellees were not subject to dismissal when the notice adequately designated the judgment appealed. Tamiami Abstract and Title Company v. Malanka, 183 So.2d 22 (Fla.2d DCA 1966).

The 1977 revision of the Florida Rules of Appellate Procedure substantially reworded the rule concerning parties. Fla.R.App.P. 9.360. The first section of the new rule establishes the procedure for a party to the cause in the lower tribunal to join in a proceeding as a petitioner or appellant. No specific reference is made to joinder of additional respondents or appellees. However, Rule 9.020(f)(2) defines the term “ap-pellee” as “every party in the proceeding in the lower tribunal other than an appellant.” Fla.R.App.P. 9.020(f)(2). The clear intent of the rule is to continue the practice of the earlier rule. The committee notes following Rule 9.360 express this intent by stating: “This rule is intended as a simplification of the former rules with no substantial change in practice.”

In the present case appellees Goodrich and its carrier were clearly parties to the cause in the lower tribunal and to the resulting order on appeal. It is also clear that the original notice of appeal timely filed in this case specifically identified the order appealed. Since the notice requirements of Rule 9.100, Florida Rules of Appellate Procedure, were met, the jurisdiction of this court was properly invoked.

A copy of all documents filed pursuant to the Rules of Appellate Procedure are to be served on each of the parties before filing or immediately thereafter. Fla.R.App.P. 9.420(b). However, service of the notice of appeal is not jurisdictional. State v. Carroll, 151 So.2d 5 (Fla.1963); Williams v. State, 324 So.2d 74 (Fla.1975). While the sanction of dismissal is clearly available in proper circumstances for failure of appellant to comply with the rules, we decline to do so in this case. That extreme sanction should be imposed only when there has been a showing of substantial prejudice. Appellees here argue they have been prejudiced by paying out temporary disability benefits during the pendency of this appeal without provision for recoupment. Additionally, appellees contend that they have been prejudiced because they have been precluded from filing a cross-appeal because the time for filing a notice of cross-appeal has expired.

The time for filing a notice of cross-appeal has been held non jurisdictional and may be extended by the court. Agrico Chemical v. Department of Environmental Regulation, 380 So.2d 503 (Fla.2d DCA 1980); Brickell Bay Club Condominium Association v. Forte, 379 So.2d 1334 (Fla.3d DCA 1980). Safeco Insurance Company v. Rochow, 384 So.2d 163 (Fla.5th DCA 1980). Under the circumstances of this case we conclude in favor of appellees’ right to file a notice of cross-appeal although the time prescribed by the rules has expired.

The appellees’ apparent inability to recoup monies paid in compliance with the appealed order does not in the circumstances shown here warrant their dismissal as parties appellee. We express no opinion as to what liability County Sanitation and its carrier may have with regard to monies expended by appellees.

The motion to be dismissed as parties appellee or to dismiss appeal is hereby denied. Appellees C. J. Goodrich Construction and Florida Farm Bureau Insurance Company shall have the right to cross-appeal by serving a notice within ten (10) days of the filing of this opinion.

JOANOS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: SCHEB, Chief Judge.

text:
    HOWELL F. DAVIS & ASSOCIATES, INC., a Florida Corporation, Appellant, v. Ervin LAABS and Robert P. Dunkin, Appellees.
    No. 80-174.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1980.

      Guy H. Amason, Jr., Fort Myers, for appellant.
    Leslie T. Ahrenholz, Fort Myers, for ap-pellees.
   SCHEB, Chief Judge.

After hearing the plaintiff’s evidence in a nonjury trial for breach of alleged oral contracts, the trial court denied the plaintiff’s motion to amend its complaint to seek recovery for the reasonable value of its services. The defendants moved to dismiss the plaintiff’s suit on the ground that the plaintiff had failed to establish that the defendants had promised to pay on the first alleged contract and had failed to establish the price and terms of the second alleged contract. The trial court granted the defendants’ motion. We reverse.

Howell F. Davis & Associates, Inc., sued Ervin Laabs and Robert P. Dunkin for payment for professional services rendered to them. In Count I of its amended complaint, Davis alleged that it had entered into an oral agreement with Laabs and Dunkin, and that pursuant to that agreement it had furnished engineering and design services for a mobile home project called The Groves. On that project Davis alleged that it had rendered a bill for $19,-334; that Laabs’ and Dunkin’s construction mortgagee had paid $14,307.25; and that a balance of $5,026.75 remained due. In Count II Davis claimed that pursuant to a separate oral agreement with- Laabs and Dunkin concerning the Lazy Tide Apartments development, it was due $2,235 for having prepared a survey and having furnished other planning and design services.

After Davis had presented its case, it rested subject to the right to present the testimony of an engineer who, according to Davis’ proffer, would testify as to the reasonable value of the services Davis had rendered. At that point Laabs and Dunkin moved to dismiss Count I on the ground that Davis had failed to prove that Laabs had agreed to pay any sum and moved to dismiss Count II on the ground that there was no testimony as to the price and terms of the alleged oral agreement concerning the Lazy Tide Apartments project. The trial court granted Laabs’ and Dunkin’s motion to dismiss. The trial judge observed, “Had the complaint been one in quantum meruit I would have no problem.” By this time Davis had moved to amend its pleadings to conform to the evidence it had proffered as to the reasonable value of its services. The court, however, denied the motion and entered final judgment for Laabs and Dunkin. Davis filed this appeal.

Davis’ complaint did not allege that its oral contracts with Laabs and Dunkin incorporated fixed prices and terms. Rather, the thrust of its allegations was that it had rendered services as Laabs and Dunkin had requestéd, and that it claimed certain sums for those services.

Davis’ amended complaint was not a model pleading. While it did not allege an implied promise on the part of Laabs and Dunkin to pay a reasonable sum for the value of the services rendered as it should have, still it stated a cause of action. It alleged a contract, that Davis had furnished services pursuant to the contract, a breach of the promise to pay by Laabs and Dunkin, and sought payment of specific sums. Thus, the complaint impliedly alleged that the sum claimed was reasonable compensation for the services Davis had rendered. Consequently, it stated a cause of action for the reasonable value of services rendered, and the trial court should have admitted evidence as to the reasonableness of the compensation sought.

If, on the other hand, the court concluded that an amendment alleging a claim for the reasonable value of services was required, it should have granted Davis’ motion to amend the complaint to conform to the proof. See Town of Holbrook v. Girand, 52 Ariz. 291, 80 P.2d 695 (1938). Florida Rule of Civil Procedure 1.190(b) provides that parties should be freely allowed to amend their pleadings unless the party objecting to the amendment can show that the amendment will prejudice his case. See McNayr v. Cranbrook Investments, Inc., 158 So.2d 129 (Fla.1963); Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla. 1st DCA 1975). Laabs and Dunkin did claim that permitting an amendment would prejudice their case because they were not prepared to present evidence on the reasonable value of Davis’ services. Since the complaint alleged a contract, the services rendered, and the specific sums due, Laabs and Dunkin should have been prepared to litigate the reasonableness of the amounts sought by Davis. And, of course, they could have learned any additional details through the discovery process. Thus, it is difficult to see how Laabs and Dunkin would have been prejudiced by granting Davis’ motion to amend. Nevertheless, if the trial court was convinced that permitting an amendment would prejudice Dunkin and Laabs, it should have granted a continuance to enable them to prepare to litigate the reasonable value of Davis’ services. Since this was a nonjury case, a continuance would not have affected that part of the trial already conducted.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

HOBSON and GRIMES, JJ., concur.

      . Davis’ complaint included a third count in which it contended that Laabs and Dunkin owed it $100 for its having surveyed two lots for them. That count became moot, however, as Laabs and Dunkin tendered the $100 Davis claimed, and the court entered judgment accordingly.


author: THOMPSON, Judge.

text:
    Alfonso HERNANDEZ, Appellant, v. MIKE CRUZ MACHINE SHOP, Appellee.
    No. SS-174.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.

      Alexander M. Weinberg of Ser, DeCarde-nas, Levine, Busch & Allen, Miami, for appellant.
    Frank X. Gliozzo, Coral Gables, for appel-lee.
   THOMPSON, Judge.

The appellant challenges a worker’s compensation Order, contending in part that the Deputy Commissioner (“the Deputy”) lacked subject matter jurisdiction to enter that Order. We agree and reverse.

On August 14, 1978, the claimant was injured while he was disassembling a ship’s engine on board the “Rio Chagres,” which was docked on a navigable waterway in front of Biscayne Boulevard. A claim was filed on September 1, 1978, and a hearing was held on July 5, 1979. On October 3, 1979, the claimant moved to withdraw his claim until a determination could be made as to whether jurisdiction herein was within the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq. On October 8, 1979, the Deputy entered his Order, finding inter alia that he had subject matter jurisdiction herein.

Section 440.09(2), Fla.Stat., provides that “[n]o compensation shall be payable in respect of the disability or death of any employee covered by . . . the Longshoremen’s and Harbor Worker’s Compensation Act [‘The Act’].... ” See also City of Plantation v. Roberts, 342 So.2d 69, 70-71 (Fla.1976). In this case, the claimant’s disability is covered by the Act.

Title 33 U.S.C. § 903(a) provides in part that

Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).

Title 33 U.S.C. § 902(3) states that

The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.

Read in conjunction, these statutes provide a two-pronged test for compensation: the “situs” of the injury must occur upon navigable waters (including any adjoining pier, etc.), and the “status” of the injured person must be maritime in nature. See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 264-65, 97 S.Ct. 2348, 2357-58, 53 L.Ed.2d 320 (1977).

In the case at bar, the injury occurred upon navigable waters; i. e., the waterway in front of Biscayne Boulevard. Additionally, the claimant was engaged in maritime employment; i. e., the activity of disassembling a ship’s engine so that it could be repaired. As pointed out in Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 539-40 (5th Cir. 1976), under the Act, “an injured worker is a covered ‘employee’ if at the time of his injury (a) he was performing the work of ... repairing . . . or breaking a vessel, or (b) although he was not actually carrying out these specified functions, he was ‘directly involved’ in such work.” Finally, we note that the claimant was not a member of the vessel’s “crew,” since that term applies only to those who are naturally and primarily on board a vessel to aid in her navigation. “Crew” also signifies a permanent attachment to a vessel. See Norton v. Warner Co., 321 U.S. 565, 571-73, 64 S.Ct. 747, 750-51, 88 L.Ed. 931 (1944). These elements are lacking herein. Thus, the claimant is an “employee” under the Act, and the disability at issue is within the coverage of the Longshoremen’s and Harbor Workers’ Compensation Act. Accordingly, the Deputy had no jurisdiction to enter his Order, and that Order is reversed.

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


text:
    OFFSHORE POWER SYSTEMS, an unincorporated joint venture between Westinghouse Electric Corporation, a Pennsylvania corporation, and Westinghouse International Power Systems Company, Inc., a Delaware corporation, Appellant, v. The DEPARTMENT OF REVENUE of the State of Florida, and Gerald A. Lewis, as Comptroller of the State of Florida, Appellees.
    No. SS-319.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.
    Ralph H. Martin and Stephen H. Durant of Martin, Ade, Birchfield & Johnson, Jacksonville, for appellants.
    Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., for appellees.
   BOOTH, Judge.

This cause is before us on appeal from a summary final judgment entered against plaintiff in its suit for a refund under Florida Statutes § 212.08(5)(b) 1. & 3., which provides as follows:

1. Industrial machinery and equipment purchased for use in new businesses which manufacture, process, compound, or produce for sale items of tangible personal property at fixed locations shall be considered exempt from the tax imposed by this chapter upon an affirmative showing by the taxpayer to the satisfaction of the department that said items will be used in a new business in this state. Said purchases must be made pri- or to the date said business first begins its productive operations, and delivery of the purchased item must be made within 12 months of said date.
3. The exemptions provided by sub-paragraphs 1. and 2. shall inure to the taxpayer only through refund of previously paid taxes. Said refund shall be made within 30 days of formal approval by the department of the taxpayer’s application.

The trial court correctly found that there was no genuine issue as to any material fact in the cause. Plaintiff purchased and accepted delivery of a gantry crane on July 26, 1978, an item of industrial machinery purchased for use in a new business, and paid some $565,027.68 in sales tax. The refund applied for under the foregoing statute was denied by the office of the controller, and complaint was filed in the Circuit Court alleging that Offshore Power Systems (OPS) is in the process of constructing a manufacturing facility in Duval County and has expended some $127,000,000 on this facility to date; that OPS has no contract for the sale or delivery of any of its floating power plants at this time; and that it has not yet begun its production operations. The complaint further alleges that OPS has purchased a 900 metric ton gantry crane for a sum in excess of $14,000,000, which crane was purchased for use in the new business of OPS.

The reason for denial of the refund stated by the controller is that § 212.08(5)(b) 1. & 3. “requires that new industrial machinery purchased for use in a new business be used in producing items of tangible personal property for sale” and that the exemption is not authorized until “active production” has begun. The trial court agreed and ruled that “[t]he act presupposes that productive operations will have begun prior to the time the refund is sought or granted.”

Florida Statutes § 212.08(5)(b) sets forth the express requirements for the exemption. It is uncontested that appellant is in compliance with these statutory requirements. The Legislature did not see fit to make commencement of productive operations a requisite to application for a refund, and we do not find such a requirement implicit from either the statute or its purpose to encourage the creation and expansion of industry within the state.

Accordingly, the judgment below is reversed and cause remanded for entry of judgment allowing refund.

ROBERT P. SMITH, Jr., and SHAW, JJ., concur.


text:
    Greg A. HALPHEN, Appellant, v. WESTERN CONTRACTING CORP. et al., Appellees.
    No. TT-35.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.

      Ramon Clark Calafell, Jr. of Wagner, Cunningham, Vaughn, Genders & McLaughlin, Tampa, for appellant.
    Ivan Matusek and Kathleen R. Hudson, St. Petersburg, for appellees.
   WENTWORTH, Judge.

Claimant appeals a workers’ compensation order granting employer/carrier’s motion to vacate an order entered 19 days earlier approving a joint petition settlement. We affirm because the prior order had not become a final order under the terms of § 440.25(4)(f), Florida Statutes (1979), and no appeal had been taken. The deputy acted within his authority in vacating the prior order in these circumstances. Mills v. Laris Painting Co., 125 So.2d 745 (Fla.1961).

The deputy determined that the order should be set aside “in order to preserve the rights of the parties . .. and a further hearing scheduled for the purpose of considering the issues raised by the Motion to Vacate.” Those issues related to alleged mutual mistake or misrepresentation by the claimant as to subject matter jurisdiction in the settlement proceeding, because of the claimant’s filing of a “Jones Act” suit after the settlement hearing and before the entry of the order approving settlement based on the same accident. Section 440.09(2) provides that “no compensation shall be payable ... [to] any employee covered by . . . the Jones Act.” This provision is construed to be jurisdictional in nature, Habrew Maritime International v. Williams, IRC Order 2-3673 (Jan. 31, 1979), and the claimant’s pending Jones Act claim in the present case appears to be a reasonable ground for the deputy to reconsider his prior order approving the settlement agreement. For standards applicable to final settlement orders see East v. Pensacola Tractor, 384 So.2d 156 (Fla. 1st DCA 1980), cert. den., 384 So.2d 159 (Fla.1980), and Morgan Yacht v. Edwards, 386 So.2d 883 (Fla. 1st DCA 1980).

We note that the vacating order was entered after a hearing held with less than 15 days’ notice. While § 440.25(3)(a) requires 15 days’ notice, the deputy has discretion to schedule a hearing on shorter notice in appropriate circumstances. See Lundy’s Market Inc. v. Wexler, IRC Order 2-3739 (March 20, 1979). Claimant’s appearance at and participation in the hearing, without raising the notice issue, indicates waiver and further precludes consideration of the issue on appeal. Poinciana Village v. Sustack, IRC Order 2-3676 (January 31,1979); Patterson v. Carnegie, 9 FCR 368 (1976), cert. dismissed 336 So.2d 600 (Fla.1976).

The order appealed is affirmed.

JOANOS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: MILLS, Chief Judge.

text:
    HOME INSURANCE COMPANY ex rel. WHITE’S IMPORTS, INC., Appellant, v. Lamon H. SMALL, Appellee.
    No. TT-71.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.

      Danny L. Kepner of Shell, Fleming, Davis & Menge, Pensacola, for appellant.
    Ronald W. Ritchie of Reeves, Barfield & King, Pensacola, for appellee.
   MILLS, Chief Judge.

This appeal is from a final order denying a writ of replevin. We reverse.

On 6 April 1975, an automobile owned by White’s Imports, Inc., appellant, was stolen from its car lot in Mobile, Alabama, and the theft was reported to the Mobile City Police. There was no title certificate for the car because the Alabama law at that time did not require a title certificate. The company made a claim against the insurance policy which, minus the deductible, was paid by Home Insurance Company. Upon payment, White’s executed a receipt subrogat-ing all rights and causes of action against third parties.

Subsequently, the car was found in Es-cambia County, Florida, and ended up in a “boneyard,” a collecting place for abandoned vehicles operated by the Escambia County Sheriff’s Department. A Pensacola area car dealer obtained possession of the car through illegal means, secured a Florida title certificate by submission of a false affidavit, and sold the car. Lamon Small eventually purchased the car from a person in the chain of title emanating from the car dealer.

In October 1978, Small learned that someone else had a claim on the vehicle and in February 1979 appellant learned that Small had the car. In the spring of 1979, Small had repairs costing $1,032.45 done to the car. On 26 June 1979, the action for replev-in was filed against Small. Small defended by asserting three affirmative defenses: (1) that the action was barred by laches, (2) that plaintiff was estopped from asserting its claim because it failed to file or assert any claim with the Florida Division of Motor Vehicles, and (3) that the defendant was a good-faith purchaser in the ordinary course of business.

After a hearing the trial judge denied the writ of replevin on the basis that appellants were estopped from asserting the claim. The court further ruled that Small had an equitable lien for the repairs but that the amount of the lien need not be determined because of the ruling on replevin. We disagree with both holdings.

First of all, we should note that a person generally cannot transfer better title than he has. As stated in Federal Insurance Company v. Mercer, 237 So.2d 243 (Fla. 4th DCA 1970):

The obtaining of a Florida motor vehicle title certificate does not vest title where none exists. Under Florida law, in the absence of some intervening principle of estoppel, one in possession under a defective Florida title certificate cannot defeat recovery of the vehicle by the true owner.” (237 So.2d at 247)

Thus, if Small were to prevail in his claim, he had to establish his estoppel defense.

This court, in Davis v. Evans, 132 So.2d 476 (Fla. 1st DCA 1961), accepted Lord Coke’s definition of estoppel as a situation where “a man by his own acts or acceptance is concluded from saying the truth.” In addition, the court identified the essential elements of estoppel as:

(1) a representation by the party es-topped to the party claiming the estoppel as to some material fact, which representation is contrary to the condition of affairs later asserted by the estopped party; (2) a reliance upon this representation by the party claiming the estoppel; and (3) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon. (132 So.2d at 481)

The facts of this case reveal no misrepresentation by appellant nor any reliance by Small on any representation by it.

Small urges that the basis for estop-pel is that appellant failed to notify the Florida Division of Motor Vehicles of the theft. Since Pensacola, Florida, is the nearest metropolitan center to Mobile, Small asserts, it was reasonable for appellant to anticipate that the automobile might be brought to Florida. In addition, Small points out that appellant knew of the location of the vehicle in February of 1979 and did nothing to assert its claim until June 1979-after Small had invested his time and money in repairs.

The facts of this case are similar to those in Avis Rent-a-Car System, Inc. v. Harrison Motor Co., 151 So.2d 855 (Fla. 2d DCA 1963). There a Vermont registered automobile was rented in New York State and not returned. It was reported stolen to the city and state police and to the F.B.I. The bailee brought the car to Florida and submitted a false application for a Florida title, secured such title, and sold the car to the defendant. The trial court held that the plaintiff was estopped to claim title because of a failure to notify Florida authorities. The Second District Court of Appeal reversed, holding that the plaintiff did not have knowledge that the thief would commit a crime and the car would be taken to Florida. Thus, he was not estopped to seek return of his car. While we recognize that Pensacola is near Mobile, we think one of the lessons of Avis is that the car may not be taken to the nearest large city or the nearest state. One could be as easily required to guess that the car would be taken to New York from Alabama as to guess that it would be taken to Florida from Alabama.

Even if Small’s assertion that the failure of appellant to act for four months after it discovered the location of the vehicle established undue delay, which we do not concede, the time frame is not relevant to the issue of estoppel. Though misrepresentation may be by failure to act as well as by act, Davis v. Evans, supra, the relevant time frame would be when Small purchased the vehicle and it is undisputed that the purchase was in October of 1977 and appellant did not know where the vehicle was at that time.

In summary, it was error for the trial court to deny appellant’s action for replevin on the ground that it was estopped from asserting the claim.

Regarding the question of Small’s equitable lien for the repairs, we note that the trial court need not have ruled on this matter in light of its disposition of the replevin claim. Since it did do so, and our reversal of the replevin ruling requires a ruling on the equitable lien claim, we will, in the interest of judicial economy, dispose of that issue also.

The equitable lien issue was not raised by the pleadings; however, testimony concerning the amount of time, effort, and money put into the repairs of the vehicle by Small was introduced without objection. Under these circumstances, it was proper for the judge to treat the issue as though it had been raised by the pleadings. H. Trawick, Florida Practice and Procedure, §§ 14-6, 22-17 (1979).

On the merits, the claim of equitable lien should have been denied because it is undisputed that Small knew of the adverse claim to the automobile before he made the repairs or improvements. As the Florida Supreme Court held in Johns v. Gillian, 134 Fla. 575, 184 So. 140 (1938), a lien will not be imposed in favor of one who makes improvements when that person has notice of the existence of an adverse claim which subsequently proves to be superior. Notice is defined in that case as anything calculated to put a man of ordinary prudence on the alert. Estoppel against the appellants could be found if there were anything in the record to indicate that they knew that the repairs were being made and stood silently and allowed that to happen, but there is nothing in the record to indicate that they knew that.

REVERSED and REMANDED for proceedings consistent with this opinion.

McCORD and THOMPSON, JJ., concur.


text:
    Juanita Moses JORDAN, Appellant and Cross-Appellee, v. Harvey Merle JORDAN, Appellee and Cross-Appellant.
    No. UU-7.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.
    E. G. Musleh, Ocala, for appellant and cross-appellee.

      E. Lee Worsham of LaCoe & Worsham, Gainesville, for appellee and cross-appellant.
   THOMPSON, Judge.

This is an appeal and cross-appeal from a Final Judgment which dissolved appellant’s marriage with the appellee.

Upon consideration of the briefs and the record, we find that the trial court should have explicitly incorporated the provisions of the pre-dissolution Agreement into the Final Judgment. Additionally, the Final Judgment should have resolved the remaining issues set forth in paragraph 11 of the Agreement.

In respect to the cross-appeal, if the trial court should determine that the husband is to be responsible for the wife’s future medical expenses, the court should determine his maximum liability in this regard. See Peteler v. Peteler, 145 So.2d 291, 292 (Fla.3d DCA 1962).

Accordingly, the Judgment is reversed and this cause is remanded for proceedings consistent with this opinion.

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


text:
    STATE of Louisiana v. Henry W. ALEXANDER.
    No. 65193.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearings Denied Nov. 21, 1980.
    Kerry P. Cuccia, New Orleans, Supervising Atty., William A. Roe, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Lance Africk, Asst. Dist. Atty., for the State.
   PER CURIAM.

Defendant was charged with possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1. Following a trial on the merits, a jury found defendant guilty as charged, and he was sentenced to ten years at hard labor. Defendant has assigned as error the failure of the trial court to suppress the pistol obtained from his person at the time of his alleged illegal arrest and warrantless search of his person.

Following the defendant’s conviction, enhancement of defendant’s sentence was obtained with the use of a Michigan conviction. We find that the use of this Michigan conviction in the enhancement proceedings under R.S. 14:95.1 was properly proved by the state. The motion for a new trial on these grounds was properly denied.

Having reviewed defendant’s assignments of error and finding that they do not present reversible error, nor do they involve legal issues not governed by clearly established principles of law, the conviction and sentence of the defendant is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Harry Y. PHILLIPS.
    No. 67040.
    Supreme Court of Louisiana.
    Sept. 10, 1980.
    Rehearing Denied Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Speedy 0. Long, Dist. Atty., for plaintiff-respondent.
    Patrick L. Durusau, Jena, for defendant-relator.
   PER CURIAM.

We granted certiorari to review defendant’s claim that our decision in State v. Lindinger, 357 So.2d 500 (La.1978) compelled the granting of his motion for a directed verdict of acquittal in the trial court. Defendant was charged with operating a vehicle while intoxicated, in violation of La.R.S. 14:98. On January 21, 1980, in trial before the court alone, he moved for an acquittal at the close of the state’s case. La.C.Cr.P. Art. 778. Defendant argued that the state’s evidence failed to prove circumstantially his operation of the vehicle while intoxicated on the day in question. The trial court denied the motion, found defendant guilty as charged (defendant not presenting any evidence of his own) and sentenced him to pay a fine in the amount of four hundred ($400.00) dollars. On reviewing the record before us, we agree with the trial court that defendant’s reliance on Lindinger is misplaced. As the evidence in this case would have justified any rational fact finder in the belief that the state had excluded every reasonable hypothesis of innocence, State v. Mathews, 375 So.2d 1165 (La.1979), we now affirm defendant’s conviction.

Evidence at trial showed the following. In the afternoon of June 28, 1978, Joseph Trunzler, a trooper with the state police, spotted defendant’s blue pick-up truck parked at the intersection of Highway 8 and a parish road in Catahoula Parish. The rear wheels of the pick-up truck were on the parish road, the front wheels on the shoulder just off the road. Although it was the middle of the afternoon, the truck’s lights were on. Stopping to investigate, Trunzler found defendant seated at the steering wheel: “[h]is lower torso was maybe behind the wheel. The rest of him was slumped over on the seat.” “The smell of alcohol was tremendous,” the trooper testified, “and I tried to get [defendant] aroused and I couldn’t get him aroused.” Placing the barely conscious defendant under arrest, Trunzler then carried him to the patrol car. Trunzler conceded freely that he never saw the car move and could not tell how long it had been parked at the intersection.

Defendant keyed his argument below to these concessions by Trunzler. He thus argued that the state had failed to prove either that he had been driving the truck when it went off the road, or, that he was intoxicated before, not after, the truck rolled to a stop. The trial judge disagreed and added the following observations: “I think the .. . particularly important item in evidence before me now is the fact that this vehicle was half on and half off the public highway . . . the circumstances warrant finding that he is the individual who drove it there and that was simply as far as he could go .. . the fact that he was found under the wheel, behind the accelerator and brake would ... as so point to the fact that he is the one which drove the vehicle there and passed out before he got off the highway.”

We find the trial court’s reasons persuasive. In State v. Lindinger, supra, this Court emphasized that under La.R.S. 14:98, the state must prove the accused has in fact operated a vehicle while intoxicated. In Lindinger, defendant was discovered, resting against a pick-up truck some 50 to 100 feet off the highway, skid marks tracing the truck’s path from the road. Evidence of defendant’s intoxication was overwhelming. We noted, however, that defendant’s mere presence by the truck was not sufficient to support the inference (beyond reasonable doubt) he had driven it there or, more importantly, that he had done so while intoxicated. We therefore reversed defendant’s conviction.

In this case, on the other hand, defendant was found inside the truck at the steering wheel. The truck’s lights were on, although it was midafternoon, and the vehicle had stopped half on and half off the parish road. We agree with the trial court that this evidence excluded any reasonable possibility that some other person had driven the truck to that location and then abandoned it in that manner to defendant. We also find that this evidence excluded any reasonable hypothesis that defendant had driven the truck to that location and then, with lights on and the back of his vehicle poking out onto the parish road, began drinking himself into a stupor.

Accordingly, we uphold the ruling of the trial court and affirm defendant’s conviction and sentence.

AFFIRMED.

MARCUS and WATSON, JJ., dissent.


text:
    STATE of Louisiana v. Simon SMITH, Jr.
    No. 67295.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Glenn Gremillion, Asst. Dist. Atty., for plaintiff-appellee.
    Harvey R. Lexing, Monroe,, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with aggravated battery, in violation of La.R.S. 14:34. After trial by jury, November 5, 1979, he was found guilty as charged. On November 21, 1979, the trial court sentenced him to nine years’ imprisonment at hard labor, one short of the maximum. Defendant has now appealed his conviction and sentence to this Court, urging the twenty assignments of error filed below. We have reviewed the assignments challenging the verdict in this case, and find them without merit. Accordingly, we affirm defendant’s conviction. We agree with defendant, however, that in imposing an apparently severe sentence in this case, the trial court failed to comply adequately with the sentencing guidelines set forth in La.C.Cr.P. Art. 894.1. We therefore remand this case to the trial court for that compliance.

In a statement of reasons filed in the record on the same day as sentencing, November 21, 1979, the trial court found “.. . that Article [ ] 894.1, Section A, Paragraphs 1, 2 and 3 are applicable,” and that “none of the provisions of Section B of Article 894.1 apply. . . ”. The trial court also noted that defendant had a prior felony conviction in 1970. On this basis, the court imposed its nine-year sentence at hard labor.

In State v. Franks, 373 So.2d 1307, 1308 (La.1979), this Court made clear that a broad re-statement by a trial judge of the factors militating for incarceration under Art. 894.1(A) “... does not satisfy the requirement that the trial court state for the record the considerations taken into account and the factual basis therefore in imposing sentence [as required by Art. 894.1(C)].” On this record, we are therefore unable to determine what weight the trial court accorded defendant’s prior record in its sentencing decision, considering also the circumstances of the offense, and the presence or absence of the mitigating factors set out in Art. 894.1(B). To this extent, we are thus unable to review defendant’s further claim that his sentence is excessive. State v. Dye, 384 So.2d 420 (La.1980); State v. Kenner, 384 So.2d 413 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979).

Accordingly, defendant’s conviction is affirmed, and his sentence is vacated, and the case remanded for resentencing with a full statement of reasons in support of the particular sentence imposed.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED.

BLANCHE, J., dissents.

       Although defendant did not object at the time of sentencing that the trial court had not complied with Art. 894.1, or that the sentence imposed was excessive, we have held that this failing will not bar later review of either corn-plaint. See State v. Bourgeois, 388 So.2d 359, September 3, 1980, No. 66,656; State v. Gist, 369 So.2d 339 (La.1979); State v. Cox, 369 So.2d 118 (La.1979).